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Transcript of Civil Disobedience (1)
A JURISPRUDENTIAL ANALYSIS OF CIVIL DISOBEDIENCE IN SOUTH
AFRICA
by
CHRISTOFFEL HENDRIK HEYNS
MA LLB (Pret) LLM (Yale)
Thesis submitted for the degree Doctor of Philosophy
Faculty of Law
University of the Witwatersrand
Supervisor: Professor J D van der Vyver
B Com LLB BA Honns (PU for CHE) LLD (Pret)
Dip1 Int'1 s Comp L Hum Rts (Int'1 Inst Hum Rts, Strasbourg)
Pretoria, October 1991
ACKNOWLEDGMENTS
I wish to thank the following people and institutions for their support
in writing this thesis:
- The Human Sciences Research Council, which provided financial
assistance.
- My philosophy and law teachers at the University of Pretoria and
Yale Law School, who stirred and shaped my thoughts over the years.
- My colleagues in the Faculty of Law, University of Pretoria, and
especially my departmental colleagues, who have contributed to the
eventual product. I am particularly grateful to Johann van der
Westhuizen, for stimulating discussions, and Isabeau de Meyer, who
did most of the typing, as well as the assistants at the Centre for
Human Rights Studies, and especially Helen Fourie, Isiah Methlape,
Ellen Nicol and Villiers Terblanche, who helped with the
administrative aspects. The personnel at the Merensky Library also
provided a friendly and efficient service.
- Professor J D van der Vyver, my supervisor, who, with his
encyclopedic knowledge of law, philosophy and politics, opened up
new avenues of research and saved me from more mistakes than I care
to remember, while still allowing me to take my own chances.
Ek wi1 ook my familie bedank: my pa, vir sy voorbeeld van kritiese
betrokkenheid, asook my vrou, kinders, ma, broers en skoonma, vir die
ryk en verweefde lewensomstandighede waarin iets soos die voltooiing
van ‘n proefskrif betekenis het. Aan hulle, en danksy hulle, kan ek nou
se: "Dit is klaar!"
Christof Heyns
CONTENTS
ACKNOWLEDGMENTS 2
CHAPTER ONE: INTRODUCTION 12
CHAPTER TWO: DEFINING CIVIL DISOBEDIENCE: ITS ELEMENTS AND MANIFESTATIONS 19
I. THE ELEMENTS OF CIVIL DISOBEDIENCE 22
A. ILLEGALITY 22
B. NON-VIOLENCE 31
C. OPENNESS 38
D. MOTIVATED BY CONVICTION 40
E. POLITICAL ACT 42
II. COMBINATIONS OF THE DIFFERENT TYPES OF CIVIL DISOBEDIENCE 45
III. CAN CIVIL DISOBEDIENCE HAVE REVOLUTIONARY OBJECTIVES? 47
IV. DIRECT AND INDIRECT CIVIL DISOBEDIENCE 49
A. CONSIDERATIONS RELATING TO THE LAWS OBJECTED AGAINST 49
B. CONSIDERATIONS RELATING TO THE TARGET OF THE RESISTANCE 50
V. THE TERM "CONSCIENTIOUS OBJECTION" 52
VI. SCHEMATIC SUMMARY 54
CHAPTER THREE: HISTORICAL SURVEY OF THE DEVELOPMENT OF CIVIL DISOBEDIENCE 56
I. THE ORIGINS OF ILLEGAL RESISTANCE TO AUTHORITY 56
II. THE ORIGINS OF CIVIL DISOBEDIENCE 58
A. AN INTERPRETIVE FRAMEWORK FOR THE HISTORY OF CIVIL DISOBEDIENCE 59
B. DEFENSIVE CIVIL DISOBEDIENCE 63
C. INDIVIDUAL, RESULT-ORIENTED CIVIL DISOBEDIENCE 64
D. PLICATION 70
III. THE MODERN DEVELOPMENT OF MASS, RESULT-ORIENTED CIVIL DISOBEDIENCE 75
A. CIVIL DISOBEDIENCE IN SOUTH AFRICA 76
(1) Early forerunners of civil disobedience 76
(2) Gandhian civil disobedience in South Africa 78
(a) Indians in South Africa in the late Nineteenth Century 79
(b) Legal resistance 1894 - 1906 83
(c) Illegal resistance 1907 - 1914 95
(i) Phase one: Refusal to register (1) 95
(ii) Phase two: Refusal to register (2) 97
(iii) Phase three: Unsuccessful negotiations 99
(iv) Phase four: Satyagraha on a grand scale 103
(d) Evaluation 105
(3) Civil disobedience in South Africa after Gandhi 107
(a) Phase one: The period before World War II 108
(b) Phase two: The 1940's 118
(c) Phase three: The Defiance Campaign of the 1950's 124
(i) Prelude to mass civil disobedience 125
(ii) Rationale of the Campaign 132
(iii) The Defiance Campaign 137
(iv) Consequences of the Campaign 152
- Reaction of the white establishment 152
- Reaction of the black community 158
- International consequences 163
(v) Evaluation of the Defiance Campaign 166
- Civil disobedience in the African context. 167
- Weaknesses in the way in which the Campaign was conducted 167
- Nature of the adversary 168
(vi) Black politics in the wake of the Campaign 169
(d) Phase four: The violent underground struggle starts 179
(e) Phase five: External and internal resistance 180
(f) Phase six: Prospects of reconciliation and new resistance 186
B. GANDHIAN CIVIL DISOBEDIENCE IN INDIA 188
(1) Campaigns conducted by Gandhi 189
(a) Phase one: The Non-co-operation Campaign of the 1920’s 190
(b) Phase two: The Salt Tax Campaign 1930 195
(c) Phase three: The “Quit India” Campaign 198
(2) Gandhi's philosophy of Satyagraha 201
(a) The sources of Satyaqraha 203
(b) Central features of Gandhi’s political thought 206
C. CIVIL DISOBEDIENCE IN THE UNITED STATES OF AMERICA 212
(1) Civil disobedience by native Americans 212
(2) Religious civil disobedience 212
(3) Anti-slavery resistance 213
(4) Henry David Thoreau 214
(5) The Womens’ Rights Movement 216
(6) The Civil Rights Movement 217
(a) The Montgomery Bus Boycott 1955-1956 218
(b) Little Rock 1957 220
(c) The lunch-counter sit-ins 1960 220
(d) The freedom rides 1961 221
(e) Birmingham 1963 222
(f) The March on Washington 1963 224
(g) The Mississippi Summer Project 1964 224
(h) The Civil Rights Act 1964 224
(i) Martin Luther King 225
(7) The anti-Vietnam protests of the 1960’s 228
D. SOME OTHER INSTANCES OF MASS, RESULT-ORIENTED CIVIL DISOBEDIENCE 232
CHAPTER FOUR: CIVIL DISOBEDIENCE UNDER THE SOUTH AFRICAN POSITIVE LAW 235
I. IMPLICATIONS OF THE CRIMINAL LAW FOR CIVIL DISOBEDIENCE 235
A. THE “PRIMARY OFFENCE” 236
B. SECONDARY IMPLICATIONS OF THE CRIMINAL LAW 237
(1) Sentences imposed for crimes of protest 237
(a) Statutory provisions for increased penalties 237
(b) The sentencing policy of the courts 240
(i) The era of white against white conflict 241
(ii) The era of black against white conflict 243
(2) Attempt to commit an act of civil disobedience 254
(3) Civil disobedience as a substantive crime 254
C. TERTIARY IMPLICATIONS OF THE CRIMINAL LAW 256
(1) Incitement of civil disobedience 257
(a) Incitement to commit any offence 257
(b) Incitement to commit a political offence 258
(c) Proclamations prohibiting the incitement of “natives” 265
(2) Assistance of those engaged in civil disobedience 265
D. OTHER CRIMES 269
(1) Treason 270
(2) Sedition 284
(3) Terrorism 288
(4) Subversion 289
(5) Sabotage 291
(6) Defeating or obstructing the course of justice 291
II. EXECUTIVE POWERS AND CIVIL DISOBEDIENCE 292
A. EXECUTIVE POWERS RELATING TO STATE SECURITY 292
(1) Non-emergency powers 292
(d) Detention 293
(i) "Banning" of organizations 294
(ii) "Banning" of -individuals 294
(iii) "Banning" of meetings 294
(2) Emergency powers 295
(e) "Macro emergencies" 295
(f) "Micro emergencies" 296
B. CENSORSHIP AND STATE SECURITY 297
C. EXECUTIVE LENIENCY FOR POLITICAL OFFENDERS 301
III. CIVIL DISOBEDIENCE OF MEMBERS OF THE LEGAL PROFESSION 305
A. THE GENERAL IMPLICATIONS FOR LEGAL PRACTICE OF EARLIER CONVICTIONS 306
B. CONVICTIONS FOR POLITICAL OFFENCES 310
(1) Political crimes in general 311
(g) The era of white against white conflict 311
(h) The era of black against white conflict 313
(2) Civil disobedience 315
IV. CONSCIENTIOUS OBJECTION TO MILITARY SERVICE 324
A. THE LEGAL SANCTION OF COMPULSORY MILITARY SERVICE 327
B. ILLEGAL CONSCIENTIOUS OBJECTION 328
C. LEGAL CONSCIENTIOUS OBJECTION 331
D. EVALUATION 340
CHAPTER FIVE: CLASSICAL VIEWS ON POLITICAL AND LEGAL OBLIGATION AND RESISTANCE 343
I. WESTERN POLITICAL THOUGHT 344
A. THE BIBLE 346
(1) The Old Testament 347
(2) The New Testament 347
B. GREEK PHILOSOPHY 352
(1) Socrates and Plato 352
(2) Aristotle 358
(3) Stoicism 362
C. ROMAN JURISPRUDENCE 364
D. GERMANIC JURISPRUDENCE 373
E. AURELIUS AUGUSTINE 374
F. JOHN OF SALISBURY 378
G. THE RE-EMERGENCE OF ROMAN LAW AND THE GLOSSATORS 381
H. THOMAS AQUINAS 383
I. CANON LAW 387
J. PHILIP OF LEYDEN 388
K. BARTOLUS OF SASSOFERRATO 388
L. THE PROTESTANT REFORMATION 392
(1) Martin Luther 393
(2) Jean Calvin 396
(3) The Vindiciae contra tyrannos 401
M. THE REVIVAL OF THOMISM 402
N. JEAN BODIN 404
O. GROTIUS 405
P. THOMAS HOBBES 410
Q. SAMUEL PUFENDORF 416
R. JOHN LOCKE 420
S. ULRICH HUBER 425
T. GERARD NOODT 426
U. CHRISTIAN WOLFF 426
V. JEAN-JACQUES ROUSSEAU 427
W. WILLIAM BLACKSTONE 431
X. IMMANUEL KANT 433
Y. JEREMY BENTHAM 437
Z. GEORG W F HEGEL 438
AA. ANARCHISM 439
(1) William Godwin 441
(2) Pierre-Joseph Proudhon 442
(3) Michael Bakunin 442
(4) Peter Kropotkin 442
(5) Leo Tolstóy 443
BB. MARXISM 443
CC. THE AGE OF REVOLUTIONS 445
DD. THE NATURAL LAW - POSITIVE LAW DEBATE 448
EE. CONTEMPORARY POLITICAL THEORY 451
(1) The social contract 452
(2) Utilitarianism 454
(3) The "duty of fair play" 456
(4) The "natural duty to obey the law" 457
(a) The "natural duty to support just institutions" 457
(b) Obedience based on necessity 459
(c) Respect for officials exercising authority 459
(d) An underived obligation to obey the law 460
II. THE CHRISTIAN CHURCHES IN SOUTH AFRICA 460
A. THE 1914 REBELLION 461
B. APARTHEID 462
III. TRADITIONAL AFRICAN SOCIETIES 471
A. THE "RITUALS OF REBELLION" 474
B. REBELLION AND REVOLUTION 475
IV. CONCLUSION 479
CHAPTER SIX: THE STATE AND CIVIL DISOBEDIENCE 482
I. INTRODUCTION 482
A. THE TERM "DEMOCRACY" 483
B. THE "ORIGINAL POSITION" 486
II. THE RECOGNITION IN PRINCIPLE OF A STRONG RIGHT OF RESISTANCE 488
III. THE CONDITIONS OF LEGITIMATE CIVIL DISOBEDIENCE 502
A. THE SUBSTANTIVE STANDARD: BASIC HUMAN RIGHTS 504
(1) The primary criterion: the boni mores 504
(2) The secondary, alternative criterion: The types of convictions involved 506
(a) Integrity-based civil disobedience 507
(b) Anti-exploitation civil disobedience 509
(c) Policy-based civil disobedience 511
(3) Application 515
B. FORMAL CONSIDERATIONS 517
(1) The question whether other reasonable alternatives have been exhausted 517
(2) The extent of political participation 518
(3) Proportionality of means and ends 519
(4) The chances that civil disobedience might worsen the situation 520
(5) State security 520
(6) Approach of the protesters regarding punishment 524
(7) The level of coercion involved 526
(8) Repetition of acts of civil disobedience 526
(9) The question whether or not the protesters are members of a well-established
social group 527
C. CONCLUSION 527
IV. THE LAW AND LEGITIMATE CIVIL DISOBEDIENCE 528
A. THE NECESSITY DEFENCE AND CIVIL DISOBEDIENCE 532
(1) United States law 533
(a) Relative severity of harm 534
(b) Reasonable alternatives 535
(c) Imminent harm 535
(d) Direct causal relationship 536
(2) South African law 538
(a) Legal interest endangered 538
(b) Threat commenced or imminent 540
(c) Necessary for the accused to avert the danger 540
(d) Proportionality of means and ends 540
(e) Duty to face the danger 541
B. CONSTITUTIONAL PROTECTION OF FREEDOM OF SPEECH 542
(1) Civil disobedience as a form of "symbolic speech" 547
(2) Advocacy of civil disobedience 552
CHAPTER SEVEN: CONCLUSION 559
BIBLIOGRAPHY 565
SYNOPSIS 600
SAMEVATTING 602
CHAPTER ONE:
INTRODUCTION
There is a certain dialectical logic in the fact that not only
apartheid, but also civil disobedience as an instrument of mass
political mobilization, originated in South Africa. It was here, at the
beginning of the century, that a pervasive and perverse system of
racial domination gave rise to the emergence of a new and powerful tool
of political resistance, when Mohandas Gandhi led the first campaign of
mass civil disobedience in history against the South African
government. Eventually, civil disobedience would prove itself to be one
of the major forces responsible for the demise of apartheid.
As the century is drawing to a close, it is dear that mass civil
disobedience has become a global phenomenon. It has been widely applied
in liberation and civil rights struggles, and to exert leverage in
respect of issues as diverse as the environment, the military and non-
military use of nuclear power, university policies and the conduct of
foreign wars.
What is surprising, however, in light of the important role which civil
disobedience played in the history of South Africa, is the scant
intellectual reflection that this form of protest has generated in its
country of origin. In a 1939 essay, Gandhi’s main political rival in
South Africa, Jan Smuts, described how Gandhi had achieved "a
successful coup" against the South African government with a method
that was "novel ... in political warfare". Smuts went on to say: "I
think the phenomenon is deserving of careful study."1 However, virtually
no serious attempt has been made to provide a conceptual framework
within which civil disobedience in South Africa can be placed and
evaluated.2 It is in this regard that this thesis aims to make a
contribution.
Political resistance and its concomitant, political obligation, raises
fundamental and universal issues. Human life reflects the tension
1J C Smuts "Gandhi's political method" University of Pretoria Archives, J D Pohl Collection 3.
2The most notable exceptions in this regard are Du Toit Staatsgesag en burgerlike ongehoorsaamheid; Wink Jesus' third way and Villa-Vicencio Civil disobedience and beyond. The primary focus of all three works, however, is theological.
between obedience and disobedience of different demands - mundane and
transcendental, personal and social, those emanating from the id and
those imposed by the super-ego. All these tensions, however, find their
most visible manifestation in the relationship between the citizen and
the state. What are the limits of individual autonomy? Does the
individual have an obligation to obey the state, and if so what are the
nature and limits of that obligation? To whom or what do we owe our
most basic loyalty when we are confronted by a conflict between the
demands of personal conviction and those of the state? These questions
bring one to the intersection of some of the main preoccupations of the
human spirit: politics, philosophy, religion and law, and it is in this
wider context that civil disobedience has to be seen.
What is needed from the South African perspective is a multi-
disciplined discourse which will place civil disobedience, as it
manifests itself here, in this bigger context. No single study can of
course hope to achieve this. This thesis will attempt to establish the
outlines of the relevant wider considerations, but will do so primarily
with a view to the jurisprudential perspective in the South African
context. The central question is: How should the South African state
and more particularly the South African law treat civil disobedience?
In addressing this question, however, the ultimate aim is not only to
arrive at some conclusions regarding civil disobedience in South
Africa, but also to gain a better understanding of civil disobedience
as such. In fact, it could be argued that in order to understand the
phenomenon of civil disobedience, an understanding of its role in South
Africa is indispensable.
There can be little doubt that the most developed body of jurisprudence
on the topic of civil disobedience can be found in American literature.
The method established by Gandhi in South Africa and India was soon
taken up in other countries, but nowhere can his legacy be seen more
clearly than in the United States of America, where Martin Luther King
modeled the Civil Rights Movement on the Gandhian example. This
campaign and others prompted a deep and sustained national debate, in
which lawyers and philosophers played a leading role.
The question should, however, be posed as to the extent to which the
circle can be completed - that is, the circle from South Africa to
India; from there to the United States and then back to South Africa.
Can American jurisprudence provide the necessary insights in
understanding and evaluating civil disobedience in South Africa? It
will be submitted that in significant respects it can not. American
thinking on the subject was developed in a largely democratic society,
where the rule of law is respected, and to a significant extent
American perspectives are applicable to those conditions only. If South
Africa is going to be a thriving democracy where people are to be ruled
by the law and by the law only, direct comparisons with the United
States might be appropriate. However, realism cautions that for a long
time to come our society might still be one in which an ebb and flow of
freedom and oppression will prevail.
A more open approach to the - issue is needed. A "flexible" theory of
civil disobedience must be developed which can be applied to less
democratic as well as more democratic societies. In this regard it
should be noted that the conventional wisdom that a right to resist
exists in an undemocratic society, but not in a democratic setting,
might be correct in abstracto, but it has little practical value
because it is such a gross oversimplification. It will be argued that
democracy entails two elements: universal franchise and the protection
of individual rights. Because these elements are often contradictory,
no society can be entirely democratic. At the same time it will be very
difficult to find a state which is completely undemocratic. The
American situation, consequently, represents only one point in this
spectrum. A flexible theory of civil disobedience should make allowance
for the whole range of possibilities.
Any theory of civil disobedience has to address at least two questions:
in the first place, what the definition of civil disobedience is, and
in the second, under what circumstance civil disobedience can be
justified: When does one have "a right to resist" by means of civil
disobedience? Before these questions can be considered, however, the
term, a "right to resist", requires clarification.
A distinction may be drawn between having a "right to resist" in the
weak and the strong sense of the word.3 One has a right to resist in the
weak sense when, given one's position, a certain protest action is "the
right thing to do" but there is no corresponding duty on one's
adversary to recognise and give effect to that right. One might think,
for example, that it is "the right thing to do" for a prisoner of war
to try to escape, but there is no duty on the warders to allow him to
3See Dworkin Taking rights seriously 188fff
do so. Much of the discussion of civil disobedience applies on this
level only. The issue is not whether there is a duty on the authorities
to treat the resistor with leniency.
It is natural to ask whether someone has a right to resist in the weak
sense if one approaches the issue of civil disobedience from the
perspective of the agent - the person who has to decide whether or not
to engage in this form of resistance. Our perspective will be
different. Civil disobedience will - instead be seen primarily from the
perspective of state officials who have to evaluate such acts and
determine what the response of the state should be. Our concern will be
to establish the circumstances in which one has a right in the strong
sense of the word to engage in civil disobedience. The recognition of
such a right of resistance implies that there is a corresponding duty -
it will be called a "duty of leniency" - of the authorities to allow
that resistance or at least to tolerate it to some extent. The aim is
to establish some guidelines which will enable legal decision-makers -
the legislature and judicial officers who shape and administer the law
- to evaluate acts of civil disobedience and help them to determine how
lenient or severe their response should be.
The present situation in South Africa is particularly conducive to an
investigation into the legitimacy of political resistance. In most
instances when this issue is considered, there is a natural inclination
to make one's conclusions dependent on one's own particular interests.
Almost inevitably people endorse a wide right of resistance if their
own views are in opposition to those of the government, while those who
in general benefit from the status quo entertain a restrictive view in
this regard. At the moment, however, South Africa is almost in, what
might be called, a Rawlsian "original position" - no one knows who is
going to rule in five years' time, and whether he or she will be in the
camp of the resistors or the resisted. In considering the question of
justified resistance, one is therefore forced into the (in some ways
unenviable) position where one cannot hold a brief for anyone, and, as
far as this is possible, cannot help but to be "objective".
And indeed, that win be the central point of departure of the present
analysis: It will be argued that in order to arrive at a fair and just
notion of what the nature and limits of political obligation are - and
by implication when resistance would be justified - one has to ask what
the view of rational agents should be if they had to answer that
question from behind a "veil of ignorance", shrouding from them their
own special interest in the matter.
It will be argued that people in such a situation will not require
blind obedience to all political sovereigns. Participants in the
original position would insist on some aspects of their lives being
placed beyond the reach of government - for example, they would insist
on a high degree of autonomy in respect of their religious convictions.
On the other hand, it should be equally obvious that not everyone
should be allowed to break the law whenever he wants to, even if he
passionately believes that his conduct is justified ": at least not in
a society as divided as our own. Those in the] original position would
not want to live in an ungovernable society. How should the balance
then be struck between anarchy and state absolutism?
Evidently no rules of thumb can be given for answering such a complex
question. There are simply too many variables which are impossible to
quantify with any degree of precision. What is the level of respect for
law in the particular society? How much individual autonomy and
disobedience can the social fibre accommodate without suffering serious
deterioration? What is the level of injustice of the prevailing system
-that is, how deserving is the legal system of respect? At most one can
hope to develop the conceptual tools necessary to make useful
distinctions between different kinds of civil disobedience, and to
provide some general guidelines on how those kinds of civil
disobedience, comparatively speaking, should be evaluated.
There can be little doubt as to the relevance of such an inquiry for
South Africa. We live in a society which is likely to remain divided
for many more years to come. Divergent interests, and consequently also
different values, frames of reference and indeed different realities,
are bound to clash. Irrespective of who will be in power, it is
inevitable that a large percentage of the population is going to be
politically frustrated. It is a sad prospect that much of the
resistance against the state might be violent. But, if the country can
manage to avoid an all-out state of anarchy and civil war, it seems
clear that civil disobedience will be a permanent feature of the
political processes. It is no exaggeration to say that the future of
the country will to a significant degree depend on the ability of those
in power to find legitimate ways of managing dissent, expressed,
interalia, through acts of civil disobedience.
The inquiry will proceed along the following lines: In the second
chapter, the term "civil disobedience" will be defined and its
essential elements win be set out. Aspects that are not essential but
which are often associated with that form of protest will also be
discussed. Different manifestations or forms of civil disobedience will
be identified. The relationship between the notions of "civil
disobedience” and "conscientious objection” will also receive
attention. The purpose of this chapter is by and large to develop the
vocabulary necessary for a nuanced view of civil disobedience.
The third chapter contains a fairly detailed overview of the historical
development of civil disobedience with a view to bringing clarity
regarding the way in which civil disobedience manifests itself in
practice. The different uses to which civil disobedience has been put
since its earliest inception are considered, and an attempt is made to
establish what the most pertinent developments reveal about the nature
of this form of protest. The question is posed why certain types of
civil disobedience were practised under some circumstances but not
under others. Particular attention is paid to the question why mass
civil disobedience only developed as a political tool in this century,
in South Africa.
The campaigns conducted in South Africa, India and the United States,
and especially their legal implications, are discussed. As far as could
be established, this chapter contains the first comprehensive
historical account of civil disobedience in South Africa. The South
African campaigns of Gandhi, as well as the later campaigns of the
liberation movements, are recounted in some detail, especially with a
view to their legal ramifications. Extensive use has been made of
newspaper clippings of the time, since such clippings are often the
only available source of information on the particular periods of
history under consideration. The lengthy historical survey might seem
disproportionate in a jurisprudential inquiry, but it is considered
necessary to fully canvass the "raw material" basic to the
philosophical investigation into the present subject matter.
In the fourth chapter the South African positive law relating to civil
disobedience comes into the spotlight. The implications in respect of
acts of civil disobedience of the criminal law and the powers of the
executive are considered, as well as the effect of participation in
acts of civil disobedience on a person's legal competence to practice
law. The legal provisions relating to conscientious objection to
compulsory military service are also discussed.
Chapter five deals with the perceptions regarding political obligation
and resistance of some of the most important contributors toward the
shaping of Western and South African culture. The message emanating
from the Bible, some perspectives from the Roman and Roman-Dutch law,
the views of the great philosophers - political and otherwise - and of
religious leaders, the approach of some contemporary political
scientists and the main South African churches, and some of the
practices of traditional African society in this respect, will receive
attention.
In chapter six the question how law should respond to civil
disobedience is directly addressed. This inquiry comprises three parts.
In the first place the question is considered whether, and if so on
what basis, a strong right of resistance should in principle be
recognised. Assuming that there is such a right under certain
circumstances, the crucial question is then asked what those
circumstances are. On the basis of a critical appraisal of some ideas
of Ronald Dworkin, a model is proposed which, it is believed, is more
flexible and intuitively more acceptable than most other approaches.
Thirdly, the issue is addressed what mechanisms legal decision-makers
can use to bring relief to those who have engaged in civil
disobedience, in cases where it has been established that a strong
right to engage in civil disobedience should be recognised.
In chapter seven a summary of the most important conclusions is given
and their interrelationship and wider implications are considered.
CHAPTER TWO:
DEFINING CIVIL DISOBEDIENCE:
ITS ELEMENTS AND MANIFESTATIONS
Some of the many activities loosely referred to as civil disobedience,
have been practised for many centuries. However, it is only since the
last century that the term "civil disobedience” has come to be used.1
Although there might be an intuitive understanding of what the term
implies, no general consensus exists amongst persons usually regarded
as practitioners of civil disobedience,2 political philosophers,3
1The term "civil disobedience" could probably be traced to the legacy of Thoreau. His essay "Resistance to civil government" (1848) was published - and became famous - post-humously under the title "On the duty of civil disobedience". According to MacGuigan The Canadian Bar Review 1971 222 at 256 the word "civil" In "civil disobedience" refers to i) the fact that it is practised by a citizen as citizen (of the Afrikaans "burgerlike ongehoorsaamheid"); ii) the fact that military methods (force) is not used and iii) the conscientious base and hence the civilized nature of such protest.
2See on the views of Thoreau infra chap three III C (4); Gandhi infra chap three III B (2) and King infra chap three III C (6)(1).
3According to Zinn Disobedience and democracy 32, civil disobedience is "the deliberate, discriminate, violation of law for a social purpose." Cohen Civil disobedience 39 defined it as "an act of protest, deliberately unlawful, conscientiously and publicly performed." Rawls A theory of Justice 364 saw it as "a public, nonviolent, conscientious yet political act contrary to law usually done with the aim of bringing about a change in the law or policies of the government." It was stated by Hugo Bedau The Journal of Philosophy 1961 653 at 661 that "anyone commits an act of civil disobedience if and only if he acts illegally, publicity, nonviolently, and conscientiously with the intent to frustrate (one of) the laws, policies, or decisions of his government." For Martin Ethics 1969/70 123 at 126 "[c]ivil disobedience is the deliberate and public violation of the command of an authorized and accepted political superior on the ground that this decree is unjust, immoral, unconstitutional, contrary to good public policy, etc." (Original emphasis.) See also Weingartner Columbia University Forum 1966 38 at 39. According to Christian Bay "Civil disosobedience" in the International Encyclopedia of the Social Sciences vol 2 473 at 473 the term refers to "any act or process of public defiance of a law or policy enforced by established governmental authorities, insofar as the action is premeditate understood by the actor(s) to be illegal or of contested legality carried out or persisted in for limited public ends and by way carefully chosen and limited means." Schuyt Recht, orde en burgerlijke ongehoorzaamheid 311 regarded the following as the basic elements civil disobedience: "1) de handeling is illegaal 2) de
sociologists4 and jurisprudes5 who considered the issue as to what the
essential elements of civil disobedience are. It is consequently
necessary to give definition of what is meant by the term "civil
disobedience". What are the necessary elements which, taken together,
give sufficient description of the phenomenon?
However, a clear definition of the general concept of civil
disobedience is not the only tool needed in order to be in position to
evaluate individual cases of civil disobedience.
There are many different manifestations of civil disobedience, each
with its own characteristics that might affect the acceptability of the
conduct in question. The terminology necessary to distinguish the
various kinds of civil disobedience will consequently have to be
developed.
This chapter, then, will aim at defining civil disobedience and
handeling gewetensvol 3) er is betekenissamenhang tussen bekritiseerd object gekozen handelwijze 4) de handeling is weloverwogen 5) de handeling geschied openlijk 6) men werkt vrljwillig men aan arrestasie vervolging 7) men aanvaardt net risiko van een straf 8) men heeft te voren lega1e midelen geprobeerd 9) geweldloosheid 10) rechten van andti worden zoveel mogelljk in acht genomen." Closer to home, according Esterhuyse Broers buite hoorafstand 22, civil disobedience is” nie-gewelddadige protesstrategie op morele gronde, en verteenwoordig ‘n vorm van doelbewuste wetsoortreding."
4Gene Sharp, in his seminal work The politics of nonviolent action part 2 The methods of nonviolent action 315, described civil disobedience as "a deliberate, open and peaceful violation of particular laws decrees, regulations, ordinances, military or police instructions, and the like which are believed to be illegitimate for some reason. One the most drastic forms of noncooperation, civil disobedience is expression of the doctrine that there are times when men have a moral responsibility to disobey 'man-made' laws in obedience to 'higher' laws.”
5Few lawyers have actually attempted to define civil disobedience MacGuigan The Canadian Bar Review 1971 222 at 256 saw it as “a public, nonviolent act which is either actually illegal or likely to be treated as illegal by the governmental authorities, performed for a no purpose, with a willingness to accept the legal penalty attached to breach of the law." See also Freeman Indiana Law Journal 1965/66 221 231; Van den Haag Rutgers Law Review 1966/67 27 at 27 and Katz UCLA Review 1985 904 at 905. Edwin Cameron "Civil disobedience and passive resistance" in Corder Essays on law and social practice In South Africa 219 at 221 put it as follows: "Civil disobedience occurs when a law publicly violated for moral reasons as a deliberate protest." See a Christa van Wyk Wetenskaplike Bydraes van die PU vir CHO 1990 97 at 109.
identifying its different manifestations. A later chapter will deal
with the question as to the possible justification of acts of civil
disobedience. It is important that the issues of definition and
justification, as far as possible, be dealt with separately. The
decision-maker must in the first place be able to identify in as
neutral a manner as possible which form of protest is at stake, and
then, secondly, proceed to evaluate it. If definition and justification
are conflated, one is forced to make an evaluation without being
granted the opportunity of independently considering with an open mind
the merits of the case in question.6 Consequently we shall attempt to
establish, what is called, a "minimal" definition of civil
disobedience;7 that is, a definition which in the barest possible terms
identify the phenomenon, without signifying any moral judgment as to
its propriety.
What are the criteria according to which the essential elements of
civil disobedience are to be established? It. if submitted that the
basic criteria are convenience and common usage. In the first place,
the elements identified mud describe a range of actions which is
sufficiently narrow to allow meaningful generalisations regarding the
way in which they are to be evaluated, but at the same time this range
of actions must be wide enough to be politically significant.8 The
6Zinn Disobedience and democracy 48 and Cohen Civil disobedience 24 confused the definition and the justification of civil disobedience. They argued that because it might under certain circumstances be necessary to use force in order to protect human rights, civil disobedience should not be regarded as necessarily non-violent. Few people would disagree with this premise, but the conclusion does not follow. Only complete pacifists would argue that coercion, and particularly violent revolution, can under no circumstances be justified, but it does not follow that such actions should be regarded as acts of civil disobedience. All actions which can be classified as acts of civil disobedience are not automatically justified, and those which are not thus classified are not automatically unjustified. See also K Nielsen "Remarks on violence and paying the penalty" in Beauchamp Ethics and public policy 162 at 165 and E Cameron "Civil disobedience and passive resistance" in Corder Essays on law and social practice in South Africa 219 at 222.
7See Du Toit The Black Sash May 1973 6 at 9. 8Brown The Journal of Philosophy 1961 669 at 680 remarks, with
reference to some examples of protest actions which he believes will commonly be called acts of civil disobedience: "Call them what we will, there is a class of illegal acts which differ characteristically
question must be asked which elements would highlight the truly unique
nature of civil disobedience, without rendering that concept too
isoteric. At the same time, the technical meaning of the term civil
disobedience should as far as is possible accord with the popular
understanding of the term.
It was stated earlier that an objective of this study is b develop a
"flexible theory" of civil disobedience, in the sense of rendering the
concept useful in more and less democratic situations. It will be
argued that the definition of civil disobedience which finds support in
the main stream of American jurisprudence is in a number of respects
only applicable under American conditions. In order to be relevant in a
wider range of social settings, a number of important adjustments or
modifications need to be made, and it will be argued that at least in
one respect American jurisprudence is misguided, even for American
purposes.
I. THE ELEMENTS OF CIVIL DISOBEDIENCE
In this study conduct will be regarded as civil disobedience if it is:
- illegal (in the wide sense of the word, as will be explained
later on),
- non-violent (or at least not highly coercive),
- open,
- motivated by conviction, and
- political.
The significance and meaning of these elements will next be considered.
A. ILLEGALITY
The first element of civil disobedience which writers usually emphasise
is the fact that only wrongful actions can qualify for this kind of
resistance.9 Civil disobedience involves a special kind of
“disobedience” to the state. The civil disobedient acts outside the
scope not only of what the authorities consider acceptable but also of
what they regard as tolerable behaviour. Actions which might be deeply
resented by the state, such as demonstrations, strikes and picketing,
... from typical acts of law-breaking ... which pose very peculiar problems about justification."
9See Rawls A theory of justice 364 and Cohen Civil disobedience 4.
whereby the government is openly defied, attacked or ridiculed, are not
acts of civil disobedience if they are not also unlawful. The mere fact
that one’s act offends a social taboo is not sufficient - the civil
disobedient must also render himself liable to the wrath of the powers
that be.
Terms such as "passive resistance", "non-cooperation" and the Afrikaans
notion of "lydelike verset", which are often used to signify non-
violent methods of protest, should be distinguished from civil
disobedience. Those concepts have a wider meaning: they include both
legal and illegal acts of (non-violent) resistance. These forms of
resistance might be, but are not necessarily, unlawful, while acts of
civil disobedience are essentially illegal.
Whether this approach is acceptable for our purposes depends upon the
interpretation given to the term "illegality". It is submitted that
only if the widest possible meaning is attached to the notion of
illegality, in two crucial respects can it be regarded as an essential
element of civil disobedience.
The first respect in which this should be done becomes apparent when
the difference between a society in which the rule of law is observed
and a society in which that is not the case is considered. Conduct is
"illegal" in the narrow or technical meaning of the word if a publicly
established legal norm, for the breach of which the state has
prescribed a specified sanction, is transgressed. According to this
interpretation of the word "illegal", one’s conduct has to constitute a
crime before it can be considered an act of civil disobedience.10
Insofar as the rule of law is observed in a particular society, there
can be no problems with this approach. The argument can be explained in
the form of a syllogism: Civil disobedience involves subjecting oneself
to the wrath of the state. Where the rule of law pertains, one can only
be subjected to the wrath of the state if one has committed a crime.
Consequently, in such a society the commission of a crime must be an
essential element of civil disobedience.
It should be evident that a narrow interpretation of the requirement
that conduct must be "illegal" in order to qualify as an act of civil
10Christa van Wyk Wetenskaplike Bydraes van die PU vir CHO 1990 97 at 106 regarded the requirement "dat 'n wet oortree moet word" as a universally accepted element of civil disobedience.
disobedience serves societies where the rule of law is being well
observed. It is therefore not surprising that American authors find
this approach acceptable.
We are, however, interested in a more flexible theory of civil
disobedience, which applies not only to societies in which the rule of
law obtains. The question must accordingly be asked what the position
would be in a society where the rule of law is not observed.
The fact that the rule of law is not upheld means that the coercive
power of the state may be unleashed on a subject even if he does not,
in the technical sense of the word, act illegally. This may occur in
primitive societies where law, morality and religion are fused, as well
as in more modern societies where the executive has far-reaching
discretionary powers. In such cases the question whether someone has
subjected himself to the coercive powers of the state cannot be
answered simply by asking whether he has technically broken the law.
Someone who sets out to participate in a demonstration against the
government, knowing that the police will in all likelihood arrest and
detain him indefinitely without trial, clearly challenges the state at
least as fundamentally as someone who does the same under circumstances
where his conduct constitutes a crime.
It is consequently submitted that inasmuch as the rule of law does not
obtain, a wide interpretation should be attached to the term
"illegality". All actions that are likely to provoke use of the state’s
coercive powers, whether it technically constitutes a crime or not,
should be regarded as "illegal" for the purposes of defining civil
disobedience.
This brings us to the second problem concerning the interpretation of
the term "illegal". In situations where the rule of law - is observed
and the technical - interpretation the term "i1legal" is used to
identify civil disobedience the question arises how narrowly this
criterion should interpreted. When exactly in such circumstances can
certain conduct be described as "illegal” in the technical sense the
word?
In most cases the answer to this question raises few problems, at least
for those with some legal knowledge. If unambiguous and uncontroversial
Act of Parliament states that it is an offence to demonstrate within
the proximity of the Houses of Parliament, it is clearly illegal to do
so. A problem will arise, however, in cases of so-called "doubtful
law"11 - that is in cases where the question whether certain conduct
which is prima facie illegal is in fact to regarded as illegal, can be
the subject matter of a bona fide debate between reasonable lawyers. In
the event uncertainty regarding the illegality of certain conduct,
question will arise as to whether or not such conduct co be described
as "illegal" for purposes of the definition civil disobedience.
At least three situations in which the problem of “doubt law" might
arise, should be distinguished:
- In jurisdictions where a justiciable Bin of Rights in operation,
legislation and administrative acts which are prima facie legal
may be declared invalid if they violate any provision of the Bill
of Rights;
- Subordinate legislation may be invalidated in terms the
directives of administrative law (for instance such legislation
is found to be ultra vires unreasonable); and
- Acts which are prima facie illegal may be shown to be legal on
the basis of one of the grounds of justification of the criminal
law (for example necessity or consent).
For purposes of a definition of civil disobedience, one could approach
the question as to transgressions of "doubtful" laws from different
perspectives. If a narrow interpretation of the term "illegal" were to
be preferred, it would mean that transgressions of doubtful laws will
not constitute civil disobedience, whereas a wide interpretation of
that concept might lead to the opposite conclusion.
According to the narrow approach, which is preferred by most American
writers on the subject, civil disobedience involves an extra-legal
appeal to morality, not an intra-legal appeal to a stronger rule of
positive law.12 The civil disobedient makes the claim that his conduct
is legitimate, not that it is legal. Transgression of "doubtful laws"
consequently does not qualify as “illegal" conduct for the purpose of
the definition of civil disobedience.
Seen from this perspective, the idea of "legally justified civil
11See Dworkin Taking rights seriously 208. 12See W L Taylor "Civil disobedience: Observations on the
strategies of protest" in Bosmajian Dissent 86 at 87 and Arendt Crises of the republic 53
disobedience” is a contradiction in terms. Civil disobedience is by
definition unlawful, and if one’s conduct is sanctioned by more basic
norms of the legal system, that conduct is ultimately legal. Civil
disobedience cannot be lawful, because “the law logically cannot permit
law-breaking."13 To state the same proposition in different terms:
whenever an act of protest which seems illegal turns out in fact to be
legal, it can no longer be regarded as an act of civil disobedience.
Obviously this approach has far-reaching consequences regarding the way
in which a campaign of civil disobedience, such as the Civil Rights
Movement, should be seen. In that particular campaign nearly all the
infringements of local and state segregation laws were justified on the
basis that those laws violated the federal constitution, and in
particular the Bill of Rights. It may consequently be argued that these
protests should not be regarded as acts of civil disobedience properly
so-called, but rather as "assertions of rights".14 Instead of dealing
with civil disobedience, we are here concerned with civil obedience
since the disobedience to the weaker law is, as it were, trumped by
obedience to the stronger law.15
Following this line of argument. Burke Marshall posed the question
whether "the federal system does not in effect make the theory of civil
disobedience wholly inapplicable to the efforts of the protest
movement."16
Martin Luther King needed only to appeal to the law: He should not have
saddled himself with the difficult task of proving that an appeal to
13See Cohen Civil disobedience 7; Cohen Rutgers Law Review 1966 1 at 7 and Alien University of Cincinnati Law Review 1967 1 at 3 n 5. See also Arendt Crises of the republic 51 at 53. Art 20(4) of the German Basic Law, since 1968, provides as follows: "All Germans shall have the right to resist any person or persons seeking to abolish the constitutional order, should no other remedy be possible." For a discussion of this controversial provision, see Kaufmann New England Law Review 1985/6 571 at 573. Du Toit Wetenskaplike Bydraes van die PU v1r CHO 1985 1 at IS argued that "'n [p]ositiewe regsorde kan geen reg van verset (lydelik of aktief) verdra nie, omdat dit dan homself dualisties sou maak of sy eie opheffing sou herberg."
14See Black Texas Law Review 1965 492 at 496. 15One of the leaders of the Civil Rights Movement called their
actions "civil obedience". See Freeman Indiana Law Journal 1965/66 228 228.
16Marshall Virginia Law Review 1965 785 at 795.
conscience justified the acts of protest, because in the majority of
cases he was in fact not breaking the law. The legality of his acts was
clearly established in subsequent Supreme Court cases.
In similar vein, Charles Black argued that much of the defiance of
segregation ordinances in the Civil Rights Movement merely had the
"flavor of disobedience". Because the illegality of the ordinances
evidently appeared from the constitution, "the defiance of law was all
on the other side." According to him the leaders of the Civil Rights
Movement were too "engaged and busy" to note that what they were
preaching and practising was not civil disobedience at all. Black
maintained that if at any given time doubt prevails as to the legality
of certain actions and as long as "there is an element of claimed legal
right", there would be "an implied submission to, rather than defiance
of, the order of law."17
The views of these authors regarding the element of illegality can be
interpreted and applied in two different ways. The first possibility is
that the question as to the illegality of certain conduct should be
answered from an objective, ex post facto perspective. Only after an
authoritative, final verdict has been given by the highest possible
court declaring that the conduct in question was in fact illegal, can
it be stated with certainty that the act of protest was in fact a
matter of civil disobedience.
This approach conflates the issues of definition and justification,
since identification of certain conduct as a manifestation of civil
disobedience would in this instance require an authoritative verdict
concerning its legality. This approach also proceeds from the mistaken
assumption that one can arrive at a final authoritative judgment as to
the precise legal position. In reality a lower court can be overruled
by a higher court, or a court may in future overrule its own earlier
judgments.18 To make the question whether one is dealing with civil
disobedience dependent on an authoritative judgement regarding the
legality of the conduct in question, could therefore mean that the
17Black Texas Law Review 1965 492 at 496. 18See Dworkin Taking rights seriously 211. The most famous United
States example in this regard is probably Brown v Board of Education 347 US 483 (1954), in which Plessy v Ferguson 163 US 537 (1896) was overruled. See also the "Flag salute" cases, discussed infra chap three III C (2).
answer to the question whether or not one is dealing with civil
disobedience is relegated into infinity.
This manifestation of the narrow interpretation of the term "illegal"
is consequently not conducive to developing an approach to the question
of civil disobedience that would allow the decision-maker to evaluate
events as they occur. In fact, what would be required if this approach
were to prevail, would be to wait until the conduct has beer evaluated
before one could acquire the conceptual tools needed to evaluate it.
The other possible way in which to apply the narrow approach is to
regard the ex ante. subjective beliefs of the people involved in the
protest as the decisive factor. This would mean that the question
whether or not certain conduct in fact qualifies as "civil
disobedience" is entirely to bi determined with a view to the
understanding of the people concerned of their legal position. If they
themselves were to justify their prima facie illegal actions on the
basis that those actions are sanctioned by law they would not commit
civil disobedience; if they seek to legitimise their action on moral
grounds only, those actions can properly be defined as instances of
civil disobedience. The eventual finding of the courts would then be
irrelevant. Judging from the remarks of Charles Black quoted above;
this appears to be his view.
The problem with this approach is that in the heat of the battle,
people seldom clearly distinguish between moral legitimacy and
juridical legality. They simply believe that their actions are
justified by some higher principle - be it legal or moral.19 An
additional problem that might arise from an entirely subjective
approach, is that people’s beliefs concerning the legality of their
actions are often highly unreasonable. Why should the conduct of
someone who holds the mistaken belief that he is acting illegally be
regarded as an act of civil disobedience, while that of another person
who holds the totally unwarranted belief that he is acting legally
would not qualify as civil disobedience? All manifestations of the
narrow approach consequently seem unacceptable.
It is consequently submitted that the narrow interpretation of the term
19Barkan Protesters on trial 56 pointed out that in most cases members of the Civil Rights Movement took the decision to go to court only after the acts of civil disobedience occurred. It was not their intention to create test cases.
“illegal” is wrong. In order to avoid the above-mentioned problems, a
wider interpretation of the term "illegality" should be followed. All
acts of protest ought to be regarded as illegal if juridical provisions
officially in force at the critical time have been violated,
irrespective of whether, subsequently, those provisions are likely to
be declared invalid or inoperative. In order to qualify as civil
disobedience one's conduct must be "illegal" in the sense that it
constituted transgression of a legal provision which at the time of
the conduct was clearly valid or at least not clearly invalid; that is,
where at the critical time it has not been revoked or declared invalid.
The possibility, or rather the "risk", of illegality, the breaking of a
legal proscription, would suffice to constitute civil disobedience. The
point is that a protester who runs the risk of breaking the law
subjects himself to the possibility of provoking the wrath of the
state.20
When this wider approach is followed, it becomes clear that one is not
making a self-contradictory claim when stating that civil disobedience
can be legally justified. From an ex ante perspective, such a claim
boils down to the assertion that a possibility exists that, what now
appears to be illegal, might in future be declared legal. From the ex
post facto perspective it means that, even if the conduct is now viewed
as legal, there was a risk at the critical time that it was not. To
argue that the fact of prima facie illegal conduct eventually being
vindicated in court implies that we were all along not dealing with
civil disobedience, is similar to arguing that because Sir Edmund
Hilary returned safely from Mount Everest his journey was in reality
not dangerous.
Although the narrower approach should consequently not be followed as
far as the definition of civil disobedience is concerned, it is
nevertheless useful to recognise that two different manifestations of
civil disobedience can be identified on the basis of the distinction
outlined above:
- Legality-based civil disobedience, or acts of civic disobedience
in respect of which the claim is made that they are legally
justified. The idea is to create test-case if necessary. An
20See also Blackstone Georgia Law Review 1969 679 at 684. MacGuigan The Canadian Bar Review 1971 222 at 225 included cases of contested legality in his definition of civil disobedience.
appeal is made to the highest norms of the positive law. These
are the "assertion of rights"-cases, prevalent in the Civil
Rights Movement and which some American commentators now deny the
status of acts of civil disobedience.21 This type of civil
disobedience will probably become more evident in South Africa
once a Bill of Rights has been introduced. It may, of course, in
principle already occur in South Africa, insofar as it might be
claimed that the grounds of justification of the criminal law
apply, or that subordinate legislation is invalid in terms of the
provisions of administrative law.
- Legitimacy-based civil disobedience or those cases of civil
disobedience where only the claim of its moral justification is
made. Here an appeal is made not to the positive law, but to the
conscience of the nation or the world, to reason, to natural law,
or to God himself. This is the traditional form in which civil
disobedience occurred in countries such as South Africa and
India. According to the American writers referred to above, this
is the only form which, in reality, civil disobedience can take.
There are instances in which these two types of conduct overlap. The
important point for the moment is, however, that both these types of
action should be regarded as “illegal" for purposes of the definition
of civil disobedience.
Having completed the discussion on how wide or how narrow the term
"illegal" should be interpreted, it remains to allude to the different
ways in which illegal acts can manifest themselves. An important
distinction between different types of civil disobedience can be drawn
on the basis of the type of actus reus involved22 - the distinction
between, what might be called, positive and negative civil
disobedience.23
21The United States Supreme Court does not approve of the practice of "asserting rights" or creating test cases, even in the dear cases: "No one, no matter how exalted his public office, or how righteous his private motive, can be judge in his own case." United States v United Mine Workers 330 US 258 (1946) at 308.
22See also the distinction made by Bedau The Journal of Philosophy 1961 653 at 654.
23The terms "active" and "passive" civil disobedience would have been more accurate, but are bound to cause confusion because of prevalence of the term "passive resistance" which, as illustrated
In the case of positive civil disobedience the illegal action takes on
the form of a commissio. A negative legal provision or a proscription
is violated through a positive act. A typical example in this regard
would be participation in public demonstration prohibited by law.
Negative civil disobedience involves an illegal act in the form of an
omissio. A positive legal provision or prescription is violated through
a negative act or inaction- a refusal to comply. A typical example of
this form of civil disobedience would be the refusal to pay taxes as a
means of protest.
It is the element of illegality which makes civil disobedience a
radical form of resistance, at least comparison with other forms of
resistance. It will be argued that this element, when it is combined
with the other characteristics of civil disobedience, such as openness,
brings into question the respect with which law is normal treated in
society.24
B. NON-VIOLENCE
Most, but not all, commentators regard non-violence to be an essential
element of civil disobedience.25 It is, as indicated earlier, primarily
a matter of terminology and convenience.26 It is probably not "wrong" to
define civil disobedience so as to include both Gandhi and the berserk
political murderer in the public square who after the event surrenders
himself to the police. Their conduct in both instances could be
classified as illegal political acts about which some very general
observations could be made. However, there is such a vast qualitative
earlier, has a distinctly different meaning. 24On the reasons why law is normally obeyed in society, apart from
compulsion, see Sharp Power and struggle 8ff. 25For writers who regard non-violence as an element of civil
disobedience, see Bedau The Journal of Philosophy 1961 653 at 656; Sibley Journal of the Minnesota Academy of Science 1965 67 at 71; Thalberg Scientia 1966 436 at 438; Martin Ethics 1969/70 123 at 132; Weingartner Columbia University Forum 1966 38 at 38; MacGuigan The Canadian Bar Review 1971 222 at 241 and Rawls A theory of justice 364. For writers who do not regard non-violence as essential, see Zinn Disobedience and democracy 32 and Keeton Texas Law Review 1965 507 at 508. As to South African writers who hold the latter view, see Du Toit The Black Sash May 1973 6 at 10 and E Cameron "Civil disobedience and passive resistance" in Corder Essays on law and social practice 1n South Africa 219 at 222.
26See also Cohen Rutgers Law Review 1966 1 at 3.
difference between the two cases that a further subdivision seems
imperative. If the term "civil disobedience" is not to be used to
denote the less coercive category of conduct, then another term will
have to be found to distinguish that conduct from the category of more
violent acts. These two categories of conduct clearly involve different
consideration pertaining to their possible justification.
On what basis, exactly, should the distinction between the different
types of conduct described above be made? Various possibilities present
themselves in this regard; most notably the coercion/non-coercion and
the violence/non-violence distinctions. In order to establish which one
of these distinctions will best serve our purposes, the terms involved
must be circumscribed.
A political act can be seen as "coercive” if it involves changing the
incentives of the adversary to the extent that he has no choice but to
change his behaviour. The opposite is "non-coercive" or "persuasive"
action, whereby the opponent is brought to see for himself that he
should mend his ways.27 "Violence" involves the use or the threat of
physical force against the person or property of one’s adversary; "non-
violence" entails the absence of such use or threat of force.28
Non-violence is consequently the wider term and can encompass non-
coercive as well as certain coercive acts.29 Someone who blocks the
entry to a building, slows down the traffic, sails into a nuclear test-
zone or stages a sit-in in someone’s office is not using violence, but
his actions can nevertheless be highly coercive.30 Non-coercion, on the
other hand, necessarily involves the absence of violence.
Should, then, "non-coercion" or "non-violence" be regarded as an
element of civil disobedience? The distinction coercion/non-coercion
27See the discussion by Fried Harvard Law Review 1964 1258 of what he called "moral causation". E P J Corbett "The rhetoric of the open hand and the rhetoric of the closed fist" in Bosmajian Dissent 71 also discussed the nature of persuasion through civil disobedience.
28Perhaps best-known in this regard is Bondurant's model for describing a non-violent programme. See Bondurant Conquest of violence 73ff. For a discussion of the meaning of the terms "violence" and "non-violence", see Sharp The Journal of Conflict Resolution 1959 41.
29See also MacGuigan The Canadian Bar Review 1971 222 at 271. 30On non-violent coercion, see Sharp The dynamics of nonviolent
action 741ff.
certainly appears to be more basic to our inquiry, since it signifies
the two fundamentally different ways in which one can move an opponent
to change: that is, through persuasion and compulsion. From the
purist’s point of view, it would probably be correct to say that, if
one intends isolating a completely unique form of political resistance
under the name of civil disobedience, non-coercion should be regarded
as an essential element. Civil disobedience, so defined, would then
entirely be aimed at persuasion; and if there is any element of
compulsion present, one would no longer be dealing with civil
disobedience. Non-violent but coercive acts, like blocking the entry to
a building, could then be grouped together with acts of violence as
non-persuasive or coercive tactics. Both blocking an entry and throwing
a bomb involve coercion; the only difference is the level of intensity
of the coercion.31 There is also historical support for this approach.
According to Gandhi, for example, civil disobedience had to be non-
coercive.32
The problem with this purist approach, however, is that very few acts
of political resistance do not involve some form of coercion. In South
Africa, with the Defiance Campaign in 1952 and the Positive Action
Campaign in 1960, the objective of many participants was to flood the
jails and law courts, and in so doing to make the system unworkable by
clogging it. Clearly, that involves an intention to coerce, even if the
coercion occurs on a relatively low level. In other cases of non-
violent resistance, the compulsion is more subtle - less physical and
more moral. Nevertheless the coercion in such cases might in fact be
31M Cohen "Civil disobedience in a constitutional democracy" in Beauchamp Ethics and public policy 145 at 148 regarded the conduct of someone who sails into a nuclear testing area to prevent such tests as coercive, and argued that such conduct crosses the line from civil disobedience to other forms of resistance. Bedau The Journal of Philosophy 1961 653 at 657 called such acts "non-violent obstruction".
32Gandhi regarded blocking the way of an opponent as "sheer compulsion", contrary to the spirit of Satyagraha. Gandhi Non-violent resistance 201. See also in the same work 334. He maintained that "(t]he appeal is never to [the] fear [of the adversary]; it is, must be, always to the heart. The Satyagrahi's object is to convert, not to coerce, the wrong-doer." Gandhi Non-violent resistance 87. To Gandhi Satyagraha was the direct opposite of compulsion. See Chatterjee Gandhi's religious thought 91. For an exposition of the coercive forms of protest that have been practised under the name of Satyagraha in post-Gandhian India, see Bayley The American Political Science Review 1962 663.
more intense. By voluntarily undergoing suffering, one might not change
the physical incentives of the opponent, but the moral manipulation
could be hard to resist.33 Gandhi, near the end of his life, expressed
his regret at having coerced people through his fasts.34
What is more (as will be demonstrated in the historical overview), acts
of political resistance that involve no direct coercion almost always
indirectly entail coercion. Civil disobedience in most cases is not
directly aimed at bringing about a change of heart in the opponent
himself. Invariably the target is, what win be called, a "benevolent
background force" - a third party (for example another country or the
United Nations) which may use its leverage to change the opponent’s
behaviour. Inciting such indirect pressure, which can be highly
coercive, was the preferred strategy of most of the people regarded as
classic proponents of civil disobedience, including Gandhi.35 The moral
component of civil disobedience should consequently not be overrated.
If all cases where an element of coercion is involved either physical
or moral, direct or indirect - had to be disqualified as civil
disobedience, this category of protest would be so small as to render
it insignificant. Moreover, it might be true that the difference
between "blocking the way" and "throwing a bomb" is one of degree (both
involve coercing the opponent). However, it should also be noted that
this difference in degree is nevertheless extremely significant. In
practice, it seems appropriate to speak of a "blocking of the way" and
an "illegal, peaceful demonstration" in the same breath; more so than
33Consider the case of the person who sails into a nuclear testing site in order to frustrate experiments in the area. Is he physically or morally manipulating his adversary? If they can stomach it morally, they may be able to proceed with their tests.
34See Gandhi Non-violent resistance 291. 35A careful study of some of the civil rights protests in the
United States has suggested that the conditions for the success of such forms of "direct action" are the following: There must be a "dilemma", in the Gunnar Hyrdal sense of the word. That is, there must be some gross direct conflict between social reality and the generally professed values and goals of society. In order to activate people - to bring them to appreciate the dilemma and to make it a matter of priority - a crisis must be created. This can be done by causing disorder. Civil disobedience, without direct coercion, can serve this purpose. The elite's fear of disorder then moves them to action. See Von Eschen et al The Western Political Quarterly 1969 309 at 322ff.
would be the case with "blocking the way" and "throwing a bomb".
It is submitted that the more practical approach is to regard non-
coercion and coercion as two extremes, where the tangent point between
these extremes represents different combinations of coercion and
persuasion. On the one side of the spectrum persuasion prevails, in the
middle ground they are of equal significance, whereas on the other side
coercion dominates. Civil disobedience, then, is located on that side
of the spectrum where the acts are either completely non-coercive or at
least primarily persuasive. The further one moves away from the pole of
non-coercion, the less relevant would the considerations which apply to
civil disobedience become. Civil disobedience could consequently be
either coercive of non-coercive.
This can perhaps best be explained by using terms popularised by Marx.
Marx believed that history is driven by the base-structure or the
material conditions of living. The super-structure or the more
spiritual aspects of living is entirely determined by the base-
structure. Civil disobedience in its purest form proceeds from exactly
the opposite premise, namely the belief that the spiritual can
significantly influence the material.36
It is therefore submitted that civil disobedience involves little or no
coercion. As a practical measure, the category of actions on the one
side of the spectrum can be described with reasonable accuracy by using
the term “non-violence", and indeed, as has been mentioned earlier,
most commentators on civil disobedience use this criterion.
Whether the coercive as opposed to the persuasive element of protest
strategies is in fact predominant in a given case is a matter to be
determined realistically and with practical wisdom. If someone sails
into a certain area to protest against nuclear testing that is about to
take place, his actions might be coercive in the sense of him being
able to cause the postponement of the test for a few hours.
Nevertheless, if his actions in practical terms still leave those
engaged in the testing free to choose whether or not to continue with
their business after the protester has been removed, it can for
practical purposes be regarded as an act of civil disobedience.37 The
primary aim of such conduct is what Bertrand Russell calls
36See infra chap five I BB. 37See Bedau The Journal of Philosophy 1961 653 at 657.
"propaganda",38 directed at an acquiescent or uninformed public. In
reality, the objective is to persuade and very little coercion is used.
It should also be borne in mind that during campaigns of political
resistance passions often run high and spontaneous violence at the
instance of the disobedient or their sympathisers can erupt, especially
if demonstrations are subdued by force. The outbreak of minor
unforeseen incidents of violence or coercion does not necessarily
transform an act of civil disobedience into a violent uprising,
although the possibility of violence should be discounted by those who
choose to embark on acts of civil disobedience.39 The fact that the use
of violence by the security forces is foreseen by the protesters (for
example if they make provision for the availability of first-aid for
such an eventuality40) also does not imply that violence is an element
of the conduct of the protesters - the foreseen violence is then
violence perpetrated by the state. The requirement of non-violence
applies only to the conduct of the protesters and to acts of those whom
the protesters can reasonably expect to side with them.
Another factor worth considering is the fact that highly coercive
actions might not involve actual violence. For example, the (non-
violent) blocking of a city’s highways might disrupt the community more
than would the (violent) sabotage of the city’s electric lines. At a
certain point such conduct should no longer be regarded as acts of
civil disobedience, although no violence is used. One should
consequently remain sensitive to the fact that if the compulsion
exceeds certain limits of coercion, non-violent actions could no longer
be regarded as acts of civil disobedience.
It should be noted that not all acts involving physical damage qualify
as acts of violence. As will appear from the historical overview, there
have been many cases where passes, registration certificates, flags etc
have been destroyed as signs of protest. Where the property destroyed
was that of the protesters themselves (or was issued to them
38See Russell "Civil disobedience" in The New Statesman Feb 1961 245.
39In response to the question whether Satyagraha will lead to violence, Gandhi answered: "It may, though I am trying my best to prevent any outbreak of violence." Gandhi Non-violent resistance 229.
40See the discussion of the campaign at the salt-works in India, infra chap three III B (1)(b).
personally) the person or property of the adversary was not attacked,
and such acts should, for practical purposes, be treated as acts of
non-violent resistance.
Given these provisos, however, it is submitted that the requirement of
non-violence generally provides the most workable criterion.
The implications of the requirement of non-violence (or a low level of
coercion) are far-reaching. By putting the conflict on this footing,
the protesters can effectively disarm the government or render its
superior forces useless. Effective government depends upon a mixture of
control (or compulsion, inter alia through the use of force) and
authority (or legitimacy). By acting non-violently themselves, the
protesters can in a very dramatic way raise questions about the
authority or legitimacy of the conduct of the opponent. In the case of
a government which is largely dependent on control, the direct effect
might be small, but where authority plays a meaningful role, the
legitimacy of the government (both in its own eyes and in the eyes of
the public) can be seriously threatened if the government is seen to
respond excessively on the level of control. Civil disobedience, as one
protester according to evidence in a court case during the 1952
Defiance Campaign in South Africa stated, can be very effective to put
the government in a position where it either has to change or expose
itself as a dictatorship.41 Through the non-violent actions of the
protester, such a government is compelled to respond on the level on
which - it might be the weakest, namely that of morality.42
41See infra chap three III A (3)(c)(ii). 42To put this point more technically: Governments as well as their
opposition usually depend for their effectiveness on a mixture of authority and control; legitimacy and coercion. (On the multiplicity of legal systems in society, see Pospisi1 The Journal of Conflict Resolution 1967 2.) The less the authority at the disposal of any one of these institutions, the more it will be compelled to depend on control in order to achieve its goals. There is, consequently, a direct inverse relationship between authority and control within each grouping. There is, however, also a direct relationship between the control exercised by one institution and the authority of the other. The more excessive the violence of the state becomes, the more the legitimacy of its opposition would increase, and vice versa. Civil disobedience by the opposition alms precisely at inciting the government to use excessive force, whereby the legitimacy of the opposition can be increased. For this reason civil disobedience is sometimes described as a form of "moral or political jiu-jitsu". See
To conclude this part of the discussion, it should be noted that
someone like Thoreau was often said not truly to have been a civil
disobedient, because in certain cases he propagated the use of
violence.43 It is true that he did not consistently propagate non-
violence. This, however, does not detract from the fact that what he
propagated in other cases was the method of civil disobedience. A
distinction should be drawn between those, like Gandhi, who propagate
civil disobedience as an article of faith,44 and others - like Thoreau
and the leaders of the Defiance Campaign - who use civil disobedience
as one of several strategies. Insofar as their actions are non-violent
and meet the other requirements, they are practising civil
disobedience. Rawls noted that "by taking part in civilly disobedient
acts one does not foreswear indefinitely the idea of forceful
resistance."45 Surely, the opposite is also true.
There might of course be practical advantages for protest leaders who
intend keeping their campaigns non-violent in taking a strongly
principled and even religious stand against violence. In a campaign
where the ideal of non-violence is not evident, the masses could on the
spur of the moment resort to violence and hence relinquish the high
moral ground of the campaign at a time when the protest movement is
possibly not ready or willing to engage in other forms of protest. As
we shall see, this happened to some extent in the case of the Defiance
Campaign, while Gandhi, on the other hand, had considerable successes
in keeping his campaigns disciplined and non-violent. However, this is
a practical matter of strategy.
C. OPENNESS
An illegal, non-violent act must furthermore be executed in the open -
that is publicly or overtly - in order to qualify as an act of civil
disobedience. The element of openness, it is submitted, has three
essential components:
Sharp The dynamics of nonviolent action 657. According to Gandhi Non-violent resistance 57, "[t]he might of the tyrant recoils upon himself when it meets with no response, even as an arm violently waived in the air suffers dislocation."
43See Infra chap three III C (4). 44See Gandhi Non-violent resistance 223. 45J Rawls "The justification of civil disobedience" in Beauchamp
Ethics and public policy 132 at 139.
- the illegal deed must be committed in the "public forum" (the
streets, parks, etc46); or it must at least be intended to be
visible to the public through the media;47
- by a person whose identity is revealed; and
- who does not attempt, at least not through illegal means, to
evade being held responsible for the act.
Openness is in many ways one of the most crucial components of civil
disobedience, which gives it its distinct character. It affords to this
form of protest its sharp edge, its dramatic impact. The authorities
are defied for all to see, and while no attempt is made to conceal it.
Civil disobedience consequently carries with it the risk of undermining
respect for the law. At the same time the openness of the transgression
renders the perpetrator vulnerable and exposed, and provides her - and
her opponent -with an incentive not to abandon the dictates of
morality.48
The element of openness helps to ensure that civil disobedience
acquires the disposition of a two-sided communication act.49 Of course,
clandestine acts of terror also convey a message, but in such cases the
"communication" is intended to be mainly one-sided. It is the openness
of civil disobedience that makes it a civic act, something which
becomes part of the community’s public life.50 By acting openly the
civil disobedient communicates his message to members of the community,
and then places himself, as it were, in their hands. The element of
openness, it will be argued, gives civil disobedience a basically
46See Alien University of Cincinnati Law Review 1967 1 at 5. 47Cheating with taxes because one disagrees with its application
can consequently not constitute civil disobedience. 48This does not imply that clandestine acts cannot be conscience-
based. See the example of the illegal abortion performed for purely altruistic reasons, discussed in Wasserstrom The Journal of Philosophy 1961 641 at 645.
49As to the communicative aspect of civil disobedience, see HA Bailey "Confrontation as an extension of communication" in Bosmajian Dissent 181.
50See Bedau The Journal of Philosophy 1961 653 at 655 and Cohen Civil disobedience 16. Because the Boston Tea Party was carried out under cover of darkness, it cannot be classified as an example of civil disobedience, as was suggested by Cohen Civil disobedience 37. See also Bedau The Journal of Philosophy 1972 179 at 183.
democratic character, in the sense that an appeal is made to the body
politic to reconsider its position.
The self-imposed vulnerability of the civil disobedient forces his
adversary to elevate their conflict to the level of moral
consciousness. The question here is not who is physically the
strongest, but instead who is morally more powerful. Hence Rawls saw
civil disobedience as "a political action which addresses the sense of
justice of the majority in order to urge reconsideration of the
measures protested and to warn that in the firm opinion of the
dissenters the conditions of social co-operation are not being
honored."51
The element of openness makes it part of the definition of civil
disobedience that the protester should not actively try to evade
punishment, at least not through illegal means such as escaping or
concealing evidence. This does not mean, however, that he must insist
on being punished. It win later be argued that behaviour such as
pleading guilty and asking for the maximum sentence to be imposed could
enhance the justification of civil disobedience and might also make
civil disobedience more effective. That, however, does not affect the
definition of civil disobedience.52
D. MOTIVATED BY CONVICTION
The interest which the civil disobedient attempts to advance through
his actions are his convictions. An act of civil disobedience is
consequently not simply motivated by narrow self-interest or by cruelty
or other similar manifestations of spiritual deformity, as is the case
as far as the conduct of the common criminal is concerned. The term
"conviction" carries a wide and not necessarily a precise meaning. In
essence it involves convictions concerning the way the world is seen to
be or evaluated, as opposed to more mundane personal aspirations.53
One’s convictions are, of course, often influenced, or even to a
greater or lesser extent determined, by one’s own self-centred
interests. In fact, most of the participants in the classic examples of
51 J Raw1s "The justification of civil disobedience" in Beauchamp Ethics and public policy 132 at 132.
52 See also Dworkin A matter of principle 115. 53 On the meaning of the term "conscience", see Burger JCRDL 1991
512.
civil disobedience that will be considered in the historical section,
had a personal interest in the positive outcome of their respective
campaigns. Nevertheless, as civil disobedients they also maintained
that their aims were objectively and morally justified, and not merely
subjectively convenient or desirable. It is typical of the civil
disobedient to act on behalf of a group.54
The fact that conduct is motivated by conviction does not, of course,
carry with it any guarantees of its acceptability. Convictions that
lead to breaking of the law can be good or evil. It will be argued
later on that it might in many cases be extremely difficult to find an
acceptable criterion for distinguishing the "good" from "bad"
convictions, precisely because one is here dealing with basic values.
In such cases it might be more feasible to distinguish different acts
of disobedience on the basis of the type of conviction involved.55
With a view to a sliding scale of importance to the individual
concerned, one could distinguish convictions which form part of one’s
i) integrity; ii) opinion on the question whether those in power
exploit those without power, and iii) convictions in respect of matters
of policy.56 On basis of his distinction three different types of civil
disobedience can be identified:
- Integrity-based civil disobedience, which is motivated by the
belief that compliance with a particular law or system of laws
would seriously damage or even destroy what one might call one’s
"moral wholeness", for example by requiring one to commit sin or
to be an instrument of injustice. Disobedience in this case is
regarded as the only means of preventing the moral catastrophe
which compliance would entail. This is the category of one's most
deeply held beliefs - conscience par excellence or one’s
"ultimate concerns".57 As will be demonstrated hereafter. Western
thinking for a very long time professed that only religious
values could be of such importance in people’s lives. However,
the modern understanding of freedom of conscience brought with it
54See Weingartner Columbia University Forum 1966 38 at 39 and Arendt Crises of the republic 76.
55See infra chap six III A. 56See Dworkin A matter of principle 102. 57See infra chap four IV C.
greater recognition of the basic role which secular beliefs can
play in people’s lives. On this basis we can further distinguish
between religious and secular integrity-based civil disobedience.
As will be demonstrated later on, this distinction is of
particular importance in the field of conscientious objection to
military service.58
Insofar as the beliefs that prompted acts of civil disobedience have
not acquired the status of an "ultimate concern", one can also
distinguish justice-and policy-based civil disobedience:
- Anti-exploitation civil disobedience is premised on the belief
that those who rule are oppressing or exploiting those subject to
their rule. The claim is made that those in power are benefiting
themselves at the expense of the powerless.
The exploitation that may occasion this kind of disobedience can
take on one of two possible forms:
- It can involve suppression of the majority by the minority
(as in apartheid South Africa), or
- it can involve suppression of the minority by the majority
(as in the United States as far as the Civil Rights
Movement was concerned).
- Policy-based civil disobedience does not involve the claims that
the government is compromising integrity, or that it is
exploiting those who are ruled. Instead, it is alleged that those
who are in power are misguided in acting in a certain way.
E. POLITICAL ACT
Certain acts of protest are illegal, non-violent, open and motivated by
conviction, but, nevertheless, can not be described as instances of
civil disobedience in the ordinary meaning of the word. A case in point
would be that of someone who breaks the speed limit to take an injured
person to hospital.59 What is lacking in that case, and in many others
where the traditional grounds of justification of criminal law apply,
is a political dimension. An act of civil disobedience is political in
the sense that it challenges the authority of the government - either
58See infra chap four IV. 59Compare the facts of S v Pretorius 1975 2 SA 85 (SWA).
because the disobedient believes that the government leaves him no
choice but to ignore its enactments, or because he exerts himself to
challenge the government.
Politically motivated acts can be either defensive, in the sense that
the person concerned refuses to comply with a particular legal
requirement because he considers that requirement to be wrong, but he
has no intention of bringing about any changes; or they can be result-
oriented, in the sense that the objective sought to be achieved by
one's protest is to bring about changes in the social system."60 In the
first instance the disobedient person’s objectives are, so to speak,
"private" or "internal"; in the second they are "public" or "external".
On basis of this distinction one can differentiate between, what may be
called, defensive and result-oriented civil disobedience.
In the case of defensive civil disobedience there is no intention to
confront the authorities (even if that is the eventual consequence of
one’s act).61 The perpetrator does not "go out of his way" to break the
law and to seek confrontation. The motivation is deontological, in the
sense that the person who acts illegally does so irrespective of any
possible consequences.62 He simply wants to avoid the moral debasement
of compliance. A good example in this regard is the position taken by
the Jehova’s Witnesses in respect of military service, which has been
characterised as follows: "Ons neem niemand kwalik wat wel mititere
diens doen nie; ons opponeer ook geen regering se militere aktiwiteite
nie; ons wil ook niemand afraai om militere diens te doen nie - maar
vir ons is dit sonde."63 This type of civil disobedience can also be
called "non-cooperational".
In the case of result-oriented civil disobedience, the illegal action
involves a deliberate choice on the part of the protester to break the
60See Smith Fordham Law Review 1968 707 at 719. Gandhi used the terms "defensive" and "aggressive" civil disobedience. See Gandhi Non-violent resistance 175.
61There is, so to speak, at the most dolus indirectus to confront the authorities.
62MacGuigan The Canadian Bar Review 1971 222 at 272 called obedience not aimed at results, "expressive" civil disobedience. This seems too strong a term, since the person involved might not even want to "express" himself, but might simply see detection to be unavoidable.
63See Potgieter & Munnik Militere dienspllg en dienswelering 13.
law in order to make a statement. He, so to speak, "goes out of his
way" to "seek confrontation".64 The action is consequentialist; it is
aimed at bringing about a specific social effect. Any one of the major
campaigns of civil disobedience that will be discussed could serve as
an example of this type of civil disobedience.
Gandhi rejected the term "passive resistance" as a description for his
own acts of defiance, because he regarded his approach as active and
confrontational.65 His civil disobedience was consequently result-
oriented.
Two types of result-oriented civil disobedience may be distinguished on
the basis of the mechanism through which change is primarily affected:
sacrificial and symbolic civil disobedience. Sacrificial civil
disobedience depends for its effectiveness on martyrdom. By willingly
placing his life, freedom or possessions on the line, the protester
legitimises his cause as something which is worth such a sacrifice.
Traditionally most instances of civil disobedience took this form. To
Gandhi, for example, civil disobedience was "a terrifying synonym for
suffering".66
Civil disobedience can also challenge and change the system simply
because the person who defies the state is seen as a normal and
respected member of society - he is "one of us". The ritual of the
criminal trial is designed to bring about "reality reparation" - that
is, to reconfirm to society what its values are.67 It identifies to the
dominant group who the "good guys" and the "bad guys" are. In this
sense the criminal trial reveals more about those who conduct it than
about those who are being tried. If a normal member of society is
branded as an outlaw, the security which this mechanism normally
provides is undermined. If such a person is on the other side of the
64As to the meaning of the term "confrontation" in this context, see R L Scott SDK Smith "The rhetoric of confrontation" in Bosmajian Dissent 170.
65See Gandhi "The theory and practice of passive resistance" in Golden number of "Indian Opinion" 1914 9.
66Gandhi Non-violent resistance 69. 67See R A Ball "A theory of punishment: restricted reprobation and
the reparation of reality" in Brantingham & Kress Structure, law, and power 135 at 143. The same can be said of war. See Reisman Folded lies 24.
fence, either we are not as good as we thought, or there must be
something wrong with the fence. Even if the actual punishment is
negligible, civil disobedience can consequently be deeply disturbing
and may provide those in power with a strong incentive to change the
system. Resistance which provokes, or attempts to provoke, this type of
reaction will be called non-sacrificial civil disobedience.
II. COMBINATIONS OF THE DIFFERENT TYPES OF CIVIL DISOBEDIENCE
Both defensive and result-oriented civil disobedience can in principle
be either integrity-, justice- or policy-based, and in each case it
could manifest itself as positive or as negative civil disobedience. In
practice, as should be evident from the historical overview, positive
civil disobedience is typically result-oriented (as is the case for
example with participation in illegal demonstrations), but it can also
be defensive (for example someone like Daniel in the Old Testament who
prays to his God even though it is prohibited). Negative civil
disobedience, on the other hand, will mostly be defensive (as was
the case with Daniel's friends who refused to bow to strange gods when
ordered to do so), but it can also be result-oriented (as in the
Defiance Campaign of 1952, when black South Africans refused to carry
passes as prescribed by law).
Although it is not entirely clear, since there is no generally accepted
terminology in this regard, it seems that a number of writers (i) only
regard, what we have called, positive civil disobedience as
disobedience proper, while others (ii) confine its meaning to what was
termed result-oriented civil disobedience.68 It is submitted that
neither of these limitations of the meaning of the term "civil
disobedience" should be applied.
Limiting the definition of civil disobedience to those cases where one
positively does something which is prohibited by law is both
impracticable and unwarranted. It is impracticable because, as is
generally accepted in criminal law and the law of delict, a watertight
distinction between a positive and a negative act cannot always be
68See eg Thalberg Scientia 1966 436 at 438 and Van den Haag Rutgers Law Review 1966 27 at 28, 35. Douma Metenskaplike Bydraes van die PU vir CHO 1986 1 at 2 required civi1 disobedience to be "dwingend", in the sense that it annoys the authorities.
drawn.69 Does it, for example, constitute a positive or a negative act
to go into an area where one is required to have a special permit
without such a permit? The limitation is also unwarranted, because it
is clearly counter-intuitive not to regard the actions of those South
Africans who refused to carry passes as acts of civil disobedience.
Should it then be required that only result-oriented acts of
disobedience can qualify as civil disobedience?70 It is submitted that,
although this requirement seems more feasible, it should ultimately
also be rejected. It is also both impracticable and unwarranted. It is
unworkable because it is often very difficult in real situations to
identify with sufficient clarity the motive of an act of disobedience
of the law. In reality, the motives in most cases are mixed. It often
happens that someone breaks the law to protect himself from moral
corruption, but at the same time she acts in a manner that could
possibly indicate an attempt to persuade others to follow suit or to
exercise pressure on the government to change its behaviour. It is
almost impossible in such cases to establish whether that person has
crossed the line between defence and offence.
More importantly, however, the limitation is also unwarranted. From the
perspective of the evaluator of such conduct, there does not seem to be
a sufficiently significant qualitative difference between defensive and
result-oriented disobedience to justify such a distinction. They
present the state with essentially the same problem, namely open
defiance state with the problem of a breach of its laws whereby its
authority is challenged, irrespective of whether or not that was in
fact the intention.
It is consequently submitted that, while it is useful to make a loose
distinction between positive and negative civil disobedience, and
between result-oriented and defensive civil disobedience, the basis of
these distinctions cannot be used to define civil disobedience as such.
These distinctions should rather be regarded as the basis of
differentiation between different types or manifestations of civil
disobedience.
69See Snyman Criminal law 42. See also, in respect of delict. Van der Merwe & 01ivier Die onregmatige daad in die Suid-Afrikaanse reg 29.
70See eg Raz The authority of law 264, who claimed that civil disobedience must be "designed to have a public effect".
In conclusion it should also be noted that all these different types of
civil disobedience can be practised either by individuals, in which
case it will be called individual civil disobedience, or by groups, in
which case it will be called mass civil disobedience.
III. CAN CIVIL DISOBEDIENCE HAVE REVOLUTIONARY OBJECTIVES?
Up to this point, the elements included in the definition of civil
disobedience have been discussed. It is now necessary to highlight a
possible element which thus far has not been considered.
A considerable number of writers, especially in the American tradition,
has argued that civil disobedience as a matter of definition must have
the limited aim of only protesting against a certain law or laws.
According to, what can for the sake of convenience be called, the
American approach, protest directed against the legitimacy of "the
existing system as a whole" cannot be civil disobedience, and, because
it is revolutionary, should instead be regarded as a different type of
political action.71 Civil disobedience cannot be aimed at, what Thoreau
called, a "peaceable revolution";72 that is, insofar as the term
"revolution" is used to signify qualitative change.73
If the American approach is correct and applied uncritically to other
societies, it would mean that neither Gandhi in his protest against the
British Raj in India, nor those engaged in the struggle against
apartheid in South Africa, or those who practised civil disobedience
against Hitler, would qualify as civil disobedients, because in all
these cases defiance of the law was aimed at protesting the existing
system as a whole.74 It would be strange, however, if a form of protest
71See Dworkin A matter of principle 105 and Rawls A theory of justice 363. See also Keeton Texas Law Review 1965 507 at 508 who required the civil disobedient to stay "within the framework of the prevailing form of government." According to Blackstone Georgia Law Review 1969 679 at 680, "[a] civil disobedient is distinguished from those who advocate rebellion or revolution in that he [does not advance] the overthrow of existing authority."
72See infra chap three III C (4). 73The distinction between revolution, which is aimed at replacing
the existing system, and rebellion, which is aimed at replacing the personnel of the system, was first drawn by Aristotle The politics 8.1. For other definitions of this term, see Calvert Revolution 16 and Friedrich Revolution 5.
74 It will later be demonstrated that while he was in South Africa,
were to be circumscribed in such a way as to exclude some of its most
well-known examples.75 Alternatively, it could be said that application
of the American approach to these circumstances would have required
those who used civil disobedience first to accept the legitimacy of
their opponent’s rule. That is clearly absurd.
It is submitted that such conclusions would reflect a confusion
regarding the meaning attached by the American writers to the term "the
existing system" as a whole. American jurisprudence cannot be
transferred uncritically to other jurisdictions where different
circumstances prevail. What American writers mean when they say that
the civil disobedient must remain loyal to "the existing system" is
that he must continue to uphold the basic values of democracy, which to
these writers describe their (the Americans’) "existing system". They
do not intend to convey that protesters in undemocratic countries can
only engage in civil disobedience if they remain loyal to their (the
foreigners’) undemocratic systems.76
Having cleared up this confusion, and accepting that what these writers
really meant was that civil disobedients must be loyal to basic
democratic values, the fact remains that the question of loyalty to any
value system can only affect the justification of such acts and not the
definition of civil disobedience. Civil disobedience is a morally
neutral tool and can be resorted to for good or bad purposes; to
achieve democratic or undemocratic objectives. Two types of result-
oriented civil disobedience can be distinguished with a view to the
range of the laws objected against:77
- Reformatory civil disobedience, which is aimed against a
particular law or laws or an aspect of the social system. The
Civil Rights Movement is an example of this type of civil
Gandhi accepted the basic legitimacy of the system of white domination. See chap three infra III A (2)(b). Later he saw civil disobedience as "a symbol of revolt against the state". See Gandhi Non-violent resistance 175.
75See Arendt Crises of the republic 77. 76See A Cox "Direct action, civil disobedience, and the
constitution" in Cox et al Civil rights, the constitution and the courts 2 at 12.
77See Sharp The methods of nonviolent action 316. See also Martin Ethics 1969/70 123 at 125 and Macfarlane Political Studies 1968 335 at 335.
disobedience, as well as Gandhi’s campaigns in South Africa. The
changes envisaged in this instance might even include a change in
government if the basic structure which upholds that government
is accepted.
- Revolutionary civil disobedience, which is directed at the basic
structure and laws of the existing political dispensation.
Gandhi’s campaigns in India, and the Defiance Campaign of 1952 as
well as the Positive Action Campaign of 1960 in South Africa, are
examples of this type of civil disobedience.
Two types of revolutionary civil disobedience can be
distinguished:
- Anarchistic civil disobedience, which rejects the
legitimacy of all laws, or the idea of law itself.
- Non-anarchistic civil disobedience, which aims at replacing
the existing structure with another system of law and
government.
As will be pointed out later on, the occurrence of anarchistic civil
disobedience would be very rare - logically there seems to be little
reason for someone committed to anarchy to act openly, since he rejects
the legitimacy of anything that might, as a result of his actions, be
done to him.
Whether any of these types of civil disobedience is justified in a
particular case, is an entirely different matter and will be addressed
later.
IV. DIRECT AND INDIRECT CIVIL DISOBEDIENCE
Civil disobedience can be used either as a direct or as an indirect
tool of political resistance in two different ways.
A. CONSIDERATIONS RELATING TO THE LAWS OBJECTED AGAINST
Direct civil disobedience in the first sense of the word occurs when
the agent violates a law because he believes that particular law to be
unjust. Such civil disobedience can either be positive or negative,
defensive or result-oriented.
Indirect civil disobedience, on the contrary, takes place when the
agent breaks a law, not because he believes that particular law to be
unjust, but because by doing so he objects against another aspect of
political life, such as another law or laws, certain governmental
policies, the entire governmental structure, etc.
Indirect civil disobedience requires "going out of one’s way" and will
inevitably be result-oriented. It can take the form of either negative
civil disobedience (for example if one refuses to pay tax in protest
against a non-related aspect of government policy) or positive civil
disobedience (for example if one takes part in an illegal demonstration
aimed at a bill pending in parliament). Indirect civil disobedience in
this sense of the word is the only type available when the wrong being
protested is the absence of governmental action.78
As far as the definition of civil disobedience is concerned, there need
not be a relationship between the issue giving rise to the civil
disobedience and the illegal act itself.
This issue will again be addressed when the justification of civil
disobedience is considered.79
B. CONSIDERATIONS RELATING TO THE TARGET OF THE RESISTANCE
Civil disobedience can also be direct or indirect in another respect,
to which brief reference has already been made. Firstly, however, the
dramatis personae should be explained. The person practising civil
disobedience will be called the "civil disobedient" or simply the
"disobedient" or "protester". In the case of result-oriented
disobedience her conduct is directed at, what we will call, her
"target". The target can be either (i) the direct adversary or
"opponent"; the person, people or institution whose behaviour in the
first place caused the civil disobedience, (ii) the potential followers
of the protester, whose support she wants to mobilize, or (iii) it
could be a congenial third party which is in a position to change the
behaviour of the adversary. Such a third party may be called a
"benevolent background force".
The civil disobedient can address his adversary directly or indirectly
in the following way: directly addressing the opponent occurs when the
78See Cohen Rutgers Law Review 1966 1 at 4 and Weingartner Columbia University Forum 1966 38 at 39. Katz UCLA Law Review 1985 904 at 906 wrongly described the lunch-counter sit-ins of the Civi1 Rights Movement as an example of direct civil disobedience. As will be demonstrated, the only crime possibly committed during the sit-ins was trespassing, while the demonstrations were directed against de facto segregation practices. See infra chap three III C (6)(c).
79See infra chap six III B (2).
aim of civil disobedience is primarily to bring about a change of heart
in the opponent without any outside interference. Indirectly addressing
the opponent occurs when civil disobedience is primarily aimed at
mobilising supporters or persuading a "benevolent background force" to
in a positive way exercise its leverage with the adversary.80
Protesters often make use of indirect civil disobedience aimed at a
benevolent background force, because civil disobedience can only
operate as a form of imminent critique: it is dependent, for its
success, on exposing the difference between pretense and reality,
between the values the target professes to adhere to and his actual
deeds. Civil disobedience works like Plato’s idea of education - it can
only awake and arouse that which is, at least latently, already there.
It cannot create humanity in an opponent where there is none.81
Consequently, civil disobedience has very little chance of success if
used directly against a ruthless opponent. Since the opponent in cases
where legal resistance is no longer considered feasible is often
ruthless, it is only natural that the indirect address system would be
the most common manifestation of civil disobedience.
An appeal through civil disobedience to a benevolent background force
can take many forms: it can be Gandhi who mobilises British opinion
against Smuts (in the case of South Africa) or world opinion against
Britain (in the case of India); it can be Thoreau who wishes to
mobilise the electorate against his direct opponent, the American
government, or it can be Martin Luther King attempting to activate
public opinion and the federal government against his opponents, the
Southern local authorities. It will be argued that mass civil
disobedience in this century was in most cases also aimed at mobilising
the world community, as a type of global "benevolent background force",
against the more direct opponents, namely the national governments.
Although the third party might ultimately act coercively against the
direct opponent, the protester’s actions essentially remain persuasive
in the sense that the third party is persuaded and not coerced into
80See Sharp The dynamics of nonviolent action 659. 81Ndabaningi Sithole observed in 1966: "Nonviolence is an appeal to
the moral conscience. If the 'powers that be' have no moral conscience, nonviolence is left without any power whatsoever." See his observations contained in Davis & Baker Southern Africa in transition 240.
acting against the opponent.
V. THE TERM "CONSCIENTIOUS OBJECTION"
To conclude this chapter, the meaning of the term "conscientious
objection" and the way in which it is related to "civil disobedience"
will be considered.
In some cases where people are placed under a positive legal duty to do
something which some of them might find particularly objectionable,
provision is made for exceptions from direct compliance. This normally
takes the form of an alternative way of complying with that particular
law. The most obvious example in this regard is the provision made in
many societies for alternatives to mandatory military service.82 In such
cases those who qualify for exceptional treatment have a legal
alternative to civil disobedience.
Often, however, only a limited number of those who find compliance with
the law unacceptable qualify for alternative service. The alternative
option provided for by law is consequently not open to them. They have
to choose between compliance and civil disobedience. The question then
arises in respect of which category of persons refusing to comply the
term “conscientious objection” be applied.
A variety of different approaches are proposed by writers on the
subject.
- Some commentators restrict the term "conscientious objection" to
the actions of those who do qualify for exemption - that is, in
the case of military conscription, those who qualify for
alternative service.83 Seen in this way, conscientious objection
does not amount to civil disobedience, since such action is legal
while civil disobedience is per definition illegal.
- Other writers only use the term "conscientious objection" to
refer to the actions of those who do not qualify for exemption,
and who then act illegally and -at least in the case of military
82On conscientious objection to compulsory military service in South Africa, see infra chap four IV. In Britain special legal provisions are made for those who object to joining a trade union on religious grounds. See Lloyd Introduction to jurisprudence 146 n 24.
83Cohen Civil disobedience 41 regarded the term "conscientious objection" as a special expression, generally observed for "acts entirely within the protection of the law".
conscription - end up in prison.84 If this approach were to be
followed, "conscientious objection" would be a form of civil
disobedience. Conscientious objection would then in fact simply
be another name for negative civil disobedience.
- The third approach is to distinguish civil disobedience and
conscientious objection on the basis that, while both involve
illegal action, civil disobedience is always result-oriented
while conscientious objection is defensive. If this approach were
to be followed, civil disobedience and conscientious objection
would be parallel and mutually exclusive terms. The term "civil
disobedience" would then be used to refer to, what was termed,
"result-oriented civil disobedience" only, and the term
"conscientious objection" would then cover, what was called,
"defensive civil disobedience".85
It is submitted that all three approaches are too narrow and do not
properly reflect the common usage of the term "conscientious
objection". In ordinary discussions we regard as conscientious
objectors those who qualify for alternative military service (who are
excluded by the first view) as well as those who do not qualify for
alternative service and are imprisoned or otherwise punished (who are
excluded by the second view). It also seems strange (as is done by
those who adhere to the third view) not to regard someone who refuses
to do military service for reasons of conscience as a conscientious
objector on the grounds that his intention is to make a political
statement and to put the government under pressure.
In this study the term "conscientious objection" will be used to refer
both to those objectors who qualify and those who do not qualify for
exemption, irrespective of the question whether they intend through
their actions to have a political effect. The actions of those who
qualify for exemption win be referred to as "legal conscientious
objection", while the actions of those who do not qualify win be called
"illegal conscientious objection". Only the last category qualifies as
civil disobedience proper, but, for reasons which will appear in due
course, both categories of conscientious objection will be considered
in this study.
84See Bedau The Journal of Philosophy 1972 179 at 181 n 3. 85This approach was considered supra chap one II.
VI. SCHEMATIC SUMMARY
CIVIL DISOBEDIENCE ("cd")
Elements of cd Mainfestations
Legalimacy-based cd
Legality-based cd
Illegality
Positive cd
Negative cd
Coersive cd
Non-violence
Non-coersive cd
Openness
Religious
Integrity-based cd
Secular
Motivated by conviction anti-exploitation cd
Policy-based cd
Defence cd
Political act sacrificial
Result-oriented cd
Non-sacrificial
Other manifestations of cd
Reformatory cd
Anarchic cd
Revolutionary cd
Non-anarchic cd
Direct and indirect cd:
Direct cd, which involves a
direct breach of the laws
objected against
Consinderations regarding
the laws objected against
Indirect cd, through which
objection is expressed
against certain laws by means
of breach of unrelated laws
Cd which directly addresses
the adversary
Considerations regarding
the target
Cd which address the
adversary indirectly, by
mobilizing one’s own
constituency or by working
through a “benevolent
background force”
CONSCIENTIOUS OBJECTION (“co”)
Illegal co (a form of cd)
Legal co (not a form of cd)
CHAPTER THREE:
HISTORICAL SURVEY OF THE DEVELOPMENT OF CIVIL
DISOBEDIENCE
In this chapter the historical development of civil disobedience, seen
against the background of the origins of illegal resistance to
authority, will be considered. In accordance with the general focus of
this study, the emphasis will be on the development of civil
disobedience as an instrument of mass political mobilisation during
this century.
I. THE ORIGINS OF ILLEGAL RESISTANCE TO AUTHORITY
The origins of illegal resistance to authority can be traced to our
constitutive myths - the entangled web of fact and fiction which
represents our understanding of our origin. Irrespective of the
question of their objective validity, these myths, because they reflect
the workings of the human spirit in an uninhibited setting, should be
taken seriously. They reveal much about the way in which we understand
our world and consequently about our deepest nature.1
Myths have been described as "the common source of morality and
religion"; "the most powerful statement of values to which any society
commits itself"2 and "nothing less than a cloak for abstract thought."3
In many ways myth is the early manifestation of ideology.
"Illegality" was earlier defined as attending conduct which is likely
to provoke the wrath of the state or the ruler. ancient times, when
law, morality, custom and religion were largely fused, transgression of
most of the taboos of society was likely to have this effect. It is
consequently the myths regarding such actions that are the most
pertinent to our inquiry.
1See Jung Man and his symbols 78; Smith & Weisstub The Western Idea of law v11, 122, 148; Reisman Folded lies 15 and Marti-Ibanez Tales of philosophy 41. By using the term "myth" to describe a particular historical exposition, no opinion is expressed about the question whether it is regarded as true or not - the intention is to signify that reference is being made to an account of facts which might be true or untrue, but which is nevertheless believed by many to be highly significant in their lives.
2Smith & Weisstub The Western idea of law 120. 3H Frankfort & H A Frankfort "Myth and reality" in Fankfort et_al
Before philosophy 11 at 15.
Few other subjects have generated so much interest through the ages as
authority and humankind’s relationship to it.4 Obedience and resistance
are, for example, the central themes of both religion and politics; the
one on a divine and the other on a secular level. It is therefore only
to be expected that our most important constitutive myths would centre
upon this theme. And indeed, the myth of the disobedient representative
human being plays a pivoted role in Christian and Greek portrayals of
the sources of human civilization. According to the Christian
tradition, human civilization as we know it today started with an act
of defiance of God himself, when .humanity’s earliest ancestors broke
God’s command not to eat from the tree of the knowledge of good and
evil. As punishment for having transgressed this commandment and having
attained this knowledge, human beings, according to the Bible, were
banished to a life of toil, misery, and eventually death.5 Similarly, in
Greek mythology, Prometheus stole fire, the basic requirement for
civilization, from Zeus, the supreme god. For having done this,
Prometheus was subjected to the most severe pain.6
Several observations flow from a consideration of the above. In the
first place, both traditions recognise the crucial role that resistance
plays in our earthly existence. According to these myths, resistance
coincides conceptually, if not chronologically, with authority.
Resistance must play a central role in the earthly life of humans, if
the archetypical human being will defy what he perceives as the highest
authority, namely God, even though this subjects him to the imposition
of the highest penalty, namely death.
There can be little doubt that a very powerful message about the
consequences of disobedience is being portrayed. At the same time, one
should be careful not to deduce from the Bible’s portrayal of the
events in paradise that any resistance to authority should be seen as
"wrong" or "sinful". It is resistance to God which is cast in this
light. In paradise God was the only authority, but it belongs to the
essence of human life as we now know it that we are subjected to a wide
4For an in-depth discussion of the psychological dimensions of obedience and resistance, see Mitscherlich Society without the father. On the famous Milgram experiments, see migrant Obedience to authority.
5Genesis 2 & 3. 6Aeschylus Prometheus bound. See the introduction by G Murray at
9ff.
variety of appeals to our obedience. Where the demands of the state,
the church, our peer group and our conscience conflict, one often does
not have the choice whether to disobey, but simply whom to disobey.
Obedience to one order often entails disobedience to the others. In
this sense disobedience is an inevitable and central feature of the
human condition.
Perhaps the most important message emerging from these myths is the
fact that, although Adam and Eve and Prometheus tempted divine
authority, their actions did make considerable human progress possible.
Adam and Eve gained the knowledge of good and evil, which lies at the
basis of an ethical society; while Prometheus gave his society the gift
of fire, one of the preconditions of civilization. For this progress
they did, however, pay dearly.
The "moral" seems to be that it is possible to make progress by
deviating from the established norm, but only if one is willing to "pay
the price". In the dialectical process which characterises human
development, disobedience to a particular order can have a charismatic
effect, in the sense that the old order can be relativised and a new
order can be legitimised. A new right and a new wrong can be created.
The precondition for this, however, is suffering.7
The notion of the creative force of suffering, which lies at the heart
of the most common manifestation of civil disobedience as a political
instrument, namely sacrificial, result-oriented civil disobedience,
will presently be discussed in more detail. For the moment it is
intended merely to point out that this notion can be traced to our most
fundamental understanding of human origin.
II. THE ORIGINS OF CIVIL DISOBEDIENCE
It was argued earlier that two main types of civil disobedience should
be distinguished: defensive and result-oriented civil disobedience. As
will be demonstrated in this chapter, defensive civil disobedience has
been practised by individuals and groups throughout history. Result-
oriented civil disobedience has a much shorter history and was practised
initially only by a small number of extraordinary individuals. It was
7See eg Gandhi's observation that civil disobedience is a "terrible synonym for suffering" (infra chap three III B (2)(b)) and Lutuli's comment: "No cross, no crown" (infra chap three III A (3)(c)(ii)).
only at the beginning of this century that the masses could be
mobilised to engage in result-oriented civil disobedience. These
historical developments will now be traced. It will be argued that the
differences in the developmental patterns of defensive and result-
oriented civil disobedience, as far as the numbers of people who were
willing to engage in these different forms of protest are concerned,
can largely be explained in terms of differences between these forms of
resistance.
A. AN INTERPRETIVE FRAMEWORK FOR THE HISTORY OF CIVIL DISOBEDIENCE
From our ex post facto perspective on history, events from the past
often seem either inevitable or wholly contingent; the result either as
a manifestation of a predestined master plan for the universe, or
simply the outcome of the contingent passions of the moment. The extent
to which much of history is the result of rational choices by the
individuals involved at the time, based on the facts of the situation
as they saw them, is not always taken into consideration. "Rational
choices” in this context mean choices which are calculated to attain
the maximum fulfilment of the agent's objectives at the minimum
personal cost. These choices can still make sense if the conditions
under which they were made are properly taken into account.
The historical patterns according to which individuals or groups
adhered to defensive or result-oriented civil disobedience, when and
where they did, can largely be explained in terms of such rational
choices, made by people throughout history who had to establish the
feasibility of particular forms of protest in their circumstances.
The two crucial factors which affect people’s willingness to engage in
certain types of resistance are the personal risk to which such actions
expose the resister and the likelihood of success. The higher the risk
and the lower the prospects of achieving one’s goals, associated with a
particular form of protest, the less attractive such protest becomes.
The fact that defensive civil disobedience has been practised
throughout history by groups and individuals, but mass result-oriented
civil disobedience was practised in this century for the first time,
can be explained in terms of this truism.
It was noted earlier that civil disobedience is a form of immanent
critique which can only be effective against a morally sensitive
target. Insofar as the objective is to change the behaviour of the
adversary, it follows that practising this form of protest only makes
sense in a situation where the target is susceptible to moral pressure.
Defensive civil disobedience is mostly encountered where the objective
is to preserve one’s “ultimate concerns" or integrity. The fundamental
nature of this concern implies that the issue of personal risk is often
considered to be of secondary importance. In order not to betray their
deepest convictions, people are often even prepared to die. Moreover,
since the resistor’s goal is not to change the prevailing social
circumstances, but merely to avoid the moral pollution of compliance,
the moral sensitivity - or lack of such sensitivity - is irrelevant.
"Success" for the resister lies simply in saving his own integrity
through non-compliance.
The conduct of the defensive resister is consequently not as dependent
on the response which it is likely to provoke as is the case with the
result-oriented resister. In this sense defensive civil disobedience is
ahistorical. It could be expected to be engaged in throughout history,
by any number of people who consider their basic convictions to be
sufficiently threatened.
Different considerations arise in respect of result-oriented civil
disobedience. The objective of this form of disobedience is typically
to protest against alleged exploitation and policy decisions of the
government. Because the objectives pursued are not as fundamental as is
the case with integrity-based disobedience, personal risk becomes more
relevant. But perhaps more importantly, the intention with result-
oriented disobedience is indeed to bring about social change, which
means that the political circumstances in which this type of civil
disobedience is practised could become highly relevant to the rational
agent concerned with a view to his prospects of success. The use of
result-oriented civil disobedience would to a large extent be
determined by prevailing political circumstances, and particularly by
the question how morally sensitive the target is.
If the target is perceived to be susceptible to moral appeals, result-
oriented resistance becomes attractive, because the chances of
"success" in bringing about the envisaged change might then become big
enough to offset the personal cost, namely the punishment likely to be
imposed. Conversely, if the prospective target is considered ruthless,
result-oriented civil disobedience becomes unattractive. This form of
resistance is consequently historically determined.
The term "success" in the above exposition should be given a wide
meaning. Since we are dealing with political resistance, which often
takes the form of attempts to have one set of values prevail over
another, it is submitted that not only immediate positive results
should count as success, but also the setting into motion of a process
that will probably eventually bring about change, even if that change
is not witnessed by the agent himself. In this context, even martyrdom
might be regarded as "rational" if the person concerned considers
change as sufficiently crucial and martyrdom is a likely way in which
it can be effected.
How, then, does the historical outline of the development of result-
oriented civil disobedience reflect such rational choices made by the
people involved? It is submitted that in antiquity result-oriented
civil disobedience was not practised because of the limited prospects
of bringing about moral conversion of the opponent through illegal
action. Illegal resistance of any kind was inevitably viewed by the
rulers as tantamount to treason, and the penalty would mostly be death.
Death of the disobedient was also unlikely to exercise a positive
influence on the opponent, either immediately or later. The rulers of
the time were ruthless and insensitive to outside moderating
influences. Because of their likely reaction, they were either resisted
by the use of force or disobeyed in secret, or both.
Only when visionary individuals at the beginning of our year count
perceived the emergence of a new, kinder order, would they engage in
result-oriented civil disobedience. The isolated instances of
disobedience, exemplified by the actions of a Socrates or the heroes of
Christianity, indicates that such conduct must have been rare indeed.
Such persons often had to pay the highest toll without witnessing the
eventual success of their ideals. Not surprisingly, the masses could
not be persuaded to do the same. Given the strength of their
convictions, it was “rational" for these individuals to engage in civil
disobedience, even if they were to pay the highest price. To the less
idealistic masses the chances of success, measured against the likely
punishment to be imposed, were still too remote.
Result-oriented civil disobedience became a realistic option to the
proverbial person in the street in the Twentieth Century. It is
submitted that only in this century people like Gandhi and King could
mobilise ordinary people with family and other commitments to engage in
non-violent protest, because, due to the new emphasis on human rights
and the development of enforcement mechanisms, the prospects of success
of civil disobedience became significantly higher, and the probable
punishment less extreme.
At least in two respects there was a dramatic increase in the global
human rights culture and the level of moral activism in the Twentieth
Century. In the first place, this century saw the introduction of
universal franchise and meaningful institutional protection of
individual rights. Inevitably, the more liberal governments were the
ones confronted with civil disobedience campaigns. They were
sufficiently morally sensitive to render the practice of result-
oriented civil disobedience feasible.
At the same time, important events also occurred on the international
front. In this century, for the first time in history, a "global
village" or international community was established. This was
manifested in the emergence of structures such as the United Nations
Organization. In an increasingly interdependent world, it would become
more necessary as well as easier for the international community to
involve itself in what was traditionally considered to be the domestic
affairs of nations, namely their human rights practices. This process
was greatly assisted by the powerful role which the international media
started to play. Injustice now started to lose its localized nature and
the adagium became popular that "human rights know no boundaries". It
is only natural that, once the world was locked into a single moral
unit, norms could be established that would aim at some consistency and
hence equality in the way in which people were treated, and that
international pressure would be exercised in that direction.
Although often hesitatingly, the emergent world community itself would
act as a type of universal benevolent background force to which
protesters who were not likely to succeed on a national level could
appeal. Only in this century would indirect civil disobedience, whereby
a protester aims his civil disobedience at the international community
who in turn then pressurises the direct opponent or national
government, have the prospect of success.
Of course, injustice remains rife. Many conflicts exist in which the
use of civil disobedience would probably be naive and totally
misplaced. Nevertheless, at least in some cases, sufficiently
widespread goodwill exists to make civil disobedience on a fairly
widespread level feasible and likely to obtain results. As win be
illustrated, it was only when the opportunities offered by these new
developments were pointed out to the masses by people like Gandhi, that
mass civil disobedience was practised.
With this interpretative framework in mind, a general historical
overview of the development of the different types of civil
disobedience will next follow.
B. DEFENSIVE CIVIL DISOBEDIENCE
Although illegal political resistance in antiquity (and in fact
throughout history) was often violent and motivated by narrow self-
interest, it is interesting to note that the oldest example of
resistance to secular authority known to us, which comes from Judaism,
was non-violent and motivated by conviction.8 Pharaoh, during the time
of the Diasphora, ordered the Hebrew midwifes to kill all the Jewish
male newborns immediately on delivery. According to the Bible "the
midwifes, however, feared God and did not do what the king of Egypt had
told them to do."9 When asked about the boys who lived, the midwifes
lied to Pharaoh and their fives were saved.10
As was the case when the first acts of resistance were considered, a
parallel may again be found in the Hellenistic tradition. In the Fifth
Century, Sophocle’s Antigone -considered by many to be the archetype of
civil disobedience 11- defied King Creon’s prohibition on the burial of
her brother, whom Creon regarded as a traitor. In the dark she threw
sand on the body of her brother. Antigone, however, was caught and
brought before Creon. She showed few signs of repentance and told
Creon:
I didn’t suppose your decree had strength enough,
or you, who are human,
to violate the lawful traditions
the gods have not written merely, but made infallible.
These laws are not for now or for yesterday,
they are alive forever;
and no one knows when they were shown to us first.12
8For an account of the origins of political revolution in Egypt, see Calvert Revolution 16ff.
9Exodus 1.17. 10Exodus 1.19. 11See eg Cover Justice accused 1. 12Sophocles Antigone lines 555-561.
In these acts of non-violent political resistance we have, in embreotic
form, the origins of civil disobedience in both the Judaist and in the
Hellenistic traditions. These myths, however, portray instances of
defensive rather than result-oriented resistance. Result-oriented civil
disobedience would involve the introduction of an additional element,
namely open confrontation.
C. INDIVIDUAL, RESULT-ORIENTED CIVIL DISOBEDIENCE
The non-violent actions of the midwives and of Antigone would later be
echoed, in their respective traditions, in the conduct of persons such
as Daniel and his friends and the heroes of the New Testament on the
one hand, and events surrounding the death of Socrates on the other.
What was new in this development was the introduction of the element of
deliberate and open confrontation, aimed at bringing about a new order.
In essence the idea was now introduced that martyrdom - which more
often than not was the inevitable result of open confrontation - could
be used to bring about social change.13 This idea was described earlier
as the core idea of sacrificial result-oriented civil disobedience.
The effect which acts of civil disobedience that resulted in martyrdom
played in the development of Western civilization is indeed remarkable,
as is the extent to which those who engaged in it were "successful" in
promoting their persuasions. Civil disobedience is often seen as a form
of destructive protest which only serves to undermine respect for
established legal and political institutions, while its role can in
fact be highly constructive. Sacrificial civil disobedience, involving
martyrdom, has served to establish some of the most crucial pillars of
the modern world order.
Martyrdom entails the sacrifice for a certain cause of something
normally regarded as an unqualified human good, such as liberty,
freedom, health or life itself. The fact that someone is willing to
"pay the highest price" - to sacrifice his life - in the pursuit of a
certain ideal, affords to that ideal the quality of highest value. The
sight of blood that is spilled for a certain cause affects the human
mind at its deepest levels of consciousness.14 It is difficult to
13In Greek "martyr" means "witness". For a discussion of the proper translation, see Vivian St Peter of Alexandria 216.
14See Reisman Emory Law Journal 1983 499 at 519 and Smith & Weisstub The Western idea of law 129.
discard a cause for which someone died, for to do so could be
tantamount to discarding the value of life itself.15
Two types of martyrs and martyrdom should be distinguished. In the
first place there are those who do not take the final decision to bring
the ultimate sacrifice themselves. Although such an occurrence can
make a great contribution toward mobilising loyalty for their cause
among their followers, they should, to the extent that they declined to
take a final decision to make the sacrifice themselves, be regarded as
victims rather than true martyrs.16 The true martyr is the person, like
Socrates or Christ, who takes the final decision to pay the highest
price himself. It is to this second category that the sacrificial civil
disobedient, who decides to break the law knowing that the consequences
to himself would be serious, belongs.
At crucial junctures in the history of Western civilization, prophets
of a new order peacefully, but also openly and deliberately, defied the
demands of older, more exclusive orders to which they were subjected,
in obedience to new, more inclusive orders, fully realising that they
will pay with their blood for such defiance. By bringing this
sacrifice, they relativised the older orders and legitimised the new
orders which they propagated. Through their defiance they created a new
right and a new wrong.
Seen on a purely secular level, the phenomenon of result-oriented,
sacrificial civil disobedience is particularly visible in the Judeo-
Christian tradition. At a time when the tribes of Israel were dispersed
and without a common loyalty, Abraham defied the claims which his
family and his own immediate happiness made on him. In obedience to "the
God of Israel" he agreed to sacrifice his son.17 After his absolute
obedience to God had been demonstrated in this dramatic way, it was no
longer necessary to actually bring the sacrifice. The point had been
made - the supreme position of the God that would unify Israel had been
established. Throughout Jewish history, Abraham served as an
inspiration and a reminder that one’s ultimate loyalty should be to
15See Heyns Die Suid-Afrikaan April 1989 43 at 43. 16In the South African context people like Jop1e Fourie and
Steve Biko were victims rather than martyrs. 17See Genesis 22.
that which unifies the group and not to one’s own parochial interests.18
In time, as the world developed and became more populated, the order of
Israel would in turn become too restrictive and exclusive. The time had
arrived for a new world order which would transcend existing barriers.
This most inclusive order would be brought into existence through the
greatest possible sacrifice: a double, divine sacrifice. Through
Christ’s defiance of the dictates of the church and the establishment
of his time, and his consequent death on the cross. God the Father
would sacrifice his Son, and God the Son would sacrifice himself in
pursuit of such a new world.
This most dramatic event in Western spiritual life would inspire much
of the world with a world-view in which all people are linked to each
other as the children of one God. This new world order would be founded
on the idea of love that transcends all differences - also the
distinction between Jew and Muslim, freeman and slave - now and to
eternity. That is, after all, the ideal for which Jesus died. The
disobedience of Christ to the dictates of the more restrictive order in
obedience to a higher order, and his subsequent martyrdom on the cross,
is the central pillar of strength of the Christian faith and Christian
values.19
The Judeo-Christian tradition constitutes what is traditionally
considered to be the more mystical side of Western civilization, which
to some extent might explain the role which martyrdom played in this
tradition. What is remarkable, though, is that the same phenomenon also
played a crucial role in the legitimation of new orders in the
Hellenistic tradition, which is normally considered the more rational
side of Western civilization.
One of the most influential aspects of the legacy of Greek philosophy
is Plato’s account of the events surrounding the death of Socrates, as
portrayed in the "Apology", "Crito" and "Phaedo".20 In "Crito" the scene
is described where Socrates, having been sentenced to death, is visited
18See Reisman Emory Law Journal 1983 499 at 517. 19For interpretations of the meaning of the martyrdom of Christ,
see Horbury & McNeil Suffering and martyrdom in the New Testament 9, 70, 118.
20For an analysis of the meaning of these events, see Reisman Emory Law Journal 1983 499; A D Woozley "Socrates on disobeying the law" in Vlastos The philosophy of Socrates 299 and Woozley Law and obedience.
by one of his best friends, Crito. Although he was charged with crimes
such as corrupting the youth, it is widely agreed that Socrates was
convicted and sentenced to death because of his political unpopularity,
which was the result of his relentless examination of all aspects of
life and his exposure of what he considered to be false certitudes.
Crito begged Socrates to escape from prison and from Athens - something
that could be arranged and which apparently would not be against the
wishes of the authorities, who simply wanted to get Socrates out of the
way.
Crito argued that Socrates owed it both to his family and his friends
to escape. Crito reminded Socrates of the opportunities he had missed
to avoid his eventual predicament. The first possibility had been to
escape from the city before the trial (as many people who faced the
prospects of a similar fate had done21); the second possibility had
been to have conducted his trial differently (Socrates inter alia
claimed in the course of the trial that he should be granted a pension
by the city of Athens as a reward for his good work). Now Socrates was
offered a third opportunity, namely to escape execution - an
opportunity which, according to Crito, he should not allow to pass by.22
In a seminal statement on the importance of conscience, Socrates told
his friends: "I cannot ‘mind my own business’." What he was convicted
for - his examination of truth and goodness - "is really the very best
thing that a man can do, and ... life without this sort of examination
is not worth living."23 He could consequently not comply with the
dictates of the state.
However, he could also not escape. Socrates argued that he could not do
this, because "one ought not to return a wrong or an injury to any
person, whatever the provocation is."24 He argued that one owes
obedience to the state and all its laws, since "any Athenian, on
21Aristotle for one would do this when he later face essentially the same charges as Socrates. His explanation was: "Athens must not sin a second time against philosophy." See Strauss & Cropsey History of political philosophy 64.
22See Plato's "Crito", reprinted in Plato The last days of Socrates 44 B.
23See Plato's "Apology", reprinted in Plato The last days of Socrates 71 at 72.
24Id 48 E.
attaining to manhood and seeing for himself the political organization
of the state and ... its laws, is permitted, if he is not satisfied
with [it] to take his property and go away wherever he likes."25
To escape would have involved the breach of a covenant with the state
to obey all its laws, even when occasionally they work to one’s
disadvantage. Consequently Socrates asked Crito:
Suppose that while we were preparing to run away from here ...
the laws and constitution of Athens were to come and confront us
and ask the question: "Now Socrates, what are you proposing to
do? Can you deny that by this act which you are contemplating you
intend, so far as you have the power, to destroy us, the laws,
and the whole state as well? Do you imagine that a city can
continue to exist and not be turned upside down, if the legal
judgements which are pronounced in it have no force but are
nullified and destroyed by private persons?"26
In a scene, the drama an ethos of which is surpassed only by that of
the cross, Socrates, surrounded by his friends, then drank the hemlock
and died.27
This portrayal of the last hours of Socrates has become one of the most
important images of Western civilization. Socrates has become the doyen
of both obedience to the law and civil disobedience.28 The crucial
factor which makes this seemingly impossible combination tenable to
many, was Socrates’ willing acceptance of the punishment meted out to
him. It was through his willing acceptance of martyrdom that he managed
to preserve not only his own convictions but also the idea that law
should be respected. By "paying the price" for disobedience Socrates
reaffirmed his respect for the law.
Socrates looms large as the archetype of the Western concept of the
citizen. In Socrates’ refusal to deny his conscience on the one hand
25Id 51 D. 26Id 89. 27This is described in the concluding pages of Plato's "Phaedo",
reprinted in Plato The last days of Socrates 99. The impact of the closing scenes of Socrates' life on later generations is discussed by F C Doherty in his introduction to Plato The martyrdom of Socrates 1.
28See also, however, Du Plessis SALJ 1980 423 and Olsen Georgia Law Review 1984 929 for more critical views.
and his decision to drink the hemlock on the other, the two spheres of
political life are portrayed: the private sphere of conscience, which
is beyond the control of the state, as well as the public realm, which
recognises the binding power of political obligation.
The way in which Socrates’ death was portrayed has in an especially
powerful way legitimised the idea of obedience to the state. As Michael
Reisman observed, Plato’s description of Socrates’ death is an
outstanding example of political propaganda, which operates primarily
on the emotional level.29 If subjected to analysis, Socrates’ arguments
are less than compelling.
In the first place, continued residence in the country of one’s birth
seems to be flimsy ground on which to base an obligation to obey all
its laws. As Adam Smith observed:
To say that by staying in a country a man agrees to a contract of obedience to government is just the same as carrying a man into a ship and after he is at a distance from land to tell him that by being in the ship he had contracted to obey the master.30
Moreover, a single instance in which the legal system is circumvented
is hardly likely to bring about the downfall of the entire legal
system. According to Michael Reisman, that idea "seems to be animated
by the primitive notion that infraction of sacred rites even by a mild
deviation will anger the gods who will let loose the gravest
consequences."31 Indeed, this aspect of the portrayal of Socrates' death
leads one to suspect that what Plato, as a political artist and as an
opponent of democracy, tried to convey was that political obligation
was as stringent as religious obligation.
Obviously Socrates’ point could not have been that individual laws
should never be disobeyed. He himself broke the law, and during his
trial he made it clear that he would break the law again if necessary.
What Socrates did argue, and for which he sacrificed his life, was that
although the individual must remain true to his own conscience, at the
same time the authority of the state has to be accepted. Disobedience
was acceptable only if one was prepared to be punished for it. The
fundamental message of "Crito", then, is that the laws of a political
29See Reisman Emory Law Journal 1983 499 at 509. 30Quoted id 514 n 18. 31Id 515.
community should be the object of one’s highest and ultimate earthly
loyalty.
Socrates lived and Plato wrote at a time when the state as an
institution was still in strong competition, for the individual's
highest loyalty, with smaller social units to which the individual
belonged, such as the family and the tribe. Plato’s political objective
was to assure the position of dominance for the state. As Reisman put
it:
Could this be made more dramatic than by having the wisest of men sacrifice himself to vindicate the authority of [the] state and the effectiveness of its laws even when they are wrong? Plato, who was committed to this super-ordination of the state over the older formations, thus uses the dialogue as political art to reinforce commitments to the city-state.32
Consequently, the death of Socrates served to promote the idea of the
legitimacy of the state as a more inclusive order vis-a-vis the older,
more restricted social groupings. Socrates’ self-sacrifice was
transformed by Plato into one of the most powerful instances in history
where disobedience and consequent martyrdom was used to bring about
social change.
Given the circumstances of the era (and his own political biases), it
is perhaps understandable that Plato chose to convey the message of the
need for obedience in such strong terms. The enormous scale and impact
of the idea he tried to establish could have necessitated the device of
martyrdom in order to be effective. However, it will later be argued
that martyrdom is by no means a requirement for legitimate civil
disobedience.
D. PLICATION
The above sets out, by means of the most dramatic examples available,
the role which acts of sacrificial, result-oriented civil disobedience
played in shaping history and legitimising new orders. It remains to
account for the absence of the element of open confrontation in the
early cases of the Hebrew midwives and Antigone, and its presence in
the later cases of Christ and Socrates. What prompted the switch from
defensive to result-oriented civil disobedience?
According to Daube, a pattern can be identified in the instances of the
32Id 516. (Original emphasis.)
Hebrew midwives and Antigone which cannot be accidental, since both
occurred in completely distinct civilizations.33 At a time when men were
by far the dominant actors, the agents committing these first acts of
political disobedience were women, and the opponents, in fact, were
men. Consequently, he regarded non-violent, conscience-based resistance
to threats to one’s conscience as essentially female. They are anti-
confrontational, anti-war, and life-preserving.34 In short, the
contention is that the midwives and Antigone avoided open confrontation
because they were women.
Conversely, the main actors in the later introduction of the element of
open confrontation - Socrates and Christ - were males, and
confrontation and martyrdom is seen as typically male pursuits. If this
is correct, result-oriented civil disobedience can be seen as a
synthesis of characteristically female and male responses to
suppression. The element of non-coercion is female, that of
confrontation is male.
The idea of there being an essentially female element at the heart of
civil disobedience does find some support in the observations of
someone like Gandhi, who more than two thousand years later also
perceived a female component in his own non-violent political
resistance.35 At the same time, Gandhian civil disobedience was largely
rejected in the male dominated African society, in favour of a more
33Daube Civil disobedience in antiquity 5. 34Id 18. 35Fischer remarked that Gandhi combined the masculine and the
feminine. He often compared himself to a mother, and wrote to a friend: "I hope you have not missed the women in me." See Fischer Gandhi 129. In his Freudian study of Gandhi's youth, Wolfenstein The revolutionary personality 144, 157 indicated that Gandhi modelled himself after his mother and thought of himself in feminine terms. Wolfenstein regarded non-violent resistance as essentially female. On Gandhi’s desire to find a way to express motherly love, see Chatterjee Gandhi's religious thought 89. See also Gandhi Non-violent resistance 325. Martin Luther King's father told him: "Well you didn't get this non-violence from me, you must have got it from your mama." See "The Martin Luther King no one knows" The Washington Monthly October 1988. As win be Indicated later, the Civil Rights Movement in the United States was introduced by a woman and the first Instance of African mass civil disobedience in South Africa occurred when women protested against the pass laws in 1913.
militant approach.36
Although there is a certain intuitive plausibility in this view, the
stereotype of female passivity versus male aggression and inclination
towards martyrdom seems too crude, without further unpacking, to carry
the full weight of what it tries to explain. Why, as rational actors,
would the women concerned have preferred not to act confrontational,
while the men were willing to do so and engage in martyrdom? Perhaps
some cue can be gained by asking whether this difference of approach
can be identified only by comparing the conduct of men and women, or
can it also be accounted for in other contexts?
It should be noted that a marked difference of approach in this regard
also exists between the people of the Old and the New Testament;
between Judaism and Christianity. As a general rule, open, non-violent
confrontation and consequently martyrdom is much more prominent and
acceptable in the New Testament than is the case in the Old Testament.37
Judaism is a martyr-religion only in the limited sense of the word of
its inspiring its adherents to engage, where necessary, in bearing
witness to their faith in what we have described as defensive civil
disobedience. To Christianity, martyrdom, however, is also a way to do
missionary work and to evangelize - that is, to win over new
adherents.38 Christian civil disobedience is more result-oriented.
The heroes of Judaism, with its emphasis on both the spirit and the
body, were typically survivors.39 This was evident from the history of
36See Infra chap three III A (3)(c)(ii). 37Perhaps the most famous words on the role of martyrdom in
Christianity are those of Tertullian: "The blood of martyrs is indeed the seed of the church. Dying we conquer. The moment we are crushed, that moment we go forth victorious." Quoted in Workman Persecution In the early church 143. The trials and the last words of the early martyrs were recounted in great detail in the early church, where it served as an inspiration. For an investigation of some of these trials, see Bisbee Pre-Decian acts of martyrs and commentarii. The central role of martyrdom in the Christian faith is discussed by various commentators in Horbury & McNeil Suffering and martyrdom in the New Testament. See also Pillay Wetenskaplike Bydraes van die PU vir CHO 1990 113.
38See the fascinating discussion of this theme by G W H Lamps "Martyrdom and inspiration" in Horbury & McNeil Suffering and martyrdom in the New Testament 118.
39See Daube Civil disobedience In antiquity 79.
Abraham, who eventually found a ram to slaughter in the place of Izak.40
Daniel, who came closest to direct confrontation and to sacrificing his
life for his religious convictions, eventually survived. This, however,
was not because his willingness to die changed the heart of his
opponent, but occurred only through a deus ex machina. Judaism also
rejected Christ the martyr. Judaism avoided martyrdom as far as
possible, and was not premised on the idea of the creative force of
suffering - or at least not to the same extent as Christianity.
Consequently, the figures of the Old Testament either acted illegally
in secret, or resorted to violence.
The traditional heroes of Christianity, on the other hand, with its
strong emphasis on the spirit, were martyrs who sacrificed the flesh.
This was the case not only with Christ, but also with the first
Christians.41 Christianity had drawn heavily on the Greek tradition,
where the voluntary death of Socrates served as the ultimate model of
the price a citizen had to pay if he wanted to bring about change in
his society.
How should it be understood, then, that result-oriented civil
disobedience is traditionally uncommon amongst women and Jews? Is there
a mean denominator between the circumstances of these two groups which
can provide a rational answer to this question?
It was suggested earlier that the use of result-oriented civil
disobedience throughout history can largely be understood with
reference to the prospects of success. It is submitted that the
explanation of why women and Jews in antiquity largely eschewed result-
oriented or confrontational civil disobedience, lies in the
ruthlessness of their traditional enemies, who were unlikely to be
moved by their martyrdom. The Hebrew midwives stood very little chance
of shaking the absolutism of the Pharaohnic regime; hence they lied
when detected. For her part, Antigone, as a woman, was an unlikely
counter for Creon, whom she defied in secret. Similarly, the world of
the Old Testament was one of an eye for an eye in the Pythagorean
40Genesis 22. 41See B Lindars "The persecution of Christians in John 15.18-16.4a"
in Horbury & McNeil Suffering and martyrdom In the New Testament 48 and T Baumeister "Martyrdom and persecution in early Christianity" in Metz & Schillebeeckx Martyrdom today 3.
sense, where mercy played little or no role.42
In contrast, Socrates’ actions were informed by a world-view in which
the good ultimately won, in which no person was intentionally evil. He
spent his life on the streets of Athens, where he experienced through
the force of his massive intellect the continued susceptibility of
people to persuasion. Christianity for its part has as its most basic
assumption the brotherhood and sisterhood of all people through a
common father. Clearly, such a world-view would be congenial to the
prospects of moral persuasion, and consequently to civil disobedience.
In short, traditionally the prospects of success of women and Jews,
were they to engage in result-oriented and consequently confrontational
civil disobedience, were too small to make it a feasible option, even
to the most outstanding individuals.
Defensive civil disobedience, which, as stated earlier, is independent
of political determination, would be practised in essentially unchanged
form throughout history. Result-oriented civil disobedience, once
established, would be practised on the basis of the persuasive power of
martyrdom by individuals with strong convictions. Initially the values
pursued through such actions would predominantly be religious, with the
most visible example of open defiance emanating from the early
Christians who resisted the pagan government in Rome.
The early Christians represented the first mass civil disobedience
movement in the West.43 Part of their strategy was to win new adherents,
but it was not their prime objective to bring about political change.
Only with Gandhi do we find the first instance of mass result-oriented
civil disobedience, used as a political tool.
The Roman Catholic Church, after Christianity became the state
religion, dominated the Western spiritual and, to a considerable
extent, also the political world until the Sixteenth Century. Again on
the basis of religious conviction, the authority of the Roman Catholic
Church would be challenged through open defiance by reformers such as
Martin Luther and John Calvin.
42See, for a sympathetic discussion of the violent history of the Old Testament, E J Crowley "The Old Testament" in Culliton Non-violence 11. The basis of political power in Biblical Israel is discussed in Weber Power 47ff
43See C Bay "Civil disobedience" in International Encyclopedia of the Social Sciences vol 2 473 at 473.
The emergence of the powerful understanding of the world which modern
science, that came with the Renaissance, offered, would fundamentally
challenge traditional religious notions, and in a sense became the new
religion. New perceptions of reality were established, and, even though
some scientists like Galileo were prepared to retract their views when
they came into conflict with the prevailing ideas of the time, others,
like Bruno, were prepared to die for their convictions.44 Civil
disobedience, however, insofar as it was practised, was still confined
to a small number of brave individuals.
III. THE MODERN DEVELOPMENT OF MASS, RESULT-ORIENTED CIVIL
DISOBEDIENCE
The first indication of a new era where not only individual but also
mass civil disobedience would be viable was the work of Henry David
Thoreau. Writing in Nineteenth Century America, the pioneer of modern
democracy, Thoreau saw the possibilities which this new commitment to
the value of freedom offered. Calling for mass jail-going by "all just
men", he was perhaps the first to express the belief that people could
be persuaded on a wide scale to confront the government peacefully and
openly in order to secure change.45 Nevertheless, it seems that the
circumstances were not yet conducive to mass protest. Thoreau's appeal
would remain a call in the wild. It did not change the present, but it
did herald the future. It would only be in the next century that this
new approach to the problems of mankind would be followed on a wide
scale.
Thoreau’s conduct signalled a very important and closely related change
which was taking place. Whereas the outstanding earlier examples of
civil disobedience almost without exception constituted acts of
sacrificial civil disobedience, Thoreau’s conduct can best be described
as an example of non-sacrificial civil disobedience. His real impact
did not lie in his “suffering" - he spend only one reasonably
comfortable night in jail. The force of his conduct lay rather in his
message that the decent place to be when the government had passed a
certain threshold of unacceptabi1ity, was in prison - and that under
44On the trial and execution of Bruno, see Boulting Giordano Bruno 262ff. The famous image of Galileo's recanting of his scientific beliefs before the Italian Inquisition is critically discussed by De Santillana The crime of Galileo. His trial is discussed at 237ff.
45Weber Civil disobedience in America 26.
such circumstances it was being out of prison which required
explanation.
Clearly, if it was possible at least in some societies to engage in
civil disobedience without necessarily being martyred, civil
disobedience in those societies was becoming a more widely acceptable
option. In a word, result-oriented civil disobedience was becoming a
more feasible instrument to be used by the masses, because the likely
sacrifice was becoming smaller and the prospects of success more real.
It has been pointed out that mass result-oriented civil disobedience
was first developed in South Africa, after which Gandhi introduced it
in India. It has since then been employed in a number of societies,
most notably in the United States. The history of civil disobedience in
these countries will next be considered in some detail, while a number
of other cases will be considered more superficial1y. Particular
emphasis will be placed on the conditions which made this development
possible - the role of the international community and of morally
sensitive targets.
A. CIVIL DISOBEDIENCE IN SOUTH AFRICA
Three different periods in the history of civil disobedience in South
Africa may be distinguished: pre-Gandhian, Gandhian and post-Gandhian.
(1) Early forerunners of civil disobedience
The Bantu-speaking peoples migrated to the southern part of Africa
somewhere between ten and fifteen centuries ago.46 A great number of
separate political societies developed, some of whom had sophisticated
social structures and powerful rulers who built vast empires.47 From the
middle of the Seventeenth Century colonists from Europe settled in the
southern part of Africa. Through access to superior weapons, effective
white control over the area now known as South Africa was established
two centuries later, and has been maintained to this day, although
there is every reason to believe that major change is now under way.48
African political resistance, both against black and white rule, has
46See Davenport South Africa 3ff. 47Id 57. 48Id 22ff.
traditionally taken the form of violent uprisings and war.49 Since the
beginning of the Twentieth Century, however, the method of civil
disobedience came to play a significant role in the political processes
of the country, and particularly in the black liberation struggle. The
question arises to what extent civil disobedience (as opposed to other
forms of resistance) has historical roots in African society.
In a later chapter it will be argued that the notion of "Illegal"
resistance to political authority is to some extent accepted in
traditional African society.50 But what about the idea that the
voluntary acceptance of suffering ensures ultimate salvation, which
underlies the important category of sacrificial civil disobedience?
Although this idea is not entirely foreign in African culture, it has
neither a long nor a happy early history in South Africa. The most
outstanding examples in this regard are the history of the legendary
figures of Makana and Nongqause.
The Xhosa prophet, politician and soldier, Makana (or Makanda or Nxete)
is today regarded as one of the heroes of the early struggle against
the establishment of white hegemony in the country. At the beginning of
the last century, during the border wars in the Eastern Cape, he
unsuccessfully tried to capture Grahamstown as part of his attempt to
establish a powerful empire. While under hot pursuit by the colonists,
Makana one day, to the astonishment of his opponents, appeared in the
English camp and gave himself up. He said: "People say that I have
occasioned this war. Let me see whether delivering myself up to the
conquerors win restore peace to my country." He in effect decided to
sacrifice himself for the cause of his people. The effects were not
positive. He was sentenced to life imprisonment on Robben Island and
49On the early history of black political resistance in South Africa, see J C Mbata "Race and resistance in South Africa" in Paden & Soja The African experience vol 1 210; Karis & Carter From protest to challenge vol 1 3ff; Villa-Vicencio Civil disobedience and beyond 14ff; Daniel Radical resistance to minority rule in South Africa 24ff; Hell A history of the ANC 1ff and Davenport South Africa 123ff. See also Walshe The Journal of Modern African Studies 1969 583. For a discussion of the uprisings of slaves at the Cape, see Roux Time longer than rope 27ff. See also Van Jaarsveld De Kat 1989 66. T Emmett "Popular resistance in Namibia, 1920-1925" in Lodge Resistance and ideology in settler societies 6 at 14 refers to an observation by an Otjiwarongo magistrate that he was confronted by a "passive resistance campaign".
50See infra chap five III.
died while trying to escape. The border wars continued unabatedly.51
The history of the Xhosa diviner, Nongqause (or Nongqawuse), is even
more intriguing. In 1856, as a young girl, Nongqause convinced her
uncle and eventually the paramount chief, Kreli, that in order to drive
the English from the land all the cattle were to be killed and no one
was to cultivate the land. On a certain day food would appear in
abundance, the sky would fall and the white people would be crushed.
Two camps developed - those who believed her and did as she directed
them to do, and those who did not. According to reports of the time,
300 000 to 400 000 cattle were killed. Nothing out of the ordinary
happened on the specified date. In the ensuing famine between 25 000
and 50 000 out of 150 000 Xhosas died.52
As indicated above, these instances of non-violent, sacrificial
resistance were, however, very rare, and for the greater part Africans
exercised a choice between submission and violent resistance. However,
for more than two centuries the dominant feature of black resistance to
white rule in South Africa, where it occurred, was that it was
unsuccessful and in most cases led to even greater misery. Force failed
to secure freedom, and led to greater repression. Perhaps this fact
more than any other explains the popularity of the method which Gandhi
used with so much success against Smuts in the later liberation
struggle in South Africa.
(2) Gandhian civil disobedience in South Africa
In 1893 Mohandas Gandhi, aged 23, arrived in Durban, in what was then
the British colony of Natal.53 Having studied Roman law and Common law
in London, Gandhi was called to the bar in the Inner Temple. His
exposure to British life, institutions and values made a lasting and
largely favourable impression on Gandhi.54
Gandhi failed at legal practice both in Rajkot and Bombay in India.55
Hired initially as counsel of an Indian firm in a civil suit in South
51See Roux Time longer than rope 16ff. 52Id 47ff. 53On Gandhi's earlier history, see Gandhi An autobiography 3ff and
Kytle Gandhi 18. 54See Hancock Smuts 323. 55Fischer Gandhi 20.
Africa, Gandhi became involved in local politics and would eventually
spend most of the next 21 years in the country.56 Here, personally at
the receiving end of what became known as apartheid and often
personally subjected to racial humiliation,57 Gandhi developed a
powerful new way of confronting the country’s harsh injustices.
It must be noted, however, that during his career as lawyer cum
politician in South Africa, Gandhi was a reformer, not a revolutionary.
His quarrel was not with the system of racial discrimination: at this
stage he still accepted and in fact advocated its legitimacy. What he
objected to was the position which the Indian community occupied on the
social ladder. In fact, Maureen Swan’s probing study suggests that his
loyalties were even more limited and were for the main part of his
career in South Africa not aimed primarily at improving the position of
the Indian community as a whole, but were designed to do so only
insofar as this was in the interests of the elite - the merchants and
the traders.58 What can be described as Gandhi’s revolutionary phase
would commence after he had returned to India, when he rejected the
system of British domination in toto and in fact also eventually
rejected racism and other forms of elitism.
(a) Indians in South Africa in the late Nineteenth Century
When Gandhi arrived in Durban, immigrants from India -indentured
labourers and later merchants - had settled and were settling mainly in
56The literature available on Gandhi in South Africa is discussed in the recent contribution of J D Hunt "Gandhi in South Africa" in Hick & Hempel Gandhi's significance for today 61. For Gandhi's own account of his political struggle in South Africa, see Gandhi Satyagraha in South Africa 21ff and, for a useful summary, see "The struggle and what it has meant" in Golden Number of "Indian Opinion" 1914 13. For Afrikaner views on Gandhi, as expressed in the popular press of the middle of this century, see "Vredesapostel uit die land van die Himalayas" Die Ruiter 13 Feb 1948 and P J Cillie's "Gandhi - mistikus, profeet en dinamiese politieke leier" Die Huisgenoot 20 Feb 1948. See also "Ek het Gandhi geken" Die Brandwag 20 Feb 1948.
57The famous incident where Gandhi was pushed off a train in Pietermaritzburg is recounted in Gandhi An autobiography 111. On another unpleasant experience, see "When a police chief sang to save Gandhi from a Durban mob" The Nongqai Feb 1948. His career as a lawyer in South Africa is discussed by Sachs Justice in South Africa 205ff. On the difficulties he encountered to be admitted as an advocate, see Spiller De Rebus Oct 1985 517.
58Swan Gandhi 270.
the colony of Natal, with a smaller Indian community deve1oping in the
Zuid-Afrikaansche Republiek ("ZAR") or Transvaal.59 Indians were not
allowed to settle or trade in the Orange Free State60 and were
prohibited from owning land in that republic.61 In the Cape Colony,
traditionally more liberal in racial matters, Indians, at least in
theory, had the franchise.62 The major events concerning the development
of Gandhi’s peculiar form of protest occurred in the Transvaal and in
Natal, and consequently the discussion will centre upon the situation
in these two territories.
Indians living in Natal at the time of Gandhi’s arrival found
themselves subjected to extensive de facto discrimination.63 The
indentured labourers lived in conditions which can only be described as
slavery, while, at the same time, some merchants had vast economic
interests. There was little legislation dealing specifically with
Indians before responsible government, and Indians, as British
citizens, in theory qualified for the franchise if they met the wealth
requirement.64 However, the tide started turning against them when
responsible government was granted in 1893 - thirty-three years after
the first indentured Indians had arrived in South Africa.
59In Natal, In 1896 there were 51 000 Indians, 50 000 whites and 400 000 Africans; in the ZAR 5 000 Indians, 120 000 whites and 650 000 Africans. Fischer Gandhi 23, 24. For the approach in the ZAR to the immigration of Indians into the territory, see Volksraadsbesluiten. art 41, 9 May 1888.
60Art 1, chap 33 of Wetten, contained 1n the Wetboek van den Oranje-vrijstaat 1891, determined that Indians could settle 1n the Orange Free State for more than two months only if they had special permission. Art 8 of the same chapter prohibited the State President from granting Indians trading or farming rights.
61Section 8, Ordinance 29 of 1890, "Wet tot tegengaan van de Instrooming van Aziatische kleurlingen, en tot verwijdering van blanke misdadigers van elders in deze staat komende". See also Ordinances 5 of 1876 and 1 of 1865.
62In practice, however, most Indians were barred from the vote by s 4(c) and s 6 of the Franchise and Ballot Act 9 of 1892, which raised the property requirement for the franchise from £25 to £75 and posed an educational requirement. See Huttenback Gandhi 98.
63For an overview, see Gandhi Satyagraha In South Africa 26ff. 64Section 11 of the Natal Charter of 1856 provided that every man
over the age of 21 who owned Immovable property to the value of £50 was entitled to a parliamentary vote. See also Pachai The International aspects of the South African Indian question 2.
Shortly after responsible government was granted to Natal, the
Franchise Amendment Bill, aimed at the abolition of the right of
Indians to the parliamentary franchise, was introduced in the new
Parliament.65 Although the significance of the proposed act was largely
symbolic,66 the symbolism was important. It reflected for the first time
official legislative antagonism aimed at the "Asiatic races" eo nomine,
and was a significant departure from what Chamberlain had called "the
tradition of the Empire", which at least in theory made "no distinction
in favour of or against race or colour".67 An extensive assault on
Indian interests in the colony had begun.
Any act accepted by the Natal parliament, however, had to be approved
by the colonial office before it would have the force of law. Upon
Gandhi’s arrival in the country, the acceptance of the Franchise
Amendment Act was still pending.
In the ZAR, Law 3 of 188568 provided, inter alia. that "personen,
behoorende tot een der inboorlingrassen van Azie" were denied the
rights of citizenship69 (including the franchise) and the right to
acquire land (although this provision did not have retroactive force).70
Law 3 provided that all Asians who wished to reside in the Transvaal
had to register and upon registration had to pay £3.71 This law also
gave the government the power to determine that Indians had to reside
65The Bi11 provided that only those members of the Asiatic races who already had the franchise before the introduction of the Act would in future have the right to vote. See Swan Gandhi 45. See also Pachai The International aspects of the South African Indian question 10 and Huttenback Gandhi 18, 74. The underlying idea was not to affect vested interests, but also not to grant any new rights.
66Less than 300 Indians exercised the right to vote in 1894. Swan Gandhi 45.
67Quoted in Pachai The International aspects of the South African Indian question 11.
68"Omtrent Koelies, Arabieren en andere Aziaten", as ammended by Volksraadsbesluit art 1419 of 12 Aug 1886, published in the Bijvoegsel tot de Staats-Courant der Zuid-Afrikaansche Republiek 2 Feb 1887. For a discussion of Law 3 and its effects, see Pillay British Indians In the Transvaal 1ff.
69Section 2(a). 70Section 2(b). 71Section 2(c). Initially the amount was fixed at £25. This was
changed to £3 by the 1886 amendment.
in locations which could, in terms of a 1886 amendment, be allocated
for reasons of health.72 The Transvaal authorities used this provision
to also restrict Indian trade to these areas.
A dispute arose as to whether the Transvaal government had the right to
subject the Indians to such discriminatory legislation, and especially
whether Law 3 could be used to restrict Indian trade to the locations.73
The British government had, through the Pretoria Convention of 1881,
conceded the Transvaal "complete self-government subject to the
suzerainty of Her Majesty". Hereafter the London Convention of 1884 was
promulgated in order to increase the Transvaal’s jurisdiction over its
own affairs. British subjects - including Indians - could gain entry
into Transvaal. The British government would in later years base much
of its claim to protect the rights of Indians on its position as
suzerain in terms of the Pretoria Convention. However, on the basis
that no mention was made in the London Convention of British
suzerainty, the ZAR claimed that it no longer applied.
Even if it did not, however, both conventions stipulated that "all
persons other than natives, conforming themselves to the laws of the
South African Republic" had the right to reside in any part of the
Republic74 and to carry on commerce.75 At the same time the 1858 Grondwet
van de Zuid-Afrikaansche Republiek proclaimed that people of colour
could not receive the same treatment as white persons.76 Clearly the
legal position was far from certain. Which provision(s) had to take
precedence?
To complicate matters even further, the British Colonial Office did
give permission for ZAR legislation which would make special provisions
applicable to "coolies". By using the term "coolies" the Colonial
72Section 2(d): "De regering zal het regt hebben hun bepaalde straten, wijken en locaties ter bewoning aan te wijzen."
73Swan Gandhi 39. See also Huttenback Gandhi 102 and Pi11ay British Indians in the Transvaal 2ff.
74Article 14(a) of the London Convention and a 22(a) of the Pretoria Convention.
75Article 14(c) of the London Convention and a 22(c) of the Pretoria Convention.
76Article 9 provided that "[h]et volk wil geene ge1ijkstelling van gekleurden met blanke ingezeten toestaan, noch in kerk noch in staat." Also, according to art 31, "[g]een gekleurden, nocht bastaarden zullen toegelaten worden in onze vergaderingen."
Office, however, meant Indian "workers", but the Transvaal State
Secretary took it to mean all Asians, and consequently Law 3 was framed
in such wide terms.77
Law 3 was assented to by the British government only after an 1886
amendment, which provided that locations could be allocated for
sanitary reasons, was accepted. The question then arose whether this
acceptance implied that the British government agreed to the allocation
of locations not only for the purposes of residence, but also for the
purposes of trade. The dispute intensified when an 1888 Transvaal High
Court judgment interpreted Law 3 to mean that the Transvaal authorities
could also restrict Indian trade to these "locations".78 Although the
measures were in practice not always enforced, the situation for
Indians in the Transvaal was increasingly uncertain when Gandhi arrived
in Natal.
Gandhi’s political career can be divided into two distinct phases. From
1894 to 1906 he participated in and eventually became the most
prominent leader of legal protest against measures adversely affecting
the Indians in South Africa. During the period 1907 to 1914 he
supplemented legal protest with campaigns of illegal protest. Since the
issues at stake during this latter period - the period most pertinent
to our inquiry - developed during the time of legal protest, a brief
overview of this phase will first be given.
(b) Legal resistance 1894 - 1906
The phase of legal resistance can be subdivided into the period 1894 to
1897, when Gandhi’s energies were directed at an unsuccessful attempt
to block the imposition of detrimental laws proposed in both Natal and
in the Transvaal, and the period 1897 to 1906, when attempts were made
to mitigate the effects of these laws.
The anti-Indian measures in Natal and Transvaal can be classified into
two main categories: those directed against the interests of Indians
already in the particular territory (the removal of Indian franchise,
requirements for registration, the imposition of taxes, etc) and
77See Swan Gandhi 39. 78Ismail Suleiman & Co v Landdrost of Middelburg (1888) 2 SAR 244.
The question at stake was whether the town of Middelburg could refuse a trading licence to an Indian outside a "location". The Court held that it could.
measures aimed at preventing more Indians from entering the territory
(immigration laws).
In Natal the initial protest against the proposed Franchise Amendment
Act took the form of a petition signed by 9 000 people, which Gandhi
presented to the Colonial Secretary in 1894.79 He further wrote letters
of protest to political figures and newspapers in South Africa, Britain
and India, and also drew attention to the plight of Indians in South
Africa during a 1896 visit to India. Gandhi was instrumental in the
formation of the Natal Indian Congress ("NIC")80 in 1894, of which he
was elected the first Honorary Secretary.81 "Congress", as this body was
called, was to co-ordinate much of the Indian protest in Natal in the
years to come.
At this stage the political activities of Gandhi and of the NIC were
directed only at furthering the limited cause of the merchant classes
in the Indian community.82 On the one hand, he based his claim to equal
rights for Indians on the fact that they were British subjects in terms
of the Royal Proclamation which followed the usurpation of crown rule
in India in 1858. On the other hand, while not expecting all Indians to
be granted the full rights and privileges of citizenship by the Natal
government, he pleaded on behalf of those "respectable" Indians who
deserved "the just place of the better class". He made it clear that he
did not intend to pave the way for "coolies” (meaning the working
class) to vote. What was at stake, Gandhi explained, was not the
political power of the Indian people but protection of this "better
class."83
In 1896 the Colonial Office approved what became known as the Franchise
Amendment Act 8 of 1896,84 which was more in line with the British
policy of the time and was a little more subtly worded than the 1894
version. Only people not of European origin who came from a country in
79Swan Gandhi 61. 80See Id 49ff, where the romanticised picture often painted of
Gandhi at this early stage of his career is placed into perspective. 81See Gandhi Satyagraha in South Africa 46 and Gandhi An
autobiography 148ff. 82See Swan Gandhi 50. 83Id 63. 84"To amend the law relating to the franchise."
which they did not enjoy the franchise, were disqualified from voting
in Natal.85 Although Indians were not named specifically in this Act, in
practice they were the ones to be disenfranchised. This came in
addition to the Indian Immigration Amendment Act 17 of 1895, which
imposed an annual £3 tax on all ex-indentured workers86 and which was
designed to induce Indians to leave the colony after expiry of their
contracts.
Indeed, the fear of the Indian leadership that the Franchise Amendment
Act was the thin end of the wedge by which a major assault was made on
Indian interests in Natal was proved to have been well-founded.
In 1897, The Immigration Restriction Act 1 of 1897, or the "Natal
Act",87 was passed, requiring all intending immigrants to posses some
written knowledge of a European language.88 This was followed by what
became known as the Dealers Licenses Amendment Act 18 of 1897,89 which
made it possible for the Natal administration to deny wholesale and
retail licences to Indians on the alleged grounds of insanitation.90
In accordance with British policy, none of these statutes, which in
reality were aimed at the Indian community, directly referred to
Indians, or in so many words took away existing rights. Consequently,
those enactments were not vetoed by the British government.
This barricade of anti-Indian laws largely broke the spirit of
resistance in Natal until 1906. Gandhi moved to the Transvaal after his
return from a brief visit to India in 1902, and the activities of the
NIC in the meantime consisted mainly of court actions that challenged
85Section 2. 86Section 6. This Act was approved of, however, by the Indian
government of the time. See Huttenback Gandhi 45. 87“To place certain restrictions on immigration." 88Section 3(a). A prospective applicant had to be able to write out
an application to immigrate in a prescribed form in "any language of Europe". Act 2 of 1897, "To amend the laws relating to quarantine", which provided for the prevention of people from infected areas from landing in Natal, was seen as another legislative strategem designed to prevent Indians from entering Natal.
89Indians were also required to carry passes by Act 28 of 1897, "To protect uncovenanted Indians from arrest in mistake for absconding indentured Indian servants."
90Section 8.
the implementation of the aforementioned laws in specific cases, such
as the refusals to renew licences and denials of permission to transfer
licensed businesses to new premises.91
Although Gandhi only moved his base to the Transvaal in 1902, he had
often visited the Transvaal before that. Here, as mentioned earlier,
Indians also faced considerable official hostility. The main source of
resentment was the fact that the government claimed the right to use
Law 3 of 1885, as amended and approved by Britain, to confine Indian
merchants to designated locations for the purpose of residence and of
trade.
Early in 1895 the dispute between Britain and the ZAR on the question
whether the imposition of such restrictions was legal, was referred for
arbitration to the Chief Justice of the Orange Free State - a state, as
was suggested earlier, not known for its positive disposition towards
Indians. Chief Justice Melius de Villiers held that the ZAR had the
right to interpret the law as it saw fit, and effectively endorsed the
ZAR’s anti-Indian stance.92
Gandhi led the protest against the "Bloemfontein award", as the outcome
of the arbitration came to be called. The validity of the finding was
challenged by the Indian community, inter alia through petition. As in
Natal, Gandhi claimed equal rights for Transvaal Indians on the basis
that they were British subjects. In the ZAR, however, because Indians
were discriminated against eo nomine, he did not attempt to dissociate
the elite as a class from the workers. Instead he sought to dissociate
Indians as a race from the "natives". Gandhi expressed himself on the
matter of Indians and blacks staying in the same residential area in no
uncertain terms: "About this mixing of the Kaffirs with the Indians, I
confess I feel most strongly. I think it is very unfair to the Indian
population and it is an undue tax on even the proverbial patience of my
countrymen"; and on another occasion he said: "If there is one thing
which the Indian cherishes more than any other, it is the purity of the
type."93
Gandhi indicated his acceptance of the broad legitimacy of the system
91See Swan Gandhi 68. 92For a full discussion, see Pillay British Indians in the
Transvaal 25. See also Swan Gandhi 81. 93Quoted in Swan Gandhi 112, 113.
of white domination in so many words in a remark made in 1903: "We
believe also that the white race in South Africa should be the
predominating race."94
In spite of extensive Indian protest against the provisions and
application of Law 3, the British government endorsed the Bloemfontein
award later in 1895, and the Indians also lost a subsequent test case,
heard in the High Court of the ZAR.95
During the next four years, however, very little happened in terms of
the practical implementation of Law 3. Before Indians were removed to
locations, the country was at war. One of the causes of the Second
Anglo-Boer War cited by Britain was the infringement of the rights of
(white and) Indian British subjects by the ZAR government.96
During the Second Anglo-Boer War, Gandhi organised an Indian ambulance
corps, serving on the British side in an attempt to demonstrate that
Indians were desirable and loyal British citizens.97
After his active participation in the War ceased in 1900, Gandhi
returned to India, in general disillusioned with Indian politics in
South Africa. He made an unsuccessful attempt to enter Indian politics.
When he was asked by the NIC to return to South Africa after the end of
the War in 1902, he again set sail for South Africa, hoping for a more
liberal approach to the Indians under British rule, inter alia because
94Id 133 n 163. Switzer Journal of Ethnic Studies 1986 122 at 126 also came to the conclusion that Gandhi's interests in South Africa never expanded beyond the needs of the Indian community. See also Huttenback Gandhi 44.
95Tayob Hajee Khan Mohamed v The Government of the South African Republic (F W Reitz. NO) (1898) 5 SAR 168. In his judgment Esser J declared: "There is not and never was an equality between whites and persons of colour, and we are bound to accept, as a principle, that every right possessed by the white man can only be exercised to a limited extent, or not at all, by the person of colour." Laws should be interpreted "in the case of any doubt or ambiguity, against the person of colour for whose benefit the law was enacted". (At 178.)
96Pachai The International aspects of the South African Indian question 18.
97He did the same during the "Zulu uprising" in 1906. See Gandhi An autobiography 214ff, 313ff. See also Marks Reluctant rebellion 214, 239.
of the pro-British stance of the Indians during the War.98 In reality
the situation of Indians would further deteriorate.
As mentioned earlier, the period immediately following the War found
Gandhi settled in the Transvaal, where he established the British
Indian Association ("BIA") early in 1903, which in many respects was to
be the Transvaal equivalent of the NIC. The new High Commissioner for
South Africa and Governor of what was now the Crown Colony of the
Transvaal, Milner, who had supported Indian rights in the ZAR as far as
possible in order to assert British authority over the region, now
favoured implementing of as much of the legislation of the former
Republic as was possible, in pursuit of the ideal of reconciliation
with the Transvaal whites.99 In fact, in one of its first major acts
after the War, the British Government gave notice that Law 3 of 1885
would be used to restrict Indian trade to Indian locations, now called
"bazaars". The new government adopted an even more aggressive policy of
restricting both the residential and the trading rights of Indians to
these "bazaars".100
Gandhi tentatively started mooting the idea of civil disobedience in
The Indian Opinion in 1904. He stressed the important role of suffering
in the course of human progress, and cited the examples of Christ and
Joan of Arc. He propagated the idea that the suffering which was
required of Indians to improve their situation in South Africa would
not be excessive because of the benevolent role which Britain played in
South African affairs: "We have given these illustrations [of Christ
and Joan of Arc] to draw a contrast between the very little that the
Indians as individuals have to sacrifice so that the community may
gain a great deal, and the much that had to be sacrificed in the
instances quoted to us"; and: "Nor is there any heroic sacrifice
required by the communities living under the British rule."101
98See Gandhi Satyagraha in South Africa 81. 99Swan Gandhi 94. 100Government Notice 356, Transvaal Government Gazette 1 May 1903,
and often referred to as the "bazaar notice". The notice contained the proviso that Indians whose "intellectual attainments or social qualities" appear so to entitle them, could be granted the right to reside outside the "bazaars". The Transvaal Executive Council, through Resolution 97 of 1902, also reaffirmed Law 3. See also Huttenback Gandhi 133.
101“Self-sacrifice" The Indian Opinion 21 Jan 1904.
Gandhi was promoting the idea that civil disobedience had become a
viable option to the ordinary person or, in the terms used earlier,
that mass result-oriented civil disobedience had become a rational
option.102
In Britain the Colonial Office found miner’s new approach increasingly
difficult to justify to the British parliament and to the government of
India. Especially the reversal of British policy regarding the trading
rights of Indians caused controversy. It became even more of a problem
when, in a test case brought in the Transvaal Supreme Court in 1904,103
Milner’s 1903 instructions were in fact declared illegal. In his
judgment the Chief Justice, Sir James Rose-Innes, said that "it does
strike one as remarkable that, without fresh legislation, the officials
of the Crown in the Transvaal should put forward a claim which the
Government of the Crown in England has always contended was illegal
under the statute, and which in the past it has strenuously
resisted."104 This decision, while bringing clarity as to the question
of trading rights, placed further pressure on Britain to reassess its
general position on Indians in the Transvaal. It also vindicated the
Indian community’s earlier claims.
As a direct consequence of the Court's decision, the field was left
open for Indian merchants to enter into competition with white business
people - a fact which caused much agitation from the colony’s white
population. Various fresh attempts from the Transvaal authorities to
limit the number of Indian licences to trade, however, now failed to
receive the sanction of the Colonial Office.105
In 1904 the Colonial Secretary, Lyttelton, formulated a new policy, in
line with the one followed in Natal, for the Transvaal. An immigration
act would block further Indian immigration into the Transvaal while, in
return for this, the vested commercial and other interests of Indians
in the colony would be protected. This policy was not acceptable to the
white colonists. They agreed with the restrictions on immigration but
were not willing to ease the other restrictions - in fact they wanted
102See supra chap three II D. 103Habib Hotan v Transvaal Government 1904 TS 404. The earlier
decisions in Suleiman and Tayob were disapproved. 104At 412. 105See Huttenback Gandhi 152ff.
to increase it.
After the War, entry into and residence in the Transvaal in general was
regulated under the Peace Preservation Ordinance 5 of 1903,106 which
required everyone who wanted to enter the colony to have a special
permit. In practice, very few Indians were granted permits. Although
they were not legally required to do so, the Indians already resident
in the Transvaal agreed to and did re-register voluntarily.107
Nevertheless, unauthorized entry into the Colony took place on a large
scale and the Ordinance was considered inadequate by many white
Transvalers, who believed that the concession that ex-residents could
return after the War was being abused.
In 1905 the "Lyttelton Constitution", which provided for the
establishment in Transvaal of an elective legislative assembly, was
promulgated.108 Soon the Transvaal would be awarded responsible
government. With the intention of providing at least a temporary
solution which would allow the British government to ride out the
remainder of Crown rule, Lord Selbourne, Milner’s successor, introduced
two draft ordinances.109 It provided for the compulsory (re-
)registration of all Indians lawfully resident in the colony by means
of fingerprinting. Further immigration into the Transvaal would be
prohibited - only temporary permits would be made available for Indians
to visit the Transvaal. Failure to (re-)register would constitute a
crime. However, at least the £3 tax would be scrapped.
Gandhi and the rest of the Indian leadership reacted strongly and
unfavourably to these developments, which amounted to the proposed
introduction of a "pass" system for Indians. They set themselves the
task of persuading the Transvaal legislature not to accept these
measures and the British Government to withhold Royal assent.
106To amend the Peace Preservation Ordinance of 1902", which amended the Indemnity and Peace Preservation Ordinance 38 of 1902. See s 2. See also, for an apparently ineffectual attempt to make these provisions applicable specifically to Indians, Government Notice 229, The Transvaal Government Gazette 22 Feb 1907.
107See Gandhi Satyagraha in South Africa 94 and Huttenback Gandhi 158.
108Letters patent providing for the constitution of a legislative assembly in the Transvaal, and the Transvaal Constitution Order in Council, 1905."
109Huttenback Gandhi 162 and Swan Gandhi 100.
Especially the fact that all Indians were forced to register by means
of fingerprinting was seen as humiliating, because it meant that
Indians were treated like criminals. The Selbourne Ordinances would
reduce Indians, Gandhi said in a letter to The Times, "to a level lower
than the Kaffirs".110
On 11 September 1906, 3 000 people, gathered at a meeting in
Johannesburg, pledged to resort to passive resistance and go to jail if
the ordinances gained the force of law.111 Since this date might well be
described as the birth date of civil disobedience as an instrument of
mass-mobilisation,112 it seems fitting to quote at some length Gandhi’s
description of the events:
The old Empire Theatre was packed from floor to ceiling. I could read in every face the expectation of something strange to be done or to happen ... The most important among the resolutions passed by the meeting was the famous Fourth Resolution, by which the Indians solemnly determined not to submit to the Ordinance in the event of its becoming law in the teeth of their opposition and to suffer all the penalties attaching to such non-submission.
I fully explained this resolution to the meeting and received a patient hearing ... The resolution was duly proposed, seconded and supported by several speakers one of whom was Sheth Haji Habib. He ... was a very old and-experienced resident of South Africa and made an impassioned speech. He was deeply moved and went so far as to say that we must pass this resolution with God as witness and must never yield a cowardly submission to such degrading legislation. He then went on solemnly to declare in the name of God that he would never submit to that law, and advised all present to do likewise. Others also delivered powerful and angry speeches in supporting the resolution. When in the course of his speech Sheth Haji Habib came to the solemn declaration, I was at once startled and put on my guard. Only then did I fully realize my own responsibility and the responsibility of the community. The community had passed many a resolution before and amended such resolutions in the light of further reflection or fresh experience ... Amendments in resolutions and failure to observe resolutions on the part of persons agreeing thereto are ordinary experiences of public life all the world over. But no one ever imports the name of God into such resolutions...
Full of these thoughts as I was, possessing as I did much
110Oct 1906. 111See Swan Gandhi 102 and Pachai The international aspects of the
South African Indian question 33. 112See Anonymous The Round Table 1952 130 and Meer Africa South
1959 21.
experience of solemn pledges, having profited by them, I was taken aback by Sheth Haji Habib’s suggestion of an oath. I thought out the possible consequences of it in a moment. My perplexity gave place to enthusiasm.
I [explained the consequences of the suggestion to the audience] and resumed my seat. The meeting heard me word by word in perfect quiet. Other leaders too spoke. All dwelt upon their own responsibility and the responsibility of the audience. The president rose. He too made the situation clear, and at last all present, standing with upraised hands, took an oath with God as witness not to submit to the Ordinance if it became law. I can never forget the scene, which is present before my mind's eye as I write.113
It seems that by making a pledge two objectives were achieved. In the
first place, divine authority, which is often seen to support
governmental authority, was invoked on the side of those who resisted
government. In the second place, the disobedience, which was
essentially anti-exploitation, through the pledge assumed the status of
being integrity-based.
The terms used in the Fourth Resolution accepted at the meeting are
interesting - the new measures were called "gulling, tyrannous, and Un-
British".114 Clearly the opportunities which British liberalism offered
for the imminent critique of civil disobedience were perceived.
In spite of Indian opposition, the draft ordinances were replaced by a
single ordinance, the Asiatic Law Amendment Ordinance 29 of 1906 which
was even more comprehensive. Only Indians who were already "lawfully
resident" in the Transvaal would qualify for registration115 and the
definition of the circumstances under which someone would be regarded
as "lawfully resident" was severely restricted.116
Although Gandhi was already in 1904 prepared to cross the line from
legal to illegal resistance, these developments provided the first
opportunity to mobilise mass support.117 Before he would actually do
this, however, a deputation was sent by the BIA to England to protest
against the new measures. The Asiatic Law Amendment Ordinance still had
113Gandhi Satyagraha in South Africa 102-107. 114Quoted in Huttenback Gandhi 166. (Emphasis added.) 115Section 3(1). 116Section 3(2). 117See Swan Gandhi 117.
to gain royal assent, and Indian efforts were directed at preventing
this. British public opinion was aroused against the measures. The
British government withheld their acceptance of the proposals in
anticipation of the introduction of responsible government in the
Transvaal. It would be left to the new government to decide how they
wanted to deal with the proposed ordinance - and with the threat of
passive resistance. As it turned out, the new government had little
doubt about what they wanted to do.
On 1 January 1907 the Transvaal was granted responsible government.118
Two days after the formal opening of the new parliament the Colonial
Secretary, General Smuts, introduced the Asiatic Law Amendment Bill,
which was to amend Law 3. Accepted unanimously as the Asiatic Law
Amendment Act 2 of 1907, and often referred to simply as "Act 2", its
provisions were essentially the same as those of the Asiatic Law
Amendment Ordinance of 1906.119 Act 2 was called the “Black Act" by the
Indian community.
In terms of the reservation clause contained in the Transvaal
Constitution Letters Patent 1907, the British Governor, after the
granting of responsible government, had the right to reserve for Royal
assent any bill whereby "persons not of European birth or descent may
be subjected or made liable to any disabilities or restrictions to
which persons of European birth or descent are not also subjected or
made liable."120 Consequently, the avenue of an appeal to the British
Government was still open to the Indian community. They used every
available channel to prevent Britain’s acceptance and the
implementation of Act 2. Resolutions condemning the Bill were submitted
to the colonial office by various organizations representing Indian
interests in the Transvaal, Natal and in England. A deputation waited
on Smuts, and an unsuccessful attempt was made to see Botha. Numerous
objections were raised in the press.121 Gandhi even attempted to forge a
compromise by proposing voluntary registration if the Act was scrapped.
This was rejected. On the basis of non-interference in the affairs of
118The Transvaal Constitution Letters Patent 1906. 119In terms of s 4(1), as read with schedule "B" of Government
Notice 716 The Transvaal Government Gazette, 28 June 1907, a full set of ten fingerprints had to be supplied by every applicant.
120Section 39(a). 121See Swan Gandhi 141.
the Transvaal government. Act 2, however, eventually acquired Royal
assent.
Gandhi’s appeals for Indians not to register were carried in the pages
of his newspaper, the Indian Opinion. Indian resistance, under the
leadership of Gandhi, would now turn from legal to illegal forms of
protest. The Selbourne Ordinances provided a catalyst for an
intensification of a growing resistance in the Indian community which
slowly matured and spilled over into action.
One fact contributing towards the pot eventually overcooking was
Britain’s failure to live up to the expectations it created in the
Indian community, namely that after its victory in the Anglo-Boer War,
Britain would be more liberal minded than the ZAR. On the contrary,
additional repressive measures were introduced.
Arguably the most important reason for the shift in the Indian
community towards illegal action was a change or development in
Gandhi’s own political thinking, which in turn resulted in a change in
the leadership he provided. At the beginning of the century, through a
process with which we need not detain ourselves here, Gandhi became
deeply impressed by the work of a number of proponents of non-violent
resistance, discussed below.122 As the position of Indians deteriorated,
he gradually became convinced that conditions were right to implement
this new weapon on a wide scale.
In Natal and in the Transvaal the issues of immigration to these
colonies, and restrictions on residential and trading rights of Indians
already there, permeated in 1907 into the most important causes of
friction between the Indian communities and the authorities; with the
additional problem of compulsory registration in the Transvaal. It was
against this last-mentioned, most visible form of discrimination that
the campaign was initially directed - which means that it started in
the Transvaal. It must be remembered, however, that the registration
requirement only formed one part of a wider web of discrimination. In a
very real sense, South African Indians at the beginning of this century
were fighting for their survival in the country.
Smuts received strong admonitions from British advisers not to alienate
British opinion by taking too hard a line in its relations with, India
122See infra chap three III B 2(a). On Gandhi's spiritual transformation during this time, see Kytle Gandhi 64ff.
which would embarrass the Imperial Government. That, he was warned by
Cape Prime Minister John X Merriman, "will above all furnish a pretext
for a great deal of mischievous interference in native matters."123 Also
impressed upon Smuts was the emergence world-wide of respect for the
dignity of people who were previously considered "inferior".124 In
effect, Britain was warning Smuts that it would act as a benevolent
background force and exercise pressure on Smuts if moved to do so by
the plight of South African Indians. It was under these circumstances
that mass civil disobedience in its new, modern form was first
practised.
(c) Illegal resistance 1907 - 1914
The period of illegal resistance by Gandhi to which we now turn, can be
subdivided into four different phases. During this time three major
campaigns of civil disobedience were conducted.
(i) Phase one: Refusal to register (1)
The first phase started in Pretoria in April 1907 when the September
1906 passive resistance resolution, aimed against Act 2, was
reaffirmed.125 Mass meetings at which the decision not to register was
confirmed, were held all over the Transvaal under auspices of the BIA.
Although pickets dissuading would-be applicants from registering
operated on a wide scale, there were virtually no reports of
intimidation and violence. At the end of the (extended) deadline for
registration, only just more than 500 applications had been received
out of the possible 7 000.126
Gandhi explained his motivation for leading the campaign of civil
disobedience in a letter to The Star:
It is because I consider myself to be a lover of the Empire for what I have learned to be its beauties that, seeing, rightly or wrongly, in the Asiatic Law Amendment Act seeds of danger to it, I have advised my countrymen at all costs to resist the Act in
123See Hancock Smuts 332 ff. 124Id 322. 125See Pachai The international aspects of the South African Indian
question 38. 126Swan Gandhi 142, 154, 155. Hancock Smuts 331 put the last figure
at approximately 9 000.
the most peaceful, and I shall add, Christian manner.127
Gandhi also described the effect of the Asiatic Act as the "ruination
of a whole people" and stated:
I claim, too, that the method of passive resistance adopted to combat the mischief is the cleanest and the safest, because, if the cause is not true, it is the resistors, and they alone, who suffer. I am perfectly aware of the danger to good government, in a country inhabited by many races unequally developed, in an honest citizen advising resistance to a law of the land. But I refuse to believe in the infallibility of legislators ... It is no part of a citizen’s duty to pay blind obedience to the laws imposed upon him.128
In Britain public opinion was turning against the British government’s
allowing the Transvaal government to treat the Indians in this way -
especially in the light of the likely effect which this would have on
Britain’s position in India.129
The first person to be arrested for not registering was Pandit Ram
Sunder of Germiston. He was sentenced to a month’s imprisonment.130 By
the end of January 1908 almost 2 000 Indians who had refused to
register, had been jailed. This included Gandhi. At his trial Gandhi
asked the magistrate for the maximum sentence of six months but
received only a two month sentence.131 To use the terms introduced
earlier, this first campaign of mass result-oriented civil disobedience
was legitimacy-based, negative, non-coercive, anti-exploitation,
sacrificial and reformatory.
After eight months, however, the movement was running out of steam.
This was due to a variety of circumstances, such a the lack of a well-
developed organizational infrastructure the absence of proper
communication between leaders am followers, and fear of the hardships
of imprisonment. Since January 1908, Indians who failed to register
faced not only prison sentences but also the threat of losing their
127"Indian trouble" The Star 30 Dec 1907. 128Ibid. 129See eg The Times of London 7 Jan 1908. 130See Pachai The international aspects of the South African Indian
question 39. 131The trial is recounted in Gandhi Satyagraha in South Africa
148ff. See also Huttenback Gandhi 184.
trading licences.132 Gandhi and others then concluded a compromise with
Smuts.
In terms of this compromise Indians would register, but they would do
so voluntarily and not as a result of compulsion. According to Gandhi,
Smuts agreed to repeal Act 2 once such registration was completed. With
this truce in January 1908, the first phase ended, and voluntary
registration - in the most cases accompanied by fingerprinting - took
place. It is ironic to note that voluntary registration is exactly what
Gandhi proposed as a compromise before the campaign.
In the meantime, the Immigrants Restriction Act 15 of 1907 was passed.
This Act provided, inter alia. that any person (that is Indian or
otherwise) unable to write out in "characters of an European language"
an application to enter the colony, would be deemed a "prohibited
immigrant".133 This provision was certain to block a substantial portion
of Indian Immigration into the Transvaal. In effect the immigration of
all non-indentured Indians, whatever their social status or educational
attainments, was halted by a further provision that "any person who at
the date of his entering" the Transvaal is "subject to ... any law
which might render him liable ... to be removed from ... this Colony",
was also deemed a prohibited immigrant.134 Because non-compliance with
Act 2 rendered Indians liable to deportation, immigration and
registration were effectively conflated into a single issue. The by now
familiar British way of discriminating against Indians without
mentioning them by name was used with deadly effect by the Transvaal
legislature.135
(ii) Phase two: Refusal to register (2)
In May 1908 it became clear that Smuts did not intend to repeal Act 2,
132See Swan Gandhi 161. 133Section 2(1) "prohibited imigrant". 134Section 2(4) "prohibited imigrant". See also Huttenback Gandhi
186. 135The government also issued curfew provisions, sidewalk
restrictions and limitations off the use of trains and trams by Indians. See Huttenback Gandhi 187. See also the classification of Indians as "Coloureds" for the purposes of Act 35 of 1908, "To consolidate and amend the law relating to prospecting and mining for precious metals and base metals and to provide for matters incidental thereto."
but in fact would on pain of criminal sanction, by means of the
Asiatics Registration Amendment Act 36 of 1908,136 require all Indian
residents who were absent during voluntary registration to register.
The fact that Act 2 was not repealed did not on the whole seriously
worsen the plight of Transvaal Indians, since most of them had already
registered. What was objected to most strongly was the retention of the
element of compulsion and what Gandhi described as Smuts’ breach of
faith.137 Extensive notice that the campaign of civil disobedience was
about to be resumed was given. When the ensuing negotiations broke
down, it was decided that the campaign of Satyagraha. as Gandhi was now
calling the form of resistance he used, was to be resumed this time
aimed also at securing the residence rights of an former bona fide
residents.
An ultimatum was presented to the government which threatened that a
large number of Indians would burn their (voluntarily obtained)
registration certificates if Act 2 was not scrapped. Another important
issue was the ban on immigration into Transvaal. The BIA only asked
permission for six highly educated Indians each year to be admitted
into the Transvaal.138 Various abortive attempts at negotiation
followed.139
On 16 August 1908, 1 300 registration certificates and 500 trade
licences were burnt in front of a crowd of 3 000 at Fordsburg.140 At the
same time a number of Indians from Natal entered the Transvaal
illegally and openly, and were arrested. Approximately 1 500 people,
including Gandhi and the other leaders of the movement, were placed in
custody for crossing the border, or reporting to the police station
136The voluntary registration which resulted from the compromise, illegal in terms of Act 2 of 1907, was legalised, but Act 2 Itself was not repealed.
137A chapter of Gandhi's book Satyagraha in South Africa is, somewhat tentatively, entitled "General Smuts' breach of faith (?)". No certainty exists as to what was really agreed upon. See also Hancock Smuts 336.
138See Huttenback Gandhi 197. 139Some test cases were also being brought. See "The struggle and
what it has meant" Golden Number of "Indian Opinion" 1914 13 at 15. 140See Swan Gandhi 171.
stating that they did not have registration certificates.141
By the beginning of 1909 it became clear that pursuance of the
movement’s methods was exacting too high a toll from its members. Many
people who had been in jail were not willing to again suffer such
humiliation, and the financial position of those who were imprisoned
was seriously prejudiced. Over the objections of Gandhi, who was now
out of jail, a deputation under his leadership was sent to England -
which, as it turned out, achieved nothing. The resistance had run out
of steam. By February 1909, 97% of the Transvaal Asians had taken out
registration certificates.142 On this despondent note the second phase
ended. A deputation to India, however, raised considerable public
awareness and the Indian government persuaded the British government to
implore the Transvaal to cease to deport Indians from the colony.143
The movement, which at this stage was largely confined to the
Transvaal, was showing its vulnerability to increased governmental
pressure. It had, however, also shown that civil disobedience could be
used to mobilise people. What had not been proved was that it could
change the behaviour of the government. The campaign was also much
localised. It was directed mainly against registration, and
registration was only required in the Transvaal. Civil disobedience had
not spread to the other provinces.
(iii) Phase three: Unsuccessful negotiations
The third phase began when Gandhi returned from London at the end of
1909, after the movement had virtually collapsed. With the creation of
the Union of South Africa on 31 May 1910, however, issues which were
previously considered regional, automatically became national. The
141See Kytle Gandhi 95 and Swan Gandhi 174. There is no account of these large-scale arrests in Huttenback Gandhi 193, 201 et passim. Gandhi refused to produce his registration certificate and was convicted by the magistrate of Volksrust with having violated s 9 of the regulations framed under Act 36 of 1908. He was sentenced to a £25 fine or two months' imprisonment. Characteristically he chose the latter. He was again arrested and convicted in Volksrust at the beginning of 1909. He was now sentenced to three months' imprisonment, which he chose over the alternative of paying a £50 fine. See Huttenback Gandhi 195, 202.
142See Swan Gandhi 174. 143See "The struggle and what it has meant" Golden Number of
"Indian Opinion" 1914 13 at 16.
prime centre of action would, however, for the time being remain in the
Transvaal. Hopes were raised again that the new administration would be
more tolerant. Dominating this phase would be the approach of the new
South African government to Indian immigration.144 Gandhi’s main
adversary remained Smuts, who was now Minister of the Interior of the
Union. During this phase, Gandhi would virtually retire to Tolstoy
Farm, outside Johannesburg.
On 7 October 1910 the British government sent a dispatch to the Union
government, urging the repeal of Act 2 and the removal of the racial
bar on immigration. It was suggested that Indian immigration could be
limited to a minimum by posing an education test. The Union government
responded favourably to the suggestions.145
In February 1911 an Immigrants Restriction Bill,146 which aimed at
repealing Act 2 and consolidating and replacing the immigration
measures of the different provinces - not only in respect of Asians,
but in respect of all other immigrants - was introduced in the Union
Parliament. It established an educational test for immigrants from
abroad.147 Immigration into any province, however, could still be
regulated by decrees of that particular province.148 This last measure
was severely opposed by Gandhi, inter alia on the basis that the Bill
recognised the right of the Free State to continue excluding Indians
altogether.
144In Chotabhai v Union Government (Minister of Justice) and Registrar of Asiatics 1911 AD 13 the Appellate Division, overruling a Transvaal Provincial Division decision, held that although Act 36 of 1908 provided only for the registration of minors resident in the Transvaal at the commencement of the Act or born within its boundaries, it did not follow that minors entering lawfully after that date could not register as provided for in Act 2 of 1907.
145See Huttenback Gandhi 27ff and "The struggle and what it has meant" Golden Number of "Indian Opinion" 1914 13 at 16.
146Entitled "Bill to consolidate and amend the laws in force in the various provinces of the Union relating to restrictions upon 1 iron igrat ion thereto, to provide for the establishment of a Union Immigration Department and to regulate immigration into the Union or any province thereof". Government Notice 35, Union Gazette Extraordinary 25 Feb 1911.
147Section 4(1) (a). The Australian model of requiring the applicant to write out 50 words in the language selected by an immigration officer was followed. See Huttenback Gandhi 275.
148Section 7.
After negotiations between Gandhi and Smuts - the latter being under
heavy pressure from Free State members of parliament who refused to
abandon the old republican discriminatory measures - it became clear
that an agreement could not be reached during the 1911 parliamentary
session. They agreed on a “provisional settlement". Smuts stated his
intention to fulfil the demands of the protesters during the 1912
session of parliament; Gandhi to bring passive resistance to a halt.
The first Immigration Bi11 was not passed although the government
administered the law as if it was in operation, and exempted a number
of educated Indians.149
Smuts asked Gandhi to have a national "Bill of Rights" (as it was
called) drawn up, which -in truly retroactive fashion would reflect the
sum total of Indian grievances. Smuts clearly wanted to prevent Gandhi
from later reopening the campaign of passive resistance with ever
widening demands. In addition to the familiar grievances, the issue of
the yearly £3 tax on Indians in Natal was now listed as a matter of
priority and eventually became one of the leading causes of
dissatisfaction.150 A second Immigration Bill was rejected in 1912 for a
variety of reasons and the provisional settlement was extended for
another year.151
In October 1912, Gopo1 Gokhale, President of the India National
Congress in India, visited South Africa. He ha talks with Premier Louis
Botha and with Smuts, after which he told Gandhi that the causes of
most of their grievances would be removed, including Act 2 of 1907 and
the £3 tax in Natal When a year later this had not happened, it was
once more regarded by Gandhi as a breach of promise which strengthened
the moral basis of his case. Gokhale’s visit also highlighted the
British link with both South Africa and India.152
At this time a shift in Gandhi’s approach became evident. He had become
more and more intent on exploring the use of Satyagraha as an
instrument of mobilisation on a national level. Gandhi’s traditional
149See Huttenback Gandhi 284 and Swan Gandhi 230. 150See Swan Gandhi 213, 226. 151Huttenback Gandhi 289. Section 28 of the Bin reintroduced all
the stipulations in the previous Bill which the Indians had found objectionable in respect of the Orange Free State.
152See Gandhi Satyagraha in South Africa 259ff. See also Hancock Smuts 341.
focus on the more pressing but also more localised grievances of the
different communities widened. He found in the endorsement of racial
bars on interprovincial migration contained in the Immigrants
Restriction Bill a cause that was of sufficient concern to inspire
countrywide support, but which at the same time would probably not be
met with the same vehement opposition from the government, if broken,
as was the case with some of the other issues.
Gandhi no longer upheld the belief that numbers were irrelevant. As
would happen so often in his career, Gandhi, the deontological
moralist, had to make room for Gandhi, the consequentialist politician.
His commitment to the interests of the elite now gave way to a
commitment to the interests of the Indian community as a whole. All
that was needed before Gandhi would appeal to Indians nationwide to
resist the measures to which they were now all being subjected, was
that the political temperature would raise a few degrees.
This happened due to a number of causes. One was the fact that the Cape
Division of the Supreme Court, in a 1913 judgment, found that the wife
in a marriage celebrated in accordance with rites which recognised
polygamy, even if there was only one wife in that marriage, did not
have the right to emigrate to South Africa.153 Gandhi concluded that all
Hindu and Muslim wives already living in South Africa would
consequently lose their right to live there.154
The third phase of post-1906 Indian resistance, during which time civil
disobedience was prevented by the provisional settlement, came to an
end when the third Bill dealing with Indian immigration was passed in
1913, and became law in the form of the Immigrants Regulation Act 22 of
1913.155
The Immigrants Regulation Act repealed Transvaal Act 2 of 1907 in its
entirety, except insofar as it related to minors.156 Immigration into
the Union and between provinces was formally made dependent on the
ability of the person concerned to read and write a European
153Esop v Union Government (Minister of the Interior) 1913 CPD 133. 154Gandhi Satyagraha in South Africa 276. 155Later renamed the Admission of Persons to the Union Regulation
Act. 156Schedule 2
language.157 However, the marriage question was not resolved to the
satisfaction of the Indian community, and the £3 tax remained
unrepealed. Since negotiations with the government had not secured the
required results, they were broken off, after a last attempt had been
made to mobilise British support.
(iv) Phase four: Satyagraha on a grand scale
The fourth (and final) phase, during which time the effectiveness of
Satyagraha as a form of mass political mobilisation on a nationwide
scale would be subjected to its most severe test yet, began in 1913.
The prime focus of the campaign at this stage would be the polygamous
marriage and £3 tax questions.
Gandhi’s belief that the Immigrants Regulation Act should be met with
passive resistance was repudiated in Natal and received only guarded
support in the Transvaal. His opposition to the £3 tax in Natal,
however, found support among the Natal Indian coal miners. Since this
tax was not abolished a year after Gokhale’s visit, it provided the
immediate grievance which, in conjunction with the general harshness of
their living conditions, would move the workers in Natal to strike.
Within two weeks after a call by Gandhi to strike, the appeal was
heeded by between 4 000 and 5 000 Indian coal miners in Northern
Natal.158 The government followed a policy of non-intervention and did
not arrest the strikers.
In order to elicit a confrontation, Gandhi led a group of strikers and
their dependents, which eventually totalled 4 000, on what was later
called the "Great March" - a trek by foot towards the Transvaal, where
they intended crossing the border illegally and getting arrested.159
Smuts nearly managed to turn this mass exodus into a disaster for
Gandhi when he refused to arrest the marchers, even when they illegally
157Section 4(1)(b). Section 4(1)(a) also added the provision that "any person or class of persons deemed by the Minister on economic grounds or on account of standard or habits of life to be unsuited to the requirements of the Union or any particular province thereof" was a prohibited immigrant.
158Swan Gandhi 247. 159For Gandhi's own account of these events, see Gandhi Satyagraha
in South Africa 297. See also “That wonderful march" Golden Number of "Indian Opinion" 1914 21.
crossed into the Transvaal. As Smuts’s biographer, Hancock, observed.
Smuts also acquired some Gandhian skills in ensuring that those under
his command refrained as far as possible from using violence.160 The
marchers as well as their funds were fast becoming exhausted, and they
were demoralised by the anti-climax of not being arrested. Then the
strike in Northern Natal spread spontaneously to the south of Natal,
and the movement was saved. The government now had a major,
spontaneously growing expression of open defiance on its hands which it
could no longer ignore.161
As was to be expected, because the strike in the south of Natal was
much less disciplined and without strong leadership, violent clashes
with the police occurred. The proportions of the strike forced Smuts to
intervene. Mass arrests were ordered, and both the march and the strike
were suppressed, often by violent means. The imprisoned marchers were
returned to Natal by train and confined to the compounds of their own
mines, which now had been cordoned off with barbed wire and were
declared outposts of the Natal prisons. When attempts were made through
whippings and beatings to force the strikers back to work, and this was
portrayed in the media, South African and world public opinion was
outraged. Britain was subjected to international criticism,
particularly from India, and this criticism was brought to bear on the
South African government.162 Gandhi’s moral victory was complete when he
called the campaign off in 1914 when white railway workers also began
striking. He stated that one should not take advantage of one’s
opponent’s misfortunes.163
Gandhi rejected the composition of a government-appointed commission of
160Hancock Smuts 340. 161Swan Gandhi 251. 162According to Bishop A technique for loving 57: "Public opinion
outside South Africa had become too strong to be ignored any longer, and South Africa's position within the empire rendered it amenable to pressure from Britain and India." Lord Hardinge, the British Viceroy in India, chastised the South African government for its actions. This criticism violated an established tradition that one part of the Empire would not criticise another. Nevertheless, it elicited much support in the Empire.
163Woodcock Gandhi 42 and Huttenback Gandhi 324. This aspect of Gandhi's approach was particularly resented by Simons Class and colour in South Africa 161. Simons, who wrote from a Marxist perspective, saw this as a naive squandering of opportunities.
inquiry into the causes of the strike and the march, because it
contained no representative from the Indian community, and refused to
testify before it. He nevertheless held private discussions with Smuts
and others.
The recommendations of the “Indian Inquiry Commission” were given the
force of law by means of the Indians Relief Act 22 of 1914. A number of
important concessions were made: Indian marriages were recognised as
valid164 and the £3 tax on the ex-indentured workers in Natal was
abolished.165 In other respects, however, the battle was far from over:
no provision was made to guarantee the right of South African-born
Indians to migrate from one province to the other, or to provide for a
more just administration of the laws affecting Indian interests.166
However, in correspondence with Gandhi, Smuts undertook on behalf of
the government to carry through the administrative reforms not covered
by the new Act.167
(d) Evaluation
For Gandhi, however, the battle in South Africa was over. In the eyes
of the world he had won. His international reputation was established,
and he went back to face India’s much larger problems with the still
novel, but by now tested, tool of Satyagraha. Gandhi and Smuts had come
to respect each other, but when he left. Smuts wrote: "The saint has
left our shores, I sincerely hope for ever."168
And so it was. But Gandhi’s ideas were yet to exercise a profound
influence on the history of both South Africa and the world. In his
1939 essay on Gandhi's political method, Smuts wrote that Gandhi had
revealed “a skeleton in our cupboard".169 The skeleton would be dressed
by later governments in the clothes of a beauty queen. It continued to
haunt South Africa and would again be revealed for what it was - not
164Sections 1 and 2. 165Section 8. 166For a discussion of the later history of Indian immigration, see
Corder Judges at work 169ff. 167See "The struggle and what it has meant" Golden Number of
"Indian Opinion" 1914 13 at 17. 168See Hancock Smuts 345. 169See J C Smuts "Gandhi’s political method" at 2, J D Pohl
Collection, University of Pretoria Archives.
least through civil disobedience.
Some important characteristics of Gandhi’s approach are evident at this
stage:
- His protest was aimed mainly at making a moral appeal on the
British sense of fair-play. In turn he trusted that Britain, as
the "benevolent background force", would then change the
behaviour of his primary opponents, namely the authorities in
South Africa. There is evidence that Britain indeed played this
role.
- He used civil disobedience as an instrument of immanent critique,
as a device which could exploit hypocrisy: the tension between
words and deeds. More than once, his protest would be expressed
in the indignant tone of someone who was the victim of a broken
promise. In particular, he exposed the conflict between the
ideals which Britain professed and the realities of her South
African territories.
- Gandhi tried all alternative channels of resolving the dispute
before he engaged in civil disobedience. He also continued to
explore legal possibilities, even after the campaign had started.
- The need for discipline in the campaign became manifest when
violence erupted in the south of Natal. It was clear that strict
organization would be needed in future to ensure that the purpose
of making a moral statement is not defeated. Gandhi viewed
absolute non-violence in this respect as indispensable.
- Gandhi believed that civil disobedience should be aimed at easily
identifiable injustices, to which a large section of the
community could relate - even if these were not the greatest
injustices.
- The idea of martyrdom, of suffering, was already playing an
important role in Gandhi’s understanding of the working of civil
disobedience. The pattern of inviting the harshest possible
penalty was set.
- Gandhi’s focus gradually shifted away from the more exclusive
interests of a particular grouping to become more inclusive, more
universalist.
The genius of Gandhi lay -in the fact that he perceived and used the
opportunity posed in early Twentieth Century South Africa to develop
non-violent resistance as a powerful form of resistance with appeal to
the masses.
(3) Civil disobedience in South Africa after Gandhi
The precedent which Gandhi set of a "non-white" person standing up for
his rights against the white rulers left a deep impression on the world
at large and on the people of the country where this first happened.
Gandhi had in the first place challenged the white rulers in a
fundamental way and managed not to get crushed in the process, which
was in itself a novel feat. Moreover, he managed to bring about actual
social change; something which was previously unheard of for a person
who was not white, dearly, here was something new and promising. It
would, however, be several years before the country once again saw
crowds reminiscent of those inspired by Gandhi, pursuing political
change through non-violent, illegal action.
Political resistance against white domination in South Africa after
Gandhi would mainly be initiated by the African section of the
population, with one dominant strand of this group widening to include
members of all races who opposed the racially exclusive basis of the
government, and the other strand being more preoccupied with the
African cause. The dominant organizations representing the interests of
these two formations, the African National Congress ("ANC" or
"Congress") and the Pan Africanist Congress ("PAC"), would in turn
sponsor mass campaigns of civil disobedience, before they were both
outlawed and turned to violence.
The period under consideration, from more or less 1912, when black
resistance started to become organised, to the present time, can be
divided into six phases.170
- During the first phase, from 1912 until the outbreak of World War
II, black opposition operated within the paradigm or non-activist
or "reactive" liberalism.
- During the second phase, the 1940’s, the politicising of the
black community took place on an unprecedented scale, preparing
the ground for the imminent confrontation when legal protest
could be supplemented by illegal resistance.
170A similar division in respect of the earlier periods is used by Lodge Black politics in South Africa since 1945 viii. See also Davis & Fine Journal of Southern African Studies 1985 25 at 27.
- In the 1950’s, during the third phase, the developing political
disquiet boiled over into action, which took the form of
campaigns of passive resistance, particularly in the form of
civil disobedience. With the escalation of action, the tensions
underlying the process of politicising that took place in the
previous decade came to the surface, and a rift occurred between
those who were more susceptible to European influences and those
who were more Africanist oriented.
- The fourth phase was initiated - and largely determined - by the
ban imposed on the main vehicles for black political expression
in the early 1960’s. There was a shift in strategy from non-
violent to violent illegal action, initiated mainly from
positions outside the country.
- In the seventies and eighties the actions of the armed
underground was combined with the activities of a reconstituted
mass overground.
- The sixth and present stage started at the beginning of 1990,
when the major political opposition groups were unbanned and a
process of negotiations was initiated. In this period civil
disobedience and threats of civil disobedience would come from
the liberation movements as well as from right wing whites.
During the last two phases, sporadic incidents of civil disobedience
occurred, but never on the same scale as in the 1950’s. During the
whole period under consideration, civil disobedience would never be
practised with the same commitment to non-coercion as under Gandhi -
and it would have much less success. As will be demonstrated, however,
even if the method of civil disobedience was new to many of those who
participated in the liberation struggle and was practised mostly for
reasons of strategy, it did have a considerable influence on the
struggle itself and on the system of apartheid.
(a) Phase one: The period before World War II
With the formation of the Union in 1910, black expectations of greater
political participation were not accommodated. The issue of the right
of Africans to vote for parliament was simply sidestepped when each
province was allowed to retain the franchise system that existed before
Union. Consequently, blacks and coloureds voted together with whites in
the qualified franchise dispensation of the Cape, but in the other
provinces only whites were enfranchised.171
Black protest against white domination throughout this phase of
resistance was characterised by its mild and guarded nature. It mostly
took the form of public comments, critical of measures introduced by
the government, which were made by a small number of politicised
blacks. Because the initiative remained in the hands of the government,
black opposition during this period can at best be described as
reactive. Resistance at this stage was aimed not at replacing the
existing structures of government, or even the personnel who manned
those structures, but merely at making them more responsive to black
needs. As Felt put it, the appeals of the leaders of the ANC at this
time "were directed not to the Africans, but to the whites".172
In 1912 the South African Native National Congress, which changed its
name to the African National Congress in 1923, was founded in
Bloemfontein.173 The formation of the ANC took place against the
background of the enactment of the Black Land Act 27 of 1913, which in
effect represented the equivalent of the nationalisation of by far the
largest part of the country by whites.
Pixley Seme, the convener of the conference in Bloemfontein, in his
address to the delegates described as follows the situation which had
to be redressed:
Chiefs of royal blood and fellow Africans, we have discovered that in the land of our birth we are treated as hewers of wood and drawers of water for the white race. The white people of South Africa have formed a union of their own; which does not recognise us as its integral part. In this union, the Africans have no say in the making and no part in the administration of the laws of the country.174
171See Davenport South Africa 247ff. 172Felt South Africa 1. 173On the formation of the ANC, see Meli A history of the ANC 34ff;
Karls & Carter From protest to challenge vol 1 61ff; De Villiers Die "African National Congress" en sy aktiwiteite aan die Witwatersrand part 1 23ff; Benson The African patriots 25ff and Esterhuyse & Nel Die ANC 9ff. See also R V S Thema "How Congress began" Drum July 1953 and his series of articles "Towards national unity" Bantu World 19, 26 Sept; 3, 10, 24, 31 Oct; 14, 28 Nov; 5, 12, 19, 26 Dec 1953; 9, 23 Jan; 20, 27 Feb and 24 April 1954.
174Quoted from R V S Thema "Towards national unity" Bantu World 26
The most direct and visible legacy of Gandhi and his movement to the
broader liberation movement in South Africa is to be found in the first
constitution of the ANC.175 Under the heading, "Methods or Modus
Operandi", the constitution provided that "the work of the Association
[that is, the ANC] shall be affected or advanced ... by passive action
or continued movement."176 In practice the organization at this stage
would mainly use "constitutional" - and futile methods, such as sending
deputations to the Prime Minister and to London to voice its protests.
In essence the ANC at this stage constituted an exclusively black elite
which pursued its own narrow self-interest strictly within the confines
of what was acceptable to the white rulers.177 To a large extent the
political vision it represented was confined to a plea for a return to
the qualified vote system of Cape liberalism. John Dube, the first
President of the ANC, expressed his "hopeful reliance in the sense of
common justice and love of freedom so innate in the British character"
to bring relief to the position of blacks where needed.178
The ANC in fact remained a small and largely ineffectual organization
until the Defiance Campaign of 1952. Before that date civil
disobedience - and any other form of political resistance - would only
be practised on a limited scale by individuals or small groups. Some of
the more widely published incidents will now be discussed.
The pass laws, which were an integral part of white rule in South
Sept 1953. 175The first constitution of the ANC was approved in 1919. Extracts
from the constitution are reprinted in Karis & Carter From protest to challenge vol 1 76ff. In 1912 the rev Z R Mahabane, later twice President of the ANC, warned that taxation of Africans without representation would lead to "such a condition of despair" that they might be "compelled to adopt the Gandhian policy of 'non-co-operation'." Karis & Carter From protest to challenge vol 1 296.
176Id 78. It is not clear what the words "continued movement" signify.
177The elitist nature of the movement in its early years was reflected in remarks such as those of Professor D D T Jabavu (later the first president of the All African Convention), who expressed the resentment felt by African leaders at the fact that "the more decent native" had to share transport facilities with the "rawest blanketed heathen". See Karis & Carter From protest to challenge vo1 1 122.
178Quoted in Walshe The rise of African nationalism in South Africa 38.
Africa for a very long time, provided a constant source of friction
between black and white, and were a natural focusing point for acts of
civil disobedience.179 In 1913 black women of the Orange Free State
engaged in civil disobedience on a large scale in protest against the
extension of these laws by municipalities to also cover women in that
province.
Women on a large scale refused to carry passes and hundreds went to
prison. In Winburg the prison became so full that the authorities were
powerless to deal with the resistors. Eventually the authorities were
forced to withdraw the pass laws for women.180 This is the first
recorded example of mass civil disobedience by Africans in South Africa
and one of the few instances where immediate success was achieved.181
Again women took the lead.
Both the harshness of the conditions of third class travel, which
Africans were compelled to use, and the desire to get away from what he
called "uncivilised" and "uneducated" people, prompted S M Makgatho,
President of the Transvaal branch of the ANC, to break convention by
travelling to Pretoria in a second class rail coach, which was reserved
for white passengers. As an "educated African" he in fact had a letter
of exemption from the operation of certain laws and regulations which
discriminated against Africans,182 but he wanted to test its
applicability. After serious arguments with railway officials regarding
the question whether he could use second class facilities, and after
having presented his letter of exemption, he was assaulted by a white
passenger. In a subsequent court case the assailant was convicted and
sentenced to pay a fine of one shilling or to be detained until the
179For the history of the now abolished pass laws, see Dugard Human rights and the South African legal order 75 and Simons Africa South 1956 51. See also the detailed discussion of the early days of the pass system in R v Detody 1926 AD 198.
180See Roux Time longer than rope 125. 181The campaign was halted when South Africa entered the First World War
on the side of Britain, but revived afterwards, and continued at least until 1920. For an account of the campaign, and the role of Sol Plaatje and Louis Botha in it, see Benson South Africa 33.
182Such letters were issued under the Coloured Persons' Exemption (or Relief) Proclamation 35 of 1901 (Transvaal) to blacks who were ministers of Christian denominations, or who have attained certain educational qualifications, etc.
rising of the court.183 The case was taken up by the ANC and received
wide publicity. According to R V S Thema, it "became a topic of
discussion around glowing fires at tribal kgotlas in the rural areas,
and in the slums of urban locations."184
In 1917, at Evaton, a number of Congress leaders, including R V Selope
Thema, were arrested when they sat on the only bench on the station and
refused to get up when told by the station foreman that the bench was
not to be used by "Kaffirs". They were arrested and held in custody for
a short time. Their claim against the state for damages resulting from
an unlawful arrest (much to their disappointment) was settled out of
court by their attorney. Each one received £10. Separate facilities for
blacks were then provided on the station.185
Encouraged by these events, other Congress leaders courted arrest by
openly using sidewalks in Johannesburg which were reserved for the use
of whites.186 They were subjected to much abuse from white pedestrians
and eventually forcibly arrested. In court they then produced their
letters of exemption. In this way they established the applicability of
these letters to a wide range of discriminatory practices.187
Illegal industrial action was also developed as a tool during this
183See R V S Thema "Towards national unity" Bantu World 12, 19 Dec 1953. See also Lodge Black politics in South Africa since 1945 2, who presumably refers to the same incident.
184See R V S Thema "Towards national unity" Bantu World 19 Dec 1953.
185See R V S Thema "Towards national unity" Bantu World 28 Dec 1953. When those arrested were told that a woman had to stand because they refused to get up from the bench, Thema asked whether they were arrested for a breach of etiquette. For an account of an analogous incident which occurred in Britain, where an ANC delegation called on Lloyd George and were thrown off their ship, see "Kontrese loe Hsediseng" The Bantu World 8 Oct 1949. (Translated from Sotho for the author by Isiah Methlape.)
186The bylaw under which they were charged was issued in terms of s 42(50) of the Municipal Corporations Ordinance 58 of 1903 (Transvaal), as amended by s 26(e) of the Municipal Corporations Amendment Ordinance 41 of 1904 (Transvaal), which authorised municipalities to prohibit "the use of sidewalks of any public street by natives not holding letters of exemption ... and by coloured persons who are not respectably dressed and well conducted."
187See R V S Thema "Towards national unity" The Bantu World 28 Dec
time.188
In 1919, Africans in the Transvaal engaged in an anti-pass civil
disobedience campaign.189 Thousands of Africans marched to the pass
office in Johannesburg, where they turned in their passes. Speakers
made statements such as: "We count for nothing in Parliament" and “[w]e
have a right to be heard, and will be heard." The need for non-violence
was emphasised. All weapons in the hands of those present were
collected, "Rule, Britannia" was sung, and the British King, the
Governor General and President Woodrow Wilson were cheered by those
participating in the protest. When the leaders were arrested women
collected passes from Africans throughout the city. Thousands of passes
were destroyed and about 700 Africans were arrested. They were told by
the police that they would be punished for their "traitorous actions".
Some were charged with disturbing the peace, others with inciting
workers to leave their employment. Eventually violence erupted.190
A subsequent commission of inquiry recognised to some extent the
legitimacy of the protests, but its recommendations (which amounted to
a simplification of the pass system) were not accepted by the
government. The campaign achieved very little, both in terms of
changing the behaviour of the government and in terms of mobilising the
masses politically. With the colonial occupation of Africa by the
European powers still firmly in place, the outside world could not be
moved.
Two incidents thereupon occurred which underscored the government’s
ruthless attitude to non-violent opposition. In 1920 members of a
religious group called the "Israelites" assembled on the Bulhoek
commonage, near Queenstown, to celebrate the passover.191 When
188See De Villiers Die "African National Congress" en sy aktiwiteite aan die Witwatersrand part 2 255.
189See "Native menace" The Star 31 March 1919. For a discussion of the campaign, see Roux Time longer than rope 125ff and De Villiers Die "African National Congress" en sy aktiwiteite aan die Witwatersrand part 2 258. One pass resister said he was engaging in civil disobedience because he had "always been taught in his boyhood days that the British government was the most liberal and freedom-loving of a11 governments." Quoted in Karis & Carter From protest to challenge vol 1 107.
190See Walshe Black nationalism in South Africa 15. 191They believed the New Testament was a fiction of the white man's
instructed to do so, they refused to leave, claiming that they had been
ordered there by Jehovah to await the end of the world. In May 1921,
after protracted attempts to have them leave, soldiers opened fire,
killing 163 people.192
In the following year the Bordelswarts in the then South West Africa
refused to pay certain dog taxes levied by the South African
government, which controlled the territory under a League of Nations
mandate. Jan Smuts subdued this revolt by sending in soldiers with
machine guns and bomber planes, killing more than 100 people.193 A
number of strikes by especially white workers were also suppressed.194
In October 1920, 23 Africans were killed in Port Elizabeth when panic-
stricken white civilians fired into a crowd of blacks who were
demonstrating against refusals to raise minimum wages.195
The non-violent resistance of the Transvaal Native Congress (later
called the ANC (Transvaal)), through the intervention of the courts,
met with some success. In 1921 it challenged the validity of a poll tax
imposed on black people by the Transvaal Provincial Administration. It
was argued that the ordinance under which the tax was levied was ultra
vires in terms of the statutory powers of the administration. After the
leadership had a consultation with Smuts, in which he agreed with their
point of view, two members of the organization created a test case by
refusing to pay the tax. Upon conviction, a nominal fine was imposed by
a Johannesburg magistrate. On appeal the conviction was set aside by
the Provincial Division, which ruled that the Provincial Administration
lacked the power to impose the tax. When the Provincial Administration
appealed, the Appellate Division also ruled that the ordinance was
ultra vires.196
imagination and they had to worship on the model of the Israelite patriarchs who were liberated by Jehovah from the yoke of oppressive rulers.
192See Roux Time longer than rope 143ff. 193Id 149ff. The treason case R v Christian 1924 AD 101 arose out
of these events. For a discussion, see Corder Judges at work 74ff. 194Id 151. 195Walshe The rise of African nationalism in South Africa 72. 196See Transvaal Provincial Administration v letanka 1923 AD 102.
The case is discussed by De Villiers Die "African National Congress" en sy aktiwiteite aan die Witwatersrand part 1 48.
In 1921, members of Congress were under the impression that they had
gained a sympathetic ear from the mayor of Johannesburg regarding the
inadequacy of transport facilities for blacks. When a year later
nothing had been done, a member of Congress (apparently acting on its
instructions) boarded a tram reserved for whites. He was forcibly
removed from the bus and succeeded with a claim for damages against the
city council. A separate tram service for blacks was then introduced.197
In spite of these small and ambivalent "victories", however, it became
obvious at the beginning of the 1920’s that the central leadership of
Congress was out of touch with demands of the masses. Black working
class aspirations at this stage found better expression in the short-
lived, but immensely popular. Industrial and Commercial Workers’ Union
("ICU"), which was founded in 1922 with the charismatic Clements
Kadalie as its secretary.198 Some Africans also joined the Communist
Party of South Africa ("CPSA"), which, at the time, was the only
political organization in the country of which the membership was open
to all races.199
In August 1926, Kadalie, having been refused a permit to go to Natal,
nevertheless attended some meetings in Durban. Upon his return to
Johannesburg he declared that the best way to deal with the pass laws
was to defy them. He was arrested, brought back to Durban and charged
before the local magistrate. Although he was convicted, he appealed and
succeeded on a technical point.200
At a turbulent conference in April 1927 the ICU, after being referred
to Gandhi’s use of civil disobedience in India, rejected Kadalie’s idea
of a national day of prayer as too mild. A motion was passed which
envisaged the organization of "a passive resistance movement throughout
the Union."201
In 1927, in the Orange Free State the local chairperson of the ICU,
Johannes Mogorosi, refused to pay "certain location rates and charges"
197See De Vi11iers Die "African National Congress" en sy aktiwiteite aan die Witwatersrand part 2 265.
198The ICU was the first modern mass movement of black people in South Africa. See Meli A history of the ANC 63ff.
199Renamed the South African Communist Party in 1953. 200See Roux Time longer than rope 167ff. 201Id 179.
in contravention of the "Location Regulations", which rendered such
conduct an offence. His aim was to create a test case to establish
whether such conduct was not ultra vires. He was convicted and his
appeal was
dismissed in the Supreme Court.202 A subsequent attempt by members of
the ICU to incite a general boycott of the rates and charges was
flouted when the ANC leadership encouraged people to "render unto
Caesar that which is Caesar’s" and to use established channels for
negotiation.203
In the same year the ICU also took the initiative in creating test
cases to challenge the validity of proclamations enforcing segregated
living areas in Johannesburg.204 In two cases taken to the Supreme Court
the relevant proclamations were declared ultra vires.205
At the 1929 ANC congress a proposal that the pass laws should be met
with a campaign of civil disobedience was rejected.206
In 1930, the CPSA planned a nationwide campaign of pass-burning on 16
December, claiming that "[y]ou cannot imprison millions." The campaign
was opposed by the ANC and by Kadalie, who warned that the government
would find space in gaol for the law breakers. Eventually the campaign
was observed almost nowhere except in Durban, where it was most
brutally suppressed by the police. As the protesters were forming a
202See R v Mogorosi 1927 OPD 293. 203See De Vi11iers Die "African National Congress" en sy
aktiwiteite aan die Witwatersrand part 1 75. 204Id part 2 267. 205See R v Hodos & Jaghbay 1927 TPD 101 and R v Zock 1927 TPD 582. 206See De Villiers Die "African National Congress" en sy
aktiwiteite aan die Witwatersrand part 1 81. In 1925 the ANC sponsored an appeal of a black woman who was arrested for not carrying a night pass in contravention of s 3 of the Transvaal Ordinance 43 of 1902, which required all "natives" to carry night passes. In a split decision the Appellate Division ruled that the provisions were not applicable to women. See R v Detody 1926 AD 198. For a discussion of the circumstances leading up to this case, see De Vi11iers Die "African National Congress" en sy akt1w1te1te aan die Witwatersrand part 1 63 and for a discussion of the case itself, see Corder Judges at work 141. On the ANC's failed campaign of civil disobedience that would have been aimed against night pass laws which were made applicable to black women in 1931, see the account of De Villiers at 270.
procession and collecting passes in bags, the police arrived and broke
up the meeting with assegais, pick handles and revolvers. Four men were
killed; twenty were seriously wounded. Nevertheless the campaign
continued until virtually all the leaders were arrested. Thirty-two
were subsequently charged and convicted of “incitement to violence”.
Black communists were charged with being “idle, dissolute or
disorderly” persons and deported to their country homes.207
Kadalie, however, now followed a policy of hamba kahle (go carefully)
and chose not to offend the government. After some strike action was
orchestrated by Kadalie, the ICU - one of the most powerful black
political organizations the country has ever known - faded from
existence.
In 1936, commonly regarded as a watershed year, Hertzog and Smuts
managed to push through two acts which were supposed to provide the
"solution to the native problem".208While the Development Trust and Land
Act 18 of 1936 added marginally more land to the black reserves, it
also prohibited blacks from owning land outside the "native reserves".
The Representation of Blacks Act 12 of 1936 abolished the Cape common
voters’ roll. In future African interests would be "represented" by
whites who were separately elected. The Native Representative Council,
an advisory body, was to be established.
In reaction to the prospect of these provisions coming into force, the
A11 African Convention ("AAC"), an umbrella body which included the ANC
and other organizations, was established in 1935.209 Their opposition,
however, amounted to little more than verbal rejection of the status
quo. The more activist members were contained by the conservatives.
The only recorded example of the use of civil disobedience by the AAC
occurred in 1936, when one of -its members (apparently under orders
from the AAC) boarded a tram reserved for whites, and refused to
disembark when ordered to do so. He was charged with contravention of
the Johannesburg Tramways by-laws, which stated that the City Council
207In terms of s 17 of the Blacks (Urban Areas) Act 21 of 1923. See also Roux Time longer than rope 256ff and L Kuper "Nonviolence revisited" in Rotberg & Mazrui Protest and power in black Africa 788 at 796.
208Walshe Black nationalism in South Africa 12. 209See Me1i A history of the ANC 84.
could set apart any car or portion of a car for the exclusive use of
members of a particular race group.210 The prosecutor did not press for
a conviction and the accused was acquitted on the basis that there were
no trams for blacks in service at the time on the same line, and the
conductor had a wide discretion as to whom to allow travelling on the
tram.211
In 1936 a case reached the Appellate Division in which a coloured man
was convicted of contravention of a railway regulation,212 which had
reserved certain benches on Kimberley station for "Europeans" and
others for "non-Europeans".213 The appellant had been sitting on a bench
marked "Europeans only" when he was asked to move, and he refused to do
so. According to the appellant, he belonged to an association of
coloured persons who desired to test their right to use the benches
marked "Europeans only".214 The appeal was dismissed on the ground that
the statute in question authorised such reservation of facilities for
the exclusive use by particular races.215
These acts of resistance did little to impress either the government or
the outside world, or, with the exception of the activities of the ill-
fated ICU, to mobilise the masses. The outbreak of World War II ended
the first phase of resistance.216
(b) Phase two: The 1940's
After the Second World War, industrialisation and urbanisation took
place on an unprecedented scale in South Africa. The African population
nearly doubted between 1932 and 1952.217 The inevitable politicising
which consequently ensued, coupled with the poor living conditions of
210Section 33. 211See De Villiers Die "African National Congress" en sy
aktiwiteite aan die Witwatersrand part 2 275. 212Regulation 19(d) of the General Railway Regulations, framed
under s 4(6) of the Railways and Harbours Regulation, Control and Management Act 22 of 1916.
213See R v Herman 1937 AD 168. 214At 169. 215For a discussion, see Corder Judges at work 148. 2160n African and Indian opposition to, as well as participation
in, the War, see Roux Time longer than rope 3l0ff. 217See Lodge Black politics in South Africa since 1945 11.
the majority of Africans, found expression in two early campaigns of
non-violent resistance: The Alexandra Bus Boycott and the Johannesburg
Squatters’ Movement.
Between 1940 and 1945 increases in bus fares from the freehold suburb,
Alexandra, to the centre of Johannesburg were met with sporadic
boycotts that lasted for various lengths of time.218 At times up to 20
000 people walked to work, which meant that some had to get up at 03:00
and arrived at home only after 21:00 in the evening. The boycott
eventually met with success when the Council agreed to sponsor the
fares, but the initiators of the boycott (the ANC and the CPSA) lost
credibility because of ineffective organization and lack of positive
leadership.219 More important for the struggle as a whole was the fact
that the effectiveness of the mass boycott action as a weapon in the
hands of Africans had been emphasised. The protest was still legal, but
this would soon change.
Between 1944 and 1947 thousands of families illegally moved into open
land near the established townships outside Johannesburg, where they
built shelters with whatever was at hand. The movement was spontaneous
and was aimed at securing physical survival rather than at expressing
political resistance. It occurred with little if any encouragement from
organizations such as the ANC. Eventually the shelters of the squatters
were destroyed by the government, and they were absorbed in the massive
complex of housing estates around Orlando.
The Johannesburg Squatters’ Movement signalled a willingness on the
part of black people openly and non-violently to take the law into
their own hands when deemed necessary. The treatment to which they were
subjected, however, also demonstrated an inclination on the part of the
government to intervene with force and to impose its own perception of
law and order on the black community.220
The ANC began developing into something resembling a national movement
with a modern branch structure in the 1940’s when Dr Xuma was President
General.221 Structures developed in these years would prove to be vital
in the process of mass political mobilisation which was to take place
218Id 13. See also Roux Time longer than rope 325ff. 219Id 15. 220Id 16. 221Walshe Black nationalism in South Africa 26.
in the next decade. The approach followed in the forties was more
assertive than before, and the initiative was no longer left entirely
in the hands of the government.
Inspired in part by the Atlantic Charter of 1941, a major policy
statement called “African Claims in South Africa” was issued by the ANC
in 1945 after long consultation. A "Bill of Rights" was outlined, which
now for the first time provided for a "one person one vote" system of
franchise and direct representation of Africans in parliament.222 The
"meritocratic" ideals of earlier were abandoned. In 1946, Dr Xuma would
ask the Native Representative Council to disband. As Oliver Tambo later
put it: "[T]he Africans, heartened by the Allies’ promise of a postwar
world in which the fundamental rights of all men would be respected,
became increasingly impatient with their lot."223 The fact that their
objectives and aims were spelled out provided a basis for a more
assertive approach.
In 1943, Smuts, by now a prestigious international figure, was returned
to parliament with an increased majority. Black hopes for a better deal
were reinforced by black participation in the War, and by the
description by Smuts’s Secretary of Native Affairs of the policy of
"separate development" as an illusion.224 These changed circumstances,
both at home and abroad, would directly affect the nature of black
politics in South Africa.
The hope that the South African government would voluntarily meet these
expectations was relinquished when Smuts refused an interview requested
by Xuma, and rejected the ANC’s application of the Atlantic Charter to
the situation of Africans in South Africa. It became clear that white
hegemony was not about to disband; on the contrary, there could be
little doubt that if left to itself, the white government would only
increase its hold on the future of the black population.
At the end of 1943, Congress declared the pass laws “enemy number one”.
An Anti-pass Council was established by the ANC and the SAIC. Anti-pass
conferences were held and several demonstrations followed. In June
1945, after an unsuccessful attempt to meet with Acting Prime Minister
222See Karis & Carter From protest to challenge vol 2 209. 223See O Tambo "Passive resistance in South Africa" in Davis &
Baker Southern Africa in transition 217 at 219. 224See Walshe Black nationalism in South Africa 28.
J H Hofmeyr, an unlawful demonstration was held outside the Houses of
Parliament. The leaders of the demonstration, including Dr Dadoo and R
V S Thema, were arrested and fined for leading an unlawful
procession.225
In April 1944, members of the ANC established the Youth League under
the leadership of Anton Lembede.226 Rejecting the traditional elitist
nature of the ANC and its negative strategy of reaction, the Youth
League set itself the objective of infusing the national liberation
movement with "the spirit of African self-determination".227 They would
take organised African opposition into the streets, and transform
African politics from a mind frame of protest into one of active
resistance. When they presented their manifesto to Dr Xuma, the leaders
of the Youth League stated as one of their criticisms against the ANC
the fact that "there was no programme of action - no passive resistance
or some such action."228 Clearly, they felt that African opposition had
to go on the offensive. The orientation of the new generation was
distinctly Africanist; their approach confrontational.
Various factors accounted for the increase in the political awareness
of the black community at this time. On the home front there was an
increased dissatisfaction with the unyielding white rule and the
deteriorating living conditions. On the international front, reference
has been made to the influence of the Second World War. Since 1945, the
United Nations ("UN") for the first time also provided an international
forum which would take an active interest in the domestic affairs of
countries. In the aftermath of Nazism and the devastating consequences
it had for world peace, racism would be regarded in a far more serious
light than before. In India the precedent of a third world country
breaking the hold of a European power was established.
The ANC established contact with other African leaders for the first
time in many years when its representatives attended the 1945 meeting
of the Pan-African Congress in Manchester. The congress, attended by
many of Africa’s young leaders like Kwame Nkrumah and Jomo Kenyatta,
225Roux Time longer than rope 328ff. 226See Meli A history of the ANC 108. 227See the "Congress Youth League Manifesto", reprinted in Karis &
Carter From protest to challenge vo1 2 300 at 306. 228See Lodge Black politics in South Africa since 1945 25.
endorsed Gandhian civil disobedience as the only effective way to
persuade alien rulers to respect the rights of unarmed and subjected
races.229
In 1946, a major strike was organised by the "African Mine Workers
Union", which was terminated only when the police shot and killed at
least nine people.230
In 1946, a two year "Passive Resistance Campaign"231 was launched by
members of the South African Indian Congress ("SAIC"), which to some
extent acted in alliance with the ANC. It was the first Indian-
initiated campaign in the country since the days of Gandhi.232 This was
to protest against the Asiatic Land Tenure and Indian Representation
Act 28 of 1946, commonly known as the "Ghetto Act".233 In terms of this
Act, the Indians were awarded communal representation, at the price of
restrictions on their rights to land and property.234
229See Benson The African patriots 117. 230See De Villiers Die "African National Congress" en sy
aktiwiteite aan die Witwatersrand part 1 154. 231This term is usually used to distinguish this Campaign from the
1952 Campaign. 232ln 1939, Indians clashed violently with each other on the
question of the use of civil disobedience, and nothing came of it. See Simons Class and colour in South Africa 507. The correspondence between Yusuf Dadoo and Gandhi, since 1939, when the former asked Gandhi's advice on a passive resistance campaign in South Africa, is reprinted in Dadoo South Africa's freedom struggle 293. For his statements during the Campaign, see id 34.
233Lodge Black politics in South Africa since 1945 25, 38. See also Kuper Passive resistance in South Africa 97, Meli A history of the ANC 96, Benson South Africa 95 and Simons Class and colour in South Africa 551. A pass-burning campaign planned for 1946 by the ANC failed to materialise. See De Villiers Die "African National Congress" en sy aktiwiteite aan die Witwatersrand part 1 146.
234The history of this Campaign is vividly portrayed in the pages of Flash, something between a newsletter and a flyer which was brought out by the Passive Resistance Councils of the Natal Indian Congress and the Transvaal Indian Congress during the Passive Resistance Campaign, 21 June to 14 August 1946. It ran reports on more than 47 batches of resistors that were arrested. In the first month, 287 people were imprisoned. See Flash 26 July 1946. The accused typically pleaded guilty and then proceeded to address the court at length on their reasons for transgressing the law. Many of these statements were also published in Flash. The accused used the opportunity to describe their poor living conditions and the injustice of the laws they
The Campaign took the form of Hartals (economic boycotts), illegal
crossings of provincial borders, and the occupation of selected sites
in “white” areas of Durban. By 1948, some 2 000 protesters had been
convicted and had served terms of several months’ imprisonment with
hard labour.
The Campaign, in terms of its immediate objectives, met with no
success. It did, however, increase the membership of the Natal Indian
Congress from a few hundred to 35 000.235 The Campaign also provided the
leadership of the ANC with an example of how people could be mobilised.
It stimulated an appetite in the African community to express their
grievances in a more forceful way. Especially younger African
nationalists, such as Nelson Mandela, were impressed by witnessing this
type of protest in action.236 Later, Professor Z K Matthews would
describe the Passive Resistance Campaign as the “immediate inspiration”
for the ANC’s 1949 decision to employ civil disobedience.237
Direct confrontation between the government and a majority of the
population was inevitable when, in the 1948 elections, the National
Party ("NP") gained power on the apartheid ticket. The Nationalist
victory heralded an era of increased legislative and administrative
racial suppression and a decreasing openness of the government to
liberalising outside influences.238
The decrease of legitimacy of the government directly increased the
legitimacy of resistance. The exclusive white nationalism of the NP had
the inevitable effect of eliciting black nationalism and “non-white”
solidarity. The example which the white nationalists set in respect of
objected to. Some mentioned the legacy of Gandhi as their direct inspiration. See eg Flash 1 Aug 1946. For an overview of the Campaign, see De Villiers Die "African National Congress" en sy aktiwiteite aan die Witwatersrand part 1 152ff. See also K A Moodley "South African Indians: The waivering minority" in Thompson & Butler Change in contemporary South Africa 250 at 260.
235Meli A history of the ANC 99. 236Mandela was a dose friend of Ismail Meer, one of the organisers
of the Passive Resistance Campaign and editor of its journal. The Passive Resister. See Benson South Africa 95.
237See Karis & Carter From protest to challenge vol 2 103. 238What can be called the "dosing of the South African government's
mind" would be epitomised by the declaration of a Republic in 1961 and the South African departure from the Commonwealth in the same year.
the means which can be used to pursue one’s goats was one of no holes
barred - also in respect of obedience to the law. Reacting to the Smuts
government’s declaration of war on behalf of the Union on the side of
Britain, Or Malan stated at the NP239 Conference at Cradock in 1940:
“Daar rus op ons nie die minste plig om te voldoen aan die
Verdedigingswet nie. Daarom se die Party aan die Afrikaners: As julle
geen gehoor wil gee nie, gee dan geen gehoor nie, want julle handel
binne julle reg.”240
Reacting to the prospect of banning of the (then still non-violent)
Ossewabrandwaq. Malan said the following:
As die regering daartoe oorgaan, se ek dat dit tyd is om halt te roep, dat die Afrikaner geen gehoorsaamheid aan die regering verskuldig is nie. As die hou van ver-gaderings belet is, sal ek my voile morele steun gee aan passiewe ongehoorsaamheid. Ek is bereid om suike ver-gaderings by te woon en deel daaraan te neem - laat die gevolge wees wat dit wil.241
After its assumption of power, the NP would show blatant disregard for
the rule of law, as evidenced by the way in which the coloureds were
removed from the common voters’ roll.242 Now safely in power, however,
it would expect the most fastidious obedience to its laws from all
those under its rule.
Against this background the third phase of the liberation struggle,
during which time widespread illegal activity would take place,
commenced.
(c) Phase three: The Defiance Campaign of the 1950's
239Or, more correctly, the Reunited National Party, as the party was called until 1951.
240Quoted from "Or Malan vertolk wi1 van nuwe Afrikanerdom" Die Burger 31 Oct 1940.
241Ibid. On the subsequent history of the relationship between Malan and the "Ossewabrandwag", see Van der Schyff Die Ossewabrandwag 58ff. It is interesting to note that John Vorster, later Prime Minister and State President of South Africa, when he was placed under house arrest in the Cape during the Second World War, simply ignored the order and moved to the Transvaal. The Smuts government in turn ignored him. See "Civil disobedience" Business Day 24 Aug 1989. See also, on the history of violent and non-violent resistance by Afrikaners, Piet van der Schyff's "Verset deur Afrikaners" Bee1d 17 May 1991 and "Verset kom 'n lang pad" Beeld 21 May 1991.
242For a discussion of this history, see Forsyth In danger for their talents 61ff.
When the Nationalists came into power in 1948, they started erecting
the cornerstones of "Grand Apartheid", including the Prohibition of
Mixed Marriages Act 55 of 1949, the Population Registration Act 30 of
1950 and the Group Areas Act 41 of 1950. The Immorality Act 5 of 1927
was also amended to extend the ban on sexual intercourse between
“Europeans” and “natives” to prohibit intercourse between “Europeans”
and all “non-Europeans”.243
(i) Prelude to mass civil disobedience
The Youth League argued in favour of a passive resistance campaign in
response to these developments.244 When Dr Xuma tried to block this
strategy, he in 1949 was replaced as President-General of the ANC by
the more militant (but nevertheless still elitist) Or Moroka. Youth
Leaguers who were now elected to the national executive of the ANC were
Nelson Mandela, Oliver Tambo and Waiter Sisulu.245
In December 1949, at its annual conference. Congress adopted a
statement of policy, entitled the "Programme of Action",246 backed by
the Youth League, in which the use of, inter a1ia, “boycott[s],
strike[s], [and] civil disobedience” were endorsed as acceptable
strategies.247 It would, however, take some time before civil
disobedience would be implemented in practice.
Various experiments with campaigns of resistance were now conducted by
the ANC. In 1950, three major demonstrations took place.248 The first
was a “Freedom of Speech Convention”, over which Dr Moroka presided.
Secondly, it was announced that May Day would be marked by a stay-away
from work. Because of the involvement of the CPSA in arranging the May
Day stay-away, many of the Youth League leaders refused to endorse it.
Nevertheless, the demonstration went ahead and was widely observed,
243This was done by means of the Immorality Amendment Act 21 of 1950.
244When train apartheid was announced on 13 Aug 1948, the Communist Party convened a large meeting in Cape Town, also attended by a number of other parties. A largely unsuccessful attempt was made to fill whites-only coaches. See Lodge Black politics in South Africa since 1945 40.
245See Lodge Black politics 1n South Africa since 1945 27. 246Reprinted in Karis & Carter From protest to challenge vol 2 337. 247Id 338. 248See Kuper Passive resistance in South Africa 98.
especially on the Reef. It is difficult to establish who was to blame,
but there were clashes between the protesters and the nearly 2 000
members of the police who were placed on duty. Violence erupted, and a
number of people were killed when the police opened fire.249
The third demonstration, held on 26 June, was a “Day of Protest”
against the Group Areas and the Suppression of Communism Bills,250 and a
day of mourning for Africans who had lost their lives in the struggle
for liberation. No surprisingly, the demonstration was not successful
in term of preventing the passing of these bills, but the date would
become historic as “South African Freedom Day” to commemorate the first
attempt at a political strike on a national level by the black people
of the country.251
Also in 1950, the (still predominantly white) CPSA strengthened its
ties with Congress by accepting the notion of a two-stage revolution,
according to which a nationalist revolution would have to precede a
socialist revolution. In the same year, the Internal Security Act 44 of
1950, or the “Red Act” as it came to be called, was passed, which
outlawed the Communist Party.252 This Act also made it an independent
crime to attempt to bring about any political, industrial, social or
economic change through unlawful acts. Civil disobedience was now
doubly outlawed: first in the sense that civil disobedience per
249Lodge Black politics 1n South Africa since 1945 34. 250The latter Act was considered necessary as a result of the poor
success record which the state had in prosecutions under section 29 of the Black Administration Act 38 of 1927. Section 29. the so-called "hostility clause", made the promotion of "feelings of hostility between natives and Europeans" an offence and was often used against communists who advocated social change. Prosecutions under this clause were eventually supplemented by the implementation of the procedures under s 1(12) of the Riotous Assemblies and Criminal Law Amendment Act 27 of 1914, which gave the Minister of Justice power to order any individual to leave any magisterial district for a period not exceeding one year if in the opinion of the Minister his presence there could lead to the creation of "feelings of hostility" between black and white. See in general ss 1(4)-(16), which were introduced by s 1 of the Riotous Assemblies Act 17 of 1956. See also Roux Time longer than rope 211, 235ff.
251See Karis & Carter From protest to challenge vol 2 406. 252The CPSA officially dissolved itself in anticipation of the
implementation of these provisions on 20 July 1950 and went underground. However, the Act was made applicable retrospectively in 1951 to everyone who had previously subscribed to communism.
definition involved the breaking of some law, and, secondly, because
its motive also placed such action within the ambit of the Red Act.253
In 1951, the struggle broadened and a greater measure of anti-
government unity was established, as an increasing flow of legislation
implementing Nationalist policy emerged from parliament.254 A sense of
solidarity developed between Africans, coloureds and Indians since they
were a11 threatened by the rising gulf of apartheid. When coloureds
formed the Franchise Action Council (“FAC”) to oppose the Separate
Representation of Voters Bill255 whereby coloured voters would be
removed from the common voters’ roll, they received some support from
Africans and Indians, as well as from the largely white War Veterans’
Torch Commando.
In July 1951, a Joint Planning Council was appointed by leaders of the
ANC, the SAIC and the FAC, in order to co-ordinate the efforts of
Africans, Indians and coloureds in a mass campaign for the repeal of
some of the most obnoxious laws.256 The Council comprised James Moroka,
Walter Sisulu and J B Marks of the ANC, and Yusuf Dadoo and Yusuf
Cachalia of the SAIC. Both Dadoo and Cachalia were leaders in the 1946-
48 Passive Resistance Campaign.
In its report, the Joint Planning Council proposed a strategy of the
use of joint mass action in the form of civil disobedience.257 Under the
heading "Plan of Action" they stated:
We recommend that the form of struggle for securing the repeal of unjust laws be the DEFIANCE OF UNJUST LAWS based on non-co-operation. Defiance of unjust laws should take the form of committing breaches of certain selected laws and regulations which are undemocratic, unjust, racially discriminatory and repugnant to the natural rights of man. Rather than submit to the unjust laws we should defy them deliberately and in an organised
253For a discussion of these provisions, see infra chap four I B (3).
254See Lodge Black politics 1n South Africa since 1945 40. 255Later enacted as the Separate Representation of Voters Act 46 of
1951. 256See Kuper Passive resistance In South Africa 99. See also Karis
& Carter From protest to challenge vol 2 412. 257See the "Report of the Joint Planning Council of the ANC and the
South African Indian Congresses", reprinted in Karis & Carter From protest to challenge vol 2 458.
manner, and be prepared to bear the penalties thereof.
Defiance of Unjust Laws should be planned into three stages - although the timing would to a large extent depend on the progress, development and the outcome of the previous stage. Participation in this Campaign will be on a volunteer basis, such volunteers to undergo a period of training before the Campaign begins.
Three stages of Defiance of Unjust Laws:-
(a) First Stage. Commencement of the struggle by calling upon selected and trained persons to go into action in the big centres, eg, Johannesburg, Cape Town, Bloemfontein, Port Elizabeth and Durban.
(b) Second Stage. Number of volunteer corps to be increased as well as the number of centres of operation.
(c) Third Stage. This is the stage of mass action during which as far as possible, the struggle should broaden out on a country-wide scale and assume a general mass
character. For its success preparations on a mass scale to cover the people both in the urban and rural areas would be necessary.258
This “Plan of Action” was accepted by the ANC at their December 1951
national conference. The result was the “Defiance of Unjust Laws
Campaign”, or as it came to be known, the “Defiance Campaign” of 1952.
Civil disobedience in South Africa would now be confronted with its
most difficult test. On a nationwide scale an attempt would be made to
mobilise people to confront the apartheid state, by transgressing the
laws which were regarded as the “most obnoxious and which are capable
of being defied”. The immediate objective of such action was the repeal
of a selected number of laws and regulations;259 the ultimate objective
258Id para 8. (Original emphasis.) 259The law? and regulations of which the repeal was demanded were
the Pass laws (.restricting the movement of blacks); the stock limitation regulations (limiting the size of the herds of cattle which could be kept in relation to the size of the land on which they are kept); the Internal Security Act 44 of 1950 (giving the government draconian powers In the name of state security); the Group Areas Act 41 of 1950 (providing for racially segregated living areas); the Black Authorities Act 68 of 1951 (granting official approval to traditional tribal authorities, which prepared the ground for the establishment of "homelands") and the Separate Representation of Voters Act 46 of 1951 (used to remove the coloureds from the common voters role). It was also stated in the report that the government was "preparing the
- the end of white political hegemony.260
It was suggested by the Joint Planning Council that because of the
different effects which apartheid had on the various sections of the
community, each racial group should concentrate on transgressing a
different aspect of apartheid legislation, except in the Cape where “a
strong possibility” was perceived of mixed units. The ANC was primarily
to transgress the pass laws; the SAIC was to concentrate on breaking
the ban on crossing inter-provincial borders, segregation in public
facilities and the Group Areas Act, and the FAC had to focus on the
last two. What was envisaged, therefore, was indirect civil
disobedience, in the sense that the laws transgressed were not the only
laws of which the repeal was demanded.261
Formally, the Campaign was to be orchestrated by the National Action
Council, which comprised four Africans and three Indians. In practice,
however, organization was largely decentralised.262 Nelson Mandela was
appointed “National Volunteer-In-Chief” or “National Co-ordinator”.263
machinery for the enforcement of the Population Registration Act. This Act is repugnant to a11 sections of the people and the Campaign must pay particular attention to preparing the volunteers and instructing the masses of the people to resist the enforcement of this Act." Id para 12.
260The report of the Joint Planning Council also stated that: "Full democratic rights with a direct say in the affairs of the government are the inalienable rights of every Individual - a right which in South Africa must be realised [in the lifetime of the present generation]." Id para 7. The words in square brackets appear in the version of the same document handed in as exhibit "A" in R v Sisulu & others, unreported ease no 1417/52 W 2 Dec 1952, but not in Karis & Carter From protest to challenge vo1 2 461.
261For a discussion of this type of indirect civil disobedience, see supra chap two IV A.
262See N Carter "The Defiance Campaign - A comparative analysis of the organization, leadership and participation in the Eastern Cape and the Transvaal" in Institute of Commonwealth Studies Collected Seminar papers on the Societies of Southern Africa in the 19th and 20th centuries 76 at 79.
263Lodge Black politics in South Africa since 1945 42. He was also called "General Officer Commanding". See "No strike planned for June 26" The Bantu World 21 June 1952. Although a statement "We defy" appeared under Mandela's name in African Drum Aug 1952 inviting whites to join the campaign, Mandela later denied having written it and dissociated himself from the contents. See "Mr Mandela's statement to Spark" Spark 5 Sept 1952. Nevertheless, Schadeberg Nelson Mandela 43
The fact that the protest groups had a racially based composition was
largely the responsibility of Walter Sisulu, the former Africanist,264
who was also the first to elaborate a civil disobedience strategy.265
When asked about the attitude of the ANC towards "other non-Europeans",
Or Moroka stated that the ANC, as an African organization, wanted “to
retain our identity. We wish to co-operate fully but not to combine.”266
No doubt, the bloody fighting which broke out between Africans and
Indians in Durban in 1949 also contributed to this decision.267
After adoption of the report of the Joint Planning Council in December
1951, the ANC sent a letter to the government demanding the repeal of
the six specified laws before 29 February 1952, failing which the
government was given notice of the intended campaign of civil
disobedience which was to start with demonstrations on Van Riebeeck
Day, 6 April.268 In its answer to the letter, the Malan government
described the claims as an attempt to secure “privileges” (not rights)
which were not due. The differences between races were “permanent and
not man-made”. The Campaign was labelled “subversive” and the Prime
Minister gave notice of the state’s intention to “make full use of the
machinery at its disposal” to quash the Campaign.269
A subsequent letter to the government from the ANC, stating that
still attributed the statement to Mandela. An apparently authentic message from Mandela was published as "Youth leader's call to youth" Spark 6 April 1952. See also Mokoena The South African Outlook 1952 180 and Robertson Liberalism In South Africa 71.
264See Lodge Black politics in South Africa since 1945 41. Mandela had to be convinced by Sisulu that other races were in the first place to be invited to participate. Mandela initially feared that Africans would be dominated by other races. See Benson South Africa 137. Perhaps this explains the confusion regarding his Drum article, referred to in the previous footnote.
265See Benson South Africa 134. 266Drum interview, reprinted in Schadeberg Nelson Mandela and the
rise of the ANC 30. 267See Lodge Black politics in South Africa since 1945 60 and Me1i
A history of the ANC 99. The government's commission of Inquiry into these riots listed the bad precepts from Indian passive resistors as one of the causes of the disaster. See Benson South Africa 125.
268The letter is reprinted In Kuper Passive resistance In South Africa App B at 233.
269Reprinted id 235. For the ANC's response, see "Dr Moroka answers Malan" Spark 29 Feb 1952.
Africans were “striving for the attainment of fundamental human rights
in the land of their birth” and that they “have explored other channels
without success” and had “no alternative” but to engage in civil
disobedience, was not answered.270 A letter from the SAIC, explicitly
linking the Campaign to the name of Gandhi, also failed to elicit a
response from the Prime Minister.271
On 6 April 1952 (coinciding with the climax of the Van Riebeeck
tercentenary festival), public meetings were held in the major urban
areas around the country, with thousands of people attending the
meetings in Johannesburg, Cape Town, Port Elizabeth and Kimberley.272 At
these meetings Congress made its plans for the Campaign known to its
followers.273 In May a number of leaders of the intended Defiance
Campaign were served with notices by the government, ordering them not
to engage any further in the activities of the organizations
participating in the envisaged Campaign.274 In a prelude to the Defiance
Campaign, and as a morale-booster, these orders were defied by a number
of the leaders.275 They were tried, convicted and sentenced to between
four and six months’ imprisonment.276 On 25 June 1952 a night of prayer
270Reprinted in Kuper Passive resistance in South Africa App B at 239.
271 Reprinted Id 242. 272 See Benson South Africa 143. See also "'Save South Africa from
fascism'" The Guardian 3 April 1952, "Thousands pledge to defy unjust laws" The Guardian 10 April 1952 and "Duisende betogers besluit: Sal wette begin trotseer" Die Transvaler 7 April 1952.
273See "Or Moroka outlines new phase of ANC Campaign" The Bantu World 3 May 1952. See also the flyer issued by the ANC "April 6: People's protest day", reprinted in Karis & Carter From protest to challenge vol 2 482.
274See "Militant reaction to Swart's letters' and swart cannot crush us" The Guardian 22 May 1952; "Swart gags people's leaders" Spark 23 May 1952 and "Seven Africans have received letters" The Bantu World 31 May 1952.
275J B Marks, Transvaal President of the ANC, and a number of other people were arrested when (under orders from the leadership of the Defiance Campaign) they defied these orders. When he was arrested, Marks said: "This is the hour now. I am being crucified and I feel the weight of the cross." See "Moving scenes as Harks is arrested" The Bantu World 14 June 1952 and Karis & Carter From protest to challenge vol 2 418.
276See Schadeberg Nelson Mandela 34.
was held.277 On the following day the Campaign started.
(ii) Rationale of the Campaign
A variety of interpretations of why and how the Campaign of civil
disobedience was to be conducted was given by those in decision-making
positions and by those who explained the Campaign to the masses. While
the immediate objective of the Campaign was stated as being the
elimination of the laws listed, it was generally accepted that the
ultimate objective was equal political status for whites and blacks.278
In South African terms this would amount to a revolution. Anarchy,
however, was rejected. Albert Lutuli and others made it clear that
those who were behind the Defiance Campaign were not proposing the
indiscriminate breaking of the law, but wanted to signify their
rejection of “a particular kind of law”.279
The basis of the claims for the repeal of the laws and the ending of
the apartheid system was in some cases advanced in the language of
natural law and human rights. The Joint Planning Council, for example,
said they were claiming “the inalienable rights of every South
African”.280 Lutuli asked the Question “Shall we obey God or man?”281
However, there were differences in approach to the use of the
instrument of non-violent resistance. Some adhered to non-violence on a
principled basis. For this approach they drew inspiration, inter alia,
from their Christian beliefs or from the teachings of Gandhi. The
majority, however, saw non-violence as a temporary strategy.
Lutuli (who, incidentally, had visited India some years earlier) was
motivated, at least at this stage of his life, by a principled belief
277See Benson South Africa 146. 278See Karis & Carter From protest to challenge vol 2 414. See also
Kuper The British Journal of Sociology 1953 243 at 254. Compare also Sisutu's observation that a limited franchise would not appeal to the "great majority of non-whites". Karis & Carter From protest to challenge vol 2 423.
279See Luthuli Let my people go 110. His book was published under the name "Luthuli", but he spelled his name "Lutuli". See Karis & Carter From protest to challenge vol 4 62.
280Karis & Carter From protest to challenge vol 2 461 para 7. 281Id 488.
in non-violence, often clothed in strong religious fervour.282 Looking
back on the Defiance Campaign, Lutuli would later observe that June 26
marked "the acceptance by the African people of the fact that the road
to freedom is sanctified by martyrs: in other words. ‘No cross no
crown’."283 Lutuli’s justification for the use of civil disobedience was
strongly reminiscent of Gandhi’s idea of “truth-force”: “[W]e have
tried to show what the realities are in the hope that the whites could
see the imperative need to conform to them.”284
Several leaders perceived that civil disobedience could be used, as it
was used by Gandhi, as a powerful tool of immanent critique, forcing
the white rulers to reconsider the true implications of their own
professed Christianity. Or Moroka, for example, said that there was an
ongoing need to evangelise the Europeans.285 Dr Njongwe described the
Campaign as a fight against the destruction of “faith in Christianity
as a way of life”.286
According to a statement attributed to one of the accused in a trial
during the Campaign, it was envisaged that “[i]f the policy of non-
collaboration is successfully carried out by the masses it will leave
the herrenvolk with two roads open to them - capitulation or open
dictatorship.”287
One of Gandhi’s disciples in South Africa, Nana Sita, saw the Campaign
as a manifestation of Satyaaraha, and declared: “By suffering we shall
march forward with this weapon” - the weapon being civil disobedience,
which he declared was “stronger than the atomic bomb”.288
Nevertheless, the dominant approach was less idealistic. A number of
ANC leaders, like Z K Matthews, justified their decision not to engage
282See Karis & Carter From protest to challenge vol 2 425. See also Hendricks From moderation to militancy 193, where Lutuli's legacy 18 discussed in some detail.
283See Lutuli's observations "What June 26 means to African people" New Age 27 June 1957.
284See Luthu1i Let my people go 102. 285Benson South Africa 144. 286Id 146. 287See "'Democracy or open dictatorship'" People's World 9 Oct
1952. 288See Kuper Passive resistance in South Africa 120.
in violence on the pragmatic basis that the use of violence leaves
bitterness, as was evident from the aftermath of the Anglo-Boer War.289
When asked whether the envisaged Campaign was to be conducted with
methods similar to those used by Gandhi, Dr Moroka was also not
dogmatic about it: “Yes, along those lines. Passive resistance is the
most effective method open to us.”290
As Lodge observed:
It is unlikely that many subscribed to Gandhi’s notion of Satyagraha in
which the suffering of those punished for disobedience was supposed to
activate the inherent goodness of the rulers. More conceivably, a large
number of those who eventually participated in the Campaign probably
hoped that their actions would succeed in disorganising authority by
filling the prisons and the courts to capacity.291
Some leaders described civil disobedience to the people as a manoeuvre
which would throw the police off balance: “But what will they say now?
‘Hoe gaan ons werk, kerels, die mense baklei nie.’ You must give them
that headache.”292
ANC leaders like Oliver Tambo, while accepting the method of non-
violent resistance, explicitly rejected Gandhi’s belief in the creative
power of suffering. Tambo’s approach was explicitly coercive. According
to him:
Mahatma believed in the effectiveness of what he called the ‘soul force’ in passive resistance. According to him, the suffering experienced in passive resistance inspired a change of heart in the rulers. The [ANC], on the other hand, expressly rejected any concepts and methods of struggle that took the form of a self-pitying, arms-folding, and passive reaction to oppressive policies. It felt that nothing short of aggressive pressure from the masses of the people would bring about any change in the political situation in South Africa. As a countermeasure to Mahatma Gandhi’s passive resistance, the ANC launched, in 1952, the Campaign for the Defiance of Unjust Laws.293
289See Benson The African patriots 175. 290Interview by Drum magazine, reprinted in Schadeberg Nelson
Mandela and the rise of the ANC 30. Before the Campaign Moroka studied Gandhi's writings. See Benson South Africa 140.
291Lodge Black politics in South Africa since 1945 41. 292Quoted in Kuper Passive resistance in South Africa 119. 293O Tambo "Passive resistance in South Africa" in Davis & Baker
Southern Africa In transition 217 at 217. Fatima Meer responded to
To Tambo, “[n]on-vio1ence was ... a political tactic that could be
changed according to the demands of the political situation at any
time.”294 Sisulu was also not a Gandhian and wanted the Campaign to be
“typically South African and militant”.295 Even the choice of the name
“Defiance Campaign” as opposed to “Passive Resistance Campaign”, Yusuf
Dadoo later said, was intended to signify the militant nature of the
Campaign.296 According to Mandela, “[a]partheid had to be disorganised
and made unworkable.”297 He described the Defiance Campaign as
“extremely dangerous to the stability and security of the state”.298 (In
the later Treason Trial, however, Mandela testified that he had
expected the government, when the Campaign reached the stage of mass
defiance, either at its own accord to “remove an discrimination” or to
do so under pressure from the voters.299) Meli regarded the philosophy
underlying the Defiance Campaign as “broader” than Gandhian non-
violence.300 Both Z K Matthews and Lutuli, in their testimony at the
this observation by saying, "Tambo has clearly misunderstood Gandhian passive resistance and is wrong in thinking that there was any difference between the Indian and African approach in using it. Whereas the philosophical content of Satyagraha remained crucial to Gandhi, the Indian masses in India and South Africa rarely understood that content or subscribed to it." See F Meer "African nationalism - some inhibiting factors" in Adam South Africa 121 at 154 n 19. See also Meer Africa South 1959 21.
294O Tambo "Passive resistance in South Africa" in Davis & Baker Southern Africa In transition 217 at 221.
295See Benson South Africa 137. 296See the interview with Dadoo published as "The role of the
Indian people in the S African revolution" Sechaba (Special Issue) March/April 1969 14.
297See "Debates at ANC conference" The Guardian 27 Dec 1951. 298See Mandela's "No easy walk to freedom" address, reprinted in
Mandela The struggle is my life 34 at 34. When later questioned about this statement, Mandela said he envisaged that when the third stage of the Campaign was reached, "we should have created a position whereby the government would not be able to administer certain laws." See S v Adams & others, unreported case no 1/58 SCO 1961, reasons for judgment of Bekker J at 52. For an interview concerning their objectives with the Campaign, see "Mandela re-states defiers' call" People's World 2 Oct 1952.
299See S v Adams & others, unreported case no 1/58 SCC 1961, at 15794.
300Meli A history of the ANC 99.
Treason Trial, described the Campaign as coercive.301 Others propagated
civil disobedience as a necessary step towards violence.302 In general,
it seems that adherence to non-violence in the Defiance Campaign was
largely a matter of expediency.303
A clear vision of what the Defiance Campaign would achieve came from
the talented journalist and politician, Jordan Ngubande, who described
the rationale behind the Campaign, inter alia, as to create a climate
for white democrats to cross the line against white supremacy, to teach
Africans and Indians collaboration and to awaken world opinion to the
dangers of apartheid.304 Lutuli would later state that the first
objective of the Campaign was “to politicise the African people.”305 It
had the objective of “awakening the native to political
consciousness.”306
Looking back, it seems that the objectives of the Campaign can be
described as follows: Insofar as the Campaign was result-oriented or
aimed at bringing about social change, it had both direct and indirect
objectives. As far as the direct objectives vis-a-vis the government
were concerned, there were two different approaches: one, adhered to by
the Gandhians and those who were expressly motivated by Christian
convictions, was the notion that the South African government could be
brought to see the error of its ways through the Campaign; the second
was the belief that the Campaign, even though a relatively low level of
coercion was involved, could force that government to change by making
its laws impossible to administer. Another group discarded the
possibility of directly affecting the conduct of the government
altogether, and relied entirely on its indirect effects. The indirect
objectives of the Campaign encompassed both the possibilities of
politicising of prospective supporters and mobilisation of
international support.
301See S v Adams & others, unreported case no 1/58 SCC 1961, reasons for judgment of Bekker J at 9.
302Meli A history of the ANC 120. 303See L Kuper "Nonviolence revisited" in Rotberg & Mazrui Protest
and power in black Africa 788 at 792. 304See Walshe The rise of African nationalism In South Africa 402. 305See Karis & Carter From protest to challenge vol 2 426. 306See "Chief addresses ANC" The Friend 11 Nov 1952.
At the same time, it also seems fair to note a defensive component in
the Campaign. Irrespective of its likely results, civil disobedience
provided a relatively safe way of expressing feelings which people had
to express simply in order to retain their own dignity.
Whatever the underlying philosophy, the Campaign dearly struck a cord.
Unlike many earlier attempts that had failed, this new initiative at
least initially received fairly widespread support.
At meetings around the country the following pledge was read out and
accepted by the crowd by a show of hands:
We, the oppressed people of South Africa, do hereby solemnly pledge to carry on a relentless struggle for the repeal of the unjust laws, as specified in the ‘Plan of Action’ of the African National Congress, the Franchise Action Council, the Indian Congress and freedom-loving peoples. We shall do all within our power, to the utmost limits of our endurance and sacrifice, to carry out the Congress call to fight against the unjust laws, which subject our people to political servility, economic misery and social degradation. From this day onwards we vow to act as disciplined men and women and dedicate our lives to the struggle for freedom and fundamental rights.307
It is perhaps worth noting that no mention was made of non-violence.
(iii) The Defiance Campaign
The Defiance Campaign was officially launched on 26 June 1952, peaked
in August to October, and was largely over in December of that year.308
307Quoted in "Non-European plan for 'mass defiance'" The Cape Times 7 April 1952.
308On the history of the Defiance Campaign, see Houser Nonviolent revolution In South Africa in general; Benson The African patriots l75ff; De Villiers Die "African National Congress" en sy aktiwiteite aan die Witwatersrand part 1 186ff & part 2 291ff; Benson South Africa 140ff; Felt South Africa 27ff; L Kuper "Nonviolence revisited" in Rotberg & Mazrui Protest and power in black Africa 788ff; Walshe The rise of African nationalism in South Africa 40lff; N Carter "The Defiance Campaign - a comparative analysis of the organization, leadership and participation in the Eastern Cape and the Transvaal" in Institute of Commonwealth Studies Collected seminar papers on the societies of Southern Africa in the 19th and 20th centuries 76ff; Kuper Passive resistance In South Africa 122; Daniels Radical resistance to minority rule in South Africa 145ff; R Standbridge "Contemporary African political organizations and movements" in Price & Rossberg The apartheid regime 66 at 72; Hendricks From moderation to militancy 227ff; Lodge Black politics In South Africa since 1945 33ff; Dercksen Lyde1ike verset as metode van swart politieke deelname in Suid-Afr1ka 67ff; Meer Higher than hope 59ff; Holland The struggle
In accordance with the plans for the first stage of the Campaign,
groups of volunteers resisted in public places the pass laws and
apartheid regulations under auspices of trained leaders.309 The
intention was to concentrate on localised incidents in large centres
across the country.
It was made clear at this stage that only selected volunteers were to
defy the law - it was not to be a mass movement (at least for the time
being) in the sense of country-wide defiance of laws by all those who
identified with the cause.310 Only people “who have been called upon by
the Action Committee” of those congresses involved in organizing the
Campaign, were to transgress the laws in public places. These people
were “trained to remain disciplined” and were to act in units under the
leadership of an appointed marshal.
Other people were urged not to defy the law.311 The non-violent
character of the Campaign was also emphasised on a number of occasions,
inter alia by Or Moroka who stated “We do not want the Mau Mau spirit
to come here.”312
73ff; Davenport South Africa 366ff and Schadeberg Nelson Mandela 34ff. See also Hatch Jewish Frontier March 1953 19; Kuper The British Journal of Sociology 1953 243; Anonymous The Round Table 1953 88; Anonymous The Round Table 1953 130; and Olivier Koers 1987 512 at 534ff. See also the summary of the facts relating to the Campaign by Bekker J in S v Adams and others, unreported case no 1/58 SCC 1961, at 47ff of his judgment. For a vivid account of the start of the Campaign, see "The story of 'defiance'" Drum Oct 1952 9. See also "Democrat's diary" Advance 1 Jan 1953.
309The only laws directly broken were the pass laws. For the rest apartheid regulations were transgressed, mainly on the railways.
310Dr Moroka stated: "What we are doing is to put into the field only specially selected people trained for this Campaign; those who are not chosen should carry on as usual, and avoid provocative incidents." According to him, the ANC was "selecting only those people intelligent enough to understand the whole purpose of this move." See "No strike planned for June 26" The Bantu World 21 June 1952. See also the report of Sisulu's address in this regard, published as "5 000 met at protest gathering in Fordsburg" The Bantu World 5 April 1952. See also "Non-violence is keynote of unjust laws campaign" The Bantu World 28 June 1952.
311See "Only volunteers will fight '.unjust' laws" The Friend 25 June 1952 and "Net sekeres mag wet uittart" Die Burger 25 June 1952.
312Quoted from "We want no Mau Mau spirit to come here" The Bantu World 25 Oct 1952. See also "Dadoo explains civil disobedience" The Cape Times 9 April 1952 and "Non-Europeans are ready to start
By all accounts, the Campaign started on a high note. The first groups
of 28 defiers were arrested when they used the “Europeans only”
entrance at the New Brighton railway station. The leader was eventually
sentenced to thirty days’ imprisonment and the others to fifteen.313 In
Boksburg a group of 52 protesters, including Walter Sisulu, Secretary-
General of the ANC, and Nana Sita, President of the Transvaal Indian
Congress, set out to enter the black township without the necessary
permission.314 Mandela and Cachalia took a letter to the magistrate of
Boksburg, informing him of what they intended doing.315 The resistors
(excluding Mandela and Cachalia) were arrested at the Boksburg
location. They were not granted bail and spent 24 days in prison
awaiting trial.316 In the ensuing trial they were charged with
“conspiracy to incite public violence”.317 They were eventually
convicted on the alternative counts under the pass laws and the
location regulations and sentenced to a fine of £1 or seven days’
imprisonment. Nearly all chose to serve terms of imprisonment.318
Mandela and Cachalia were arrested that evening with a group of
resistors who had broken the curfew regulations in Johannesburg. They
were arrested on charges of having aided and abetted those in the group
to break the law. They were granted bail319 and the charges were
eventually withdrawn, due to a lack of evidence.320 In respect of the
other accused, it transpired that the protesters, when they were
'Defiance Campaign'" Rand Dally Hall 2 June 1952. 313See Benson South Africa 147. 314See "Full list of arrested volunteers" and "Sisulu arrested in
Boksburg" The Bantu World 27 June 1952. 315The report "136 arrests on first day of 'Defiance' Campaign"
Natal Mercury 27 June 1952 mentions only Cachalia in this regard; the report "Non-Europeans open defiance bid In the Union" Rand Daily Mail 27 -June 1952 mentions only Mandela. See also Kuper Passive resistance In ?uth Africa 125, where the letter that was delivered is reprinted.
316See "Aansoek om borgtog geweier" Die Volksblad 30 June 1952 and Sisulu and Sita jailed" Spark 25 July 1952.
317See "Conspiracy charges levelled against volunteers" Spark 4 July 1952. The charges were presumably levelled in terms of s 7 of the Riotous Assemblies and Criminal Law Amendment Act 27 of 1914.
318See "Sentenced for 'defiance'" The Argus 21 July 1952. 319See "Freedom battle begins" Spark 4 July 1952. 320See "52 Naturelle van 'protes'-veldtog vrygespreek" Die
Transvaler 26 July 1952.
arrested, were asked as a group whether they had passes, to which they
answered as a group “no”. Since it could not be proven that each one
individually had answered “no”, no conviction could be obtained.321
In urban areas, especially in the Eastern Cape but also on the Rand,
groups of protesters entered waiting rooms reserved for Europeans,
walked the streets without curfew passes, and went into locations for
which they did not have permits, in order to invite arrest.322 In some
cases the protestors were unsuccessful to secure arrest the first time
when they defied laws and they had to repeat their actions.323 By and
large the resistors acted with self-restraint, and the Campaign was
free of violence.
The first woman participant was arrested in July.324 The Campaign picked
up momentum in August325 and was extended to Cape Town.326 In September
it spread to Bloemfontein327 and to Durban.328 In the first four months,
6 880 volunteers were arrested.329 The second stage of the Campaign had
commenced, with the increase of volunteers and centres of operation.
During the initial stages of the Campaign it was repeatedly emphasised
that the actions were directed against unjust laws, not against the
whites.330 The aim was stated as black equality, not superiority.331 Or
321See "52 Rand 'defiers' acquitted" The Cape Times 26 July 1952. 322See "30 Bantoes reeds aangekeer" Die Vaderland 26 June 1952; "20
volunteer at Langa for 'defiance'" The Argus 27 June 1952; "Protesveldtog voortgesit" Die Burger 27 June 1952 and "'Resistors' act in three centres" The Cape Times 27 June 1952.
323See "Scorpion", "Arrested" and "Curfew for second night in succession" Flash 25 Nov 1952.
324See "33 native women arrested" The Argus 24 July 1952. See also Walker Women and resistance in South Africa 131ff.
325See "Defiance Campaign is gathering momentum" The Friend 19 Aug 1952.
326See "First city 'resistors' arrested" The Cape Times 4 Aug 1952. 327See "Defiance Campaign in Free State" The Friend 23 Sept 1952. 328 See "Defiance in Durban" Drum November 1952. 329Of these, 5 269 came from the Eastern Cape, 306 from the Western
Cape, Mafeking and Kimberley, 1 116 from the Transvaal, 152 from Natal and 147 from the Free State. See "Defiance Campaign now in second stage: More will take part" The Friend 22 Oct 1952.
330See Sisulu's remarks as reported in "Organisers urge volunteers
Malan understood and expressed this aim well: “[d]at die blankes as
voogde van die nie-blanke meet abdikeer”,332 although the merits of this
demand did not strike him as obvious.
The progression of the Campaign saw a steady increase in the severity
of the sentences imposed. At the beginning, the typical sentence
imposed for the minor crimes committed was a fine of £1 or ten days’
imprisonment.333 After warnings of an impending increase in sentence,
fines of £8 or 40 days’ imprisonment, half of which was suspended, were
imposed.334 This was later raised to £10 or two months’ imprisonment,335
and eventually to £15 or 90 days’ imprisonment.336 From April 1953,
convictions under the Criminal Law Amendment Act 8 of 1953 were handed
down. The first person so convicted was sentenced to twelve months’
imprisonment and eight lashes.337
As a general rule, the resisters pleaded not guilty but then in
evidence admitted formal compliance with all the elements of the
crime.338 The resistors took the opportunity to address the court on
their views of the legislation at stake, and on the inadequacy of the
“proper channels” for the expression of grievances to which they were
inevitably referred to.339 It was made clear that South Africa was a
society in which there was “no constitutional platform for dissent
to show restraint" The Friend 23 June 1952. 331See "Op gelyke voet in die parlement" Die Burger 24 June 1952. 332See "Teen die witman" Die Vaderland 2 Sept 1952. 333See "Trotseerders van wette gestraf" Die Burger 23 July 1952.
See also "Sentenced for 'defiance'" The Argus 10 July 1952. 334See "Swaarder gestraf" Die Burger 25 July 1952. 335See "Swaarder straf vir versetters" Die Vaderland 19 Aug 1952.
See also "Fines increased at Port Elizabeth from £6 to £10" Rand Daily Man 19 Aug 1952.
336See "Uittarters swaarder gestraf" Die Transvaler 26 Sept 1952. 337See "First conviction under anti-defiance Act" The Bantu World 4
April 1953. 338See eg "Sentenced for defiance" The Argus 10 July 1952 and "151
go to jail in East London" The Friend 26 July 1952. 339See, for example, the address to the court of one Mr S Mokena,
the leader of a group of resistors, published as "How painful are these restrictions" The South African Outlook 1 Dec 1952.
except the court dock.”340
The General Secretary of the Natal Indian Congress, Debi Singh, who had
led a group of resistors to defy Railway Apartheid Regulations, told
the court:
There is nothing in our common law which lays down that differential treatment should be meted out to people of colour. In some countries it is indeed a criminal offence to discriminate on racial grounds. Thus it is correct to say that the crime with which I have been charged is a crime to which there attaches no moral guilt ... When there are marked and pronounced contradictions between thee (sic) law of nature and man-made law a very painful duty devolves on all enlightened members of our society.341
In this case Singh regarded it as his duty to obey “natural law”.342
The protesters gave due notice of any intended acts of civil
disobedience, and almost without exception refused to pay fines imposed
and went to prison.343 In doing this, at least the outward form of
Gandhi’s campaigns of Satyagraha was observed, even if there was no
certainty as to what the exact philosophy underlying the Campaign
was.344 In order to counter the fact that some prisons were later filled
to the brim, courts implemented the provisions of the Criminal
Procedure and Evidence Act 31 of 1917, which made allowance for the
seizure of the property of a convicted person in order to pay his
fine.345 As a consequence, people were turned out of gaols against their
will.346 In an especially controversial move, courts later began
imposing whippings, in accordance with the provisions of the Criminal
340MacFarlane Political studies 1968 335 at 342 used this phrase to describe a system of permanent colonialism.
341See "Veteran leader Debi Singh leads defiance batch into action" Spark 14 Nov 1952.
342Ibid. 343See Kuper Passive resistance in South Africa 127. For an account
of some of the arrests and trials, see Karis & Carter From protest to challenge vol 2 421.
344See Robertson Liberalism in South Africa 78. 345Section 346. See "Tronk reeds tot oorlopens toe vol" Die
Vaderland 28 Aug 1952. 346See "'Defiance' natives expelled from gaol by order" Rand Daily
Mail 25 July 1952 and "Heldedom deur tronkstraf" Die Burger 28 July 1952.
Law Amendment Act.347
Especially pertinent to the question how the law should respond to
civil disobedience, and revealing in the light of what is today
commonly referred to as the legitimacy crisis of the South African
legal system, are the comments made by magistrates from all over the
country who presided in Defiance Campaign cases, as reported in the
newspapers of the time.348
An accused called Mhlaba stated in a Port Elizabeth court that by
defying a railway station segregation notice he was defying an “unjust
law which was against God’s rule”. The magistrate told the accused that
he was not going to allow political speech. The proceedings continued:
“Mhlaba: If the law is oppressive, what is one to do? The magistrate:
There are constitutional means by which you can try to have th1ngs
amended. When it comes to deliberate defiance of the law this court
will see that the persons responsible are properly punished.”349
Passing sentence in another case on 21 Africans who broke apartheid
regulations, a Johannesburg magistrate remarked:
It is quite clear that the law has been deliberately flouted. The laws are made to be observed, whether we like them or not. There are some laws which I also do not like - they hit me rather hard. The Income Tax Act for example, is one I do not like. Just the same, I must obey it, as, just the same, you must obey these laws.350
He also maintained that it was quite clear that there was no partiality
or inequality in the apartheid regulations which were broken. None of
347See "Jong versetters kry lyfstraf" Die Burger 7 Aug 1952; "Die werklike gevaar" Die Burger 13 Aug 1952; "Rottang vir versetters" Die Transvaler 18 Aug 1952; "Soek 'vryheid' 1n stasie: Kry slae" Die Vaderland 20 Aug 1952; "Cuts, fines or gaol for 18 more under rail apartheid law" Rand Daily Hall 21 Aug 1952; "Appeal not to whip 'defiers'" Cape Times 25 Aug 1952 and "Brutal flogging proposed for defiers" Advance 5 Feb 1953.
348Before the Campaign, Sam Kahn, Communist Party HP, had warned a meeting of the organizations participating in the Campaign: "Do not place reliance in the courts, which apply every apartheid law passed by the government." See "April 6 meetings" The Guardian 10 April 1952.
349Quoted from "Natives in court in Port Elizabeth" The Cape Argus 10 July 1952.
350Reported in "21 go to gaol for 'defiance' at station" Rand Daily Mail 28 Aug 1952.
the accused’s rights, he said, were taken away or interfered with.351
In sentencing the group of resistors who, under the leadership of Sita
and Sisulu, had defied the Boksburg “location regulations”, the
magistrate stated that he could not concern himself with any of the
political aspects of the case. He said: “My duty is to apply the law as
I find it.”352
In another case, after hearing that nine out of a group of 29 resisters
who transgressed the pass laws were unemployed, the magistrate
remarked:
Julle moot nie die feit uit die oog verloor nie dat die staat julle dikwels van hongersnood en epidemies gered het. Julle lewe nou in ‘n soort van weelde, met baie voedsel en baie werkgeleentheid. Dit sal nie altyd aanhou nie. Ek wil vir julle dit se: Dit help julle niks om jul koppe teen ‘n muur te stamp nie - die muur sal nie seer kry nie.353
One magistrate said to an 87 year-o1d defier: “An old man like you
should have more sense. If you think I shall let you make a martyr of
yourself you are mistaken - go home.”354
The sentiment that Africans were the helpless and incapable victims of
others, and that they themselves would never have had the initiative to
embark upon civil disobedience, was reflected in the words of a
magistrate who sentenced a number of offenders who participated in an
illegal demonstration: “Ek betreur dit dat hierdie betreklik jong
mense, wie se Intel ligensie nie bale hoog is nie, gewerf word om
aan versetpleging en wetsoortreding deel te neem, en dat hulle nou met
hulle vryheid daarvoor moet boet.”355
At the trial of Dr Conco, Lutuli's second-in-command in the Natal
351Ibid. 352Quoted from "Sentenced for 'defiance'" The Cape Argus 21 July
1952. See also "Many resistors arrested: Cape Native fined for contempt" The Friend 16 Sept 1952.
353Quoted from "Muur sal nie seer kry!" Die Volksblad 11 Sept 1952. 354Quoted from "Defier (87) not allowed to be a 'martyr'" The Argus
1 Oct 1952. 355Quoted from "'ANC vernietig sy jeug'" Die Burger 1 Oct 1952. See
also the seemingly bizarre case described in "Magistrate sorry for defiance men - frees them" Rand Daily Mail 7 Oct 1952. The ANC's version of the facts of the case was given in "Congress reply to Vereeniging magistrate" People's World 16 Oct 1952.
African National Congress, the magistrate was urged by the defending
lawyers to refuse to administer unjust laws. He imposed the maximum
sentence and told the accused:
The legislature has seen fit to pass these laws. It behoves all citizens to obey them. I am not concerned with your motive for breaking the law. There has been far too much of this deliberate transgression ... My advice to you is to obey and respect the laws of the country before you ask for other privileges.356
In dealing with an application for bail of the first racially mixed
group of defiers, the magistrate remarked, with reference to the
Defiance Campaign in general: “We are dealing with a race that is
primitive, easily led and easily on the emotional side raised to a
pitch who win, under emotion, act as they would otherwise not do under
calmer reflection.”357 Nevertheless, bail was fixed at £50 for
“Europeans” and £20 for “non-Europeans”.
During the latter part of 1952, the magistrates’ courts in the areas
affected by the Campaign were at times swamped with cases resulting
from the Campaign. Some days more than 400 people were sentenced in
courts across the Union.358 By far the majority of cases involved the
transgression of apartheid provisions at railway stations, and to a
lesser degree transgressions of the pass laws.359
In August, Sisulu, Mandela, Moroka and others were charged in the
Supreme Court with the crime of contravening section 11(b) of the
Internal Security Act 44 of 1950.360 According to the indictment they
356See Flash 6 Nov 1952. 357Quoted from "First victims of Swart's new order" Advance 18 Dec
1952. 358See eg "413 Naturelle gister gevonnis" Die Transvaler 19 Aug
1952. 359Some people were also tried with Illegally collecting money to
support the movement. See "'Defiance' collection test case" The Cape Times 14 Aug 1952.
360See "14 charged under anti-red Act" The Argus 13 Aug 1952; “Eleven Defiance Campaign leaders arrested 1n Johannesburg" Mercury 13 Aug 1952; "Leaders to appear in Supreme Court on November 17" The Bantu World 1 Nov 1952. In another trial under the Internal Security Act which followed in the wake of the violence in Port Elizabeth, Or Njongwe and 14 others were convicted. See "No violence in Defiance Campaign" People's World 2 Oct 1952 and "PE accused's view of Defiance Campaign" People's World 9 Oct 1952. Before being sentenced, Dr Njongwe cited as his inspiration for having taken part in the Campaign
advocated and encouraged the achievement of the objectives of
“communism” as defined in the Act.361 The charge was based on their role
in organising the Defiance Campaign. The reports of the Joint Planning
Council, as well as the letters to Malan, were used as supporting
evidence by the state. Several of the accused, including Sisu1u and
Mandela, addressed the court on their reasons for having participated
in the Campaign.362
Giving judgment in the case of R v Sisulu and others363 in the
Witwatersrand Local Division, Rumpff J held that the actions of the
accused were covered by the provisions, and convicted them of what he
called “statutory communism”, which was different from “what is
commonly known as communism.”364 In passing sentence the judge observed:
“It is not for me to judge the wisdom of legislation. That is the
province of the legislature. I have to interpret the law and to apply
it to the facts before me.”365 He continued: “I have decided to impose a
suspended sentence. I have done so because I accept the evidence that
you have consistently advised your followers to follow a peaceful
course of action and to avoid violence in any shape or form.”366
An appeal against the conviction to the Appellate Division was
dismissed.367 Among other things, the court held that even if it was
assumed that the Campaign was intended to “move the legislators by pity
or a realisation of the justice of the cause” and not at moving them
the "historical example of Ghandi (sic)" who, if he were in South Africa at that moment, "could even technically be regarded as a communist". See "Dr Njongwe's statement to court" Advance 9 April 1953.
361See the discussion of the offence infra chap four I C (l)(b). 362See "'Nat government desperate - crown has no case'" People's
World 11 Sept 1952. 363Unreported case no 1417/52 W 2 Dec 1952. 364During the trial, Mr Justice Rumpff asked the prosecutor
"whether a party of European women who sat down in the street and refused to leave when ordered to do so because they had decided on a plan to obtain a change in regard to the rules of jury service, would be guilty of communism." The prosecutor replied: "The scope of the Act is very wide." See "Defence case in Jo'burg trial" Advance 4 Dec 1952.
365At the first unnumbered page of the reasons for sentence. 366Ibid. 367Reported as R v Sisulu and others 1953 3 SA 276 A. Judgment by
Greenberg A C J.
through a “threat that was intended to produce terror in the
legislators” (that is, even if the Campaign was entirely persuasive and
involved no coercion), it would nevertheless still have constituted a
contravention of section 11(b).368
Given the formidable legal apparatus at the disposal of the state, and
the intention of the protesters to commit crimes, it is not surprising
that only a small number of cases resulted in acquittals. Where this
did occur, it was either due to the insufficiency of the evidence in
the particular case or the result of lacunae in the legal system.
Charges against 54 black protesters who used the section of a post
office counter reserved for whites were withdrawn and 19 others were
acquitted when it was discovered that the post office regulations did
not make provision for such an enforcement of apartheid.369 Similar
cases followed in respect of purported breaches of post office
regulations in other courts, with the same result.370
In another case, a number of white defiers used seats in a post office
reserved for “non-Europeans”, as a result of which a crowd of between
250 and 300 people gathered around them. Since there were no valid post
office apartheid regulations making provision for racially defined
reservation of seats, they were charged with causing an obstruction. It
was argued on behalf of the accused that the real reason for the
obstruction was the conduct of the crowd, not that of the accused.
Counsel for the accused asked the captain who made the arrests whether
he would have detained Elizabeth Taylor if she had walked into the post
office and a crowd gathered around her.371 The accused were acquitted.
In a crude reversal of the normal sentiment in such cases372 the
magistrate told the accused: “You have committed a moral crime, but
368At 290. 369See "Charges of 'resisting' fail: 54 freed" The Argus 21 July
1952 and "Postal apartheid" The Cape Times 22 July 1952 370See "'Defiers' are found not guilty at Worcester" The Argus 25
July 1952. 371See "Blanke versetplegers deur hof ontslaan" Die Burger 20 Dec
1952. 372See eg the observations the magistrate in the "Great Trial" made
regarding Gandhi, quoted infra chap three III B (1)(a).
fortunately for you not a legal one.”373
In contrast to the situation regarding the post offices, the railway
regulations made specific provision for segregation at stations. The
validity of the” railway apartheid regulations was attacked on the
basis that the rights of blacks were diminished through these
regulations. However, this contention was not upheld in the
magistrates’ courts.374
Much attention centred upon the case of R v Lusu, which acquired the
status of a test case and was eventually decided in the Appellate 375Division. The case originated in August 1952 when the accused, a
black man, as part of the activities of the Defiance Campaign, entered
the “European waiting-room” at the Cape Town railway station, and
refused to leave when requested to do so. He was charged with having
contravened the Railways and Harbours Regulation, Control, and
Management Act 22 of 1916.376 Section 7(bis)(1) of this Act authorised
the South African Railways and Harbours Administration, inter alia. to
reserve railway premises for the use of members of a particular race.
In terms of section 36(b) it was a crime to knowingly enter a place so
reserved for use by members of other races.
The trial magistrate found that the facts alleged in the charge sheet
had been proved, but acquitted the accused on the ground that the
administration had reserved substantially inferior facilities for “non-
Europeans” as compared to those reserved for Europeans. On the basis of
R v Abdurahman,377 this action of the administration was declared void.
An appeal by the state to the Provincial Division was dismissed. In a
further appeal to the Appellate Division, it was not contested by the
state that the "non-European" facilities were indeed inferior. What was
373See "No legal basis for PO apartheid" Advance 25 Dec 1952. 374See "42 Oortreders skuldig bevind; 1 kry rottang" Die Transvaler
20 Aug 1952. 375The Appellate Division decision was reported as R v Lusu 1953 2
SA 484 (A). See the discussion of this case by Van der Vyver Seven lectures on human rights 9 and Forsyth In danger for their talents 97ff. See also "Resisters challenge railway regulations" People's World 21 Aug 1952.
376Read with regulation 20(a) of the General Railway Regulations. 3771950 3 SA 136 (A). For a discussion of this case, see Forsyth In
danger for their talents 95.
argued, however, was that the Railway Administration had "unfettered
discretionary rights" to treat different races unequally and partially
if it desired to do so.
Centlivres C J, writing for the majority of the Appellate Division,
argued that:
If the crown’s contention were correct, it would follow that the Administration could, under section 7(bis)(1). reserve conveniences on railway premises for members of a particular race only and provide no conveniences for members of any other race. This could not, in my opinion, have been the intention of Parliament.378
Consequently the appeal was dismissed. In terms of the British case of
Kruse v Johnson,379 if facilities were to be separate, they at least had
to be equal.
To the great dismay of both the white press and the presiding officers,
there were cases where singing, shouting and other interruptions of the
court proceedings occurred.380 The trial of Sisulu and others was
adjourned at one stage for 15 minutes to allow Sisulu to address the
crowd outside the courtroom. Upon his request they left immediately.381
The Campaign was Intensified in October when India successfully moved
that the situation in South Africa be debated at the UN General
Assembly.382 A so-called “United Nations Rally” was held at Red Square
in Durban and attended by more than 10 000 people. The rally
“unanimously passed by acclamation” a message which was sent to the
Secretary-General of the UN. After expressing solidarity with the
values embodied in the Charter of the UN, the message proceeded:
We are of the considered opinion that one of the most disturbing factors in the world today is the practice of racial discrimination, a practice which has within it the seeds of another world war. Because we believe in the peace of the world and in the creation of peace fu1 (sic) conditions in our own
378At 491 of the report. 379[1898] 2 QB 91 at 99. 380See "85 'Resisters' in court" The Argus 23 July 1952; "Court was
cleared" The Argus 27 Aug 1952; "Rumoerige tonele by Randse verhore" Die Burger 27 Aug 1952; "U1t die hof gejaag" Die Burger 28 Aug 1952; "Resisters warned of contempt" Mercury 9 Sept 1952 and "Native crowd outside court dispersed" The Argus 21 Oct 1952.
381See Houser Nonviolent revolution 1n South Africa 25. 382See Lodge Black politics in South Africa since 1945 44.
country, we look forward to the United Nations to take a positive stand on this vital question. The future of the new world organization born in the struggle against Fascism depends on its ability to give the oppressed peoples of the world a clear lead on racial discrimination which like a cancer is eating into all that we hold dear in human relationships. In sending our greetings to you we hope that the democratic nations of the world will not allow any further impairment of world peace by allowing herren-volkism to hold sway in any part of the world.383
A number of so-called “UNO batches of resistors” were now arrested.384
Four months after the beginning of the Campaign, the ANC in the
Transvaal was considering the extension of the Campaign into the rural
areas.385 Just as the Campaign was about to move into its third stage -
preparation for nationwide mass civil disobedience - rioting broke out
on a large scale.
The first outbreak of mob violence occurred in New Brighton, Port
Elizabeth, in October. When a white railway constable tried to arrest
two Africans suspected of stealing a drum of paint, some bystanders
came to their assistance. Reinforcements for both sides arrived on the
scene. Eventually a crowd of 2 000 to 3 000 were stoning the station
and other buildings in the vicinity. The police opened fire. Four
whites were killed by the mob, and nine (according to some reports
seven) black people were shot dead by the police.386
Similar incidents occurred at Denver and in Kimberley, also sparked off
by trivial incidents.387 Particularly the killing of a white nun who was
sympathetic to the African cause during riots in a black township sent
shock waves through the country. In total, 26 blacks and 6 whites died
383Quoted in "Message to the United Nations" Flash 14 Oct 1952. 384See "Defiers' first 'UNO batch'" Cape Times 6 Oct 1952. 385See "Extension of defiance" The Cape Times 13 Oct 1952 and
"'Defiance' to spread to platteland" Rand Daily Mail 13 Oct 1952. 386See Kuper Passive resistance in South Africa 133. The incident
sparked an outcry in the white press. See eg "Onluste in Port Elizabeth" Die Volksblad 20 Oct 1952; "Towards a stage of siege?" Pretoria News 20 Oct 1952; "Horror at Port Elizabeth" The Natal Mercury 21 Oct 1952; "New Brighton riot" The Star 20 Oct 1952 and "Call off the 'defiance'" The Star 21 Oct 1952.
387The court case resulting from the incident at Denver is discussed by Kuper Passive resistance 1n South Africa 135.
in these uprisings.388
Whether or not it was in fact agents provocateurs who had instigated
these riots, as has been alleged,389 the masses were drawn into them,
and the disciplined, non-violent nature of the Campaign, together with
much of its grounds for claiming moral superiority, were compromised.
The ANC denied responsibility for the violence and refused to call the
Campaign off.390 In response to a call from Congress, some white
resistors now also joined the Campaign. Among the new resistors was
Patrick Duncan, son of a former Governor-General of South Africa,391 as
well as Manilal Gandhi, son of the Mahatma.392 However, fewer resistors
388Olivier Koers 1987 512 at 535. 389See Kuper Passive resistance in South Africa 138 and Luthuli
Let my people go 115. 390See "ANC statement on PE riots" People's World 23 Oct 1952 and
"Defiance leaders' call to their people" Advance 20 Nov 1952. It should also be noted that no participation In this violence by the ANC was alleged by the state during the Treason Trial.
391For Duncan's own account of his participation In the Campaign, see Duncan Africa South 1956 78. The news of the participation of Duncan and the other white resistors In the Campaign received considerable publicity in the white press. See eg "Police arrest seven Europeans In defiance episode" Rand Daily Mail 9 Dec 1952; "Blankes neem deel aan verset" Die Burger 10 Dec 1952; "Staat sluit sy saak at" Die Vadarland 28 Jan 1953 and "Patrick Duncan in die getulebank" Die Volksblad 4 Feb 1953. See also "White resisters 1n action" Advance 11 Dec 1952. They were charged with "inciting Natives to break the law" in terms of regulations which wm be discussed later. A fine of £100 was Imposed. See "Duncan kry £100 boete" Die Burger 5 Feb 1953. Duncan told the court that he (as a white) joined the Defiance Campaign because liberty was Indivisible; It was the duty of every citizen to fight injustice, whether he was personally affected or not. He also wanted to demonstrate that some whites were prepared to work with the congresses Involved. See "Evidence by Duncan in location case" The Argus 3 Feb 1953. The young Gandhi stated that "[w]e can submit to these laws or submit to the penalties Imposed by these laws; we have decided to submit to the penalties because the laws are unjust. We do not ask for mitigation of sentence." Quoted from "Duncan and 7 fined for incitement; to appeal" Rand Daily Mail S Feb 1953. They withdrew an initial appeal and went to prison. See "'Defier' to withdraw his appeal: will 90 to jail for 100 days" The Star 29 June 1953.
392See Lodge Black politics in South Africa since 1945 62. Manilal Gandhi attracted worldwide attention by going on a fast before the Campaign, expressing his doubts that the leadership of the Campaign was sufficiently disciplined to carry on the movement in a non-violent spirit. Apparently his opinion on the matter later changed. See Houser
were prepared to come forward, and the Campaign started grinding to a
halt in December, with only a few arrests in 1953.393 In total, 8 057
civil disobedients were arrested during the six months of the Campaign.
A serious handicap to the Campaign was the naming of 500 people under
the Internal Security Act.394 These orders were largely defied - a fact
which resulted in renewed arrests.395
(iv) Consequences of the Campaign
It was stated earlier that the Campaign was aimed at changing the
behaviour of the South African government, either through coercion or
non-coercion, politicising blacks, and mobilising international
support. It was also mentioned that the Campaign provided an outlet for
oppressed people to retain their dignity. The question must now be
considered to what extent these objectives were achieved.
- Reaction of the white establishment
The most important immediate effect of the Defiance Campaign was a
dramatic increase in the polarisation of the South African society.396
The reaction of the governing establishment was one of threatened
hostility and panic. The Campaign was perceived as an attack on the
very basis of white survival.397 The open defiance of laws was regarded
as treason, subversion, sedition and mutiny,398 on the basis (the
argument that patent violations of the law inevitably cause general
Nonviolent revolution In South Africa 25. 393During December, the number of resisters dropped to 280. Kuper
Passive resistance in South Africa 143. 394See Benson South Africa 146. 395See "ANC will continue to fight Nat dictatorship" Advance 4 Dec
1952. 396This theme is thoroughly discussed in Horrell Action, reaction
and counteraction 6ff. The legislative consequences are discussed in Horrell Legislation and race relations 48ff.
397Calling for white unity. Die Transvaler described the Campaign as the beginning of a "terugsinking in die barbaredom". Sea "Hulle is verenig - en ons?" Die Transvaler 4 June 1952. See also "Trotsering van wette" Die Burger 27 June 1952. Cabinet minister, Eli Louw, stated that the future of the "white civilisation" was at stake. See "Louw warns of strong action" The Friend 17 Dec 1952.
398See "Defiance Campaign is mutiny, says Donges (sic)" The Friend 10 Dec 1952.
lawlessness.399 The Campaign was also portrayed as defiance of the valid
laws of a lawful authority and hence as an attack on the authority of
God.400
The government described the term “unjust laws” as perceived in the
Campaign as a misnomer, insisting that the apartheid laws were in the
best interest not only of white people but also of black people.401
Consequently, it denied the Campaign the status of being anti-
exploitation, and treated it as policy-based. Not surprisingly, the ANC
rejected this assumption as one of hypocrisy, and emphasised its
conviction that what it was striving for was recognition of the basic
right of the people not to be exploited.402
The Defiance Campaign met with stern reproach in Parliament. The
government stated its intention to ensure that law and order was
maintained “irrespective of opposition, irrespective of criticism.”403
No government “worth its salt” can sit still while being threatened
with intentional violations of the law. The Minister of Justice stated:
“We cannot tolerate that, and if a few heads are split open in the
process, then I am very sorry, but it cannot be helped.”404
The attendance by two members of Parliament of a meeting addressed by
Solly Sachs in defiance of an order served on him, urging people to
take part in defying the law, caused consternation in Parliament.405 The
Minister of Justice said: “Even if the policy of this government is
wrong it is still the law and no one may violate it.”406
399See Kuper Passive resistance in South Africa 154. 400 The "Sinodale Kommissie van die Ned Herv of Geref Kerk" stated
its conviction "[d]at alle vorms van geweldpleging en verontagsaming van bestaande wette of die wettige gesag van die land veroordeel moet word as strydig met die Woord van God." See "Die spanning tussen rasse-groepe in SA" Die Voorligter Jan 1953.
401See "Dr Eiselen gives his views on the unjust laws campaign" The Bantu World 20 Sept 1952.
402See "Dr Moroka again denies allegation that ANC has political link" The Bantu World 9 Aug 1952 and "ANC replies to Dr Eiselen" The Bantu World 27 Sept 1952.
403Debates of the House of Assembly 20 June 1952 col 8759. 404Id 20 June 1952 col 8758. 405Id 26 May 1952 col 6319ff. 406Id 26 May 1952 col 6327.
At the beginning of 1953, in his “opening speech” in Parliament, the
Governor-General of the Union announced that Parliament would be asked
by the government for additional powers to deal “swiftly and
effectively” with any further acts of defiance of the law.407 The
government held the opposition parties responsible for the Campaign
because of its support for those engaged in breaking the law.408 The
United Party, seen as the bastion of liberalism, was singled out for
particularly severe criticism in view of the fact that, although it
eventually opposed the Campaign, it refused to side with the
government.409 For its part, the opposition lay the blame squarely at
the door of the government which it was argued, created the conditions
which led to the Campaign.410 The United Party press reminded Or Malan
of his own earlier endorsement of the method of passive resistance411
and accused the government of setting a precedent of lawlessness by
overruling the Appellate Division in their effort to remove the
coloureds from the common voters’ roll.412
The Campaign was portrayed by the white press and by the government as
inspired by communists and Indians.413 Africans were often viewed as the
helpless pawns of instigators who did not realise that apartheid was in
407Id 23 Jan 1953 col 4. 408Id 27 Jan 1953 col 120. 409In other words, they refused to be drawn into a "laager" with
the government. See "Mostert na die maal" Die Volksblad 25 Aug 1952; "Die uittarters en hulle vriende" Die Transvaler 26 Aug 1952 and "VP en versetveldtog" Die Burger 11 Sept 1952. See also "Verset gemik teen blanke, nie teen NP" Die Vaderland 27 Oct 1952. On the views of the United Party and its supporters in this regard, see "A dual responsibility" The Friend 21 April 1952; "Dangerous defiance" The Cape Argus 3 June 1952 and "Danger ahead" Mercury 19 Aug 1952. For Alan Paton's views, see "Paton gives warning to white common-front" Mercury 19 Sept 1952.
410Id 27 Jan 1953 col 89. 411See "The chickens come home" The Cape Times 24 Sept 1952. 412See "Premier must set an example" The Friend 4 Sept 1952. 413According to cabinet minister Or T E Dönges, the Campaign could
be labelled "Made in Russia or India". See "Dönges sees mark of Moscow" The Argus 22 Nov 1952. See also "'n Siniese spel" Die Volksblad 26 June 1952; "Agter die versetveldtog" Die Burger 12 Aug 1952 and "Leiding van Moskou" Die Volksblad 15 Dec 1952. The approach accorded with the fact that civil disobedience was regarded as an "act of communism" in terms of the Internal Securuty Act 44 of 1950.
the blacks’ own best interest.414
When it seemed that some prisons were approaching their capacity, it
was suggested that those arrested for participation in the Campaign
should be housed in concentration camps415 or taken to road camps, where
they could assist in the construction of roads.416 It was also suggested
that they be banned from certain areas.417 In practice, the envisaged
breakdown of the legal system, due to flooded prisons, never
materialised.
As the Campaign progressed, the call from the enfranchised population
for the restoration of law and order increased. The government was
quick to respond by announcing that orders had been given to the police
to take whatever steps were necessary,418 and the introduction of new,
harsher legislation was promised.419 From the outset, the government
ruled out the possibility of any negotiations, arguing that negotiation
would be useless because it was not prepared to concede the protesters’
414See "'Unjust laws' is complete misnomer" Pretoria News 18 Sept 1952 and "Versetplegers is onkundig oor wette" Die Burger 18 Sept 1952.
415See "Konsentrasiekampe vir versetleiers" Die Burger 22 Nov 1952. 416See "Padkampe vir versetters" Die Volksblad 4 Aug 1952. 417See "Verbanning van belhammels?" Die Volksblad 9 Dec 1952. At
one time there was also the suspicion that deportation would be used. See "Defiers to be deported?" People's World 2 Oct 1952.
418See "Nats will use force to keep order" The Friend 16 June 1952; “Regering sal nie swig voor uittarters" Die Transvaler 26 Sept 1952; "Regering sal dit onderdruk, sê Min Schoeman" Die Transvaler 27 Oct 1952 and "Police will shoot - Swart" Rand Daily Mail 3 Nov 1952. One aspect of the strong arm tactics of the government in this regard was the raiding of homes and offices of the leaders of the Defiance Campaign. See "Union-wide raids by CID" The Cape Argus 30 July 1952.
419See "'Versetters' sal kortgevat word" Die Burger 2 Aug 1952; "Straks nuwe wette teen moedswillige oortreders" Die Transvaler 4 Aug 1952; "Tydige waarskuwing" Die Vaderland 5 Aug 1952; "Cabinet believed to have discussed 'defiance'" Rand Daily Man 15 Aug 1952; "Versetveldtog sal 'gebreek' word" Die Volksblad 29 Sept 1952; "Vra dalk meer magte teen uittartery" Die Transvaler 20 Oct 1952; "Gooi tou om die horings" Die Vaderland 21 Oct 1952; "'Panic laws' final symptom of the government's failure" The Friend 8 Dec 1952; "Noodmagte teen terrorisme" Die Burger 9 Dec 1952 and "Maatreëls teen wetsverbreking byna voltooi" Die Vaderland 11 Dec 1952. This provoked heated resistance at the instance of the ANC. See eg "Protest meetings call for withdrawal of bills" The Bantu World 14 Feb 1953.
requests.420
As far as the establishment was concerned, the high moral claims of the
Campaign were effectively neutralised through the publicity given to
acts of violence that had occurred. During the Defiance Campaign the
liberation movement in Kenya was in the news, and white people tended
to see the spirit of the Mau Mau in the Campaign, rather than that of
the Mahatma. The violence which erupted also provided a pretext for
discounting the morality of the cause underlying the Campaign.
Commentators like Desmond Tutu421 and Gwendolyn Carter422 have expressed
the opinion that the Defiance Campaign had practically no effect in
awakening sympathy among whites. It certainly achieved little in terms
of persuading the government to repeal any of the offensive
legislation. In fact, it did the very opposite and prompted the
government to initiate more oppressive legislation. Its effect on
intellectuals and religious leaders should, however, not be
underestimated.423 Eventually, these people would play an important role
in the liquidation of apartheid.424
Executive and legislative response to the Campaign were swift and
harsh. During the Defiance Campaign the Governor-General issued a
proclamation which made “the incitement of natives” by either whites or
blacks a criminal offence.425 White resistors, like Patrick Duncan, who
joined the Campaign at the end were charged and convicted under this
proclamation. Many leaders of the Campaign were also tried, restricted
or banned in a variety of ways under the Riotous Assemblies and
420See "Difficult to 'stamp out' Defiance Campaign" The Friend 11 Oct 1952.
421See 0 Tutu "Persecution of Christians under apartheid" in Metz & Schillebeeckx Martyrdom today 63 at 67.
422See Robertson Liberalism in South Africa 85. 423See Karis & Carter From protest to challenge vol 2 426. 424One small manifestation of this can be seen in the fact that
under the impetus of the Campaign liberals in the United Party split away to form the Liberal Party, which introduced a "one person one vote" platform into white politics. See Gerhart Black power In South Africa 8.
425This proclamation is discussed infra chap four I C (1)(c). Se also "Heavy penalties under new proclamation" The Bantu World 6 Dec 1952
Criminal Law Amendment Act 27 of 1914426 and the Internal Security Act
44 of 1950.427
Instead of bringing about abolition of the Pass Laws, the year of the
Campaign saw its expansion. The Blacks (Abolition of Passes and Co-
ordination of Documents) Act 67 of 1952 was introduced which, in
mockery of its name, made provision for the state to require all black
persons not previously required to possess passes to carry reference
books. In terms of the Black Laws Amendment Act 54 of 1952 black women
could in future also be required to carry such “passbooks”.428
Early in 1953, in response to a general outcry from the white public
concerning the Defiance Campaign, the Public Safety Act 3 of 1953 and
the Criminal Law Amendment Act 8 of 1953 were enacted. Discussed
elsewhere in more detail,429 it can briefly be mentioned that the Public
Safety Act provided to the introduction of a state of emergency. The
Criminal Law Amendment Act made provision for increased penalties which
could be imposed for crimes of protest. It also created the crime of
incitement to civil disobedience and rendered punishable the offer or
acceptance of material support for such acts of protest.430
In response to those cases in which loopholes in the apartheid
legislation were discovered in the course of prosecutions resulting
from the Defiance Campaign, the Reservation of Separate Amenities Act
49 of 1953 was introduced to consolidate regulations which made
provision for segregation of public facilities. This new Act
specifically excluded the requirement of equality between “European”
and “non-European” facilities posed by the courts.431 Consequently the
decisions in R v Lusu432 and the post office cases433 were effectively
426Mandela was banned for six months under this Act. See Meer Higher than hope 59.
427See eg R v Ngwevela 1954 1 SA 123 (A), where it was held that the audi alteram partem rule must be observed in this regard.
428See Joseph Africa South 1959 20. 429See infra chap four I, II. 430For a discussion of this period in South Africa's legal history,
see Brookes s, Macaulay Civil liberty in South Africa 77ff. 431See s 3. 4321953 2 SA 484 (A). 433These cases are discussed supra chap three III A (3)(c)(iii).
neutralised.
The effect of the Campaign on the white community, at least on the
short term, was consequently overwhelmingly negative. Insofar as its
aim was to underwrite a moral appeal, the Campaign resulted in a
clenched fist rather than a softened heart. The long term results are
more difficult to evaluate, but were perhaps more positive.
- Reaction of the black community
Views in the black community regarding the Defiance Campaign were, as
was to be expected, not consistently favourable.
From the conservative side, opposition to the Campaign by Mr Bhengu
(who was later convicted on unrelated charges of fraud and theft) of
the pro-government Bantu National Congress was the most vocal.434 The
latter’s claim to have any meaningful following among Africans was
repudiated by the ANC.435 Selope Thema of the National-minded Block in
the ANC now also took an anti-civil disobedience stance.436
Most chiefs either rejected the Campaign or remained neutral.437 The
exception was Lutuli, who participated actively and as a result lost
his chieftainship.438 Lutuli’s famous defence of his stance was to ask:
“Who will deny that thirty years of my life have been spent knocking in
vain, patiently, moderately and modestly at a closed and barred
434Kuper Passive resistance in South Africa 150. See also the pamphlet "Danger! Danger! Danger!", issued by the Bantu National Congress and contained in the W A Kleynhans collection at the UNISA library archives. The main thrust of the attack of the Bantu National Congress on the Campaign was levelled against the dominant role of its Indian leadership. Some workers asked for police protection as against pressures to strike. See "Bantoes vra beskerming by polisie teen leiers" Die Vaderland 6 Aug 1952. For an account of dissension in ANC ranks, see "Msimng attacks ANC campaign" The Guardian 17 Jan 1952.
435See "Chief A Luthuli speaks of march to freedom" The Bantu World 18 Oct 1952.
436On the approach of Selope Thema and the National-minded Bloc, see Benson South Africa 145. See also N Carter "The Defiance Campaign - A comparative analysis of the organization, leadership, and participation in the Eastern Cape and the Transvaal" in Institute for Commonwealth Studies Collected seminar papers on the societies of Southern Africa In the 19th and 20th centuries 76 at 87.
437See "Bantu Chiefs warn followers against passive resistance" Rand Dally Man 8 Sept 1952.
438See Luthuli Let my people go 111.
door?”439 National Party newspapers also tried to expose – apparently
not entirely without justification - black resentment at Indian
leadership of the Campaign.440
The reaction of the radical Non-European Unity Movement, on the other
side of the spectrum, was interesting. It declared that “there is only
deception and self-deception in dealing with ‘Malanazis’ as though they
were ‘democrats’ and ‘Christians’ who will suffer pangs of conscience
because certain non-white ‘leaders’ are in gaol.”441
These comments were clearly aimed at those who thought that civil
disobedience could bring the government to reconsider the morality of
its position. The underlying assumption is that civil disobedience is
an instrument of immanent critique, and consequently it was not
suitable to be used against the South African government. By using
civil disobedience, one is suggesting that the opponent possesses the
439439See his statement: "The road to freedom is via the cross", reprinted in Karis & Carter From protest to challenge vol 2 486.
440440See "Bantoes raak sat vir Indiër-base" Die Vaderland 23 Aug 1952. These newspapers also took obvious delight in the case of one protester who told the court that the explanation of a police witness that only apartheid could maintain good order at the train station convinced him that apartheid was necessary. See "Verstaan nou waarom daar apartheid is" Die Transvaler 21 Aug 1952.
441Quoted from the editorial of the movement's journal. The Torch 10 June 1952. On 19 Aug 1952, the editorial stated: "Imperialism-Herrenvolkism has no 'conscience' or 'soul or 'sense of decency'. It is not moved to pity or reform by the misery and suffering of the oppressed and exploited people. It causes and lives off this oppression and exploitation, of which poverty, tyranny and suffering are Inevitable and inseparable parts. It has no respect for those who seek to end Its regime of oppression and exploitation. In fact, it passes laws against, builds jails for, and generally hounds and persecutes those who seek to liberate the impoverished, rightless and voiceless mass which is the foundation of I Imperialism-Herrenvolkism. It never repents, because repentance would mean suicide. It never parts with anything voluntarily. It gives up on1y. what is forced from it. It never departs from the scene of its own accord. It fights with every means at its disposal. It disguises itself when and where it can. It uses any agency or person it can, and in the end, it has to be beaten to its grave by the active, unified, organised, principled and militant struggles of the oppressed and exploited people.' The same attitude was expressed by W M Tsotsi, president of the A11 African Convention. See "Native condemnation of passive resistance" The Friend 17 Dec 1952 and "Naturelle-leier slinger ander verwyte toe" Die Transvaler 18 Dec 1952. See also "Tabata and Co get some of their own medicine" People's World 2 Oct 1952.
morality needed to change. To them, civil disobedience was an
unwarranted compliment to the humanity of the government. The indirect
and eventually perhaps more important goals of the Campaign were,
however, ignored.
Some African newspapers gave their full support to the protest and
lashed out at the government for the way in which it handled the
Campaign.442 As time progressed, African newspapers which were initially
sceptical became increasingly supportive of the Campaign. This was
largely due to the support which the Campaign received from abroad.443
It is difficult to establish what the role of religion was in the black
community in respect of the Campaign.444 Kuper indicated that
Christianity was viewed with ambivalence by many blacks. On the one
hand, Christian values legitimised resistance; on the other hand,
Christianity was seen as a plot whereby whites appeased black
resentment of suppression.445 The black churches played a relatively
low-key role in the Campaign. It is perhaps revealing that the Native
Affairs Department, at the end of the Campaign, threatened to withdraw
“certain privileges” from ministers participating in the Campaign.446 A
number of church leaders did, however, participate or provide some
support,447 and a national day of prayer was held during the Campaign.448
442See eg "Public Safety Bi11 means political terrorism" Advance 5 Feb 1953.
443See eg "Sooner is better than later" The Bantu World 31 Jan 1953. See also "Attitude to 'unjust laws' campaign" The Friend 30 June 1952 and "Danger of resistance movement" The Friend 29 Sept 1952, as well as Benson South Africa 150.
444For a consideration of some of the studies conducted on the religious dimensions of African protest, see Jeeves International Journal 1973 511 at 518.
445See Kuper Passive resistance in South Africa 116ff. 446F See "Ministers' comment on political ban" The Bantu World 3
Jan 1953. 447See "African churches back Defiance Campaign" The Clarion 14 Aug
1952; "Make religion a living force" The Bantu World 23 Aug 1952; "Their call is 'no violence'" The Argus 21 Oct 1952; "Kerkmanne betuig meegevoel" Die Burger 23 Jan 1953 and "Ernstige aanklag teen Strauss" Die Burger 26 Feb 1953.
448See "Defiance day of prayer" The Mercury 11 Aug 1952; "They prayed for defiance men" The Argus 18 Aug 1952; "Hundreds of Natives ready to defy law" The Friend 18 Aug 1952 and "'Make religion a living
At a meeting of nearly seventy ministers of religion of many different
denominations and all races to discuss the role of the church in the
Campaign, the clergy were urged to give moral but not active support to
the Campaign.449
Civil disobedience also had far-reaching effects on the nature of the
liberation movement in the country. It fulfilled an important function
in making African opposition articulate and robust at a time when other
strategies were simply not available and, it is submitted, in this
sense helped to make the retention of black dignity possible. According
to Mandela, “[i]t inspired and aroused our people from a conquered and
servile community of yesmen to a militant and uncompromising band of
comrades-in-arms.”450
This aspect is closely related to a further consequence of the Campaign
for the liberation movement: One of the stated objectives with the
Defiance Campaign, at least insofar as the ANC was concerned, alluded
to earlier, was to increase its membership. The Campaign certainly
served to mobilise the masses and was an inspiring demonstration of
black ability.451 Paid-up membership of the ANC increased during the
Campaign from approximately 7 000 to 100 000 - and paid-up members gave
only a small indication of the movement’s wider support.452
After the Campaign, the ANC was for the first time truly a mass
movement. It lost much of its élitism and became more sensitive to the
needs of the workers and the less privileged.453 It was this change in
force' says rev Nkabinde" The Bantu World 23 Aug 1952. See also "2 000 pray in rain for defiance 'volunteers'" Rand Daily Mail 23 June 1952. See also N Carter "The Defiance Campaign - A comparative analysis of the organization, leadership, and participation in the Eastern Cape and the Transvaal" in Institute of Commonwealth Studies Collected seminar papers on the societies of Southern Africa in the 19th and 20th centuries 76 at 83.
449See "Clergymen discuss Defiance Campaign" The Bantu World 21 Feb 1953.
450Mandela "No easy walk to freedom" in Mandela The struggle is my life 34 at 34.
451See "Civil disobedience campaign a continuing struggle" The Argus 31 July 1952.
452See Walshe The rise of black nationalism In South Africa 402. See also Gerhart Black power in South Africa 89, whose figures are slightly different.
453Mandela, in his "No easy walk to freedom" address to the ANC
focus which resulted in the rejection of the more aloof Dr Moroka454 in
favour of the man of the people, Albert Lutuli, who was elected to the
position of President-General of the ANC in December 1952.455
The Defiance Campaign also seems to have affected those involved in the
liberation struggle in another way. While the different racial groups
went into the Campaign along racially divided lines, the ties between
them were considerably strengthened during the Campaign.456 In the
decade after the Defiance Campaign there was a strong movement among
Africans toward interracial co-operation, which reached its climax in
the adoption of the Freedom Charter with its non-racial ideals.457 White
people would now also be accommodated in the ANC.458 Oliver Tambo put it
as follows: “Following the lessons of the Defiance Campaign, the need
was felt for an organization through which the ANC and other non-
European bodies could make contact with those whites who were prepared
(Transvaal) Conference in 1953, stated: "The general political level of the people has been considerably raised and they are now more conscious of their strength. Action has become the language of the day. The ties between the working people and the Congress have been greatly strengthened." See Mandela The struggle is my 1ife 34 at 39.
454During the R v Sisulu and others trial (see supra chap three III A (3)(c)(111)), in which he was also an accused, Moroka betrayed his organization by distancing himself from the other accused. He engaged separate counsel in spite of an earlier agreement not to do so. In mitigation of sentence, his lawyer argued that his ancestors had helped the Voortrekkers. See Robinson Liberalism in South Africa 101 and Me1i A history of the ANC 122. The disagreement between Moroka and the others was partly the result of his objection to the inclusion of (former) communists among the lawyers assisting the ANC. See Benson South Africa 155. Especially the Africanists would later cite this incident as proof that the Defiance Campaign was prematurely called off, not because violence erupted but because the ANC leadership had developed cold feet. See Gerhart Black power in South Africa 230.
455See Robertson Liberalism in South Africa 102. 456See L Kuper "Nonviolence revisited" in Rotberg & Mazrui Protest
and power in black Africa 788 at 795 and Meli A history of the ANC 122. See also "Nie-blankes organiseer terwyl blankes 'skerm'" Die Vaderland 28 June 1952 and "Appeal for unity to non-whites" The Natal Mercury 2 July 1952.
457See L Kuper "Nonviolence revisited" in Rotberg & Mazrui Protest and power in black Africa 788 at 791.
458Lutuli emphasised the fact that the target of the Campaign was the system and not a race. See Luthuli Let my people go 105.
to join the non-Europeans in their fight for freedom and democracy.”459
While many other factors also had an influence in this regard, it was
inevitable that the high moral ground of non-racialism on which the
Campaign was premised, made it difficult for those participating to
practise apartheid in their own ranks. Even if the use of civil
disobedience did not convince its direct opponent to mend its ways, it
contributed towards changing the people who practised it.460 The irony
of the Defiance Campaign was that it changed those who used it for the
better, but those against whom it was targeted for the worse.
The Defiance Campaign no doubt made a significant contribution towards
mobilising support for the liberation movement and towards fostering
black self-respect. Even if still oppressed, Africans gained some
control over their own 1ives.
- International consequences
Coming soon after the Second World War, the Campaign also served to
arouse world opinion against the policies of the South African
government.461 Eliciting a negative world response to the South African
government was one of the objectives of the Campaign,462 and something
the government tried to avoid.463 International sympathy with the
459See "ANC stands by the alliance with Congress of Democrats" New Age 13 Nov 1958.
460The same happened during the campaigns conducted by Gandhi. See infra chap three III B (1)(b).
461For an overview of the Immediate world reaction to the Campaign, see Kuper Passive resistance In South Africa 165. For the views of Professor Z K Matthews on this topic, see foreword in Houser Nonviolent revolution in South Africa 3. See also "Humanity's conscience outraged by apartheid" The Clarion 7 Aug 1952, for an overview of some of the reactions of the foreign media.
462Right at the beginning of the Campaign, Sisulu assured those who intended participating that they had the support of the world. See "Free State Natives to defy 'unjust' laws" The Friend 23 June 1952. See also "Steun uit die buiteland" Die Burger 18 July 1952 and "Beskrywing van uittartery oor BBC gegee" Die Transvaler 22 Sept 1952. The protesters were later also assured: "You have the whole world on your side." See "Duncan addresses Rand crowd" The Cape Times 9 Feb 1953.
463463For example, when the United Party asked for a commission of inquiry into the riots at New Brighton, the government refused, saying that it was an attempt to provide the protesters with the opportunity
Campaign was much cherished by the participants and leaders.464 In
various ways funds were set up in countries around the world, aimed at
providing assistance to the resistors.465
Especially the Indian government provided widespread moral support466
and raised the issue in the UN. A commission was consequently appointed
by the UN to study the effects of apartheid legislation467 - a move
which was deeply resented by the Nationalists as an unwarranted
interference in their country’s domestic affairs.468 It was the first
direct international onslaught on apartheid as such.469
The UN played a significant role in the thinking of those leading the
to say to the outside world how they were being suppressed. See "Oorsake van die onluste sal uit die hofsake blyk" Die Transvaler 22 Nov 1952.
464See eg "The world is with us" Spark 6 April 1952; "World action against SA mooted" The Clarion 7 Aug 1952; "World press lines up against South Africa" People's World 11 Sept 1952 and "ANC replies to Dr Eiselen" The Bantu World 27 Sept 1952.
465Early on, the "Congress of Racial Equality" in the United States offered financial support. See "Non-European leaders outline plan" Rand Daily Mail 9 April 1952 and "Dadoo explains civi1 disobedience" Cape Times 9 April 1952. See also "Geldoproep vir uittarters uit Indië" Die Transvaler 15 Sept 1952 and "Congress motion calls for financial aid for passive resistors" Rand Dally Mail 15 Sept 1952. In Britain, a "Christian Action" group established an assistance fund which was administered in South Africa by a group under the chairmanship of Alan Paton. See "Fund opened in London for dependants of 'resistors'" The Star 29 Oct 1952; "Misplaced zeal" The Star 31 Oct 1952; "Distress fund group" The Argue 17 Dec 1952; "Geld van oorsee vir 'slagoffers van rassestryd'" Die Transvaler 18 Dec 1952; "Openbare fonds vir uittarters in Brittanjt gestig" Die Transvaler 2 Feb 1953; "Versetfonds van Britte" Die Volksblad 2 Feb 1953; "London fund for native resistors" The Friend 2 Feb 1953 and "London meeting to aid 'defiers'" The Cape Times 3 Feb 1953
466See "India issues a report on 'unjust laws' campaign" The Friend 4 July 1952; "Nahru (sic) loof die Gandhi-manier" Die Volksblad 16 Aug 1952; "Indiese premier oor uittarters" Die Transvaler 6 Oct 1952; "Nehroe vra wereld: Steun uittarters" Die Transvaler 19 Jan 1953 and "Beroep om steun vir versetters" Die Volksblad 19 Jan 1953.
467See "Wil VVO op versettery in SA wys" Die Transvaler 25 Aug 1952; "Indië steun versetters" Die Vaderland 25 Aug 1952 and "Versetplegers en die VVO " Die Burger 25 Aug 1952.
468See "Huigelary ken geen perk in die VV, sê Min Dönges" Die Vaderland 22 Nov 1952.
469See Benson South Africa 153.
Campaign.470 The defiance leaders (and a number of foreign governments),
for example, claimed that the conduct of the police in raiding the
houses of the participants violated the UN Charter.471 As mentioned
earlier, UN attention to the issue of apartheid led to an
intensification of the Campaign.
In Britain, the Defiance Campaign, apart from attracting financial
assistance, also led to strong criticism of the South African
government from the press,472 the radio,473 the trade unions,474 the
churches475 and politicians.476
In the United States, the New York Times commented that the Malan
government’s policies were responsible for the disrespect which was
shown for the law.477 Eleanor Roosevelt, widow of the former American
president and one of the principal authors of the Universal Declaration
of Human Rights, wrote a letter of support to the leadership of the
Campaign.478 Voices against the South African system were also raised in
470For an account of Dr Xuma's petition to the UN in 1946, see Benson South Africa 111. See however also "SA & US govts tried to bully prof Matthews" Advance 4 Dec 1952.
471See "Versetters sê hu11e kry baie steun" Die Burger 4 Aug 1952 and "India attacks race policy of S Africa" Rand Daily Mail 15 Sept 1952.
472See "Net een antwoord moontlik" Die Volksblad 29 Aug 1952 and "British periodicals comment on Defiance Campaign" Rand Daily Mail 30 Aug 1952.
473See "Beskrywing van uittartery oor BBC gegee" Die Transvaler 22 Sept 1952 and "SA defiers described to Britain" Mercury 22 Sept 1952.
474See "Britse vakbondkongres se besluit" Die Volksblad 4 Sept 1952.
475See "Prediker sê Dr Malan sleg in St Paul-katedraal" Die Volksblad 9 Sept 1952; "Resistance campaign supported" Mercury 9 Sept 1952. See also, on a report in the Church of England newspaper, "British Christians' interest in Defiance Campaign" The Star 29 Oct 1952.
476See "Apartheid - the shadow over Africa" The Friend 4 Feb 1953. 477See "New York paper's view of 'unjust laws' campaign" The Friend
15 July 1952. 478After reading the letter to a protest meeting in Durban, Mr
Ashwin Chondree, vice-president of the Natal Indian Congress, told those present: "I offer this letter to Dr Malan. It is not a letter from Stalin, whom he dislikes. It is a letter from the world's greatest democracy, which buys our gold." See "Mrs Roosevelt on
countries such as Canada479 and even by the government of Nepal.480
Clearly, apartheid was now on the international agenda.
Although at the time no immediate action was taken against South Africa
by the international community, the global quicksand which later
threatened to engulf the country was starting to build up under its
feet. The implementation and lack of concrete results of civil
disobedience would later be an important argument advanced to justify
to the world community the use of violence in the struggle, and to
bring foreign countries to isolate South Africa in a number of ways.
Given the extent of the eventual pressure from the international
community on the South African government and the effect this would
have on the country, this aspect of the Defiance Campaign might well
eventually prove to be one of its most meaningful consequences.481
The Defiance Campaign consequently contributed towards making apartheid
an international issue.
(v) Evaluation of the Defiance Campaign
The successes of the Defiance Campaign should, however, not be
overestimated. Was it worth the sacrifices of the people involved, and
was the maximum possible mileage obtained from the use of this strategy
of protest? The Campaign failed to reach its primary objectives, at
least in the short term. Instead of reducing oppression, it elicited
more. It was abandoned by the people before it was called off by the
organisers. Given the number of potential resistors, the figure of 8
000 odd people who participated is also not particularly impressive.
Relatively speaking, Gandhi was much more successful in his campaigns
against Smuts and against Britain. The mobilisation of support for the
liberation movement was significant, but it was only a start. Apartheid
endured for at least forty more years. In short, the Campaign did not
live up to the expectations of those who initiated it. Why not?
Several reasons can be advanced in this regard. They relate to the
defiance" Cape Times 15 Sept 1952 and "Eleanor se brief aan Natal se Indiërs" Die Transvaler 16 Sept 1952.
479See "Kanadese is geskok" Die Burger 21 Aug 1952. 480See "Nepal betuig meegevoel met SA se versetters" Die Vaderland
18 Sept 1952. 481For an overview of United States economic pressure against South
Africa, see Heyns CILSA 1989 269.
compatibility of civil disobedience as an instrument of political
resistance with African culture, the way in which the Campaign was
conducted, and the attitude of the adversary.
- Civil disobedience in the African context.
According to Kuper, “the technique of civil disobedience seemed alien
to the African masses and failed to fire them with revolutionary
ardor.”482 At least two aspects of the type of resistance practised
during the Campaign possibly did not fit well into African culture. In
the first place, as will be pointed out, the idea that suffering is a
creative force is an integral part of the culture of India,483 but it is
not to the same extent indigenous to Africa, where the traditional
methods of settling serious disputes are either amicable, legal means
or force.484 The “spirit of Nongqausi” does dwell in Africa, but she is
not as dominant here as in some other societies, and in any case she
did not have a good track record. In the second place, the female
component of civil disobedience, also discussed earlier, was bound not
to go down well in the traditionally male-dominated African society.
- Weaknesses in the way in which the Campaign was conducted
As indicated earlier, no coherent philosophy existed of what was to be
achieved through the Defiance Campaign. Nor was the Campaign associated
with a charismatic leader such as Gandhi or King. Mandela, who is
perhaps the only person who could have played that role, was not nearly
as prominent then as ha would become later. In the absence of a
principled commitment to non-violence, the fact that participants in
the Campaign resorted to violence or were drawn into it was not
altogether surprising. Through this, much of the moral high ground was
lost. Participation in the Campaign became singularly unattractive once
the protection of a non-violent record was lost.
As we already know, the Gandhian practice of notifying the authorities
beforehand of an intended Campaign and going to prison voluntarily was
adhered to during the Defiance Campaign. Whether this was necessary,
482L Kuper "Nonviolence revisited" in Rotberg & Mazrui Protest and power In black Africa 788 at 795.
483See infra chap three III B (2)(a). 484According to Kuper Passive resistance in South Africa 92
"[p]urification by voluntary suffering is an integral part of Hindu culture, in contrast to Bantu culture."
given the particular circumstances of the Defiance Campaign, is open to
doubt. As Kuper observed:
From a purely expedient point of view, the resistors might have elected not to notify the authorities of their plans, nor to invite arrest. It would have been sufficient, for example, that more and more Africans should cease to carry their passes. Nor would the refusal of the police to effect an arrest have created a problem. But, in terms of Satyagraha, the courting of arrest and the willing submission to punishment are the essential means for conversion of the rulers.485
It is revealing to note that, eventually, it was precisely the fact
that Africans simply ceased to carry passes without drawing specific
attention to it, that made the system unworkable.486 The outward form of
Gandhian protest was adopted during the Campaign without considering
its applicability to the particular needs of the protest movement.
Gandhian civil disobedience was designed to bring about suffering, and
arguably a precise adherence to his methods during the Defiance
Campaign resulted in a situation where too much was asked of
prospective protesters, with too remote prospects of success.
It also seems that the laws targeted failed to arouse sufficient
enthusiasm to sustain resistance.
- Nature of the adversary
It has been stated repeatedly that, in order to be successful in
weakening the resolve of the opponent, civil disobedience requires a
target which has a commitment to “fair play”. The direct opponents of
the Defiance Campaign had a three-hundred years history of what they
regarded as a struggle for survival, which indeed resulted in a
ruthless attitude. Instead of recognising that their Christian values
were supposed to support the demands made upon them, they used those
values to legitimise their own power base.487 As is evident from the
observations of the Non-European Unity Movement quoted above, a vocal
group in the black community saw civil disobedience as simply not worth
the sacrifice, in view of the nature of the opponent.
A campaign which involves the deliberate and open violation of laws for
the transgression of which millions of people were being punished every
485Kuper Passive resistance in South Africa 125. 486See infra chap three III A (3)(e). 487See on the role of religion in legitimising apartheid Infra chap
five II.
year, was bound to encounter a legitimacy problem.488 Clearly, the
government had few scruples in applying the laws objected against. And
indeed, the ruthless suppression of the Campaign by the government was
one of the major reasons why it ran out of steam.
In fairness it should be pointed out that the challenge which civil
disobedience in post-World War II South Africa posed to the rulers,
seen from their perspective, was more formidable than the challenge
posed by Gandhi in South Africa and in India, and by King in the United
States. In all three of these last-mentioned cases there were
circumstances which mitigated the challenge. Either the opponent was
foreign or the objective was not its overthrow.
In Gandhi’s South Africa, the opponent was local, but the aim was not
to overthrown the existing system. In India the aim was to overthrow
the government, but the officials of the government were foreigners,
which meant that they did not perceive their existence to be under
threat. In the United States, as in Gandhi’s South Africa, the opponent
was a domestic government, but the aim was not its overthrow. One could
consequently expect a more lenient approach in all of these cases. In
the South African case in the 1950’s the opponent was a domestic
government whose overthrow was the ultimate aim. As a result, a harsher
response by the government was to be expected.
In consequence of a combination of the above factors, there was “an
insufficient stimulus to launch the revolution, but a sufficient
stimulus to strengthen the counter-revolution.”489
(vi) Black politics in the wake of the Campaign
After the Defiance Campaign, very little in the line of civil
disobedience emerged from the ANC. Only in 1958 did the ANC again - and
rather ambivalently this time - encourage civil disobedience, when
women in Johannesburg protested against the pass laws. Eventually the
half-hearted campaign had to be called off.490 For the time being, the
ANC restricted itself to forms of protest within the confines of the
law. Only in 1960, not to be outdone by its own offshoot, the PAC,
would the ANC again engage in acts of civil disobedience. The events
488See L Kuper "Nonviolence revisited" in Rotberg & Mazrui Protest and power In black Africa 788 at 794.
489Id 795. 490Lodge Black politics in South Africa since 1945 78.
which led to this will next briefly be considered.
The Defiance Campaign left the leaders of the ANC with the problem of
how to sustain and to channel the enthusiasm of their new following.
The massive clamp-down by the stall forced those in the liberation
movement to consider other alternatives than civil disobedience. Open
and non-violent defiance of the state was almost guaranteed to result
if martyrdom.
The remainder of the 1950’s would largely be a period of increasing
polarisation of the South African society. During this period, the ANC
was at times also nearly immobilised through the banning of its
leaders.
Picking up where the Joint Planning Council had left off, the Congress
Alliance was formed in 1953 with the prime objective of planning a
“Congress of the People”. Participating in this effort was the ANC,
SAIC, the SA Coloured People’s Organization and the South African
Congress of Trade Union. At the seminal Congress of the People at
Kliptown in 1955, with which we need not detain ourselves here, the
“Freedom Charter” was adopted. It was later ratified by the individual
congresses represented at Kliptown.491
During 1954 and 1955 the ANC singled out two aspects of the
government’s policy as targets for campaigns of passive, although not
illegal, resistance: the so-called Western Areas Resettlement scheme
and the Bantu Education Act 47 of 1953. These campaigns were by and
large without positive results in terms of changing the behaviour of
the government - it merely added to the general level of
dissatisfaction of the protesters. A brief look at these two campaigns
will illustrate the non-violent tactics that were now resorted to.492
Shortly after it came into power in 1948, the newly elected Nationalist
government made its intention known to remove the inhabitants (adding
up to more than 10 000 families, including 350 Africans who held
4910n the Congress of the People, see Meli A history of the ANC 123 and C M Xundu "The Congress of the People Campaign and an overall view of the Freedom Charter" in Polley The Freedom Charter and the future 13.
492See, on these two campaigns. Felt African opposition in South Africa 92ff, 143ff.
freehold titles493) from the freehold townships of Sophiatown,
Martindale and Newclare (Johannesburg’s “Western Areas”) to the state-
controlled townships of Meadowlands and Diepkloof, where land could
only be leased. In January 1955, the first families received their
notices to vacate the premises they occupied. People were told that
black resistance would be organised by the ANC and the SAIC, and they
were instructed not to move. Congress strategy was only to be published
on the day of the removals. When that day came, very little in the line
of protest took place, except that some protesters moved from house to
house before they were moved - often in the end, voluntarily.494
In the early fifties the new government set out to transfer control of
black education from the provincial authorities to the central
government. Black education would now be controlled by a special
department and on a differential basis apropos the education of the
other sections of the South African community. The loose control of the
provincial authorities over black schools, mostly run by missionaries,
would be replaced by the tight control of the Nationalist government.
In the words of Verwoerd, then Minister of Native Affairs, the new
system would provide the “correct education” - not the type of
education which “create[s] wrong expectations on the part of the Native
himself”, based on “a policy of equality”.495 Syllabuses now had to
accustom blacks to their role in apartheid South Africa. Cost per
student was to be lowered. Verwoerd pursued the following policy:
Die Bantoe moet gelei word om sy eie gemeenskap in alle opsigte te bedien. Daar is vir hom bokant die peil van sekere vorms van arbeid nie piek in die blanke gemeenskap-nie ... Daarom baat dit horn niks om ‘n opieiding te ontvang wat die opname in die blanke gemeenskap ten doel het terwyl hy nie daar opgeneem sal en kan word nie.496
The carrying out of government policy in this regard was made possible
by the passing of the Black Education Act 47 of 1953.
493See Kotzé African politics 1n South Africa 11. 494Feit African opposition in South Africa 92. The campaign is
discussed by Bekker J in his judgment in S v Adams and others, unreported case no 1/58 SCC 1961, at 58ff.
495Quoted in Lodge Black politics In South Africa since 1945 115. 496See verwoerd's "Verklaring oor die Bantoe-onderwysbeleid van die
Unie in die Senaat, 7 Junie 1954", contained in Verwoerd Verwoerd aan die woord 59 at 77.
The ANC decided to launch a campaign to resist these changes in “Bantu
education”. It was decided that the schools should be boycotted.
Starting in April 1954, as many as 10 000 children were absent from
school at some stage or another. However, as Lodge observed, the ANC's
approach to the issue was characterised by uncertainty and disagreement
between different sections of the leadership and between leaders and
the rank and file.497
The main thrust of the campaign was conducted in geographically
isolated areas and was sporadic. Following a government ultimatum,
children started to return to school at the end of the month. Apart
from some children who attended alternative educational facilities
provided for some time by the ANC, the boycott was dead. It also
undermined public belief in the ANC’s ability to provide
alternatives.498 Whereas the Defiance Campaign brought the ANC great
popularity, the Western Areas and Bantu Education campaigns of 1955
reflected badly on its organisational and leadership skills.
Presumably, after the open confrontation of illegality in the Defiance
Campaign, legal protest now failed to inspire.
Since the beginning of 1956, when the requirement that women had to
carry passes was implemented, there was widespread unrest, mainly in
the form of pass-burning. Mass arrests were effected. This lasted until
February 1959. In total 1 893 people were arrested and 926 were
convicted.499 From 1957 onwards the ANC turned to strike action,
achieving only limited successes.500
In March 1958, a black articled clerk by the name of Godfrey Pitje,
employed by the firm of attorneys, Mandela and Tambo, refused to use a
table in court designated for the use of “non-European” legal
practitioners upon being ordered to do so by the presiding magistrate.
After a warning was issued, the magistrate convicted him of contempt of
court in facie curiae
497See Lodge Black politics in South Africa since 1945 121. 498Felt African opposition 1n South Africa 143ff. 499The rallying cry was: "Strydom, uthitta abafadzi, uthinti
imbokhoto" - "Strydom, you have tampered with women, you have struck a rock!" See Joseph Africa South 1959 3 20. For an overview of these events, see Walker Women and resistance in South Africa 184ff.
500On the 1957 bus boycott, see First Africa South 1957 55.
On appeal, the Appellate Division confirmed the conviction.501 Steyn C J
held that the magistrate’s order was not unreasonable. Although the
order was not given in terms of the Reservation of Separate Amenities
Act 49 of 1953, that Act showed that “the distinction drawn by the
provision of separate tables ... is of a nature sanctioned by the
legislature.”502 The court made reference to the fact that, on a
previous occasion, “Mr Tambo, a non-European”, had appeared in the same
matter before the same magistrate. As he had done previously, Tambo on
that occasion used the table reserved for “Europeans”. On being
informed that he would not be heard unless he addressed the court from
the other table, he withdrew from the case.
According to the Chief Justice, in view of the history of the case,
it is apparent that the appellant, when he went to court on this day, knew of the existence of the separate facilities in the court, that he purposely took a seat at the table provided for European practitioners, that he expected to be ordered to the other table and intended not to comply with such order ... It follows, I think, that his failure to comply with the order was, deliberate and premeditated. It cannot, therefore, avail him to contend that he did not intend to insult the magistrate and was not motivated by contempt.503
In 1956, 156 people - most of them leaders of the Congress Alliance -
were arrested on charges of High Treason. A number of them were charge
in what became known as the Treason Trial.504 It was alleged by the
prosecution that the accused had planned the violent overthrow of the
state. To substantiate the charge, the prosecution argued that the
demand of the accused for full equality of all races in South Africa
“in their lifetime” led, by “an irresistible inference”, to the
conclusion that they were planning the violent overthrow of the
state.505 The main focus in the trial was on the Freedom Charter, which
was portrayed as a revolutionary and communist document.
Although the period covered by the eventual indictment was 1 February
501See R v Pitje 1960 4 SA (A) 709. 502At 710. 503503At 711, 712. 504504S v Adams & others, unreported case no 1/58 SCC 1961. On the
history of the Treason Trial, see Karis The Treason Trial in South Africa 1ft; Me1i A history of the ANC 128 and Dugard Human rights and the South African legal order 213ff.
505See Karis The Treason Trial in South Africa 17.
1954 to 13 December 1956, it was claimed by the state that the earlier
history of the ANC should be seen as a prelude to an eventual
revolutionary offensive, where the state would either be attacked
directly by force, or where the state would be provoked to act
violently. This would then lead to revolutionary counter-violence. The
prosecution argued that no middle ground existed between the ballot box
and treason.506 The formation of the Joint Planning Council and the
organisation of and participation in the Defiance Campaign was
portrayed as part of the wider treasonable strategy.507
In 1961 all the accused were acquitted. The presiding judge, Rumpff J,
found that the Freedom Charter was not a communist document. Since the
entire case was brought and conducted by the state on the basis of a
conspiracy to commit violence, and it was not proven that the policy of
the ANC was to overthrow the state by means of violence, no conviction
of treason could be sustained.508 What the trial did achieve, however,
was effectively to cut the bulk of the ANC leadership off from their
people for five years.
In the late 1950’s the ANC was to a considerable extent paralysed by
the unattractiveness of its options. Another Defiance Campaign was very
unappealing in light of the arsenal of legislation that had been
enacted by the government, and was unlikely to gain widespread support.
On the other hand, the movement was also not yet ready for the dark
road of violence. It would be the combined threat of losing members to
more radical organizations and the increased militancy and anger of the
leaders of the Youth League which would force the ANC towards more
radical options.
In 1959 the so-called Africanists, who had been expelled from the ANC a
year earlier, formed the PAC, with Robert Sobukwe as its president.509
Among the main grievances of the Africanists was the influence of white
506This argument was taken over from R v Leibbrandt. unreported case no G 1/42 SCC 1943. See infra chap four I 0 (1).
507See para 6 of the prosecution's summary of facts, reprinted in Karis The treason trial in South Africa 59.
508See the judgments of Rumpff J at 26 and that of Bekker J at 44. 509The idea of the "return of Africa" can be traced back to John
Cube's popular phrase: "Lapho ake ema khona amanzi ayophinde erne futhi" -"where there was once a pool, water will collect again." See Motlhabi The theory and practice of black resistance to apartheid 43.
people, mostly Communists, in the ANC, and the contents of the Freedom
i Charter - especially the opening lines which state: “South Africa
belongs to all who live in it, black and white.” The latter concession
to whites was regarded as “in irreconcilable conflict” with the 1949
Programme of Action.510 Members of the PAC viewed the Defiance Campaign
as distorted because of the involvement of the SAIC511 and presumably
because of the influence of Gandhian thought through this channel.
Indians were excluded from membership of the PAC.
It is perhaps ironic that the PAC’s most important political statement
almost immediately after its inception included a resolve to start
organising a campaign of protest very much along the lines of the
Defiance Campaign - but this time it was to be an all African affair.
This campaign was to have far-reaching consequences for the entire
liberation struggle.
The obvious target for any anti-apartheid campaign of civil
disobedience in the late fifties was still the pass laws. While the
ANC’s Anti-Pass Planning Council now resolved that the precise meaning
of civil disobedience first had to be established before such action
could again be contemplated, the PAC captured the initiative and
organised what they called the “Positive Action Campaign” or “Anti-pass
Campaign”, which was targeted primarily against the pass laws.512
The PAC envisaged that Africans would, on an appointed day, leave their
passes at home and proceed to police stations and present themselves
for arrest. The idea that massive participation would result in the
prisons being filled up to capacity, whereby the government would be
prevented from enforcing its policies, was given central priority.
Pressure would build up and somehow “political independence” would be
established in 1963. Sobukwe envisaged a “never-ending stream” of
campaigns “until independence is won”.513
510See Karis & Carter From protest to challenge vo1 3 505. 511See Motlhabi The theory and practice of black resistance to
apartheid 145. 512On this Campaign, see Motlhabi The theory and practice of black
resistance to apartheid 174ff and Pogrund Sobukwe and apartheid 110ff. There are indications that the Campaign was launched as a result, inter alia, of assurances of support from Ghana. See Lodge Black politics in South Africa since 1945 203.
513See Pogrund Sobukwe and apartheid 127.
Privately, the leaders envisaged the use of violence in future, but for
the time being they propagated non-violence in public.514 Sobukwe stated
that what was intended with the Positive Action Campaign differed from
what was intended with the Defiance Campaign: “We are not hoping for a
change of heart of the Christian oppressor.”515 If the Defiance Campaign
hovered between persuasion and coercion, the Positive Action Campaign
was clearly premised on a commitment to the latter. It was also much
more evident than was the case with the Defiance Campaign that the
eventual overthrow of the existing apartheid system was a primary
objective of the Positive Action Campaign. Sobukwe told his audiences
that, when a house is flooding, the solution is not to throw the water
out. The PAC, he said, aimed at “closing the tap from which all this
vile legislation flows”.516
Sobukwe gave the Commissioner of Police two weeks’ notice that the
Positive Action Campaign was about to start. He told the press that he
had appealed to the African people to keep the Campaign non-violent.
Nevertheless, he cautioned that “[i]f the other side so desires we will
provide them with an opportunity to demonstrate to the world how brutal
they can be. We are ready to die for our cause.”517 It turned out to be
prophetic words.
On 21 March 1960, Sobukwe walked four miles to the local police station
and was joined on the way by small groups of men. At the police station
they were arrested. With the PAC lacking a national organisational
infrastructure, and its leader cutting off his ability to provide
leadership by giving himself up for arrest right at the start of the
Campaign, the success of the Campaign was left largely in the hands of
fate. It proved to be fateful indeed.
Events all over the country on that day suggested that the PAC’s call
for Africans to present themselves for arrest remained largely unheeded
on a national level.518 The exception was the industrial area near
Vereeniging, where the PAC was well organised and faced little
514See Lodge Black politics in South Africa since 194S 203. 515Motlhabi The theory and practice of black resistance to
apartheid 153. 516Quoted in Gerhart Black power in South Africa 234. 517Karls & Carter From protest to challenge vol 3 566. 518See Gerhart Black power in South Africa 236.
opposition from the ANC. At Evaton, several hundred men presented
themselves for arrest, but were told by the police that the facilities
were inadequate. At Sharpeville a large crowd - estimates ranged from
three to twenty thousand - gathered around the police station where 300
policemen were on duty. A police officer was pushed and fell, and
according to police witnesses stones were thrown at them. The panicking
constables fired into the crowd, killing 69 people, mostly shot in the
back, while 180 others were wounded.519
The shock waves of the event reverberated around the country and indeed
around the globe. As time passed by, it became clear that Sharpeville
was one of the most important events in the history of black resistance
in South Africa, occupying a place similar to that of the incident at
Jalianwalah Bagh in India.
Sporadic incidents of violence and some demonstrations occurred during
the first week after the events at Sharpeville became known. In
Pretoria, Lutuli burnt his pass, and both the ANC and the PAC organised
a country-wide strike.
The government did not delay their clampdown. Public meetings of all
races in the large towns were banned. A nationwide state of emergency
was proclaimed on 30 March. After a police raid on Langa early in the
morning of the same day, a crowd of black people spontaneously marched
to Caledon Square. A crowd estimated at almost 30 000 stopped before
the Caledon police station. At this stage Philip Kgosana, the Secretary
of the Cape PAC, was the leader of the crowd. Inexplicably he agreed to
disperse the crowd in return for a promise of a meeting with the
Minister of Justice later that day.520 The crowd dispersed. When Kgosana
arrived for his appointment he was arrested.
Altogether 1 500 people were arrested that day in a nationwide sweep.
Langa and Nyanga were sealed off by the security forces. Except for
sporadic outbursts, demonstrations were over. At a subsequent trial,
Sobukwe was charged with having incited “natives in general or some of
519Lodge Black politics In South Africa since 1945 210. See also Gerhart Black power in South Africa 236ff and Thompson A history of South Africa 210ff, who put the number of the dead at 67. For an eyewitness account, see Pogrund Sobukwe and apartheid 132ff.
520For an attempt to get an explanation why Kgosana accepted these terms, see the account of an Interview with him in Le1yveld Move your shadow 342.
them” to break the Pass Laws. During the trial he stated that he and
his fellow accused felt they had “no moral obligation to obey the laws
made by a white minority”. He was sentenced to three years’
imprisonment.521 By early May, 18 000 arrests had been made. In March
the Unlawful Organizations Act 34 of 1960 had been 4 introduced to
authorise the executive to ban the ANC and the PAC. This was done on 8
April. It was now a crime to further the objectives of these
organizations.522
Civil disobedience was once more considered a possibility at the “All-
in Conference” in March 1961. A three day strike was planned to
coincide with the proclamation of a Republic on 31 May 1961. It was
decided that an ultimatum to the government to call a national
convention would be issued, failing which a campaign of “mass-non-co-
operation” would follow. The strike was widely observed, but when no
concessions were obtained from the government the campaign was
abandoned.523 To many this series of events, beginning with Sharpeville,
marked the end of the exclusively non-violent struggle.524 One of the
most decisive turning points in South African history had been reached.
In 1962 Mandela was accused and convicted for having incited people to
strike illegally during the 1961 stay-away in protest of the founding
of the Republic. In the course of his defence he stated that he engaged
in illegal activity as a last resort. Representations to government
yielded no success. He continued:
Perhaps the Court will say that despite our human rights to protest, to object, to make ourselves heard, we should stay within the letter of the law. I would say, Sir, that it is the government, its administration of the law, which brings the law into such contempt and disrepute that one is no longer concerned in this country to stay within the letter of the law.525
Recounting the arbitrary way in which his freedom was compromised
521See Pogrund Sobukwe and apartheid 153. 522See Infra chap four I & II. 523See Johns & Davis Mandela, Tambo, and the African National
Congress 87ff. 524See Lodge Black politics in South Africa since 1945 231. See
also Jaspan Science and society 1961 97 at 103, for a discussion of the role of the 1961 Pondo rebellion in this process.
525See Mandela's "Black man in a white court'-statement, reprinted in Mandela The struggle is my life 133 at 156.
through governmental bannings, Mandela stated:
I was made, by the law, a criminal, not because of what I have done, but because of what I stood for, because of what I thought, because of my conscience. Can it be any wonder to anybody that such conditions make a man an outlaw of society?526
(d) Phase four: The violent underground struggle starts
When Mandela proposed the use of violence at an ANC national executive
meeting in June 1961, it was agreed that, although the ANC remained
committed to non-violence, individual members who wanted to follow the
route of violence would not be restrained. Umkhonto we Sizwe. the
“spear of the nation”, was formed, apparently with at least the tacit
agreement of Lutuli,527 although as late as October 1961 he was publicly
still calling for non-violence.528 A similar movement, Poqo, was formed
by the PAC in 1962.529 A the same time an international diplomatic
offensive was launched against South Africa.
The military option was taken by the ANC, inter alia. in view of the
strength of the realisation that, as Mandela put it, “unless
responsible leadership was given to canalise and control the feelings
of the people, there would be outbreak of terrorism which would produce
an intensity of b1tterness and hostility between the various races of
the country.”530
A discussion of the armed struggle falls outside the scope of this
study. For the purposes of continuity and perspective it could be
mentioned that the focus at the beginning was on sabotage of
governmental installations. On 16 December 1961 the first sabotage
attack was launched. A flyer, issued by the command of Umkhonto we
Sizwe on that date, stated that "the people’s non-violent policies have
been taken as a green light for government violence.”531
526Id 157. 527Karis & Carter From protest to challenge vol 4 62. 528See his opening address "Minority white rule and non-whites in
the Union", delivered at the Conference on unemployment in Durban 21 & 22 October 1961, contained in the W A Kleynhans collection in the UNISA library archives.
529See Davenport South Africa 395. 530Karis & Carter From protest to challenge vo1 3 772. 531See "Announcement of the formation of Umkhonto we Sizwe",
reprinted in Johns & Davis Mandela, Tambo, and the African National
The movement was, however, severely crippled by a police swoop on its
Rivonia headquarters in July 1963, and the subsequent trial and life
imprisonment of its most important leaders - including Mandela.532 When
the armed struggle was resumed, it would be characterised by incidents
of guerrilla warfare in which many people on both sides would lose
their lives. A watershed year would be 1976, which saw the bloody
Soweto riots. Scores of youths left the country for military
training.533 Part of the ANC's struggle would include terror attacks on
civilian or “soft” targets. There could be little doubt that these acts
diminished the moral appeal of the ANC's cause, and strained the
support of the international community.
In its response to these events, the South African government would
bring further security laws into effect, which affected all expressions
of political protest.534
(e) Phase five: External and internal resistance
The advent of an overt mass resistance movement in the country, which
would operate in tandem with the armed underground, can be traced to
the Natal strikes of 1973.535 The re-emergence of legal structures
through which black resistance might find expression meant that the
tool of civil disobedience could be revived. Black workers, in spite of
legal impediments, gained full trade union rights following the
findings of the Wiehahn Commission in 1979.536
Civil disobedience re-emerged as one of the major political tools of
resistance at the end of the 1970’s. In 1978, Indian and coloured
people began moving into areas such as Mayfair, which were designated
“white” in terms of the Group Areas Act 36 of 1966. A number of people
were prosecuted and evicted. In 1979, a couple by the name of Naidu
were evicted from their home in Mayfair onto the pavement, from which
Congress 138. 532On the Rivonia trial, see Mandela The struggle is my life 161ff.
See also Holland The struggle 148ff and in general Bernstein The world that was ours.
533See Davenport South Africa 430ff and Holland The struggle 178. 534See infra chap four II A. 535See Davis & Fine Journal of Southern African Studies 1985 25 at
29. 536See "Quiet civil disobedience the real force in eroding
apartheid, says Kane-Berman" Natal Post 5 May 1989.
they refused to move. They were eventually forcibly removed from the
pavement. Press coverage aroused public indignation and the
organization, ACTSTOP (Action Committee to Stop Evictions), was
established. Under its auspices, third persons now occupied houses
where evictions were about to take place, and consequently made
eviction extremely difficult.537
Judicial assistance to their cause came in 1983, when Goldstone J found
in S v Govender538 that ejectment orders seriously affected the lives of
the person or persons concerned. It was ruled that such orders could
not be made without the fullest inquiry. It had to be established,
inter alia, whether alternative accommodation was available.539
A number of churches, especially since the early 1980’s, openly stated
their intention to marry racially mixed couples in contravention of the
Prohibition of Mixed Marriages Act 55 of 1949. This was in fact done in
a number of cases.540 In 1985, the Prohibition of Mixed Marriages Act
was repealed and section 16 of the Sexual Offences Act 23 of 1957 (the
old Immorality Act) was amended.541 Although civil disobedience was by
no means the only or even necessarily the most crucial force that
brought about these changes, it did play an important role.
An important event in the recent history of civil disobedience was the
formation in Cape Town in August 1983 of the United Democratic Front
(“UDF”), a broad political alliance which cut across racial and class
barriers.542 As an internal and legal organization, which later joined
forces with other progressive organizations to form the Mass Democratic
Movement (“MOM”), the UDF would be in a position to initiate sporadic
campaigns of civil disobedience.543
537See R Robertson "Three case studies of non-violent action" in Nürnberger et a1 Conflict and the quest for justice 319 at 319.
5381986 3 SA 969 (T). 539The Group Areas Act was repealed by the Abolition of Racially
Based Land Measures Act 108 of 1991. 540See R Robertson "Three case studies of non-violent action" in
Nürnberger et a1 Conflict and the quest for justice 319 at 320. 541This was done by the Immorality and Prohibition of Mixed
Marriages Amendment Act 72 of 1985. 542See Davenport South Africa 458ff. 543See "Kongres vir eenheid teen apartheid" Rapport 8 Oct 1989.
In 1985, Or Allan Boesak, patron of the UDF, announced a mass march on
Pollsmoor prison to demand the release of Nelson Mandela. The march was
prohibited under the state of emergency, proclaimed earlier that year,
and police barriers were erected to prevent the march from taking
place. Boesak was arrested. Between ten and twenty thousand people took
to the streets. Serious clashes with the police ensued.544
In the meantime the armed struggle continued. In a 1985 interview with
the Washington Times, Mandela defended the use of violence. The
interview was reported as follows:
Reminded that Martin Luther King, Jr, professed a strategy of non-violence to achieve equal treatment for blacks in America, Mr Mandela said that conditions in South Africa are "totally different" from conditions in the United States in the 1960s. In the United States, he said, democracy was deeply entrenched, and the people struggling then had access to institutions that protected human rights. The white community in the United States was more liberal than whites in South Africa, and public authorities were restricted by law.545
On a number of occasions public figures such as Sheena Duncan,
President of the Black Sash, expressed themselves guardedly (no doubt
possible prosecution for openly propagating civil disobedience played
an important role in this regard)in favour of the continued use of
civil disobedience.546 In 1986, Bishop Desmond Tutu, from a pulpit in
Atlanta, Georgia, promised that he would lead a campaign of civil
disobedience against the apartheid laws of South Africa.547
A somewhat bizarre and much publicised example of civil disobedience
was the plunge taken by the rev Allan Hendrickse, at the time the only
coloured cabinet minister, in January 1987 at the (then) whites-only
King's Beach in Port Elizabeth. Coming out of the water, Hendrickse
said to the press that this transgression of the Separate Amenities Act
was “not an act of civil disobedience, but an action to point out the
544See Villia-Vicencio Civil disobedience and beyond 59. 545The interview was reprinted in Johns & Davis Mandela, Tambo, and
the African National Congress 172. The section quoted is from 173. 546See "Non-co-operation the only hope for SA" Sunday Tribune 16
March 1986 and "Civil disobedience is our last resort, says Sheena Duncan" The Star 17 March 1986.
547See "Focus on South Africa as King is saluted" The Star 20 Jan 1986.
urgency and necessity for change.”548 Exactly what the basis of the
distinction was, is unclear.
When it became apparent that State President P W Botha would either
dismiss him or dissolve the House of Representatives, Hendrickse
apologised to the State President. In a subsequent statement,
Hendrickse said he had “not apologised for swimming at a white beach,
but for any interpretation of this as an affront to the State
President.”549 Again the distinction is hard to comprehend.
A considerable force in the process of change in South Africa has been
illegal actions by people whose primary purpose was not to express
political protest but simply to get on with their lives. The South
African Institute for Race Relations demonstrated that the pass laws
became unworkable because people stopped carrying passes.550
Also in this category one would find the widespread defiance of the
Group Areas Act by thousands of black people who moved into
cosmopolitan “white” areas, to which reference was made earlier.
Universities in white areas similarly ignored or threatened to defy the
Group Areas Act in providing accommodation for black students, before
the universities were officially granted autonomy to disregard group
areas provisions.551
In 1989, the MDM launched another series of campaigns of defiance,
announced as “a peaceful programme of non-violent mass action, directed
against apartheid laws.”552 It is often called the “Defiance Campaign of
548See "Hendrickse apologised for affront, not swim" The Citizen 23 Jan 1987.
549Ibid. 550See "Quiet civil disobedience the real force in eroding
apartheid, says Kane-Berman" Natal Post 5 May 1989. See also "Civil disobedience eroding system" The Leader 16 Jan 1989. In this respect the pass laws had the same history as prohibition in the United States, which had to be abandoned because it proved to be unenforceable. See Arendt Crises of the republic 81.
551See "Rektor praat van wet oortree" Vrye Weekblad 2 June 1989, with reference to the University of Stellenbosch. See, however, also "Akademiese vryheid is relatief, sê Rektor" Die Burger 1 Jan 1987, where the same principal said that civil disobedience cannot be conducted in the name of academic freedom.
552See Villa-Vicencio Civil disobedience and beyond viii and "Kongres vir eenheid teen apartheid" Rapport 8 Oct 1989. See also
1989”.553 Boesak explicitly linked this Campaign to the tradition of
Gandhi, saying: “We have not learnt about non-violence as an instrument
for change from books but have learnt this from our fathers and mothers
who have learnt it from their fathers and mothers.”554
Many of the activities associated with the new Campaign took place in
Cape Town. Firstly, there was the “March on Parliament”, organised by a
number of churches as the “Standing for the truth Campaign”. On 2
September 1989, approximately 1 000 people attempting, illegally, to
march to parliament were arrested, often in a brutal manner. Most
visible, however, was the “Peace March”, in which 30 000 people took
part. This the government, after initial resistance, allowed to go
ahead.555 Particularly significant in respect of this march was the
decision of the mayor of Cape Town, Gordon Oliver, to participate even
if the march was to be illegal.556 The “inferior magistrates” were now
leading the resistance.
In the wake of the events in Cape Town, thousands of people
participated in - mostly legal - marches across the country. Groups of
black people insisted on being admitted to white hospitals, schools and
swimming pools.557 On a number of beaches segregation laws were defied.
"Wits Black students join defiance" The Citizen 30 Aug 1989; "F W's problem: How to cope with people power" The Dally News 19 Sept 1989; "The thin white line" Pretoria News 19 Sept 1989 and "SA gave world lead on mass protest marches" The Leader 22 Sept 1989. For comments, see "Maak plek vir die buite parlementariërs" Die Transvaler 9 Aug 1989 and "Civil disobedience" Business Day 24 Aug 1989.
553The Campaign is discussed at some length by Smuts & Westcott The purple shall govern, especially at 45ff and 81ff.
554Boesak also said there was no law that allowed the people to defy the government, "but when we march peacefully they say this is legal and conveniently forget the 10-odd laws that makes this illegal." See "Gandhian way - Boesak" The Leader 6 Oct 1989. Boesak also called the fact that a non-violent campaign could still be conducted after a11 the repression, "nothing short of a miracle of God". See "Gandhi's values live on in MDM campaign" Natal Post 7 Oct 1989. See also "Out of the ashes Gandhi's Phoenix must arise anew" Natal Post 20 May 1989.
555Villa-Vicencio Civi1 disobedience and beyond xi. 556For Oliver's explanation of his reasons for this decision, see
Smuts & Westcott The purple shall govern 159. 557See "Veldtog van verset" Vrye Weekblad 21 April 1989. See also
"Throwing a lifeline" Business Day 2 Aug 1989 and "Black miners join
The slogan used was “All of God’s beaches for all of God’s people.”558
Many of those served with banning orders, openly defied their orders.559
In a number of cases, state of emergency restrictions560 and other
restrictions on meetings561 and funerals, were openly defied. Veteran
liberal Member of Parliament, Helen Suzman, called these restrictions
an “open invitation to civil disobedience”.562 The most important
internal organizations, which had been banned by then, held “unbanning”
rallies, declaring themselves not to be constrained by the banning
orders. More than 1 569 people were arrested.563
The immediate result of these acts of defiance was not always positive.
Threats and actions of civil disobedience were blamed for National
Party victories, in which white people voted for the restoration of
security and law and order.564 On the other hand, there could now no
longer be any doubt, both at home and abroad, that apartheid was
bankrupt and on the verge of collapse.
To conclude the overview of this phase, an important though perhaps not
obvious instance of civil disobedience during this period must be
considered. In the late 1980’s it became clear that offers had been
made by the government to Nelson Mandela, imprisoned since the Rivonia
trial, offering him his freedom if he accepted a range of conditions -
one of which was to renounce violence. This he refused to do, and his
imprisonment was continued.
Reference was made earlier to the view that the voluntary acceptance of
martyrdom as a political tool is not an integral part of African
culture. The validity of this view seems less obvious if it is
considered that the refusal of Mandela to accept a conditional release
Defiance Campaign" The Star 4 Aug 1989 558See Smuts & Westcott The purple shall govern 148. 559See "We plan to defy restriction orders, vow embassy six" The
Star 31 March 1989 and "Ingeperktes wil staat skaakmat sit" Vrye Weekblad 28 April 1989.
560See "Wits black students join defiance" The Citizen 30 Aug 1989. 561See "Beperkings bespotting" Die Vaderland 10 April 1986. 562See "Suzman hits at funeral restrictions" The Citizen 10 April
1986. 563For a fuller discussion, see Levin SAJHR 1989 518 at 521. 564See "Cosatu campaign will assure NP victory" The Cape Times 2
Aug 1989 and "Throwing a lifeline" Business Day 2 Aug 1989.
can best be described as an act of sacrificial civil disobedience. As
soon as the first offer of conditional release was made, he had a
number of options. He could accept the offer, renounce violence, walk
out of prison, and stick to the agreement. However, from his
perspective, this option would have involved “giving in” to the
apartheid regime. In the second place, he could have renounced
violence, but continued the armed struggle once he was out of prison,
and justify this breach of promise on the basis that he acted under
duress.
He chose a third option, namely to refuse to make such a commitment.
This was an “illegal” action in the sense that by defying the wishes of
the authorities he incurred their wrath565 (he was kept in prison); it
was non-violent (he did not choose the second option, which was open to
him); it was done in the open; the conduct was motivated by conviction
and it was a political act. In short, he practiced civil disobedience.
Mandela’s martyrdom played an immense role in mobilising the oppressed
in the country to become politically active, and it was a powerful fact
in bringing the international community to put pressure on the South
African government. It was one of the major factors which legitimised
what is today commonly referred to as the “new South Africa”.566
(f) Phase six: Prospects of reconciliation and new resistance
On 2 February 1990, State President F W de Klerk, in his historic
opening of parliament speech, astounded South Africa and the world by
announcing not only the imminent release of Nelson Mandela, but also
the lifting of the ban on the ANC, the PAC and the South African
Communist Party. Amnesty was granted to the external leadership (and
later to rank and file members) of the ANC to return to the country.
The process of negotiations between the government and its traditional
565It was argued earlier that an act of civil disobedience does not necessarily involve the commission of an offence. For the purposes of defining civil disobedience, conduct which provokes the executive to retaliate was also described as "illegal". See supra chap two I A.
566For a fuller discussion of this interpretation of Mande1a's conduct, see Heyns Die Suid-Afrikaan April 1989 43. Jacques Derrida emphasised Mandela's legitimation of the Western system of law in South Africa through his unlawful activities. See J Derrida "The laws of reflection: Nelson Mandela, in admiration" in Derrida & Tlili For Nelson Mandela 13. See also Lawlor Philosophy and Social Criticism 1989 1.
enemies commenced, and the ANC suspended the armed struggle. Obviously
a very different new era was at hand - also as far as all forms of
political resistance were concerned.
Given the radical nature of these changes, right-wing resistance was to
be expected. The government was accused of acting without a mandate and
of “selling out” the whites to a black and a communist government.
While right-wing anger spilled over into terror attacks by clandestine
factions, established leaders like Dr Treurnicht gave thinly concealed
endorsements of violent actions and threatened to engage in a campaign
of civil disobedience. Often the same authorities (like Calvin) were
invoked who were relied upon in the struggle against apartheid.567
In October 1990, the Conservative Party mooted the idea of staging a
campaign of civil disobedience. This campaign would take the form of a
tax boycott and the withholding of television licence fees, in protest
against government reform and the alleged bias of the South African
Broadcasting Corporation.568 These proposals met with nearly universal”
condemnation from the established Afrikaans,569 English570and black571
press - often pointing out the irony of a resort by the Conservative
Party, traditionally the champion of “law and order”, to this form of
protest.572
At the same time, it became clear that mass-mobilisation, inter alia
through acts of civil disobedience, was still regarded as an important
strategy by the ANC. In November 1990 Mandela called for the use of
civil disobedience in order to intensify the struggle, and described
567See infra chap five I L (2). 568See "Versetplan van die KP uitgespel" Beeld 17 Oct 1990; "Now CP
considers withholding taxes" The Star 17 Oct 1990; "F W kasty KP oor sy planne" Die Transvaler 19 Oct 1990 and "CP's war talk belies mood of despair" The Star 19 Oct 1990.
569See eg "Buite beheer" Die Volksblad 17 Oct 1990; "Die KP op pad na anargie" Die Burger 18 Oct 1990 and "Moenie met iets begin nie" Tempo 19 Oct 1990.
570See eg "Don't" The Citizen 18 Oct 1990. 571See eg "The govt must take on the right wing" Sowetan 18 Oct
1990. 572 See "KP se planne nie op vaste grond" Die Volksblad 19 Oct 1990
and "KP praat met swartmense in kombuise oor die ANC" Vrye Weekblad 19 Oct 1990.
civil disobedience as an example of “legitimate, peaceful” conduct.573
In January 1991, hundreds of farmers converged on Pretoria. They
arrived in the city at night with tractors and other farming vehicles,
and sealed off the major entrances into the city. Their protest was
aimed at highlighting the crisis in agriculture. Among their grievances
were their heavy financial debt, high interest rates, the poor prices
they receive for produce, and the then pending abolition of the Land
Act. For more than a day the entire city was disrupted. The government
refused to make any concessions to the protesters.574
Clearly, for better or for worse, Gandhi’s method of political
resistance has become an integral part of the South African political
process.
B. GANDHIAN CIVIL DISOBEDIENCE IN INDIA
Gandhi’s reputation as the champion of the rights of Indians in South
Africa who had prevailed against Smuts and the British Empire, preceded
him upon his return to India in 1915, and he was already called
“Mahatma” or “Great Soul”. Nevertheless, he still had to establish
himself as a national leader in the practical politics of his home
country. In India, growing resistance against the British Raj or rule
was developing, mainly under the leadership of the Indian Congress
(“Congress”). At the same time, India was tormented by the dark forces
of inner strife, in the form of animosity between Hindu and Muslim
factions and between the different castes. Gandhi would devote the
remainder of his life to addressing these issues in accordance with his
philosophy of non-violent confrontation.
As far as the attainment of Swaraj or independence was concerned,
Gandhi was in the end to see success when India was granted
independence in 1947 - an independence from colonialism which was
573See "Hard words between Govt and ANC expected" The Citizen 20 Nov 1990. See also "Govt 'preparing for violation of civil rights'" Business Day 16 Nov 1990.
574 See "Disgruntled farmers plan protest march" The Citizen 9 Jan 1991; "Polisie en boere bots" Die Transvaler 29 Jan 1991; "Farmers go for protest rally" The Star 29 Jan 1991; "Siege of Pta", "It's walk to work in capital's worst-ever traffic jam" The Citizen 30 Jan 1991; "Protesoptogte in SA kry nog 'n knou in die maag" Die Burger 30 Jan 1991; "The farmers - and others", "Pretoria faces more chaos", "Amazing scenes as farmers sow chaos" The Star 30 Jan 1991.
remarkable for the relatively minor role which violence played. In
fact, India’s independence sparked off a wide rejection of colonialism
in Asia and Africa. In a real sense Gandhi - the dark-skinned man who
stood up against the most powerful colonial forces of his time, and won
- can be seen as the liquidator of the British Empire and of
colonialism in general.575 In respect of India's domestic strife,
however, Gandhi was to experience humiliating and frustrating defeat.
Upon independence, the India which he knew was torn apart by a violent
and bloody civil war into the predominantly Hindu India of today, and
Pakistan, which is mainly Muslim.
(1) Campaigns conducted by Gandhi
Gandhi’s political resistance against British rule in India centred
upon three major campaigns of Satyagraha: the Non-co-operation Campaign
of 1920, the Salt Tax Campaign of 1930, and the “Quit India” Campaign
of 1942.576 These campaigns were preceded by events that set the stage
for mass civil disobedience in India.
The first incident occurred almost inadvertently. Beseeched by a
peasant from the remote area of Champaran to come to his district,
Gandhi learned that the British landlords in the area coerced indigo
share croppers into paying impossible sums of rent. When he visited the
area, the landlords had the civil authorities issue an order for Gandhi
to leave the region - which he refused to obey. In a subsequent trial,
Gandhi pleaded guilty.577 He stated that he disregarded the order “not
for want of respect for lawful authority, but in obedience to the
higher law of our being, the voice of conscience.”578 Before sentence
could be passed, the case was withdrawn on orders from the Lieutenant-
Governor.
A second incident which set the stage was Gandhi’s conduct at Ahmedabad
when strikers whom he had supported were considering ending the strike.
575For a discussion of political obligation and colonialism, see Macfartane Political studies 1968 335 at 339ff.
576For a discussion of the most important campaigns, see Bondurant Conquest of violence 46ff.
577See Gandhi An autobiography 404ff and Bishop A technique for loving 59ff.
578Gandhi An autobiography 414.
In order to move them to persist, he went on a fast.579 Whereas
Satyagraha, as at Champaran, would constitute Gandhi’s preferred
strategy against the British, he would often use the technique of
fasting against his own people.
During the First World War, Gandhi once more aided the British war
effort, this time by taking part in a recruiting campaign to encourage
the enlistment of Indian soldiers in the British army. By doing this,
he again hoped to establish his bona fides as a loyal British citizen.
He believed that after the War in which Indians fought on the side of
Britain, India would become the “most favoured partner in the
Empire”.580 This hope was strengthened in 1917 when the newly appointed
Secretary of State for India, Sir Edwin Montague, in the House of
Commons envisaged the granting of “self-governing institutions with a
view to the progressive realisation of responsible government in India
as an integral part of the British Empire.”581
This was seen as a pledge of dominion status to India. At the time,
Gandhi’s quarrel was not yet with the British Empire itself but only
with India’s subordinate position in the Empire.
As it turned out, however, Britain was far from ready to live up to the
expectations which it had created. The shock to Gandhi and to Congress
could not have been greater when, after the War, in 1919, Britain
introduced the draconian Rowlatt Acts.582 Powers granted to the Indian
government to deal with people in areas declared “subversive” included
summary arrest, trial without jury, and in camera proceedings.583
Against this background, Gandhi started organising mass civil
disobedience in India.
(a) Phase one: The Non-co-operation Campaign of the 1920’s
Gandhi responded to these events by organising a Hartal or economic
boycott, a traditional Indian form of non-violent protest. All economic
activity in a specific area would be suspended for a number of days.
579Id 430 and Woodcock Gandhi S3. 580Bishop A technique for loving 62. See also Gandhi An
autobiography 444. 581Quoted in Fischer Gandhi 60. 582 Gandhi An autobiography 454 and Moore Liberalism and Indian
politics 117. 583 See Bishop A technique for loving 63 and Woodcock Gandhi 58.
Stalls were closed and workers downed their tools. In addition, Gandhi
encouraged Satyagrahi’s (the followers he had by now assembled) to
offer themselves for arrest by breaking one of a selected number of
laws, such as selling forbidden books or distributing unregistered
newspapers.584 The police, however, turned a blind eye and hence defused
the situation.
Then, on 13 April 1919, one of the most influential events of the
independence struggle occurred.585 In spite of Gandhi’s insistence on
non-violence, some violence did accompany Hartals, especially in the
major centres. In the town of Amritsar, in the Punjab, mob violence
occurred when certain local politicians were arrested. The military
commander, General Dyer, announced martial law, whereby public meetings
were banned. Nevertheless, a public meeting was organised in
Jalianwalah Bagh, a closed-in public park. Dyer set out to break up the
meeting with armed troops. According to his own account, Dyer, when he
arrived at the scene of the meeting, gave the crowd no warning to
disperse. He considered it unnecessary since they were gathered in
breach of his proclamation. He gave the order to shoot, and for ten
minutes his troupes fired into the unarmed, trapped crowd. 1 650 rounds
were fired at what he later described as “the place where the crowd was
the thickest.” 1 516 casualties were inflicted: 379 people died, and 1
137 were wounded.586 Violence in the form of uprisings then swept the
country.
Horrified by this turn of events, Gandhi called the Satyaaraha campaign
off. He called the initial launching of the campaign a “Himalayan
miscalculation”.587 In typical fashion he did not blame his opponents as
the main culprits: Indians, he concluded, were not yet disciplined
enough for a nationwide campaign of non-violent resistance.
Nevertheless, an important point had been made - the violence on which
the British Raj depended had been revealed. In practice the Rowlatt
Acts were never implemented.588
As a consequence of the shootings, Gandhi now turned to a complete
584Gandhi An autobiography 462 and Woodcock Gandhi 58, 59. 585See Bishop A technique for loving 65. 586See Woodcock Gandhi 60 and Fischer Gandhi 66. 587Gandhi An autobiography 469. 588See Woodcock Gandhi 61.
rejection of British rule in India.589 In 1920 he returned medals
awarded to him in South Africa during the Anglo-Boer War and the Zulu
uprising, together with a letter saying: “I can retain neither respect
nor affection for a government which has been moving from wrong to
wrong in order to defend its immorality.”590 He urged his countrymen not
to co-operate on any level with the British structures in India. His
appeal was heeded by many who started boycotting schools, resigned from
posts at government institutions, from the courts, from the bar etc.
Gandhi then selected one district, Bardolli, where he would personally
supervise a tax boycott.591 As always, Gandhi gave the authorities full
notice of his intentions. The first reason for the delimitation of a
particular district was to be able to keep the Campaign under control.
The second was to impress the British with a display of Indian
restraint. The Campaign in Bardolli had hardly started, however, when
an Indian mob in a small town in another part of India savagely killed
22 constables. Gandhi, appalled once more by his countrymen’s proneness
to succumb to violence, immediately called off the Campaign in
Bardolli, and forfeited political in favour of moral gains. This
footwork did not go down well with all of his followers.592
With Gandhi being in this vulnerable position, he was arrested for
sedition in March 1922. Gandhi practically asked for it in so many
words in articles which he had published He wrote: “I have no
hesitation in saying that it is sinful for anyone, either soldier or
civilian, to serve this government ... sedition has become the creed of
Congress ... Nonco-operation, though a religious and strictly moral
movement, deliberately aims at the overthrow of the government and is
therefore legally seditious.”593 He stated that they were “at war” with
the government, and that they had declared a “rebellion” against it. He
said: “We want to overthrow the government”, and that it was a “fight
to the finish”.594 By arresting him, however, the British restored
Gandhi’s fledgling support. Woodcock described what is today called
589Fischer Gandhi 68. 590Ibid. 591Id 70. 592Woodcock Gandhi 64. 593Fischer Gandhi 72. 594Ibid.
“the Great Trial” as a turning point in Gandhi’s tug of war with the
British.595
Gandhi was tried with “bringing or attempting to bring into hatred or
contempt or exciting or attempting to exciting disaffection towards His
Majesty’s Government, established law in British India.”596
Characteristically, Gandhi pleaded guilty and told the court:
I am here, therefore, to invite and cheerfully submit the highest penalty that can be inflicted upon me for what in law is a deliberate crime and what appears to be the highest duty of a citizen. The only court open to you, the judge, is ... either to resign your post, or inflict on me the severest penalty, if you believe that the system and law you are assisting to administer are good for the people.597
Gandhi described the British rule of India as “exploitation of the
masses”.598
The magistrate’s treatment of Gandhi reflected and expressed a new
realisation on behalf of British officialdom that the British code of
honourable behaviour was being used against it. After convicting
Gandhi, the magistrate stated:
[W]hat remains, namely, the determination of a just sentence, is perhaps as difficult a proposition as a judge in this country could have to face. The law is no respecter of persons. Nevertheless, it will be impossible to ignore the fact that you are in a different category from any person I have ever tried or am likely to have to try. It would be impossible to ignore the fact that in the eyes of millions of your countrymen, you are a great patriot and a great leader.599
He stated that it was his duty to sentence Gandhi to six years’
imprisonment and proceeded: “I should like to say in doing so that, if
the course of events in India should make it possible for the
government to reduce the period and release you, no one will be better
595Woodcock Gandhi 64. A detailed account of the trial is given under the heading "Arrest and trial" in Mayer The pacifist console 204.
596See Mayer The pacifist conscience 207. 597Id 211. 598Id 213. To employ terms used earlier, he consequently described
his civil disobedience as anti-exploitation. 599Id 215.
pleased than I.”600 This was the last time that Gandhi was tried. It was
not the last time that he was arrested.
Gandhi served 22 months of his sentence and was released in February
1924 due to poor health. A massacre of Hindus by Muslims again brought
Gandhi under the impression of the friction which existed between these
two religious groups Gandhi - himself a Hindu - decided to fast for 21
days in order to focus attention on the problem and move the two
parties to reconciliation. It did highlight the problem but hardly made
a difference to the level of tension.601
In the late twenties, the national mood in India was ugly, with
violence and talk of violence the order of the day. There was strong
pressure on Congress, especially from the young, to declare
independence, and consequently to declare war against England. In
February 1928, Gandhi for the first time articulated his desire not
only to end Britain’s hold over India, but to bring to a fall the whole
British Empire: “[T]hrough the deliverance of India I seek to deliver
the so-called weaker races from the crushing heels of Western
exploitation in which England is the greater partner.”602 Gandhi’s
mission was no longer only to end the degrading treatment inflicted on
Indians but to end exploitive racist in general. His own racism and
elitism was now something of the past.
Gandhi decided to go ahead with the tax strike at Bardo11i, which he
had previously called off. It turned out to be 4 textbook example of
what Gandhi intended a Satyaraha campaign to be.603 The 84 000 peasants
in the area refrained from violence despite brutal arrests when they
refused to pay their taxes. In less than six months the government
released all prisoners and granted the reduction in taxes they
demanded.
In December 1928, Gandhi managed to persuade Congress not to declare
independence with immediate effect but to give England a one year
warning to grant India independence. When Ramsay McDonald’s Labour
Party took office in England in 1929, new possibilities arose. The
Viceroy, Lord Irwin, announced that the British government envisaged a
600Ibid. 601Woodcock Gandhi 69. 602Id 71. 603See Woodcock Gandhi 71.
round table conference of British and Indian delegates, and said that
“the natural issue of India’s constitutional progress ... is the
attainment of Dominion status.”604 Gandhi and the nationalist leaders
responded favourably. Then the Tories and the Liberals, in a combined
effort in the British parliament, overruled Lord Irwin’s commitment.
(b) Phase two: The Salt Tax Campaign 1930
Congress now passed a resolution declaring that they were no longer
interested in India being a dominion in the Empire. Gandhi issued the
Indian Declaration of Independence, calling for India to sever the
British connection in toto, in order to attain Purna Swaraj or complete
independence. Non-co-operation with government structures was once
again sanctioned, as well as non-payment of taxes and a nationwide
campaign of civil disobedience. Gandhi was expected to take the lead in
the civil disobedience campaign.605
Gandhi knew through bitter experience how easily a campaign intended to
be non-violent could erupt into violence, especially in such a charged
situation. He took six weeks to consider which approach to take, before
he came up with a very simple, but powerful, idea. It was to serve as
yet another model of non-violent action.606
He decided on a large-scale public protest against the Salt Tax Laws.
These laws made it illegal to possess salt not purchased from the
government salt monopoly. Through its monopoly, the British government
was in a position to exact high taxes on the salt it sold. Since salt
is an essential commodity for those working in the fields in the
tropical Indian sun, this placed a heavy burden on especially the
poor.607
In March 1930, after notice was served on the Viceroy, Gandhi (now aged
61) led a procession of 78 followers, which along the way grew to
several thousand, on a 24 day, 240 miles epic march by foot to the
coastal town of Dandi. Here, Gandhi said, he would break the Salt Laws.
This march of defiance of Britain, in pursuit of the interests of the
very poor, captivated the imagination of India and of the world.
604See Fischer Gandhi 95. 605See Woodcock Gandhi 71 and Pischer Gandhi 94. 606Bishop A technique for loving 72. 607Woodcock Gandhi 72.
Gandhi’s progress was followed, in Woodcock’s words, as the world had
followed Lindberg’s flights.608
At Dandi, Gandhi dipped in the water, and then picked up some salt left
by the waves. Through this natural and innocent action he committed a
crime. All India received the message. The second Indian campaign of
civil disobedience had started, this time nationwide. Salt was
illegally produced all over the country, and people were arrested on a
large scale. Other crimes included in the protest action were the
reading of seditious literature in public, urging the boycott of
foreign textiles and organising Hartals.
When the government called in the troops to restore order, they more
than once refused to fire on demonstrators. One hundred thousand people
were placed in prison, including, after nearly a month, Gandhi
himself.609 This time those participating in the Campaign, knowing that
Gandhi would call the Satyaqraha campaign off if violence broke out,
kept it virtually non-violent.610 Newspapers from all over the world
urged the British government to settle the issue amicably with
Gandhi.611
With Gandhi in prison, his supporters proceeded with a demonstration
which he had planned. On 21 May 1930, 2 500 volunteers went to the
Dharasana Salt Works, which they intended to invade non-violently.
Without offering any resistance, they marched, in file, to its gates to
be struck down with steel shot staves by policemen under British
command. A journalist witnessing the confrontation reported to the
world: “Those struck down fell sprawling, unconscious or writhing with
fractured skulls or broken shoulders ... The survivors, without
breaking ranks, silently and doggedly marched on until struck down.”612
This eerie ritual continued for several days.
The proceedings at the salt works, and the constraint shown by the
protesters, were an enormous moral victory for India and for Gandhi.
Upon his release, Gandhi asked for an interview with the Viceroy and
608Id 73. 609Id 75. 610Fischer Gandhi 99. 611See Bakshi Gandhi and [the] civil disobedience movement 104. 612Fischer Gandhi 101. See also Woodcock Gandhi 75.
found himself in a strong bargaining position. Churchill, with all his
racial prejudices understood Gandhi’s moral advantage better than
anyone else, when he described what was to him the “nauseating and
humiliating spectacle of this one-time Inner Temple lawyer, now
seditious fakir, striding half naked up the steps of the Viceroy’s
palace, there to negotiate and parley on equal terms with the
representative of the King-Emperor.”613
When it came to negotiations, however, Gandhi secured very little more
from Irwin than a suspension of the salt laws for the coastal regions,
and the release of the people who had by now been arrested. Formally,
no advancement in the direction of independence had been made.614
In August 1931, Gandhi, as the sole representative of Congress, went to
London for the second set of round table talks. Again virtually nothing
positive was achieved. Instead, the differences between Congress, the
Muslim league and the Indian princes (who were all represented) were
emphasised. Gandhi regarded the British emphasis on the divisions as a
delaying tactic - the divisions was a problem that would resolve
itself. Eventually he would find out what a grave mistake this was.
Gandhi did, however, gain considerable popularity amongst the working
people of England.615
When he returned to India at the end of 1931, a new Viceroy had assumed
power, and in terms of new emergency powers which had been proclaimed,
Gandhi was arrested and imprisoned.616 In September 1932, while in
prison, Gandhi addressed an aspect of Indian social life which to him
had become of supreme importance, namely the status of the untouchables
or Harijans. A proposed constitution for India’s legislative assembly
envisaged that Hindus and Muslims, as well as untouchables, would be
placed on different voters’ rolls. In a dramatic attempt to persuade
Indian society to abandon these prejudices (which had its origin in
racist considerations), Gandhi announced a six day fast.617
613Quoted in Fischer Gandhi 103. (Emphasis added.) 614See on the Gandhi-Irwin Pact, Bakshi Gandhi and [the] civi1
disobedience movement 104. 615Woodcock Gandhi 76. 616Ibid. 617Fischer Gandhi 109. His friends described the scene around his
bed as akin to that attending Socrates's when he drank the hemlock.
This time there was a considerable response to his call. Citadels of
Hindu orthodoxy were thrown open. All over India, wells were shared,
and age-old social barriers were taken down. Gandhi’s fast certainly
did not solve the problem of division of Indian society, but a dent was
made in a very rigid system.618
When Gandhi was released from prison in May 1933, he undertook a ten
months tour of India for Harijan welfare. He called off the civil
disobedience campaign and was not involved with Congress politics for
the rest of the 1930’s. Gandhi’s concern with the caste and religious
divisions in India, and the disruptions caused by industrialisation,
led to attempts on his part to remedy those evils. His “constructive
programme” was in fact premised on the same point of departure as the
Satyagraha campaign, namely that Indians first had to purify themselves
through self-sacrifice, and that they would then automatically gain
their freedom through desert.
In 1939, when the Second World War broke out, India was taken into the
conflict by Britain, without Indian leaders having been consulted.
Congress reacted strongly against Britain’s declaration of war on
behalf of India, which was regarded as a further act of humiliation.
While Congress sympathised with the Allied cause, they wanted clarity
on the independence issue before Indian lives were to be sacrificed for
England.
Gandhi, on the one hand, wanted to show his strong disapproval of
Britain. On the other hand, he did not wish to embarrass England while
she was engaged in a war. Consequently, for the time being, he
propagated not mass, but individual Satyagraha in pursuit of
independence. Eventual some 23 000 Satyagraha’s were imprisoned.619
(c) Phase three: The “Quit India” Campaign
When it became clear in 1942 that Britain was not about to give in on
the issue of Indian independence, the “Quit India” Campaign was
launched.620 This demonstration took the form of a massive demonstration
of general Satyagraha. Gandhi told his countrymen to consider
themselves free, and to act accordingly. He and the other leaders were
618Id 123. 619See Woodcock Gandhi 94. 620See Copley Gandhi 78.
arrested Large-scale violence broke out, which Gandhi was powerless to
stop. Gandhi was released from prison two years later in 1944.621 By
now, it was clear that independence was imminent, Power was up for
grabs, and the internal strife intensified.
Mohamed Ali Jinnah, leader of the Muslim league, demanded a part of
India exclusively for Muslims: Pakistan. This demand conflicted with
everything Gandhi stood for - the common destiny and the indivisibility
of the human race would be forfeited. Gandhi negotiated with the
British and with Jinnah, but allowed valuable opportunities to reach a
compromise to slip through his fingers.622
In August 1946, Jinnah resorted to violence. In four days approximately
5 000 people were killed in riots, and the violence continued. Gandhi
went from village to village to preach reconciliation. His life’s work
was under serious threat. Eventually, Jinnah and the population as a
whole could not be persuaded to adhere to the moral ideals which Gandhi
propagated. In the ensuing civil war, the greatest uprootment of people
in history took place, as 15 million would abandon their homes and flee
in terror, and hundreds of thousands of people died.623
In September 1946, an interim local government was established. Gandhi,
preoccupied with the internal struggle, devoted his time to visiting
those spots most troubled by Hindu-Muslim antagonism. Eventually while
in Bengal and exasperated by the senseless killings, he took his refuge
to a “fast to death”. Unless sanity returned at least to Calcutta, he
vowed to die of hunger. The 73 hours fast made a lasting impression on
the province, and violence eventually subsided. A second fast did not
make the same impression. The country remained locked in a deadly,
religious civil war.
On 15 August 1947, India and Pakistan gained independence as separate
nations.624 India became a republic on 26 January 1948, and remained a
member of the British Commonwealth.
On 30 January 1948, Gandhi, aged 78, was assassinated by a member of an
621Gandhi spent altogether almost six years in Indian prisons, and 249 days in prisons in South Africa. Fischer Gandhi 148.
622Id 159. 623Id 171. 624See Fischer Gandhi 171. For a detailed analysis of Gandhi's role
in this process, see Nanda Gandhi and his critics 77.
extreme right-wing Hindu group who objected to his insistence that
liberated India must treat adherents to all religions with equal
justice and generosity.
Several observations may be made with reference to the above:
- Gandhi was a reformer in South Africa and for the first part of
his career in India. Thereafter he was a revolutionary.
- In his efforts to overthrow the British Raj, he remained
absolutely committed to non-violence. It was for him a matter of
principle, not strategy.
- Gandhi clearly understood that civil disobedience, in order to be
effective, required the presence of a “benevolent background
force”. He addressed both the British public and world opinion
through highly visible campaigns, and expected them to pressurise
the British government.
- Gandhi’s preoccupation with the role of discipline in non-violent
protest remained unwavering and in fact increased. Campaigns were
for the most part focussed on transgressing a strictly limited
number of laws, and were often confined to a certain area. He did
not hesitate to call off a campaign of civil disobedience if this
discipline subsided - irrespective of the degree of violence
embarked upon by the other side. He used Satyagraha not only to
demoralise his opponent but also to inspire his own people and to
give them self-confidence.
- Gandhi saw the essence of civil disobedience in the voluntary
acceptance of suffering, when that suffering is caused by the
opponent’s commitment to a practice or practices of which he
disapproved. In conformity with this attitude, he invited the
harshest possible punishment for his unlawful acts, and refused
to conduct his defence in cases brought against him so as to
procure a mitigated sentence. His brand of civil disobedience was
clearly sacrificial.
- He retained his flair for selecting as targets for civil
disobedience, easily identifiable injustices (as with the salt
tax) that would capture the imagination - even if these targets
did not entail the worst injustices. He was a master at using
civil disobedience as a tool of communication in an age when
global communication was in the process of being established.
- Also important was the development of Gandhi himself. From an
elitist and indeed racist beginning in South Africa he developed
into a champion of the third world. It is submitted that this
development might to a considerable extent be a natural
consequence of the use of civil disobedience, with its emphasis
on morality. Especially his conduct in respect of the Harijans
reveals the nature of civil disobedience as a double-sided sword
- it makes a moral appeal to the opponent as well as to the
person who practises it.
(2) Gandhi's philosophy of Satyagraha
Leo To1st6y in 1910 described Gandhi’s Satyagraha campaign in South
Africa as “the most important of all the work now being done in the
world”.625 Even if exaggerated, the comment reflects the desire of a
world finding itself subjected to increasingly powerful and
dehumanising forms of human destruction, to establish more humane ways
of regulating the terms of our shared existence.626
Gandhi’s political philosophy in many respects certainly is
idiosyncratic, and it is embedded in a philosophical outlook on life
that may not be acceptable to everyone. While civil disobedience has
not by any means been universally accepted as a feasible means of
offering political resistance, Gandhi’s own peculiar version of that
strategy of protest is even more controversial. Especially Gandhi’s
almost complete commitment to non-coercion and his insistence on the
need to pursue self-sacrifice in order to elicit the creative power of
suffering would not be shared by many.
Nevertheless, his example, even if extreme, has inspired non-violent
625The letter was translated from Russian by P Padlashuk and is reprinted in the Golden number of "Indian Opinion" 1914 18. See also Muzumdar Mahatma Gandhi 16. In Russia, Tolstóy's Individual non-violent resistance, which drew inspiration from Gandhi's acts in South Africa, seriously eroded the resolve of the Tsarist régime. See Woodcock Gandhi 105.
626Fischer Gandhi 89 formulated Gandhi's most basic question as follows: "How can the modern individual maintain his inner peace and outer security, how can he remain honest, free, and himself in the face of the assaults being made upon him by the power of mighty governments, the power of mighty economic organizations, the power of evil that resides in cruel majorities and militant minorities, and the power now extractable from the atom?"
resistance movements worldwide - not only in his native India.627 His
influence on the liberation struggles in South Africa and the United
States of America, as is evident elsewhere in this chapter, was direct.
Gandhi’s legacy also found resonance in the pursuit of other causes in
the rest of the world, to which reference has been made earlier, where
mass civil disobedience was used to protest against issues as diverse
as the military and non-military use of nuclear power, activities
perceived as detrimental to the environment, and the conduct of
unpopular foreign wars.628
In Africa, at least until the 1960’s, Gandhi’s ideas had a strong
influence on the formative processes of black nationalism. The West
African Congress, for example, was established in 1920, patterned after
the Natal Indian Congress. Kwame Nkrumah was influenced by Gandhi's
ideas in his conducting of the liberation struggle of Ghana, as was
Julius Nyerere in Tanzania. The 1945 Pan-African Congress, which was
attended by Nkrumah and Kenyatta, as well as by ANC delegates, endorsed
Gandhi’s passive resistance as the only effective way of persuading
alien rulers to respect the rights of unarmed subjected races.629
The Algerian National Liberation Front initially had great difficulties
in securing the legitimacy of their armed struggle against the French,
due to the popularity of Gandhian ideas.630 It was, however, Kenneth
Kaunda, whose influence in respect of resistance in the whole of
Southern Africa was immense, who was most markedly influenced by
Gandhi. Gandhi’s teachings, Kaunda said, “flooded my mind with
light”.631
During the late 1980’s and the early 1990’s the embattled Eastern
European governments were given notice, in no uncertain terms, of the
627See G Ostergaard "The Gandhian movement in India since the death of Gandhi" in Hick & Hempel Gandhi's significance for today 203.
628Mistra & Gangal Gandhi and the contemporary world sets out the implications of Gandhian thought for a number of global problems - inter alia the threat of war and human rights. Many world leaders, such as Anwar Sadat, have expressed admiration for Gandhi. See J W Gould "Gandhi's relevance today" in Hick & Hempel Gandhi's significance for today 7 at 10.
629See Benson South Africa 90. 630See Nanda Gandhi and his critics 32ff. 631See Kaunda Kaunda on violence 15.
opinion of the people through often illegal marches which involved
millions of people. It has been argued that the fall of Marxism,
prompted by these marches, together with the upsurge in non-violent
protest marches in South Africa in 1989, made a major contribution
towards the eventual demise of apartheid.632
Gandhi’s teachings in many cases did not prevent the eventual use of
violence, especially in Africa of the 1950’s and later; nevertheless,
it often inspired reluctance to resort to the use of force. Few people
accept the radical nature of Gandhi's claim – “non-violence as the
first article of [one’s] faith”,633 but the example set by himself -in
his pursuit of this ideal and the successes he achieved have exercised
a powerful gravitational pull away from a resort to violence.
To systematically reconstruct the theoretical tenets of Gandhian
thought would be no easy task. He was primarily a man of action and
what he wrote was in the first place designed to further his particular
practical aims of the time. As Fischer stated: “He did not think out
his ideas, he worked them out.”634 Consequently, much of our time was
spent on tracing his actual conduct. A short exposition of the outlines
of his philosophy will now follow.635
(a) The sources of Satyaqraha
In the first place, one should establish what the primary influences on
Gandhi’s thought were. Apart from the influence of Hinduism (to which
we will presently return), Gandhi was evidently also deeply -influenced
by his legal training in London and his exposure to British liberal
values. Even at the time of the deepest Indian-British conflict, Gandhi
had a love-hate relationship with Britain.636
Although Gandhi’s own collected works are contained in altogether 67
volumes, he was not a well-read man. A number of books, however, had a
profound influence on him. His constant companion was the Bhagavad-
632See Smuts & Westcott The people shall govern 81ff. 633See Mayer The pacifist conscience 210. 634Fischer Gandhi 59. 635A fascinating analysis of Gandhi's personality is given in
Wolfenstein The revolutionary personality. 636See eg his assurance to English friends, on the eve of starting
civil disobedience in 1930, that "I am no enemy of Britain." Gandhi Non-violent resistance 222.
Gita,637 the sacred Hindu book, which exalts the virtues of
selflessness, or, as Gandhi referred to it, “desirelessness”.638 He was
also influenced by the Bible. In the Sermon on the Mount, with its
admonition of turning the other cheek and concern with the weak, Gandhi
found sustenance which almost moved him to Christianity.639 Later he
would say: “I am a Christian and a Hindu and a Muslim and a Jew.”640 In
the final analysis, the “benevolent background force” in which Gandhi
placed his trust was an omnipotent and just God.
In 1893, Gandhi read Tolstoy’s “The kingdom of God is within you”,641
which, to Gandhi, “furnished a reasoned basis for ... non-violence.”642
In 1904, a few years before he established Satyagraha, he read John
Ruskin’s “Unto this last”643 exhaling the value of the simple life. This
book, Gandhi said, “made me transform my life”, but it should be noted
that Gandhi read much into the book that is not there.644 Gandhi also
described Thoreau as one of his “teachers”,645 but Thoreau’s influence
in forming Gandhi's ideas should not be overrated. Gandhi read
Thoreau’s essay “On the duty of civil disobedience” when he was already
637Translated from the Sanskrit into English by Arnold as The Sun Celestial. See K W Bolle "Gandhi's interpretation of the Bhagavad G1ta" in Hick & Hempet Gandhi's significance for today 137ff.
638As will be pointed out, this was also the prime virtue pursued by the Stoics, whose approach to political resistance deeply Influenced Western thinking on the subject. See infra chap five I B (3) and I C.
639On Gandhi's understanding of the Sermon on the Mount, see Das Bangalore Theological Forum 1985 17 41.
640See Fischer Gandhi 130. Gandhi refused to negate the variety of religious traditions, because he believed in the continuity and extension of truth through time and space. He found support for this in Matthew 5.17: "Do not suppose that I have come to abolish the law and the prophets: I did not come to abolish, but to complete."
641Reprinted in To1stóy The kingdom of God and peace essays 1. It is interesting to note that the first chapter of "The Kingdom of God is within you" deals with the experiences of American abolitionists, Quakers, Mennonites and pacifists, which means that Gandhi was influenced along this route by the early American experience.
642Bishop Gandhi 52. 643Reprinted in Ruskin Unto this last and other essays on art and
political economy 115. 644See Woodcock Gandhi 25. 645See Bishop A technique for loving 52.
in a South African jail in 1907 for having started a full-scale civil
disobedience movement.646
It is not the object of this study to cover in detail the essential
elements of the Indian tradition in which Gandhi grew up and from
which, as a devoted Hindu, he drew inspiration. It will suffice to say
that the following has been identified as some of the key notions in
Indian and specifically Hindu religious thought, pertinent to the issue
of civil disobedience. In the first place, there is the notion of
dharma, denoting an ideal of society which is in equilibrium and in
harmony, and is shaped by the discipline a person voluntarily
undertakes.647 It was, for example, an established practice for a
creditor to move his debtor to payment by engaging in self-
starvation.648 Connected to this is the idea of anasakti or
selflessness, the devotion to this equilibrium, which necessitates
compromise.649 Self-denial is an integral part of this tradition.
Central in Hinduism is the idea of reincarnation. This forms part of a
perception of the world as an organism, where there is abheda, or an
absence of essential differences between one creature and another.650
Being locked into this single universal body that encompasses both time
and place, each one of us has the duty to contribute towards the
eventual elimination of suffering. From the Jain theory of
anekantavada, the manysidedness of reality, Gandhi derived his
fundamental belief that our understanding of truth is at best
fragmentary, which implies that we have no right to impose our views on
others.651
In the last place, the word ahimsa or non-violence expresses an ancient
ethical precept accepted by Hinduism, Jain and Buddhism. This notion
has an active rather than a passive meaning - it is a guide to action,
646See Woodcock Gandhi 25. 647Chatterjee Gandhi's religious thought 19. 648Id 21. Muzumdar Mahatma Gandhi 16 indicates that the practice of
dharma in the Hindu tradition involved the application of moral pressure on the opponent by willfully undergoing austerities oneself. See also Bondurant Conquest of violence 118.
649Chatterjee Gandhi's religious thought 36. 650Id 31. 651Id 33.
not inaction. To use the terms employed earlier, it points to result-
oriented rather than defensive actions and accounts for Gandhi's
rejection of the term “passive resistance” to describe what he was
propagating.
(b) Central features of Gandhi’s political thought
An essential key to understanding Gandhi’s political thought and action
lies in the realisation that, to him, there is no difference between
religion and politics. This accounts for his emphasis on the spiritual
as opposed to material driving forces in history, and his belief that
civil disobedience could make a difference. Because we all are the
creation of one God, our humanity is indivisible. Consequently, he
believed that “[t]he humankind is one big family.”652 In fact, Gandhi
saw the universe as something akin to a giant household.653 He was in
the first place a universalist654 with an organic view of society.655
In the second place, he was an optimist and even an idealist. He
believed that all members of the human family are basically good; like
Socrates, he believed that “no man is intentionally wicked”.656 It is
through ignorance that people err, and it then is our duty to help them
to see the truth. In South Africa, Gandhi’s intention was to remind
Smuts that he was a Christian.657 Once people have been brought to see
the truth, they would automatically mend their ways. This is especially
true of political relationships. Those who govern sometimes make
mistakes and treat their subjects unjustly, while subjecting them to
unwarranted violence. What is important when this happens is not that
we as subjects suffer, because our physical and material well-being
compared with our spiritual values is not important. Those in positions
of power, when they err, should also be brought to see the light, the
truth. Those who are governed should do this because they should take
652Gandhi Non-violent resistance 363. 653In his evidence before the Hunter Committee in respect of the
Rowlatt Acts, Gandhi stated that his policy is "an extension of the domestic law on the political field". Id 19.
654Surprisingly, Gandhian "holism" did not receive the attention it deserves in discussions of his interaction with Smuts. See eg Beukes The holistic Smuts 33, 144, 192, 207.
655See Parekh Gandhi's political philosophy 110. 656Gandhi Non-violent resistance 93. 657Fischer Gandhi 35.
the welfare of those who govern to heart. As members of the same family
they are, after all, worthy of our concern, even if they err.
How, then, should the governed discharge this duty? If we respond to
the violence of those who abuse power by subjecting them to
counterviolence, even if we manage to subdue them, nothing of
importance is gained, because we then confirm to them that they
themselves had a right to use violence - we legitimise their way of
expressing (or rather impressing) their opinions. A spiral of violence
is created and perpetuated, which will eventually lead to a mindless or
spiritless world. The only way in which this spiral can be broken is
through non-violent resistance to violence. One must absorb aggression
instead of returning it.
This inevitably involves the voluntary acceptance of suffering, which
is the pivot on which Gandhian civil disobedience turned. Gandhi
believed in the “eternal law of purification through suffering.”658 To
him innocent suffering by necessity accompanies the emergence of
freedom. According to Gandhi, “[c]ivil disobedience is a terrifying
synonym for suffering.”659 Voluntary suffering has the power to convince
the opponent and to make oneself worthy of one’s goal.660 If I suffer
openly and willingly at the hands of my adversary, and I do not
threaten him with retaliation, he will see the true consequences of his
actions and will be cured of his ignorance and change his ways. He will
be won over to a higher moral level. As the Bible says, we must do good
to the evil-doers. Satyagraha’s objective is “to convert, not to
coerce, the wrongdoer.”661 Gandhi’s philosophy, in a word, was to answer
evil with good, coercion with persuasion.
The word, “Satyagraha”, used by Gandhi to describe his perception of
non-violent, illegal resistance, was created by him by conflating two
words from his native language, Gujarati: Satya which means the truth
(the equivalent of love) and Agraha, firmness or force. The direct
translation of Satyagraha is, therefore, “truth force” or, because
truth and love are both attributes of the soul, “soul force”. At the
658Gandhi Non-violent resistance 112. 659Id 69. 660See Chatterjee Gandhi's religious thought 77. 661Gandhi Non-violent resistance 87.
same time, truth, to Gandhi, was God.662
Putting aside the deeper spiritual implications of this approach (and
to use non-Gandhian language), in practice it means that civil
disobedience is a form of immanent critique which could bring people to
see the light for themselves. Civil disobedience is in this sense a
form of education in which one lets the truth speak for itself. But it
is a very special form of education: It educates both the person who
practises it and the person against whom it is aimed. It is a
dialectical search for the truth with the opponent.663
Marx thought that society - and consciousness - is determined by the
material infrastructure. The universe is propelled by conflict. Given
these points of departure, his emphasis on the inevitability of violent
revolution and the need for change in the material conditions of living
before a change of consciousness will occur, is logical.664 In such a
process the end can justify the means. Gandhi, like Hegel, upheld the
exact opposite premises about the driving force behind history.
Gandhi’s life signified a defence of the belief that eternal and
universal morality is the determining factor in the world: “I prophesy
that if we disobey the law of the final supremacy of spirit over
matter, of liberty and love over brute force, in a few years we shall
have Bolshevism rampant in this land.”665
To him, human beings were essentially spiritual beings. Because both
ends and means must be moral, the end can never justify the means.666 A
non-repressive society cannot be obtained through repression. A non-
violent society cannot be forged through violence.667
662See Gandhi Satyagraha in South Africa 109ff and Bondurant Conquest of violence 15ff.
663See also Haksar Civi1 disobedience, threats and offers 3. 664See infra chap five I BB. 665Quoted in Fischer Gandhi 88. 666Both means and ends are part of the same whole. Gandhi found
support for this idea in the parable of the tree and the fruit enunciated in the Sermon on the Mount. (Matthew 7.16-20.) See also Gandhi's essay "Means and ends", reprinted in Gandhi Non-violent resistance 9.
667According to Gandhi, the belief "that there is no connection between the means and the end is a great mistake ... [Such] reasoning is the same as to say that we can get a rose through planting a
Gandhi’s thoughts reflected both a pessimism concerning human
capabilities to know truth with certainty and an optimism concerning
the forces that prevail in the world. To assume the power to inflict
violence on others and to kill them, even if they treat us unjustly,
reflects an arrogant claim to have a direct insight into the demands of
truth, which enables one to commit irrevocable deeds. For Gandhi, man
is not capable of knowing the absolute truth and, therefore, not in a
position to punish. This does not, however, imply that there is no good
or evil. Gandhi believed that truth should be allowed to speak for
itself, undistorted by human desire. As appears from the title of his
autobiography, he viewed his own life merely as “experiments with
truth”. In accordance with the basic premises of liberalism, Gandhi
believed that truth, when given the chance, would speak for itself.
To openly and voluntarily suffer injustice without retaliating,
according to Gandhi, had several advantages. It purifies and
strengthens one’s own detachment from the seductions of material well-
being, and allows one to attune one’s ear to revelations of the truth.
Within a group, the willingness to use restraint furthermore fosters
the type of discipline which makes that group worthy of freedom. It
also makes the opponent powerless, because he has no power over someone
who does not fear his weapons. Truly committed Satyagrahi’s cannot be
put down by any amount of force. “The soul can remain unconquered and
unnconquerable [sic] even when the body is imprisoned.”668 A campaign of
Satyagraha can bring the state to a complete standstill when it becomes
clear that the subjects do not fear suffering. The opponent also
becomes demoralised, because he will realise that such action cannot
come from the weak. Gandhi insisted that non-violence can only be used
by the strong. Finally, even if the resistance eventually turns out to
have been misguided, no damage was done to the opponent.
The non-violent resister occupies the moral high ground, because
voluntary acceptance of suffering would normally not be endured for
personal gain. Disobedience to the demands of the state with full
knowledge that the consequences may be highly unpleasant can only be
the result of obedience to a superior moral imperative. The ability to
practise civil disobedience against all odds gives shining testimony to
the superior force of that moral imperative. It proves the authenticity
noxious weed." Gandhi Non-violent resistance 10. 668Gandhi Non-violent resistance 289.
of the demand.
Gandhi perceived his Utopia in explicit anarchist terms. To him, “the
state represents violence in a concentrated and organised form." He
believed that “[t]he ideally non-violent state will be an ordered
anarchy.”669
Non-coercion, therefore, and a willingness to undergo suffering are the
decisive factors in Gandhi’s concept of political resistance, which was
deeply rooted in his religious world view. To Gandhi, who believed in
non-violence as an "article of faith”, Satyagraha is not an
intermediary step on the road from legal to violent protest - it is not
a prelude to violence but an equally powerful alternative. It is, what
has been called, “the moral equivalent of war”.670
Gandhi’s approach embodies several problems. In the first place,
Gandhi’s emphasis on the voluntary acceptance of suffering (which
underlies his insistence that Satyagrahi’s should plead guilty when
charged, supply missing evidence against themselves and others, ask for
maximum sentences, and be model prisoners) will to many reflect an
unacceptable preoccupation with martyrdom. There are, after a11, many
other ways in which one’s bona fides and opposition to anarchy can be
demonstrated. No doubt, such a display of supreme discipline can be
particularly effective, and to do so would often not be wrong, but it
can hardly be a necessary condition for justified civil disobedience,
as Gandhi seemed to insist.
The result of Gandhi’s preoccupation with suffering was that he
disregarded, what was earlier called, non-sacrificial civil
disobedience. He failed to recognise that under certain circumstances
it would not be necessary to court arrest, plead guilty, insist on the
maximum penalty, etc. On the one hand, an application of Gandhi’s
approach can in some cases lead to a situation where too much sacrifice
is required of prospective resisters. It was argued earlier that
adherence to the form of Gandhian protest in the Defiance Campaign
probably had this effect. At the same time, it may also have the effect
of prompting legal decision-makers into believing that however much
they sympathise with a protester, the ethics of civil disobedience
requires of them to impose a harsh punishment. This seems to have been
669Woodcock Gandhi 64. 670See Muzumdar Mahatma Gandhi 16.
the approach of the magistrate who sentenced Gandhi in the “Great
Trial”. The thrust of chapter six will be that this approach is
unwarranted.
Another problem inherent in Gandhi’s approach is that his insistence on
the overreaching importance of morality and moral victories often made
him a poor negotiator in respect of material issues. Once a moral
battle has been won, he often seemed to think that there was nothing
important left to do, and this made him lose opportunities.
Gandhi’s boundless optimism about human nature often rendered him
incapable of recognising evil when he saw it.671 He stated that Hitler
was “misguided” and urged the Jews to practise Satyagraha against
Hitler. Of all the wars in his lifetime, he chose the Second World War
to pursue his commitment to non-violence further than ever before. It
is not that he misunderstood the conditions under which civil
disobedience is effective. He recognised the role played, for example,
by a “benevolent background force” and did place all his hope on a
change of heart in the opponent.672 The problem is rather that he placed
too much reliance on the inherent ability of good to trump evil.
Nevertheless, it should be kept in mind that Gandhi’s belief was in the
ultimate preponderance of good over evil, not in the absence of evil.
In this context, it is revealing to note that Gandhi, until the end of
his life, was not an absolute pacifist. He recognised that at some
point violence might be needed. He stated: “I would rather see India
freed by violence than enchained like a slave to her foreign
oppressor.”673 Nevertheless, he was willing to go further than almost
anyone else in leaving scope for the good by itself to triumph over
evil.
Even if Gandhi went too far in certain respects, his conduct and
example provides a powerful reminder of the importance and power of
spiritual values.
671He stated explicitly: "I am an optimist and have an abiding faith in human nature. The party of violence wi11 give me fair play." Gandhi Non-violent resistance 230.
672Gandhi stated; "I do not think Hitler and Mussolini are after all so very indifferent to the appeal of world opinion." See Das Bangalore Theological Forum 1985 41 at 53.
673See Woodcock Gandhi 61.
C. CIVIL DISOBEDIENCE IN THE UNITED STATES OF AMERICA
The United States originated from a revolution and is primarily
committed to individual liberty. At the same time, it is a society with
many people of different backgrounds and persuasions. Not surprisingly
therefore, the United States has a rich tradition of resistance against
government - both legal and illegal, both violent and non-violent.
The most outstanding examples of civil disobedience in the United
States are the Civil Rights Movement and the anti-Vietnam protests.
Nevertheless, although still controversial, civil disobedience has
deeper roots in American society.
(1) Civil disobedience by native Americans
Charles Black gave a fascinating account of a case of non-sacrificial
civil disobedience in the early history of the United States, in a
setting which illustrates the universality of this strategy of protest.
It is worth quoting his account in full.
I think of a story of a young Pawnee brave, whose name comes back to me as Peshwataro. In his day the law of the Pawnee commanded that on the day of the summer solstice there take place the sacrifice of the star maiden. A girl was each year captured from a neighboring tribe and bound to a stake. At dawn, the Pawnee braves would ride in a circle about her and shoot their arrows into her. This was not done for sport, but because, like so much that seems cruel in so many societies, it was thought to be a cruelty necessary to the maintenance of the moral and religious order. Many Pawnees, through what processes and influences I cannot say, came to disapprove of it and talked of doing away with it, but it was the law, and conservatism was too strong. Then one summer solstice at dawn this Peshwataro, a young man of high repute within the tribe, broke from the circle before an arrow was shot, rode furiously to the stake, freed the girl of that year, slung her in front of him, and escaped with her. He left her with her people and then rode back, much as Gandhi might have done, to submit himself to his fellows. As it happens, they did nothing. It was time, really, to stop this business; they had only needed an act of such courage to make that clear.674
(2) Religious civil disobedience
The first crimes of conviction among the colonists in the United States
took the form of defensive civil disobedience when members of religious
minorities refused, under pain of severe persecution, to comply with
governmental violations of the principle of religious freedom. The
674See Black Texas Law Review 1965 492 at 493.
Quakers, for example, refused to pay taxes to support the colonial
Massachusetts Church.675 As described elsewhere, this history indirectly
influenced Gandhi.676
Some of the most important constitutional decisions of the United
States Supreme Court regarding defensive civil disobedience involve a
clash between the convictions of very religious people on the one hand
and governmental demands on the other. In the “flag salute cases”,
Jehova’s Witnesses attacked public school regulations requiring
students to salute the American flag. The Witnesses maintained that
this was “forbidden by demands of scripture.” In Minersvi11e School
District v Gobatis,677 the Court upheld the regulations. In West
Virginia Board of Education v Barnette,678 barely three years later, the
Court overruled its own decision in Gobatis and struck down the
regulations.679
In Wisconsin v Yoder680 the respondents, who belonged to the Amish
religious group, were fined in the court a quo for their refusal to
send their children to high school. The respondents believed that by
doing so they would endanger their own salvation and that of their
children. On the basis of freedom of speech, their conviction was set
aside by the Supreme Court.
(3) Anti-slavery resistance
The issue of slavery in the mid-Nineteenth Century and its legal
ramifications deeply troubled many Americans. It led to widespread
conscience-based defiance of the law, mostly in the form of clandestine
but non-violent disobedience.
The prime cause of conscientious resistance at this time was aimed at
the Fugitive Slave Act of 1850, which made it a crime for Northerners
not to return slaves who had escaped from the South to their “rightful
675Weber Civil disobedience In America 35ff. 676See supra chap three III B (2)(a). 677310 US 586 (1940). 678319 US 624 (1943). 679For a full discussion of these cases, see Harpaz Texas Law
Review 1986 817 at 820ff. 680406 US 205 (1972).
owners”.681
As a result of these events, the idea of conscientious breaking of the
law was discussed for the first time on a national level.682 In the
northern parts of the country, public resolutions were passed at
meetings of citizens opposed to the law, pledging the defiance of the
law. While some equated such behaviour to “treason” and emphasised the
need for a “religious reverence for the laws”,683 others formed the
“underground railroad”,684 which assisted escaped slaves from being
captured.685
Civil disobedience, however, proved inadequate to resolve this issue.
Only after the Civil War (1861-1865), the Thirteenth, Fourteenth and
Fifteenth Amendments were passed which abolished slavery, guaranteed
the former slaves’ citizenship and protected their right to vote.
(4) Henry David Thoreau
Henry David Thoreau’s famous act of civil disobedience in the 1840's
was prompted by the American government’s endorsement and enforcement
of slavery, as well as its involvement in the war against Mexico. His
refusal to pay taxes as an act of protest landed him in prison for one
night, after which the fine imposed was paid on his behalf.686
In his 1848 essay, later called “On the duty of civil disobedience”,
681Art IV, s 2 of the United States Constitution provided in principle that escaped slaves should be returned. Provision for the enforcement of this clause was made by an Act of 12 February 1793, Ch 7, 1 Stat 302 (1793). The so-called "Fugitive Slave Act", Ch 60, 9 Stat 462 (1850) (eventually repealed by the Thirteenth Amendment, s 1) made it a criminal offence to knowingly hinder any person from arresting a runaway slave, to rescue a fugitive from slavery or to assist a slave escaping, inter alia by harbouring or concealing such fugitive. All citizens were commanded to "aid and assist in the prompt and efficient execution of this law." For a fuller discussion, see Cover Justice accused 159ff. See also Weber Civil disobedience in America 99ff.
682 Weber Civil disobedience in America 95. 683Ibid. 684For the legal background of the "underground railroad", see
Villarruel Southern California Law Review 1987 1429 at 1437ff. 685Weber Civil disobedience in America 94. 686For the history of this era, see Alien University of Cincinnatti
Law Review 1967 175 at 178ff.
Thoreau justified his conduct.687 He gave a spirited and articulate
defence of minimal government, after stating his case for maximum
individual liberty in absolute terms. He maintained that “the only
obligation which I have a right to assume is to do at any time what I
think right.”688 Thoreau asked:
Can there not be a government in which majorities do not virtually decide right and wrong, but conscience? In which majorities decide only those questions to which the rule of expedience is applicable? Must the citizen ever for a moment, or in the least degree, resign his conscience to the legislature?689
He proceeded: “How does it become a man to behave toward this American
government today? I answer, that he cannot without disgrace be
associated with it. I cannot for any instant recognise that political
organization as my government which is the slave’s government
also.”690In respect of the invasion of Mexico, Thoreau argued that the
need to rebel against the United States government is so much the
greater since “the country ... overthrown is not our own, but ours is
the invading army.”691 Thoreau did not explicitly propagate positive
civil disobedience, but he interpreted the scope of negative civil
disobedience quite widely. He argued that Americans should not only
refuse to fight in an unjust war, but that they should also refuse to
pay taxes that could be used to support the belligerent effort.
Thoreau rejected the use of civil disobedience in every case where
one’s opinions differed from that of the government: “I came into this
world, not seeking to make it a good place to live in, but to live in
it, be it good or bad.”692 We have to be prepared to live with some
injustice. In the present case, however, he argued that he had no
option other than civil disobedience, since the state’s “very
constitution is ... evil”.693 Thoreau urged people to use their "whole
influence" to counter the majority when it went wrong. “A minority is
687The essay is reprinted in Thoreau Walden or. Life 1n the woods and On civil disobedience 249.
688Id 252. 689Ibid. 690Id 254. (Original emphasis.) 691Ibid. 692Id 259. 693Ibid.
powerless while it conforms to the majority ... but it is irresistible
when it clogs by its whole weight.”694 He wrote that “if a thousand men
were not to pay their tax bills” it would bring about a “peaceable
revolution”.695
Thoreau’s semi-anarchist approach generated little support during his
lifetime, but it would become highly influential in the next century.
He had a direct influence on the leadership of the Civil Rights
Movement and the anti-Vietnam protests and had an indirect influence on
Gandhi.696
(5) The Womens’ Rights Movement
Activists in the United States defied laws on a number of occasions in
pursuit of equality for women.697 This movement has been active to
varying degrees since the first Womens’ Rights Convention at Seneca
Falls, New York, in 1846, where the “Declaration of Sentiments” was
written and issued. A main tenet of the declaration was the need for
women to have the vote before the government could really claim to have
the consent of the governed.698
The issue of womens’ suffrage gave rise to widespread and persistent
activism, including acts of civil disobedience. From the outset, the
womens’ position was that their right to vote was guaranteed in the
Fourteenth and Fifteenth Amendment to the Constitution, even though it
was denied by statute. This was the basis upon which Susan B Anthony
and fourteen other women registered and voted in Rochester, New York in
1872.699 In 1875, the Supreme Court held that women were “citizens” of
the United States but were not entitled to vote in terms of the
constitution.700 Once this avenue was closed, the women concentrated
694Id 261. 695Ibid. 696See supra chap three III 8 (2)(a). 697See Weber Civil disobedience in America 179 and Flexner Century
of struggle 71ff. See also G Lakey "Technique and ethos in nonviolent action: The woman suffrage case" in Bosmajian Dissent 308 and Alien University of Cincinnatti Law Review 1967 175 at 181ff.
698This declaration is reprinted in Weber Civil disobedience in America 180.
699See Weber Civil disobedience in America 184ff. 700See Minor v Happersett 88 US (21 Wall) 162 (1894).
their efforts on getting a new constitutional amendment passed which
would ensure women the right to vote. They consequently turned from
legality-based to legitimacy-based civil disobedience.
The Woman Suffrage Movement reached a peak in 1917, when the White
House was picketed for the first time in history. Although the
demonstrations as such were not illegal, hundreds of protesters were
arrested, tried and imprisoned on arbitrary charges of "obstructing
sidewalk traffic”.701
In 1920, the right of women to vote was recognised when the Nineteenth
Amendment was passed.
(6) The Civil Rights Movement
The Civil Rights Movement finds a forerunner in the stand taken by A
Philip Randall, who argued in 1948 for a mass refusal of blacks to be
drafted into a segregated army. This achieved an executive order of
President Truman prohibiting racial discrimination in the armed forces.
In the course of testimony before the Senate Armed Services Committee,
Randall denied charges of treasonable conduct on the basis that, as a
loyal citizen, he wanted the country to live up to its aspirations as
“the moral leader of democracy”.702
The Civil Rights Movement was aimed at the inferior de facto and de
jure position of black people in the United States society in the
middle of this century, in spite of the lofty promises of the United
States Constitution and especially the Fourteenth and Fifteenth
Amendments.
To a large extent, the emergence of the Civil Rights Movement and its
use of civil disobedience was a consequence of Supreme Court rulings.703
By 1954, the National Association for the Advancement of Coloured
People (“NAACP”) had won 34 of the 38 civil rights cases it had brought
to the Supreme Court.704 The effect of Brown v Board of Education in the
701Weber Civil disobedience in America 196 and Flexner Century of struggle 294.
702His testimony is reprinted in Weber Civil disobedience In America 207. On the early history of black resistance in the United States, see Sitkoff The struggle for black equality 3ff; Skolnick The politics of protest 131 and Marable Race, reform and rebellion 1ff.
703See Sitkoff The struggle for black equality 19. 704See Barkan Protesters on trial 29.
south was, by all accounts, “electric”: “[I]t heightened the morale
among southern blacks and civil rights leaders, it increased their
hopes for change, and helped lead to the protest campaigns that
occurred later.”705
In view of the constitutional support which black aspirations found
from the highest court in the country, it was only natural that their
resistance would often assume the form of legality-based civil
disobedience.
Although the Civil Rights Movement was largely a spontaneous national
movement which had many leaders, Martin Luther King and the Southern
Christian Leadership Conference (“SCLC”) established themselves as the
most prominent in this regard. The following campaigns and events were
among the most decisive.
(a) The Montgomery Bus Boycott 1955-1956
Unlike the other campaigns of defiance of this century where
organization and planning largely preceded defiance, the Civil Rights
Movement was triggered by a spontaneous act of resistance. In 1955, in
the state of Alabama and in many other southern states, seating in
public buses was segregated along racial lines. On 1 December, on a
Montgomery bus, a black woman, Rosa Parks, refused to give up her seat
- which was designated for blacks - to a white passenger, upon being
ordered to do so by the bus driver and later by the police. She was
arrested and charged with the violation of a city ordinance and was
eventually convicted and sentenced to pay a fine of $10.706
The situation had the makings of a classical case. A woman identified
an obvious injustice and engaged in an act of defensive civil
disobedience.707 The stage was set for a dramatic turn of events when
the political attitude of black Americans would turn from defensive to
result-oriented civil disobedience.
705Ibid. 706For a full and thorough discussion of the legal aspects of the
case and the ensuing boycott, see Kennedy The Yale Law Journal 1989 999 and Barkan Protesters on trial 34ff. See also Lomax The Negro revolt 81ff and Sitkoff The struggle for black equality 41ff.
707She later said that she did not plan to "stage a protest" when she refused to vacate the seat. See Kennedy The Yale Law Journal 1989 999 at 1018 n 113.
After the arrest of Rosa Parks, the Womens’ Political Council, a black
womens’ civil organization, took the lead in organising a one-day
boycott of the buses by blacks. This action was mainly successful and
gave rise to the Montgomery Bus Boycott, which lasted for more than a
year. The boycott was organised by a new umbrella body, called the
Montgomery Improvement Association, over which King was chosen to
preside. As with other campaigns, the movement at this early stage was
characterised by its conservatism. King emphasised that “[w]e are not
asking for an end to segregation.”708 At this stage he was merely
seeking a way to make the prevailing system more acceptable to black
people.
As the boycott continued, the city authorities invoked a 1921 law for
trying King for conspiring “without a just cause or legal excuse” to
hinder a lawful business.”709 Because of its political implications,
wide publicity afforded the case national attention. King was convicted
and sentenced to a fine of $1 000 with alternative imprisonment. He
refused to pay the fine, but it was paid on his behalf. In this
particular case only the question whether or not King's conduct came
within the scope of the particular statute was considered by the court.
The wider constitutional issues were not discussed.
The break-through came when the constitutional merits of the Montgomery
bus segregation statutes reached the Supreme Court in Gayle v
Browder,710 where it was decided that de jure segregation on the buses
violated the Fourteenth Amendment of the Federal Constitution, on the
basis inter alia, of the precedent in Brown v Board of Education. The
first round of the struggle ended with a victory for the Civil Rights
Movement in the highest court of the USA. In future, most of the
activities of the Civil Rights Movement would be conducted with the
hope of vindication by the Supreme Court in terms of the constitution.
The Montgomery boycott and its positive outcome had important
consequences, not only for the government but also (and especially) for
the Civil Rights Movement. It demonstrated the Movement’s ability and
sense of responsibility, and provided a resource to the movement to
708Id 1026. 709S v King 98 So 2d 443 (Ala Ct App 1957). 710352 US 903 (1956).
rely on in the difficult times to come.711
(b) Little Rock 1957
In September 1957, the school board of Little Rock, Arkansas, acceded
to a federal court order in the wake of Brown by admitting nine blacks
to the Central High School as a first step towards integration.
Governor Orval Faubus, however, seeking gubernatorial re-election on a
racist ticket, decided to obstruct the order. He had the school
surrounded by National Guardsmen and the children were prevented from
entering the school.
Another order was issued by the Federal District Court in Arkansas.
After three weeks, President Eisenhower sent in federal troops to
escort the children to school. Eisenhower personally opposed the Brown
decision, but he was bound by the Constitution to uphold the laws of
the land and would have been embarrassed by international publicity if
he were to disregard this obligation.712
(c) The lunch-counter sit-ins 1960
A spontaneous movement of civil disobedience developed in 1960 in 113
southern towns when privately initiated segregation in departmental
stores was challenged by black people. The protesters sat at lunch
counters reserved for whites. They were refused service but remained in
their seats until normal closing time, and returned to the counters on
succeeding days.713
These sit-ins started in Greensboro, North Carolina, and at least 70
000 people - black and white - eventually participated. Special
workshops on non-violence, based to some extent on Gandhi’s
teachings, prepared those participating not to respond aggressively to
brutal attacks. Presidential candidate John F Kennedy gave his support
to this type of protest.
The decision to have segregated counters rested with the proprietor.
This meant that the initial act of sitting down at the counter did not
711See Kennedy The Yale Law Journal 1989 999 at 1066. 712See, in general, Freyer The Little Rock crisis and Sitkoff The
struggle for black equality 29ff. 713See Barkan Protesters on trial 37; Lomax The Negro revolt 81ff;
Sitkoff The struggle for black equality 69ff and Marable Race, reform and rebellion 66ff.
constitute a violation of any segregation laws. The real question,
however, was whether the refusal to leave once one had been denied
service and asked to leave constituted trespass. To this question there
was, and still is, no clear legal answer.714 However, the campaign was
highly successful in disrupting services and reducing profits - and
eventually in moving proprietors to desegregate their facilities. The
cost was high, however, in terms of humiliation and abuse - physical
and otherwise which those participating had to endure.
(d) The freedom rides 1961
At the end of 1960, American blacks, dissatisfied with the gains in
their struggle against institutionalised racism, turned to more
confrontational tactics. At the end of the year, the Supreme Court
extended an earlier prohibition on segregation on vehicles engaged in
interstate travel to apply to all terminal accommodations.715 The
decision was taken to test the practical application of this principle
in the South.716
The first “freedom ride” left Washington DC in May 1961 for New
Orleans, Louisiana, with the purpose of challenging segregation laws
and practices along the way. The passengers were attacked along the way
by whites opposed to desegregation. In Ariston, Alabama the windows of
the bus were smashed, tires slashed and passengers were beaten. The bus
was eventually fire-bombed. The occupants of a second bus were also
beaten in Ariston. In spite of the most brutal attacks by mobs on those
participating, the local police refused to intervene.
These events became headline news all over the world. Editorials in
Africa and Asia commented that the United States government’s
compromising with racial discrimination and violence, would make it
impossible for the country “to sell to the outside world, especially
the non-white world, that she stands for equality of all men.”717 The
Kennedy administration considered its international reputation
714However, all the convictions were set aside on appeal. See eg Garner v Louisiana 368 US 167 (1961). For a discussion, see H Kalven "Trespass and the First Amendment" in Bosmajian Dissent 95. See also Black Texas Law Review 1965 492 at 497. The matter was rendered moot by the Civil Rights Act of 1964.
715Bovnton v Virginia 364 US 454 (1960). 716See Lomax The Negro revolt 132ff. 717See Sitkoff The struggle for black equality 105.
threatened.
Attorney-General Robert Kennedy demanded protection for the buses from
Alabama’s governor. A new group of passengers set out under police
protection for Montgomery. They were nevertheless mobbed, and Kennedy’s
emissary was assaulted. Six hundred federal marshals were sent in to
preserve the peace. Passengers protected by the national guard now took
a bus to Jacksonville, Mississippi, where many were arrested for
breaking segregation laws. They went to prison instead of paying fines.
By the end of the summer, more than 1 000 people had participated in
the freedom rides.
Victory came when the federal government, convinced that an end to the
arrests and demonstrations was “vital to [its] conduct of international
affairs”, issued rules prohibiting discrimination in interstate
facilities.718
(e) Birmingham 1963
In Albany, Georgia, over 1 200 protesters were arrested in 1961 and
1962 for sit-ins, demonstrations, marches etc. Those arrested more than
once included Martin Luther King. The anti-segregation activities in
Albany, however, were not successful for a variety of reasons. Those
reasons included the state’s effective use of the criminal justice
system, both on local and eventually federal level, and the
sophistication of the local police under Laurie Pritchett, which also
adopted a “non-violent” strategy against the protesters.719 The
protesters were discouraged and their morale was low.
In a desperate move, King and others now prepared what they called
“Project C” (“C” for confrontation) to tackle the most segregated city
in the United States, Birmingham, Alabama. They issued a manifesto
setting out their grievances. Thereafter they staged sit-ins in
Birmingham, to draw the attention of the media and the federal
government to the looming showdown. Then they started with public
demonstrations.
A local court injunction prohibited civil rights demonstrations, and
thousands of protesters were arrested by the police under “Bull”
Connor. King announced his intention to participate in a demonstration.
718Id 110. 719Barkan Protesters on trial 69.
On Good Friday he was arrested. While in prison in April 1963, King
wrote his “Letter from Birmingham City Jail”, which will be discussed
presently.
Widespread demonstrations occurred. The televised images that shook the
country and the Federal Government was that of the use of dogs, fire
hoses (“that stripped the bark of trees”) and clubs against unarmed
protesters, many of whom were children. An accord was reached between
the leadership of the SCLC and white businessmen in Birmingham.
Demonstrations would stop and the city would be desegregated. This was
rejected, however, by segregationist and white supremacist groups, such
as the Ku Klux Klan, who attacked blacks at random. The house of King’s
brother was dynamited. The segregation signs did not disappear. After
fierce clashes all over the country, which involved the use of violence
by vigilante groups on both sides. King’s leadership helped restore
order.720
The victory of the demonstrations was certain when the Supreme Court on
20 May ruled that Birmingham’s ordinances upholding segregation were
unconstitutional and overturned the convictions of those arrested under
those laws.721 The Federal Government also made its commitment clear in
respect of what later would be enacted as the 1964 Civil Rights Act.
Before that could materialise, however, demonstrations in other
communities followed in the wake of the success in Birmingham - inter
alia in Danville, Virginia722 and Selma, Alabama.723 The same pattern
repeated itself. In Danville, Pritchett’s “non-violent” strategy was
followed by the authorities, with disastrous consequences for the
movement. In Selma, the police followed a strong armed policy, which
gave the movement the press coverage and legitimacy it sought.724
720See Barkan Protesters on trial 69 and Sitkoff The struggle for black equality 137.
721See Cox v Louisiana 379 US 536 (1965) and Cox v Louisiana 379 US 559 (1965). The appellants in these cases held a brief sit-in in a library which was racially segregated. They were convicted in the court a quo of a breach of the peace. In a 5-4 decision, the court held that, because the segregation was unconstitutional, the appellants had a "right to protest" against it.
722See Barkan Protesters on trial 74. 723Id 79. 724On the Selma march, see Marshall Virginia Law Review 1965 785
(f) The March on Washington 1963
August 1963 saw the tumultuous “March on Washington”, with a quarter of
a million people peacefully and lawfully assembling in Washington DC.
Here King delivered his now famous “I have a dream” speech, in which he
sketched his vision of a non-racial America.725 To many white Americans
the image of black resistance turned from one of dark anger, to one of
accessible eloquence. It was a major victory for non-violent action.
(g) The Mississippi Summer Project 1964
Perhaps the clearest demonstration of the use made during the Civil
Rights Movement of the indirect strategy of appealing to the
“benevolent background force” of the Federal Government and broader
electorate, came from the so-called “Mississippi Summer Project” in
1964. Lawyers and law students from the North came to Mississippi to
assist in civil rights cases. They were told during their training:
“You just can’t win civil rights cases in the local and state courts in
the South; your important job will be to help local council build a
solid foundation for an eventual and successful appeal to the US
Supreme Court.”726
(h) The Civil Rights Act 1964
The ideals of what was by now called the Civil Rights Revolution were
given official sanction in 1964 when the Civil Rights Act727 was passed
by Congress against the vote of most of its Southern members. The Act
was designed to eliminate “the last vestiges” of discrimination. The
anti-discriminatory provisions of the 1964 Act were both comprehensive
and enforceable. Amongst other things, it guaranteed everyone’s equal
access to all publicly owned and operated facilities.728
The Civil Rights Act also paved the way for later legislation such as
at 787. 725See King A testament of hope 217 and Sitkoff The struggle for
black equality 160ff. 726Barkan Protesters on trial 84. 727Pub L no 88-352, 78 Stat 241 (codified as amended in scattered
sections of 42 USC s 1971 (1982)). For a discussion, see Graham The civi1 rights era 125ff.
728Title II, upheld in Heart of Atlanta Hotel v United States 379 US 241 (1964).
the Voting Rights Act of 1965,729 which enfranchised the mass of
Southern Blacks (and, ironically, even greater numbers of whites). The
use of civil disobedience by black Americans would not cease, but a
major battle was won.730
No doubt, the most influential figure in this course of events was
King. His approach will now be considered.
(i) Martin Luther King
As mentioned earlier, Martin Luther King, Jr (1929 - 1968), while
imprisoned for his part in the civil rights demonstrations in
Birmingham in 1963, wrote his famous “Letter from Birmingham City
Jail”. The letter was a response to fellow (white) ministers who called
the civil disobedience campaign “unwise and untimely”, because they
were of the opinion that it would incite civil disturbances.731 The
letter contained a comprehensive exposition of his views on civil
disobedience.
In the letter King defended his presence and activities in Birmingham
(not his home-town), on the basis that “whatever affects one directly
affects all indirectly.”732 He stated that the protesters had “no other
alternative” than civil disobedience.733 Especially in Birmingham,
“Negroes” were the victims of a “broken promise”,734 since the leaders
of the economic community had promised to remove humiliating racial
signs from their stores but had declined to do so. The campaign was
started only after extensive workshops on the discipline of non-
violence.
Civil disobedience was justified by King, with reference to Socrates,
on the basis that it generated the creative tension needed to bring
about social reform. “The purpose of the direct action is to create a
situation so crisis packed, that it will inevitably open the door to
729Pub L no 89-110, 79 Stat 437 (codified as amended at 42 USC s 1973 (1982)). Its challenged provisions were upheld in South Carolina v Katzenbach 383 US 301 (1966).
730For an overview of the political history of black Americans after 1964, see Marable Race, reform and rebellion 95ff.
731The letter is reprinted in King A testament of hope 289. 732Id 290. 733Ibid. 734Ibid
negotiation”,735 which is the real goal. Confrontation, however, is
necessary because “[w]e know through painful experience that freedom is
never voluntarily given by the oppressors; it must be demanded by the
oppressed.”736
King recognised the ambiguity of demanding obedience to some aspects of
the law (such as the Brown decision) but disobeying others:
One may well ask, “How can you advocate breaking some laws and obeying others?” The answer is found in the fact that there are two types of laws: there are just and there are unjust laws. I would agree with St Augustine that “an unjust law is no law at all”.737
The question is, however, “what is the difference between the two? How
does one determine when a law is just or unjust?”738 “An unjust law is a
code that a majority inflicts on a minority that is not binding on
itself. This is difference made legal.”739 King stated that “an unjust
law is a code inflicted upon a minority which that minority had no part
in enacting or creating because they did not have the unhampered right
to vote.”740
King was very specific as to the attitude with which civil disobedience
should be practised:
In no sense do I advocate evading or defying the law as the rabid segregationist would do. This would lead to anarchy. One who breaks an unjust law must do so openly, lovingly ... and with a willingness to accept the penalty. I submit that an individual who breaks a law that conscience tells him -is unjust, and willingly accepts the penalty by staying in jail to rouse the conscience of the community over its injustice, is in reality expressing the very highest respect for law.741
King’s policy of non-violent resistance had its roots in Christianity
and in his admiration of Gandhi. According to King, “Christ furnished
735Id 292. 736Ibid. 737Id 293. (Original emphasis.) 738Ibid. 739Id 294. 740Ibid. 741Ibid. (Original emphasis.)
the spirit and motivation, while Gandhi furnished the method.”742 King
explicitly modelled his campaign on those of Gandhi.”743 The strategy
that was used was to defy segregation laws peacefully. This defiance
and the brutality that followed was then portrayed by the media to the
nation and to the world.744 This provided the moral context in which the
relevant cases were eventually argued and decided.
King clearly saw the benefits that non-violent resistance held for
those who practise it: “The nonviolent approach does not immediately
change the heart of the oppressor. It first does something to the
hearts and souls of those committed to it. It gives them new self-
respect; it calls up resources of strength and courage that they did
not know they had.”745
King used civil disobedience as an instrument of immanent critique of
his opponent. “Negroes”, King argued, “by their direct action are
exposing the contradiction [between federal and non-federal law].”746
What King was after, was for blacks to “acquire [their] citizenship to
the fullness of its meaning.”747 He was not asking for anything which
the government had not promised. He simply wanted, as he often put it,
to redeem the soul of America.
Only in the time immediately before his death did King promote more
radical action than legality-based civil disobedience. His aims, for
that period, were not only to secure the rights enumerated in the
Constitution, but to bring about the advancement of blacks generally;
742Id 17, 88. 743See Id 7, 16, 18, 26, 32-34, 36, 103, 149, 164, 447, 485, 486,
583. For an account of King's first exposure to Gandhian ideas, see Watley Roots of resistance 48ff.
744See Barkan Protesters on trial 34. 745King The words of Martin Luther King 79. 746Webber Civil disobedience in America 221. King said in the
speech "I've been to the mountain top", reprinted in King The words of Martin Luther King 93 at 93: "If I lived in China or even Russia, or any totalitarian country, maybe I could understand the denial of certain basic First Amendment privileges, because they hadn't committed themselves to that over there. But somewhere I read of the freedom of assembly. Somewhere I read of the freedom of speech. Somewhere I read of the freedom of the press. Somewhere I read that the greatness of America is the right to protest for right."
747Quoted by Kennedy The Yale Law Journal 1989 999 at 1021.
for the first time he also propagated the defiance of a federal court
order. King propagated a campaign whereby an initial group of 3 000
people would “camp out” in the offices of high officials as long as it
is necessary to fight the war on poverty and to obtain a new economic
deal for the poor.748 King now propagated the wide use of a highly
coercive, although not a violent, strategy whereby an extra-legal
attempt would be made to secure second generation rights for black
Americans. Before this campaign was embarked upon, however, King was
assassinated.
(7) The anti-Vietnam protests of the 1960’s
In the early 1960’s the United States began drifting into a war in
South East Asia, which would bring the deepest division in the American
nation since the Civil War.749 In the resolution of the domestic
conflict, civil disobedience would again play a major role.
For various reasons, which need not be canvassed here, America provided
economic and non-combat military assistance to the South-Vietnamese
government in its conflict with the guerrillas of the communist
National Liberation Front, backed by the Viet-Cong. American
involvement gradually increased over the years. Approximately 16 000
American troops were stationed in Vietnam in 1964.
In August 1964, a United States destroyer was attacked in the Gulf of
Tonkin by North Vietnamese patrol boats, while the destroyer was (at
least according to first reports) in international waters. The Gulf of
Tonkin resolution pledged full congressional support for any action by
President Johnson in defence of the United States troops in South
Vietnam.750
Shortly after passage of the resolution, about 60 people demonstrated
in midtown Manhattan against the War. Seventeen were arrested. A week
748See "The trumpet of conscience", reprinted in King A testament of hope 651.
749A number of useful articles and documents relating to the political and military history of the Vietnam War are reprinted in Raskin & Fall The Viet-nam reader. Higglns Vietnam 97ff deals with the domestic implications of the War. The Issue of free speech and protest against the War is dealt with by Schechter Contemporary constitutional issues 38ff.
750The resolution was passed in the House of Representatives by 416 to 0 votes and 1n the Senate by 88 to 2 votes.
later, 40 more demonstrators were arrested at a second protest meeting.
It was the beginning of another major campaign of civil disobedience.
In 1965, President Johnson dramatically increased the American war
effort in Vietnam, which in turn resulted in a drastic escalation in
draft calls. Letters were addressed to newspapers and politicians and
other legal channels were followed by those opposed to the War. A
group, called the “Women Strike for Peace”, held a large vigil outside
the United Nations, precipitating further arrests. “Teach-ins” and
rallies were held at colleges and universities across the country. A
group of 3 000 marchers were led to a rally in front of the United
Nations headquarters by child-care expert, Or Benjamin Spock. Over 15
000 people picketed the White House.
In July 1965, it was announced that the commitment of American troops
in Vietnam, who were now engaged in defensive and offensive combat,
would be raised to 125 000, and monthly draft calls would be doubled
from the June rate of 17 000 to 35 000. By this time it was clear that
the War was becoming more and more unpopular at home. Draft centres
were picketed, attempts were made to stop trains carrying soldiers to
embarkation points, and at least five young men publicly burnt their
draft cards. An amendment751 to the Universal Military Training and
Service Act,752 passed in the same year, rendered the mutilation or
destruction of a draft card a felony, punishable by up to five years’
imprisonment and a fine of up to $10 000.
The increased severity of the government’s approach, both in Vietnam
and at home, was challenged by those questioning the justification of
the War. Especially the draft-card-burning amendment was bound to be
challenged on the ground that this kind of action constituted a
legitimate expression of symbolic speech, protected by the First
Amendment.
A young pacifist by the name of David Miller was the first to be
arrested and eventually convicted for publicly burning his draft card
in New York City in October 1965. His argument that such action was
protected as an expression of free speech was rejected by the Court of
751111 Cong Rec 19669 (1965). 75279 Stat 586 (1965).
Appeals for the Second Circuit.753 A number of people, however, followed
his example, with the same result.754 Nationwide demonstrations were
held. On Thanksgiving Day, 20 000 opponents of the War marched on
Washington. Similar acts of protest continued through 1966.
By the end of 1966, 16 people had been convicted under the 1965
amendment, and the constitutionality of the law had been upheld in a
number of appeals. The Supreme Court denied certiorari in Miller’s
case.755 It was clear that the courts were more reluctant to deal with a
foreign policy issue such as the Vietnam War than with a domestic issue
as was the case during the Civil Rights Movement. What was at stake now
were not state and local laws that clashed with those of the Federal
Government, but the actions of the Federal Government itself in its
international relations.
Through a legal quirk, however, the Supreme Court eventually had to
rule on the issue. A pacifist by the name of David O’Brien had burnt
his draft card in public. On trial he admitted that his intention was
to urge other people to do the same and to refuse to “co-operate with
murder”.756 His appeal against his conviction by a lower court was heard
by the First Circuit, which ruled that the ritual of burning a draft
card was in fact a form of symbolic speech which was protected by the
First Amendment. Nevertheless, his conviction was sustained on other
grounds. Both O’Brien and the government decided to appeal. The Supreme
Court was now forced to hear the case and bring clarity in the matter.
It ruled (7 to 1) that the draft card amendment law did not violate
free speech and was constitutional.757
A body of jurisprudence also developed in connection with refusing to
serve in the armed forces for reasons of conscience or encouraging
753This view was upheld by the Court of Appeal for the Eight Circuit. See Schechter Contemporary constitutional Issues 50.
754Id 49. 755386 US 911 (1967). 756O'Brien v United States 376 F 2d 538 (1967). 757United States v O'Brien 391 US 367 (1968). For a discussion of
this case, see J E Leahy "'Flamboyant protest', the First Amendment, and the Boston Tea Party" 1n Bosmajian Dissent 47 at 58. The case is discussed in more detail infra chap six IV B (1).
others to do the same. This is discussed elsewhere.758 Suffice it to say
that individuals who engaged in conscientious objection were often
treated with exceptional leniency.
In 1970, resistance against the War was jolted by the invasion and
virtual devastation of Cambodia by the United States. Demonstrations
occurred on many campuses throughout the country. The uproar increased
when Ohio National Guardsmen shot and killed four students during
protests at Kent State University.
In the Anti-Vietnam Campaign, less stress was placed on non-violence
and non-coercion, compared to the Civil Rights Movement. In a number of
cases, low-level violence was indeed used to propagate the anti-war
cause, and the actions of people such as the “Cantonsville Nine”, who
poured blood over draft records, received considerable publicity.759 At
the same time, there was a massive increase in the level of legal
political protest, manifested in mass demonstrations, peaceful vigils,
protest letters, songs, speeches and so forth.
Towards the end of the 1960’s it was clear that politicians, in order
to secure their own political survival, could not support the War. In
the end it was public opinion, mobilized by a variety of factors that
included civil disobedience, which drove Lyndon Johnson from office and
seriously limited Richard Nixon’s options.760
In 1973, the United States signed an agreement to end the War. Nixon
called it “peace with honour”; many saw it as disgraceful defeat. In
the course of events, civil disobedience and conscientious objection
played a mayor role. It is estimated that the number of draft dodgers
and deserters ranged up to 100 000. More than 10 000 stayed abroad
after the War ended and Nixon refused to grant them amnesty.761
The legal implications of a number of more sporadic incidents of
individual civil disobedience in the United States will be discussed
later.762
758Infra chap six IV B (2). 759This case is discussed by Barkan Protesters on trial and Weber
Civil disobedience In America 275. 760See Schechter Contemporary constitutional Issues 37ff. 761See Link et al The American people 990. 762See infra chap six IV B.
D. SOME OTHER INSTANCES OF MASS, RESULT-ORIENTED CIVIL DISOBEDIENCE
The above historical survey might have created the impression that mass
civil disobedience is inevitably successful and used in pursuit of
laudable aims. The focus was mainly on cases where civil disobedience
eventually succeeded in, or contributed towards, bringing about the
desired changes in the behaviour of the adversary. We have also
concentrated on instances of civil disobedience where most people today
would agree that the objectives pursued were commendable (even if it is
still controversial whether the use of civil disobedience was
justified).
There are, however, many instances where civil disobedience did not
succeed, as well as cases where the goals pursued were commonly
regarded as unacceptable or at least as highly controversial. In order
to present a more balanced picture, a number of these examples will now
briefly be mentioned.
Earlier, reference was made to the standard example of a case where
civil disobedience in all probability would not have succeeded, namely
that of Nazi Germany. Indeed, very limited use was made of civil
disobedience in this case, where a ruthless and independent opponent
had to be confronted.763 Einstein, for example, who was known for his
pacifist convictions after the First World War, changed his mind when
the Third Reich was established. In 1933, he wrote pacifists that
rendering military service was necessary “to save European
civilization”.764
Perhaps the clearest recent example of a situation not amenable to
civil disobedience comes from the People’s Republic of China. Since May
1989, protesters - mostly students from Peking University - staged
peaceful pro-democracy demonstrations in Tiananmen Square in the centre
of Beijing, where an illegal sit-in was held in which thousands of
people participated. Amongst other things, a replica of the American
Statue of Liberty was erected. Clearly the prime target of the
protesters was the outside world. In spite of the imposition of martial
763See Foot Resistance 44, 90, 275, 282 and Romoser Social Research 1964 73. There were, however, some notable examples of non-violent resistance 1n Denmark and Norway.
764Nathan & Norden Einstein on peace 172.
law, the demonstrations continued.765
After several threats to the demonstrators from the authorities (and
apparently after the police had refused to quash the demonstrations),
the government called in the military, on the night of 3 to 4 June, to
clear the square. At least a thousand civilians were killed and
thousands more were injured when the troops fired indiscriminately into
the crowds and overran bicycles with tanks. The crushing of the
demonstrations was officially justified as an act of self-defence on
the part of the troops who were allegedly confronted by a "shocking
counter-revolutionary rebellion”.766
Without going into any details, it seems fair to say that the Chinese
government was too ruthless to be moved by the moral appeal of such
demonstrations, and too independent and too strong to be moved by
outside pressure.
A number of cases where the threat of civil disobedience was used to
pursue objectives which can at least be described as controversial have
been alluded to. Reference was made to Or Malan’s threat to defy a ban
on meetings in support of the Ossewabrandwag, the support of Bill
O’Connor and Dr Andries Treurnicht of civil disobedience as a method of
resisting political reform in their countries, as well as the recent
siege of Pretoria by farmers who blocked the major roads in the city.
It s perhaps revealing, however, that civil disobedience was actually
used (as opposed to merely threatened) in few cases only, in pursuit of
such causes. That is so presumably because the people involved realised
the vulnerability of their position in the moral sense. In practice,
civil disobedience tends to be employed in pursuit of objectives that
are widely regarded as morally sound, although there is no principled
reason why it cannot be used in pursuit of obnoxious goals.
Arguably, the most controversial but at the same time the most
widespread use to which civil disobedience was put in recent years has
been the expression of protest against nuclear power and the
development and deployment of nuclear weapons. The development of
nuclear facilities - be they peaceful or military - does not place
direct legal duties on anyone. Consequently, protests against it have
765See the report of Amnesty International Death in Beijing Oct 1989 5ff.
766Id 7ff.
traditionally taken the form of indirect civil disobedience, in the
sense that crimes such as trespassing were committed to express protest
against the government’s nuclear policy. Perhaps because the novelty
of civil disobedience has also to some extent worn off in other
campaigns, anti-nuclear protests have thus typically take the form of
entering the premises of the nuclear facilities, blocking the
entrances, people chaining themselves to the premises, massive – often
violent – demonstrations and ships into areas where nuclear tests were
to be conducted.767
Closely akin to anti-nuclear protest are pro-environment acts of
resistance, aimed at drawing attention to the destruction of the
planet. Although certain groups advocating this cause have acted in a
radical and highly coercive manner,768 others chose the road of civil
disobedience.769
Having completed the overview of the historic development of civil
disobedience, the way in which this form of protest is seen under the
South African positive law will now be considered.
767See Weber Civil disobedience in America and Dworkin A matter of principle 104ff.
768See the discussion of "ecosabotage" and "monkey wrenching" in Martin Environmental Ethics 1990 291 at 292ff.
769On the activities of the "Greens" in Germany, see Papadakis The Green Movement in West Germany in general, and 67, 83 in particular.
CHAPTER FOUR:
CIVIL DISOBEDIENCE UNDER THE
SOUTH AFRICAN POSITIVE LAW
Over the years, politics and law in South Africa have developed a close
relationship. It is not surprising, therefore, that civil disobedience,
as a form of illegal political protest, on a number of occasions has
attracted the attention of the legislature and the courts. Although
there are some direct references to civil disobedience in South African
law, the full impact of the law on civil disobedience can only be
appreciated in the wider context of crimes of protest.
As indicated earlier, civil disobedience is “illegal” in the sense that
it provokes the coercive powers of the state. In a society where the
rule of law is not consistently observed, as in South Africa, not only
the provisions of the criminal law, but also the prerogative powers of
the executive, should be considered in order to establish what the
official powers of the state embrace in this regard. In what follows,
the most important implications of the criminal law and the powers of
the executive relating to crimes of protest in general, and acts of
civil disobedience in particular, will be analysed. Thereafter, the
effect of having committed a crime of protest on the perpetrator’s
ability to practise law will be considered. The chapter will conclude
with a discussion of the law relating to conscientious objection to
military service.1
I. IMPLICATIONS OF THE CRIMINAL LAW FOR CIVIL DISOBEDIENCE
Civil disobedience in most instances involves a transgression of the
norms of criminal law, and it is consequently the criminal law that has
the most direct implications for this form of protest.2 These
1The decision in Deneys Reitz v South African Commercial. Catering and Allied Workers Union S. others 1991 2 SA 685 (W) does not fit into the above framework. In this case a trade union accepted a "programme of action" in terms of which the offices of a firm of attorneys, considered to be right-wing, would have been picketed. The Court set aside the decision. It held that the question whether someone has the "right to picket" must be determined with reference to the norms prevailing in a democratic society (at 691) and the rights of others (at 694). The envisaged picketing would have constituted undesirable coercion of the right to free activity of the firm of attorneys.
2 As indicated earlier, civil disobedience does not necessarily involve the commission of a crime. See supra chap two I A.
implications manifest themselves on three levels.
In the first place, civil disobedience may entail, what will be called,
the “primary offence” - that is, the offence or illegal action through
the commission of which the protest is expressed.
In the second place, there are legal provisions designed to provide for
special treatment of persons having committed crimes of protest,
including acts of civil disobedience. These provisions by and large
relate to the sentences that can be imposed for the commission of the
primary offence, but, as will be demonstrated, it is also possible that
commission of the primary offence could render the perpetrator liable
to be charged with additional - and often more serious - offences.
In the third place, there is a body of laws aimed at counter-acting the
encouragement or assisting of other persons in commiting crimes of
protest.
Insofar as these secondary and tertiary provisions serve to increase
the legal incentives for people not to practise or each civil
disobedience (compared to those used in cases where a political motive
was absent), they may be called “booster provisions”. Insofar as they
serve to mitigate the gal sanctions imposed for acts of civil
disobedience, they may be called “dampening provisions”.
These different aspects of the criminal law will next be considered.
A. THE “PRIMARY OFFENCE”
There is a wide variety of possible transgressions that could
constitute the primary offence. In principle, almost any fence of which
dolus is an element can qualify as an act of civil disobedience. In
practice these offences range from trespass or transgressions of the
remaining vestiges of the apartheid laws, to breaches of security
legislation. Many of these laws are in themselves not objectionable,
but could be violated through acts of indirect civil disobedience with
tent to express opposition to other aspects of the social and political
life. It will not serve any purpose to discuss these laws here in any
detail, except insofar as the particular law is specifically designed
to curb the public expression of protest, for instance, where public
demonstrations in certain places are prohibited.
The Gathering and Demonstrations Act 52 of 1973 prohibits
demonstrations in a defined area “by one or more persons for against
any person, cause, action or failure to take action” in an area in Cape
Town,3 including the site of the uses of Parliament.4
The Demonstrations in or near Court Buildings Prohibition Act 71 of
1982 likewise prohibits demonstrations "by one or more persons for or
against any person, cause, action or failure to take action, and which
is connected with or coincides with any court proceedings or the
proceedings at any inquest” in any court building, or in the open air
within a radius of 500m from such building.5
Contraventions of both Acts constitute crimes. Demonstrations in these
areas almost inevitably constitute acts of civil disobedience.
B. SECONDARY IMPLICATIONS OF THE CRIMINAL LAW
Special legal provisions that apply to crimes of protest and which also
affect acts of civil disobedience, include those which apply to
sentencing for political crimes. At one time the commission of a crime
of protest in itself constituted a substantive or independent offence.
(1) Sentences imposed for crimes of protest
One element of civil disobedience is openness, which implies both
vulnerability and defiance. Civil disobedients establish their bona
fides in this way; on the other hand, it has discouraged many from
engaging in civil disobedience. Both the legislature and the Courts
have in the past dealt with the issue of the proper sentence to be
imposed for crimes of protest.
(a) Statutory provisions for increased penalties
The Criminal Law Amendment Act 8 of 1953 broke the back of the Defiance
Campaign of 1952, inter alia by providing in section 1 for the
imposition of drastic penalties for offences committed to secure
changes in the law or its application6 - that is for acts of civil
disobedience and other crimes of protest. Penalties which could be
imposed included a fine of up to £300,7 imprisonment for a period not
exceeding three years,8 and a whipping not exceeding ten strokes.9
3Section 2(1). 4See the Schedule to the Act. 5Section 1(a). 6See R v Segale & others 1960 1 SA 721 (A). 7Section 1(a). 8Section 1(b).
This provision has now been incorporated into the Internal Security Act
74 of 1982, which provides in section 58 that any person
convicted of an offence which is proved to have been committed by way of protest against any law or in support of any campaign against any law or in support of any campaign for the repeal or modification of any law or for the variation or limitation of the application or administration of any law
shall be liable to a fine of up to R3 000 and imprisonment not
exceeding three years. Whipping is no longer a competent punishment for
the offence under consideration.
These enactments did not create a new substantive offence as some
commentators maintain;10 instead it made provision for the imposition of
heavy penalties for any offence,11 however insignificant, if that
offence was committed as a sign of protest.
Section 58 serves to make even the mildest form of civil disobedience
attractive to only those persons who are willing to risk martyrdom. It
should be noted, however, that only protests against a law or its
application are affected - which means that protests against extra-
legal matters, such as the high level of violence in the country and
executive dirty tricks, would not be covered. Arguably, protests
against proposed laws or draft bills are also not covered.
On a more technical level, it should be noted that the provisions of
section 58 only apply when the commission of the primary offence was
the means whereby the protest was being expressed. It does not apply
when the offence was merely incidental to the expression of protest. In
S v Peake and another12 the accused was convicted of the statutory crime
of defacing post office property, in that he fixed certain posters on a
telephone booth. Exactly what kind of posters they were, is not clear
from the record, but apparently they advertised a campaign expressing
political dissent. The Court held that the accused did not intend to
9Section 2(c). 10See eg Dugard Human rights and the South African legal order 175. 11Including, according to R v Sesidi 8, others 1953 4 SA 634 (GW),
the inchoate crime of Incitement to commit acts of civil disobedience, in spite of the special provisions made in this regard in s 2 of Act 8 of 1953 (now replaced by s 59 of Act 74 of 1982). See supra chap four I C (1)(b).
121962 3 SA 572 (0. The case dealt with the similarly worded s 1 of Act 8 of 1953.
express protest by committing the crime of defacing post office
property. Commission of the crime was "purely incidental” to his
advertisement of the campaign and "not a factor in the
protest".13Consequently, the increased penalties clause did not apply.
What is required for that provision to come into operation, is that the
accused had do1us directus to use the unlawfulness of his actions to
express protest. That, of course, is the vintage mark of civil
disobedience.
The burden on the state in criminal proceedings to establish the fact
that an offence was committed by way of protest and hence that section
58 applies, was considerably eased by a statutory presumption. Section
69(8) of the 1982 Act14 provides that where it is alleged that a crime
was committed by way of protest, and it is proved that the offence was
committed in the company of two or more other persons who were
subjected to similar charges, it is presumed, unless the contrary is
proved, that the offence was indeed committed by way of protest. The
effect of this statutory provision is that the number of people
involved can supply the grounds needed for a court to find that a crime
was committed in order to express protest.15
The state is also assisted in another way. As is evident from the
historical section, acts of civil disobedience are often designed to
convey the message of dissent in a dramatic way, for instance through
personal sacrifice or martyrdom. To this end, those convicted of having
committed crimes in a campaign of civil disobedience often refused to
pay any fines imposed, and instead preferred to be imprisoned. A
different reason why people opted for prison sentences was to fill the
jails with the aim of frustrating the administration of justice and
bringing the entire system into disrepute. In order to counteract such
objectives, section 61 of the 1982 Act16 provides for a procedure
whereby, if an offender does not pay a fine imposed in terms of section
5817 of that Act, the amount of the fine can be levied by attachment and
sale of the property of the offender.
13At 573. 14Preceded by s 4 of the Criminal Law Amendment Act 8 of 1953. 15See R v Pungula 8, others 1960 2 SA 760 (N) at 766. 16Preceded by s 6 of Act 8 of 1953. 17Or in terms of ss 59 and 60 of the same Act.
Given the apartheid government’s point of departure, the legislative
bias of the South African law in respect of sentences for crimes of
protest is not surprising.18 Both the legislature and the executive in
white dominated South Africa for many years had a built-in tendency
(given their constituency) to sacrifice freedom of expression in favour
of what it perceives to be the demands of law and order. The question
arises, however, as to the approach of the courts in respect of
sentence in those cases where they were not bound by legislative
provisions.
(b) The sentencing policy of the courts
Only one case could be traced in the South African Law Reports where
the Court specifically addressed the issue of the appropriate sentence
for acts of civil disobedience.19 Since no general conclusions about the
policy of courts in respect of civil disobedience can be drawn from a
single case, one should first consider the approach of courts in cases
that involved the wider category of political crimes. After that, the
more specific issue of civil disobedience, and the case referred to,
win be discussed.
It is fairly generally accepted that the fact that a particular crime
was inspired by conviction, as opposed to considerations of personal
gain or revenge, should in most cases for the purpose of sentencing be
regarded as an extenuating circumstance.20 The common law authority most
often relied upon in respect of politically inspired crimes is Van der
Linden, who remarked with reference to the crime of sedition
(“oproer”):
Dewiji intusschen de grond van deeze misdaad dikwerf gelegen is in verschillende begrippen omtrent de regeling van het
18In the old Rhodesia there were also statutory provisions for minimum penalties where certain crimes were committed with a political motive. These provisions are discussed in R v Sibanda & others 1965 4 SA 241 (SR, AD); R v Mbowo & others 1966 2 SA 182 (R) and R v Ncube & another 1966 4 SA 232 (RAD).
19For an exposition of the approach followed by some of the magistrates who presided in Defiance Campaign trials as reported in the newspapers, see supra chap three III A (3)(c)(iii).
20See Ackermann Die reg insake openbare orde en staatsveiligheid 15 and Hiemstra Suid-Afrikaanse Strafproses 600. See also B1zos De Jure 1988 136. For a detailed discussion of the political offence exception in international extradition, see King CILSA 1980 247.
Staatsbestuur, vooral wanneer hetzelve, door voorgevallen Revolution, geschokt is, zoo is ‘er bijna geene misdaad, waar in meerdere omzigtigheid den Regter is aan te beveelen, ten einde hij aan de eene zijde de handhaving van rust en goede orde bewaare, en aan den anderen kant, door overdrevene gestrengheid, geene ongelukkige slachtoffers van staatsverdeeldheden make.21
John Dugard, following an investigation into the history of sentences
imposed on political offenders since the Slagtersnek Rebellion of 1815,
concluded that “there is traditionally a tendency towards leniency in
the punishment of political offenders.”22 The period under review in
that study for the greater part covered the era of white against white
conflict. It is submitted that, as a general rule, courts have followed
a less lenient approach in the era since the Second World War. That era
can be characterised as one of largely black against white conflict.
Care should be taken to distinguish executive from judicial leniency.
The former featured prominently in many of the cases which win be
discussed but does not justify any conclusions in respect of the
approach of the courts.
(i) The era of white against white conflict
Execution of the leaders of the Slas-tersnek Rebellion in 1815 and of
Jopie Fourie for the part he played in the 1914 Rebellion, and the
subsequent role of these martyrs in the emergence of Afrikaner
nationalism, served as an early warning to substantiate the words of
Van der Linden. The execution of four participants in the 1922 strike
on the Witwatersrand for “semi-political” murders committed in the
course of the strike, likewise led to much bitterness.23
In other cases, a less severe approach was followed. The four leaders
of the “Reform Committee”, initially sentenced to death, had their
sentences commuted to a fine.24 Robey Leibbrandt, sentenced to death for
treason in 1943 by Schreiner J,25 had his sentence commuted to life
imprisonment by Premier Jan Smuts and was released when the National
21Van der Linden Koopmans handbook 2.4.4.5. 22Dugard SALJ 1974 59 at 65. 23Id 66. 24See S v Phillips & others (1896) 3 Off Rep 216, also reported
anonymously in the Cape Law Journal 1900 15 at 30. 25Confirmed on appeal: R v Leibbrandt 8 others 1944 AD 253. See
also infra chap four I 0 (1).
Party came into power in 1948.
The British subjects in Natal and the Cape who joined the Boer forces
during the Anglo-Boer War of 1899-1902 were treated with exceptional
leniency, and in most cases either a fine or a short prison sentence
was imposed.26 The leaders of the 1914 Rebellion, General Kemp and
General De Wet, were sentenced to seven and six years’ imprisonment
respectively, but before the end of 1916 all rebels were released from
custody. In fact, after the execution of Jopie Fourie the Indemnity and
Special Tribunals Act 11 of 1915 excluded the death sentence in cases
of treason.27
The dictum of Van der Linden, quoted above, was endorsed by the
Appellate Division in R v Jolly and others,28 where the sentence of
certain strike leaders who had derailed a train in the course of the
strike, and were convicted of assault with intent to commit murder, was
considered. In this particular instance there was no loss of life,
although the possibility of deaths occurring existed and was foreseen.
In support of the observation that the case did not merit “the utmost
rigour of the law”, the Court stated that “the accused were not
actuated by any personal motives, whether of gain or of revenge."29 In
an obiter dictum in R v Gomas,30 Van der Linden’s statement was also
approved, and it was stated that “[i]t is always undesirable, by an
unnecessarily harsh sentence, to make anyone appear to be [a] martyr
because of his political convictions.”31
Those convicted of treason after the Second World War were also
punished relatively mildly. In R v Mardon,32 for example, while dealing
with the merits of the conviction in the case, the Court remarked that
the fact that the appellant (who had helped the war efforts of Germany
in the Second World War) did not wish to injure the union, “will
26See Anonymous SALJ 1901 164. 27See also Dugard SALJ 1974 59 at 65. 281923 AD 176 at 183. 29Ibid. 301936 CPD 225 at 235. 31Ibid. 321947 2 SA 768 (TSCC).
lighten” his punishment.33 An eventual fine of £75 was imposed.34 It
should be noted that the judgment was entered a considerable time after
the War, the events occurred on a distant continent, and the appellant
in fact fought against the Soviet Union and not against South Africa.
The face of resistance in South Africa changed in about 1846 when there
could no longer be any doubt about the intentions of whites to entrench
as firmly as possible their privilege, and black protest changed to
challenge. How would courts deal with political resistance in this new
era?
(ii) The era of black against white conflict
The sentences imposed during the trials resulting from the Defiance
Campaign were discussed earlier.35 In R v Sibande,36 one of the earliest
reported cases concerning the Defiance Campaign in which the issue of
the appropriate sentence for political crimes was addressed, a very
clear exposition is to be found of a judicial willingness to treat
political offences with leniency. The conviction of the accused in the
court a quo on a charge of unlawfully being in a certain magisterial
area where he attended a meeting was confirmed on appeal, but the
sentence of two months’ imprisonment that had been imposed by the court
a quo was suspended. In justification of its approach to sentencing the
Court remarked that the appellant “was not committing an offence of
dishonesty or anything of that kind. It is a political offence and he
1s not to be regarded, in my view, in the same way as an ordinary
person contravening the ordinary criminal code of this country.”37
In R v Segale and others,38 the accused were charged with incitement of
an illegal strike. The appellants’ conviction of having incited certain
municipal employees illegally to stay away from work was confirmed by
the Appellate Division. The appellants acted in support of a campaign
aimed at achieving a “£l-a-day” law and the abolition of the pass laws,
33At 776. 34This does not appear from the reported judgment of the Transvaal
Special Criminal Court, but see R v Harden 1948 1 SA 942 (A) and "£75 fine for treason" Pretoria News 17 April 1947.
35See supra chap three III A (3)(c)(iii). 361956 4 SA 23 (T). 37At 25 per Kuper J. 38I960 1 SA 721 (A).
the Group Areas Act and National Party rule.39 Prison sentences of
varying duration were imposed by the Transvaal Provincial Division.40 In
confirming the sentences, the Appellate Division found that the
“circumstances of the present offence ... differ obviously very widely
from those in Sibande’s case.” The Court proceeded: “Although the
campaign for a national protest week was motivated by political
considerations, it is always a serious matter to incite others to flout
the law of the land, whether for political reasons or not.”41 The “wide
extent of the incitement” was further regarded as aggravation.42
The appellants in S v Benjamin and others43 were convicted in the
magistrate’s court of contravening section 11(a) of the Internal
Security Act 44 of 1950, in that they distributed pamphlets with the
heading “War preparations”, issued by the then recently banned ANC.
These pamphlets urged Africans to prepare themselves for “sharp
conflict” and a “dangerous clash” with the government, which, it was
claimed, could take the form of the Algerian Civil War. The accused
were sentenced to 18 months’ imprisonment, of which 12 months were
suspended.
On appeal the Court stated that “it would be a dangerous doctrine to
subscribe to that generally speaking a political offence should not be
punished by absolute imprisonment.”44 The Court indicated that in view
of the maximum sentence which could be imposed (the minimum sentence
was then not yet in operation), the sentences imposed erred on the side
of leniency.
In S v Budlender and another,45 the first appellant was charged with
having organised an illegal gathering. In an appeal against the
conditions of his bail, the Court granted some relief and in a judgment
39Because the objective of the strike in such a case would have been laws or their administration, this could have brought the provisions of s 1 of Act 8 of 1953, which provides for Increased penalties, Into play. Presumably the Appellate Division found it unnecessary to decide the point. See 733.
40R v Segale & others 1959 1 SA 589 (T). 41At 733. 42Ibid. 431963 2 SA 363 (T). 44At 367. See also R v Sithole 1964 4 SA 477 (SR AD) at 480. 451973 1 SA 264 (C).
worth quoting at length reaffirmed the classical approach of our
courts:
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 opprobrium. It may even carry approval. ... 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 the country. But it has always been the duty of the courts to try to 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.46
Arguably, the jurisprudential low-water mark in this regard was S v
Hogan.47 In this case the accused, aged 30, was convicted of treason for
having joined the ANC and having furthered its aims in South Africa at
a time when that was still a crime. There was no evidence that she was
personally involved in acts of violence, but it was emphasised by the
Court that the policy of the ANC was the violent overthrow of the
state. In passing sentence, Van Dyk J pointed out that the accused had
played a prominent role in certain strikes and boycotts in the country.
He proceeded:
As I understand the overall policy and strategy of the ANC, strikes and boycotts are in this particular field merely the beginning of one of many of the more sophisticated onslaughts on the state and that, should they succeed in creating substantial workers’ unrest, the switch from a non-violent political struggle to a violent militant confrontation would follow almost as a matter of course.48
The judge indicated that he placed virtually no reliance on the
46At 268. 471983 2 SA 46 (W). McCleod & Kaganas SAJHR 1985 106 at 110
contrasted Hogan with another judgment of Van Dyk J, Involving a trial of a number of ultra right-wing "Afrikaner Weerstandsbeweging" members. They were convicted on charges of unlawfully possessing firearms. In imposing a suspended sentence, the judge said that the accused were "civilized people ... the victims of an unfortunate combination of circumstances". See also Van Blerk Judge and be Judged 90, who defended the position of Van Dyk J.
48At 68
“reformatory effect” which any sentence would have on the accused.
Instead he emphasised his belief in the need for, and the good prospect
of, deterrence of other prospective offenders. He found that “the
interests of society far outweigh all other considerations” and imposed
a ten year jail sentence.49
It would be difficult to find a clearer manifestation of the total
onslaught ideology in our jurisprudence. It short-circuits any calm and
collected consideration of facts, such as the real imminence and the
extent and nature of the perceived threat. The judgment also reflects a
giant miscalculation on the part of the presiding judge concerning the
direction history was taking.
A pillar of reason in the changing current was S v Motlhabakwe en
andere,50 where the appellants were convicted on several counts of
terrorism under the Terrorism Act 83 of 1967 emanating, inter alia,
from a number of cases of arson related to unrest situations at
schools. In considering the question of sentence, the Court stated
that, as mitigating circumstances, the bona fide belief in the
inferiority of black education and the effect of agitation to which the
appellants were subjected must be taken into account. Most instructive,
however, is the following statement of Jacobs J P and Rees A J:
[O]ns belewe tans tye van verandering waar strukture reeds geskep is en nog geskep word wat daarop gemik is om swart frustrasies piek te laat maak vir hoop en verwagting vir die toekoms vir a11e bevolkingsgroepe en ons meen dat in gepaste gevalle waar dade gepteeg is op ‘n tydstip toe hierdie frustrasies nog oorwegend was dit nie onvanpas is om met ‘n groter mate van begrip en erbarming na die dade te kyk nie.51
It is submitted that this seminal statement indicates that courts of
law, when dealing with politically motivated offences, should take into
consideration the probability that the political values of the accused
win in some form or another find application in the future. Courts have
to anticipate to some extent impending positive political change, and
where processes under way have not yet worked their way down to actual
legal provisions, courts sometimes have to act in anticipation. What
this amounts to, is that courts sometimes have to regard society, and
49At 69. 501985 3 SA 188 (N). See also S v Makape & another 1989 2 SA 753
(T). 51At 209.
not only the other more conventional “texts” they deal with, in the
Dworkinian best possible light.
In S v Nel,52 the Court took for granted that sabotage committed as an
act of private revenge should be treated with more leniency in respect
of sentence than would be the case if it was politically motivated. No
authority is quoted for this remarkable conclusion, which turned on its
head everything our law has for centuries stood for. It is even more
remarkable to note that counsel for the state and the defence seemed to
have agreed with this statement.53
In S v Sprag,54 Van der Walt J convicted a white member of Umkhonto we
Sizwe of several offences involving violence against the state. In
imposing a sentence of imprisonment he remarked: “If a black South
African were in your position his or her acts could be understood,
although not excused. The fact that as a white South African you have
espoused the cause of revolution I regard as an aggravating feature.”55
While recognition in the judgment of the principle that absence of the
opportunity of political participation gives some legitimacy to
political resistance should be welcomed, its application in the
particular case is questionable. Surely, the point is that the accused,
irrespective of her race, was effectively prohibited at the time by the
state from pursuing what obviously were her political convictions. The
“vote” she had was, to her, for all practical purposes meaningless.
In a number of cases courts have had to consider the effect a political
motive ought to have in respect of the death sentence. Their findings
in this regard are most instructive, because if a political motive was
in itself an extenuating circumstance, one would not expect death
sentences to be imposed for such crimes at all.
In S v Mkaba and others,56 the death sentence imposed on the appellants
for a murder (presumably of a state witness), which had been committed
to prevent the conviction of members of Umkhonto we Sizwe in a
political trial, was confirmed on appeal. Steyn C J held that although
521987 4 SA 276 (0). 53At 295. 54Unreported case no 166/86 W 3 Nov 1986. 55At 8 of the judgment. 561965 1 SA 215 (A).
the killing was not committed for personal gain, the facts of the
particular case did not warrant a finding of extenuation. The murder
was committed in cold blood and not immediately motivated by “political
fervour or an acute sense of political injustice”, and the decision to
commit the act was not taken “at a moment when political emotion was
running high”.57 The inference can be drawn, however, that, when
present, these factors would constitute extenuation.
A political motive was also not regarded as ipso facto an extenuating
circumstance in S v Harris,58 where the accused was sentenced to death
upon conviction of murder of an innocent civilian in a politically
motivated terror attack on a crowded train station.
As the armed struggle intensified and changed its nature, especially
since 1976, the approach of the courts hardened. In an obiter dictum in
S v Mange59 Rumpff C J articulated a shift in the Court’s approach.
The Chief Justice distinguished historical from contemporary acts of
high treason by stating that the element of terrorism - the intentional
killing of innocent people - had been introduced in recent times. The
following warning was then sounded: “However lenient the attitude of
the courts may have been in the past in regard to our historical brand
of high treason, a complete change now in regard to the present type of
high treason would not be surprising, nor, in the circumstances, be
unjustified.”60
The Chief Justice soon found an opportunity to implement this new,
harsher approach. In S v Lubisi and others,61 the accused were convicted
in the court a quo of high treason following an attack with fire-arms
and hand grenades on a police station. Death sentences were imposed.
From the facts as reported in the judgment, it would appear that no
civilians were present at the police station at the time of the attack.
One policeman was injured.
The Appellate Division accepted that the appellants did not act from
"inner vice", and stated that “the position in which the appellants
57At 217. 581965 2 SA 340 (A). 591980 4 SA 613 (A). 60Ibid. 611982 3 SA 113 (A).
found themselves may be regarded with sympathy and understanding,
especially by South Africans whose forebears at times were engaged in
situations of open military conflict against British imperialism.”62 The
Court proceeded as follows: “In the present case the probable absence
of inner vice and the presence of outer influences are, however, as
mitigating circumstances, cancelled out by the callous and cowardly
manner in which innocent people were sought to be killed by the
appellants for political purposes.”63 On this basis the death sentences
were confirmed.
When the facts of the case are considered, the reference to “innocent
people” in this dictum is difficult to understand. That term is
commonly used to denote civilian or “soft targets”. The attack was
directed against policemen, who are considered “hard targets”. The
Appellate Division identified itself with the trial judge who had said:
“An attack on police officials in such a manner, whilst they are only
doing their duty, is an act which is difficult to describe adequately
in words. It is sheer terrorism of the highest order.”64
If this is to be the case, it would be no less repulsive to attack
“soft” rather than “hard” targets. If the courts do not make a
distinction in this regard, why should the opponents of the state be
expected to do so?
The view expressed in Mkaba and Harris that a political objective does
not constitute ipso facto extenuation where the death of civilians
ensued, was endorsed by Corbett J A (as he then was). In S v McBride65
he held that, in such cases, “it all depends upon the particular
circumstances of the matter.”66 In that case three people had died in a
car bomb explosion executed (inter alia) by the appellant.67 The death
sentence imposed for murder by the court a quo was confirmed by the
Appellate Division.
62At 124. 63Ibid. 64At 125. 651988 4 SA 10 (A). 66At 25. 67The social and personal background of the appellant is discussed
in Hear Robert McBride and Greta Apelgren.
In a later case involving the death sentence, S v Masina and others,68
the accused, members of Umkhonto we Sizwe, were charged with a number
of crimes, including four politically motivated murders. The appellants
refused to participate in the proceedings on the basis that as soldiers
they should not stand trial in a civilian court. One of them, however,
did read a statement to the court in which he explained that the
accused had turned to the armed struggle as a last resort after years
of non-violent resistance to apartheid proved fruitless. In this regard
he quoted Lutuli’s words: “Who will deny that 30 years of my life have
been spent knocking in vain, patiently, moderately and modestly at a
closed and barred door?”69
With a view to the accused’s subjective belief that they were fighting
a war of liberation for their people, and the indoctrination which
their training entailed, the trial judge came to the conclusion that
extenuating circumstances existed. He was, however, overruled by the
assessors and had to impose the death penalty. The Appellate Division
stated that “[p]olitical considerations can, depending on the
circumstances, constitute mitigating factors,”70 and held that in this
case it did. The death sentences were set aside.
In a major, recent decision the Appellate Division again addressed the
issue of the imposition of the death penalty for political crimes. In S
v Mncube en ‘n ander71 the Court dismissed the appellants’ appeal
against the death sentences imposed upon them for murder, arising out
of the death of eight civilians in landmine explosions. Both the
appellants were members of Umkhonto we Sizwe, and the first appellant
insisted on being treated as a soldier. The Court recognised that, in
appropriate cases, the fact that particular offences were committed
with a political motive could be regarded as extenuating circumstances.
However, these considerations were outweighed by the aggravating
circumstances of the case, which included the terroristic nature of the
acts. The first appellant also testified that attacks on civilian
targets were against the policy of the ANC, and described such conduct
as undisciplined. The Court rejected the contention that it should
681990 4 SA 709 (A). 69At 717. See also supra chap III A (3)(c)(ii). 70At 719. 711991 3 SA 132 (A).
impose “a sentence which reaches out for reconciliation”, and declared
that it could not take into account the political climate of the
country.72
From the above it seems safe to state as a general rule that our courts
do regard crimes committed with a political motive in a less serious
light than offences committed with a self-serving motive.73 This applies
even in the case of armed uprising.74 Several considerations, however,
affect the application of this general rule.
- Where the lives and safety of civilians are threatened, the rule
does not necessarily apply, and harsh sentences are often
imposed.75
- Where the immediate conflict situation has been resolved, courts
tend to follow an even more lenient approach than usual.76 The
reason for this attitude might be a combination of various
considerations: the fact that it is no longer necessary to deter
others from participating in the uprising; the fact that the need
and opportunity for reconciliation has emerged, and so on. Where,
on the other hand, the conflict has not been resolved at the time
of the judgment, these considerations do not apply.77
It is submitted that the increasing use of indiscriminate terror
attacks and the unresolved nature of the conflict in South Africa
during the past number of decades were largely responsible for the
courts’ taking a more harsh line in sentencing.
No doubt, since the middle of the century the personal convictions of
72See 157. See also, on the effect which group pressure can have on those who commit political crimes, S v Matshili & others 1991 3 SA 264 (A). There is a useful discussion of the history of the sentences Imposed for treason in S v Banda & others 1991 2 SA 352 (B) at 359.
73Contra Benjamin, Hogan and Nel. but see Jolly, Gomas, Sibande, Mkaba, Budlender and Masina.
74Contra the cases of the Slagtersnek Five, Jopie Fourie, Leibbrandt and Lubisi, but see the cases of the rebels in the Anglo Boer War, the 1914 Rebellion, the Second World War and Motlhabakwe.
75Contra Jolly, but see Harris, McBride and Mncube. 76See most of the cases discussed from the era of white against
white conflict. See, however, also Mncube. 77See most of the cases discussed from the era of black against
white conflict.
the judges concerned often prompted the imposition of heavier
sentences. In all the cases considered, the accused were either black
or have identified themselves with the liberation struggle, while the
presiding Judges were invariably part of the white establishment. The
most conspicuous example of this is the Hogan case.
Non-reactionary governments are often challenged by opponents from all
sides, but because of the diversity of reasons for the opposition, the
attacks are more readily seen as isolated. Reactionary governments, on
the other hand, are almost invariably attacked from a fairly permanent
position. Such attacks are then regarded as treasonable by those with a
stake in the maintenance of the status quo, and all other smaller
challenges to the state are viewed as part of this onslaught. By
overreacting to minor challenges, the divide is increased: there is no
incentive to challenge the state in a non-radical manner if such
actions are in any event punished as if they were radical.
Concluding too readily that a link exists between actions which are
seemingly non-violent and the spectre of impending violence can indeed
undermine demonstrations of leniency in sentencing practices of the
courts. It is submitted that this is precisely what happened in a case
such as Hogan. The imminence of the danger must be established
clearly.78
The approach followed in Motlhabakwe, namely that the long-term
political prospects of positive change in the country, and the values
which are likely to prevail, should be taken into account, seems likely
to play a crucial role in the period of fundamental transition which
the South African legal system is currently experiencing.
Having now completed an investigation into the general approach of our
courts regarding sentencing in cases involving political crimes, we now
turn to the case in the Law Reports in which the appropriate punishment
for acts of civil disobedience was specifically addressed. In R_v
Motlaaomang and others79 the appellants were convicted in the court a
quo of “destruction of their reference books” by deliberately throwing
the same into a fire. They were sentenced to a fine of £50 or six
months’ imprisonment with compulsory labour. In imposing the sentence
78See the discussion of the "clear and present danger" doctrine in American law infra chap six IV B (2).
791958 1 SA 626 (T).
in the court a quo, the Native Commissioner (as that official was then
called) remarked as follows: “Nieteenstaande herhaalde waarskuwings dat
tensy die vernietiging van bewysboekies stopgesit word waardeur alreeds
ernstige onluste in die afgelope jaar in die distrik plaasgevind het
nog swaarder strawwe opgele sou word, het beskuldigdes die bewysboekies
op so ‘n manier verbrand dat dit ‘n openlike verset teen die wet is.”80
No indication is given of any evidence to substantiate a link between
the civil disobedience and the “onluste”, and if violence was involved
in the “onluste”, whether that violence had been instigated by the
protesters or the government.
On appeal, the Transvaal Provincial Division indicated that the
“deliberation” shown by the accused could be regarded as an aggravating
circumstance, because it showed “malignity”, which in turn brought into
operation the provisions of section 1 of Act 8 of 1953.81 Other
circumstances taken into account were the prevalence of the crime in
the district, and the need for deterring others from committing the
same offence. Consequently, the Court did not find unacceptable the
fact that the appellants in all probability would not be able to pay
the fines and would have to serve the alternative prison sentences.
This approach is open to criticism. The first objection relates to the
fact that the Court regarded the openness of the crime to be an
aggravating circumstance. To treat the openness of illegal protest as
an aggravating circumstance could result in secrecy being encouraged.
The element of openness of civil disobedience implies that this form of
protest is essentially an act of communication. This means that those
engaging in civil disobedience deliberately seek contact with their
opposition. Especially in a society riddled by deep division, openness
and engagement ought not to be singled out for particularly harsh
treatment. Moreover, openness (as defined earlier) is a natural
(although obviously not fool-proof) incentive to keep illegal action
non-violent, because of the vulnerable position in which it places the
perpetrator. The decision to practise open resistance usually also
implies that a morally responsible approach is taken. This feature is
undermined by the use of coercion. The same incentives do not apply as
far as clandestine illegality is concerned. From this point of view, it
80Quoted in the record of the appeal case at 628. 81At 629.
also makes more sense to encourage openness.
The second aspect of the judgment that is open to critique concerns the
Court’s assumption that acts of civil disobedience, such as those
perpetrated by the appellants, were responsible for “oproer” in the
area. If it had indeed been established that the civil disobedience
occasioned violence, that would certainly have provided justification
for following a tougher line than would otherwise be the case. But the
existence of such a link has to be established through reliable
evidence - it cannot simply be assumed. There is nothing in the
judgment which indicates why the Court accepted the existence of such a
link. If the “oproer” did not entail the use of violence, the case for
taking a hard line would evidently be much weaker.
The general approach of the courts in respect of sentencing for
political crimes outlined above, if applied to the case of civil
disobedience, suggests the following: A general approach of leniency
should be followed in view of the political motivation of the crime.
The exception to this rule alluded to above and which applies to
violent terror attacks, is not applicable to civil disobedience, due to
its non-violent nature. Especially where resistance has already taken a
violent turn, it is the duty of courts to demonstrate to resisters that
less dramatic alternatives are available.
(2) Attempt to commit an act of civil disobedience
The Riotous Assemblies Act 17 of 1956, provides as follows:
Any person who attempts to commit any offence against a statute or a statutory regulation shall be guilty of an offence and, if no punishment is expressly provided thereby for such an attempt, be liable on conviction to the punishment to which a person convicted of actually committing that offence would be liable.82
(3) Civil disobedience as a substantive crime
During the most crucial years of the liberation struggle in South
Africa, a crime of protest constituted an independent, substantive
offence. From 1950 to 1982 the commission of any crime of protest
rendered the perpetrator liable for (i) the primary offence, through
which the protest was expressed (eg participation in an unlawful
demonstration) as well as (ii) the statutory, substantive crime of
committing a crime of protest.
82Section 18 (1).
During this time, section 11(a) of the Suppression of Communism Act,83
later renamed84 the Internal Security Act 44 of 1950, provided that
anyone who "performs any act which is calculated to further the
achievement of any of the objects of communism ... shall be guilty of
an offence", and would be liable to imprisonment for a period of not
less than one year and not exceeding ten years.85 “Communism” as used in
this context was defined to include “any doctrine or scheme ... which
aims at bringing about any political, industrial, social or economic
change within the Republic by ... unlawful means or omissions.”86
The wide scope of this provision, which reflects the depths of the
total onslaught ideology of the time,87 was indeed remarkable. Its
provisions included not only acts of civil disobedience, but all crimes
of protest as instances of communism. This furthermore included not
only crimes of protest against the legal order, but also crimes aimed
at altering the political, industrial, social or economic order.
This means that indirect civil disobedience, aimed not only at other
laws but also constituting attacks against other aspects of the status
quo, was likewise covered. Moreover, the word “calculated” in section
11(a) was interpreted by the courts not to mean “intended” but rather
“likely” to bring about the furtherance of these objectives.88 Over and
above this, a contravention carried a minimum sentence of one year
imprisonment.
The Appellate Division recognised that this extraordinary statutory
concept of communism could lead to absurd results which the legislature
probably never contemplated. In R_v Sisulu and others,89 the Court gave
two examples of relatively innocent acts of civil disobedience which,
83For a full discussion, see Mathews Law, order and liberty in South Africa 97ff and Milton & Fuller South African criminal law and procedure vol 3 112ff.
84By the Internal Security Amendment Act 79 of 1976. 85Section 11(m)(i). The minimum sentence was only introduced in
1976 by s 8 of the Internal Security Amendment Act 79 of 1976. 86Section 1(1)(ii)(b). 87For the parliamentary discussion that attended introduction of
the Act, see Debates of the House of Assembly 14 June 1950 co1s 9178-9326 and cols 9331-9639.
88See S v Nokwe & others 1962 3 SA 71 (T) at 74. 891953 3 SA 276 (A) at 290.
in terms of these provisions, would constitute the crime of furthering
the objectives of communism. The breach of municipal by-laws by women
protesting against certain provisions of family law, as well as farmers
refusing to comply with certain farming regulations, as acts of protest
against such by-laws or regulations, according to the Appellate
Division, would qualify as instances of the statutory crime of
furthering the objectives of communism.90
These provisions were subsequently repealed and replaced by the
Internal Security Act 74 of 1982.91 As it was then defined, the crime of
furthering the objectives of Communism92 was more narrowly93 focused on
outlawing advocating of the communist ideology as it is commonly
understood, and acts of civil disobedience in themselves were no longer
a substantive crime. The operation of this provision was first
suspended as part of the present negotiations between the government
and certain liberation movements,94 and eventually, in July 1991, it was
entirely scrapped.95
A number of offences which are not often used in this regard with which
persons engaging in acts of civil disobedience (or organising campaigns
of civil disobedience) could possibly be charged, will later be
discussed.96
C. TERTIARY IMPLICATIONS OF THE CRIMINAL LAW
Those who do not themselves necessarily engage in acts of civil
disobedience, but who encourage others to do so, could also be liable
to criminal prosecution.
90See also supra chap three III A (3)(c)(iii), for the example cited by Rumpff J in the court a quo.
91Section 73(1), read with Schedule 1, of the Act. For the reasons why this was done, see The report of the Commission of Inquiry into Security Legislation RP 90-1981 (the so-called "Rabie Commission") pars 9.4.1-9.4.5.
92Defined -in s 55 of the Act. 93Mathews Freedom, state security and the rule of law 45 and S_v
Ramgobin 4 others 1986 1 SA 68 (W). 94Proc R229, Regulation Gazette 12287, 3 Feb 1990. 95Sections 1 and 21 of the Internal Security and Amendment Act 138
of 1991. 96See infra chap four I D.
(1) Incitement of civil disobedience
Whereas civil disobedience often only becomes really effective when
practised in the form of a campaign and with substantial numbers of
people being mobilised, the crucial role of canvassing and organization
and the exercise of leadership functions becomes apparent. An obvious
strategy for the state to follow in order to prevent such pressures
from developing, is to attach strong legal impediments to the advocacy
of acts of civil disobedience. A whole arsenal of statutory measures
has been put into place by the South African legislature to serve
exactly this purpose.
(a) Incitement to commit any offence
It should be noted at the outset that incitement to commit a crime -
that is any crime, whether political or not - has traditionally been,
and still is, a separate offence in its own right in South African
law.97 The exact scope of this offence varied over the years. In 1921,
for example, the Appellate Division ruled that it was an offence at
common law to incite someone to commit a crime, even if the crime
concerned was neither in fact committed, or not even attempted.98 Since
1926, the crime of incitement is governed by statute.99 Today the
Riotous Assemblies Act 17 of 1956 provides that
[a]ny person who ... incites, instigates, commands, or procures any other person to commit, any offence, whether at common law or against a statute or statutory regulation, shall be guilty of an offence and liable on conviction to the punishment to which a person convicted of actually committing that offence would be liable.100
Intention is an element of this crime.101 The question whether
incitement requires an element of persuasion of the incitee, or whether
97See Burchell et a1 South African criminal law and procedure vol 1 472ff.
98S v Nlhovo 1921 AD 485. 99Section 15(2)(b) of the Riotous Assemblies and Criminal Law
Amendment Act 27 of 1914 was amended by s 4(b) of the Criminal and Ma9istrates' Courts Procedure (Amendment) Act 39 of 1926, to make it clear that Incitement to commit an offence, whether at common law or by statute, was in itself an offence.
100Section 18(2)(b). 101Burche'n et a1 South African criminal law and procedure vol 1
474.
a mere request would suffice, is problematic. In the landmark decision
of S v Nkosiyana and another102 it was held by the Appellate Division
that
an inciter is one who reaches and seeks to influence the mind of
another to the commission of a crime. The machinations of
criminal ingenuity being legion, the approach to the other’s mind
may take various forms, such as suggestion, proposal, request,
exhortation, gesture, argument, persuasion, inducement, goading,
or the arousal of cupidity. The list is not exhaustive. The means
employed are of secondary importance; the decisive question in
each case is whether the accused reached and sought to influence
the mind of the other person towards the commission of a crime.103
Clearly, encouragement to commit acts of civil disobedience is covered
by the confines of this crime. In R_v Abdurahman,104 for example, the
appellant was convicted in the court a quo of inciting “non-Europeans”
to use railway coaches reserved for “Europeans only”. In R v Segale and
others,105 the accused were convicted of incitement for having
encouraged municipal workers and domestic servants to stay away from
work.
(b) Incitement to commit a political offence
Over and above the general provisions of the law regarding incitement,
there are also a number of statutory provisions aimed specifically at
advocacy of political offences. These offences have been relied upon in
the past to prosecute those engaged in advocacy of civil
disobedience.106 Encouragement of offences to be committed for political
purposes first became a substantive crime in its own right when the
Internal Security Act 44 of 1950 came into operation. Section 11(b) of
that Act provided that any person who “advocates, advises, defends or
encourages the achievement of [the objects of communism as
circumscribed] or any act or omission which is calculated to further
1021966 4 SA 655 (A). See also S v Dreyer 1967 4 SA 614 (E) at 621. 103At 658, 659. 1041950 3 SA 136 (A). 1051960 1 SA 721 (A). 106On the relationship between common law incitement and special
forms of statutory incitement, see R v Sesidi & others 1953 4 SA 634 (GW) at 637.
the achievement of any such object,” was guilty of an offence and
liable to imprisonment for a period of not less than one year and not
exceeding ten years.107
The definition of “communism” was the same wide one which applied to
section 11(a), discussed above, namely any doctrine or scheme “which
aims at bringing about any political, industrial, social or economic
change within the Republic by ... unlawful means or omissions.”108
It was under this provision that the leadership of the Defiance
Campaign was tried and convicted in 1952.109
In response to the Defiance Campaign, a second offence of encouragement
of crimes of protest was enacted, without the one outlined above being
revoked. This offence was sanctioned by the Criminal Law Amendment Act
8 of 1953.110 The Act provided for a fine of up to £300, imprisonment of
up to five years and a whipping of up to ten strokes upon conviction of
incitement to commit a crime of protest.111 The imposition of corporal
punishment for political crimes was particularly controversial.
The pertinent provisions of the 1950 Internal Security Act and the 1953
Criminal Law Amendment Act were repeated by the Internal Security Act
74 of 1962, which currently is still in force. Section 59 of this Act
outlaws, in the exact words of the Criminal Law Amendment Act of 1953,
incitement to commit crimes of protest, though the penalties provided
107Section 11(m)(i). 108For a discussion of these provisions, see Mathews Law, order and
liberty in South Africa 97ff and Milton & Fuller South African criminal law and procedure vol 3 114, 116. See also R v Alwyn 1955 3 SA 207 (A).
109See R v Sisulu & others 1953 3 SA 276 (A) and the discussion supra chap three III A (3)(c)(iii). The Appellate Division explicitly rejected the contention that only coercive actions were covered by this provision and that persuasive or non-coercive conduct was not affected: "[I]t was said that, although an act or a threat that was intended to produce terror in the legislators and thus to cause a legislative change might fall within the paragraph, one that was intended to move the legislators by pity or a realisation of the justice of the cause of those responsible for the act would not be covered. It is sufficient to say that there is no warrant for this distinction." (At 290.)
110See s 2(a) & (b). 111Section 2(i)-(vi).
for are not the same.112 It provides that any person who,
(a) in any manner whatsoever advises, encourages, incites, commands, aids or procures any other person or persons in general; or
(b) uses any language or does any act or thing calculated to cause any person or persons in general, to commit an offence by way of protest against any law or in support of any campaign against any law or in support of any campaign for the repeal or modification of any law or the variation or limitation of the application of the administration of any law,
commits an offence, and is liable on conviction to a fine of up to
R5000 and imprisonment of up to five years.
It is clear from the wording of section 59 that it only covers protests
aimed against laws or their administration. The incitement of either
direct or indirect civil disobedience (or other crimes of protest)
would consequently not be outlawed as long as such protests are aimed
against extra-legal aspects of society. It is also not the incitement
that must express the protest, but the crime incited - that is, the
primary offence incited must be a crime of protest.113 The communication
must reach the incitee,114 although it is irrelevant how the incitee
responds to the incitement.115
While subsection (a) deals with direct forms of incitement, subsection
(b) also makes provision for more indirect forms of influencing others.
In practice, however, it is not always easy to draw the distinction.
In S v Nathie,116 the appellant was charged with having contravened
subsection (a). The charge was based on a report which the appellant
read out at a conference of the Transvaal Indian Congress. The report
referred to refusals by members of the Indian communities to obey
orders to vacate certain premises in terms of the Group Areas Act. The
rhetorical question was posed: “Is it any wonder that there is
developing among our people in different parts of the country a feeling
112Consequently, decisions and comments dealing with the older provisions can be applied to the 1982 Act.
113S v Moilwanyana 1957 4 SA 608 (T) at 615. 114R v Adams & others 1959 1 SA 646 (SO at 674, 675. On attempt to
incite, see S v Radine & another 1962 1 PH K44 (T). 115R v Alwyn 1955 3 SA 207 (A) at 211. 1161964 3 SA 588 (A). The case dealt with the Identically worded
1953 forerunner of s 59.
that they should refuse to obey the orders to quit, no matter what the
consequences?”117
The report referred positively to the refusal of Nana Sita (who was
also active in the Defiance Campaign) to comply with such an order, and
then, with reference to possible future conduct of the government,
proceeded:
But the question is: are we, the rest of the Indian people, going to remain silent when this happens? Are we just going to acquiesce because some madmen in the Department sit and decide what is going to be our future and the future of our children? I want to declare that to remain silent in the face of persecution is an act of supreme cowardice. Basic laws of human behaviour require us to stand and fight against injustice and inhumanity. Not for a moment must [those who refuse to comply with the orders] be allowed to imagine that they are alone in the stand that they have taken. The Nationalists must be made aware of the fact that the attack against these people is an attack against the Indian people as a whole and will be met by the organised strength of the entire community.118
The appellant also stated that “we will continue to maintain our
methods of non-violent actions.”119
The appellant was acquitted on appeal on the ground that what he had
said fell “just short” of the incitement required by subsection (a),
which constituted the basis of the case against him. Nevertheless, the
Court held that “the report as a whole was couched in such excessively
provocative language that it might well be said to constitute a
contravention of [subsection (b)].”120 Since he was not charged with a
contravention of the latter provision, he was discharged.
How, then, are the statutory provisions regarding incitement of acts of
political protest, as set out above, to be interpreted, especially in
light of the Nathie judgment and the obiter dictum just quoted? Tony
Mathews argued that because not only the word “incitement”, but also
words such as “advise” and “encourage” are used in subsection (a),
“promptings to action which fall short of incitement” are also
117At 593. 118Ibid. 119Ibid. 120At 597.
criminalised by that subsection.121
It is submitted that this interpretation of subsection (a) is not
correct. In the first place, “incitement” as used in the statute that
codified the crime of incitement has been interpreted by the courts to
mean “seek to influence” in any manner possible.122 How can it be a
crime (of which intention is an element123) to do less than to “seek to
influence” someone else in any manner possible to commit a crime? In
the second place, the appellant in Nathie was acquitted precisely
because his actions fell short of incitement.
But what about subsection (b)? Is mens rea in the form of either dolus
or culpa required by this provision? The answer to this question must
turn upon the interpretation of the word “calculated”. Milton and
Fuller argued that “calculated” should be interpreted to mean “likely”
rather than “intended”.124 If this is correct, neither dolus nor culpa
is required; it means that a crime of strict liability was in fact
created by the subsection.125
The primary source cited by Milton and Fuller for their interpretation
of subsection (b) is S v Beyleyeld and others.126 In this case, the
conviction of the appellants on a charge of having committed certain
acts which were “calculated to violate the dignity or injure the
reputation of the State President” in violation of section 13 of the
Republic of South Africa Constitution Act 32 of 1961, was confirmed
because “calculated” in this context was held to mean “likely” and not
"intended". The Court decided, however, that on the facts of the case
the conduct of the appellants, who had circulated pamphlets stating
that the then State President C R Swart was not a fit and proper
person to receive the freedom of Johannesburg, also included the
121See Mathews Law, order and liberty in South Africa 188. This observation is not repeated 1n his Freedom, state security and the rule of law.
122See the excerpt quoted from S v Nkosiyana and another 1966 4 SA 655 (A), supra chap four I C (1)(a).
123See Mathews Freedom, state security and the rule of law 54. 124Milton & Fuller South African criminal law and procedure vol 3
136. 125See, however, Mathews Law, order and liberty in South Africa
188. 1261964 1 SA 269 (T).
intention to injure his dignity or reputation.
Strydom observed that S v Nokwe and others127 was the only case cited in
Beyleveld in which a statutory provision in pari materia with section
13 was considered. In Nokwe it was decided that the word “calculated”
in section 11(a) of the Internal Security Act 44 of 1950128 had to be
interpreted to mean “likely”.129 Beyleveld, according to Strydom, was
wrongly decided, in that section 13 of the Constitution was interpreted
as though it created an absolute proscription while the Act itself gave
no indication that this was in fact the intention of the legislature.130
According to him, section 13 should be interpreted to require mens rea
in the form of negligence or intention.131
When section 59 as a whole is considered, it becomes clear that the
legislature intended to include in its confines all possible ways in
which one person might “seek to” influence another to commit a crime of
protest. Subsection (a) sets out the most common ways in which this can
be done, whilst subsection (b) is a dragnet provision that serves to
cover instances not included in subsection (a). Section 59 simply
represents an attempt to regulate the crime of incitement in a
particular context, and to give an indication of the appropriate
punishment in such cases. Consequently, it is submitted that intention
is indeed an element of the statutory crime under consideration.
What is the position where one person encourages another to commit an
act which the former erroneously believes to be a crime? As far as the
general crime of incitement is concerned, commentators132 subscribe to a
subjective approach, similar to the one followed in S v Davies133 in
respect of an attempt to do the impossible. This means that a factual
error (error facti) does not exclude liability. An error as to the law
1271962 3 SA 71 (T). 128See supra chap four I B (3). 129Strydom JCRDL 1964 314 at 316. Strydom's views in this regard
are endorsed by Van Niekerk SALJ 1970 299. 130Strydom JCRDL 1964 314 at 316. 131Id 318. 132See Burchell et a1 South African criminal law and procedure vol
1 479 and Snyman Criminal law 261. 1331956 3 SA 52 (A).
(error juris), on the other hand, does exclude 1iability.134
In S v Peake,135 this approach was applied to contravention of section
59 of the Internal Security Act 74 of 1982. In that case the Court held
that an accused may be convicted if he encouraged people to defy the
Group Areas Act 77 of 1957, even though it had not been proved that
people in the audience were at that time in a position to in fact defy
the Act. If this approach is to be followed, then R v Motorane136 was
wrongly decided. In that case the state failed to prove that the
incitee had reached the age where he could commit the crime incited,
namely throwing away his reference book. The conviction of the
appellant was dismissed on appeal. Similarly, in R v Plaatjies,137 the
appellant was acquitted because there was no proof that the people who
had been encouraged to participate in an illegal strike were “native
labourers” as defined in the relevant statute.
The acquittal of the appellants in R v Mpekwa and others138 was
justified by the Court on the basis that the act complained of was
prompted by an error juris. In that case the appellants assaulted
certain people in order to “persuade” them to “allow” the appellants to
take possession of their (the assaulted people’s) reference books.
“Allowing” a third party to take possession of one’s reference book
constituted an offence. Because these persons assaulted were forced to
hand over their reference books, they could not be convicted of any
crime, and those who forced them to do so could not be convicted of
inciting others to commit an offence.
Mathews pointed out that the presumption of a guilty intent which would
arise from the commission of a crime of protest while in the company of
two or more persons, created by section 69(8) of the Internal Security
Act 74 of 1982, probably does not apply to a contravention of section
59, because the words creating the presumption refer to a prosecution
in which the offence charged was committed by way of protest.139 The
134See S v Davies 1956 3 SA 52 (A) at 63. 1351962 4 SA 288 (C). 136I960 4 SA 353 (0). 1371960 2 PH H371 (C). 1381958 1 SA 10 (T). This decision was endorsed in R v Bolo &
others 1960 2 PH H290 (E). 139Mathews Freedom, state security and the rule of law 54.
crime under consideration requires that the offence incited, not the
offence charged, must be a protest offence.
(c) Proclamations prohibiting the incitement of “natives”
In November 1952, when the Defiance Campaign was at its peak, a
proclamation140 was issued by the Governor-General,141 outlawing meetings
in the so-called “native areas”142 at which “more than ten natives are
present at any one time”,143 except under certain circumstances.144
Furthermore, it was decreed that in those areas “[a]ny person who at
any time uses language or behaves in a manner or does any act or thing
calculated to cause natives to resist and contravene any law or to
prevail upon them to obstruct the administration of any law, shall be
guilty of an offence.”145
These regulations made provision for a fine of up to £300 or
imprisonment of not more than three years.146 Similar provisions were
decreed in respect of places not declared “native areas”.147
(2) Assistance of those engaged in civil disobedience
After the Defiance Campaign of 1952, the government sought ways and
means to isolate those who engaged in acts of civil disobedience. The
assistance, financial and otherwise, given to resistors by sources from
within and outside the country was resented by the authorities, because
140Proc 276, Government Gazette Extraordinary 4971, 28 Nov 1952, replacing the milder Proc 31, Government Gazette 3453, 2 March 1945, as amended by Proc 59, Government Gazette 3620, 22 March 1946.
141Issued in terms of s 27 of the Black Administration Act 38 of 1927.
142The areas referred to in s 25(1) of the Black Administration Act 38 of 1927.
143Section 1(1)(a). 144Section 1(2). 145Section 2. A number of provisions granting the police certain
powers 1n respect of the investigation of contraventions of s 2 (s 3(1)) and the destruction of articles used to contravene s 2 (s 3(2)) were also contained in the same proclamation.
146Section 4. Patric Duncan and the other white resisters were convicted of contravening these regulations. See supra chap three III A (3)(c)(iii).
147 Government Notice 2753, Government Gazette Extraordinary 4971 of 28 Nov 1952.
it removed those obstacles that normally make it difficult for
repressed groups to sustain their resistance.148 The provision of
foreign funds to those engaged in civil disobedience was also seen as
unwarranted foreign interference in, what was considered to be, South
Africa’s domestic affairs.
In order to counter these developments the act of giving as well as
that of receiving such assistance was outlawed. Section 3(1) of the
Criminal Law Amendment Act 8 of 1953 ‘made it a crime for anyone to
offer or accept material assistance (financial or otherwise) for the
execution of crimes of protest.
This provision was almost ipsissima verbis carried over into the
Internal Security Act 74 of 1982. Section 60(1) now provides as -
follows:
Any person who solicits, accepts or receives from any person or body of persons, whether within or outside the Republic, or who offers or gives to any person or body of persons any money or other article for the purpose of –
(a) assisting any campaign (conducted by means of any unlawful act or omission or the threat of such act or omission or by means which include or necessitate such act or omission or such threat) against any law, or against the application or administration of any law; or
(b) enabling or assisting any person to commit any offence by way of protest against any law or in support of any campaign against any law or in support of any campaign for the repeal or modification of any law or for the variation or limitation of the application or administration of any law; or
(c) unlawfully assisting any person who has committed any offence referred to in paragraph (b),
shall be guilty of an offence and liable on conviction to the penalties prescribed in section 59.149
In addition to the penalty provided for in respect of this section, the
court is obliged to forfeit to the state any money or goods in the
possession or under the control of the accused and which were used for
148 Earlier, reference was made to the "million shillings" drive launched at the commencement of the Defiance Campaign. In spite of the fact that the drive was aborted before it had reached its goal, it is clear that some money had been collected from the public. See supra chap three III A (3)(c)(iii).
149For the penalties prescribed in s 59, see supra chap four I C (1)(b).
the purposes mentioned above.150
The offence created in section 60(1) can be committed by the
(prospective) recipient and the (prospective) provider of the
assistance. The assistance pertains to a campaign of crimes of protest,
whether impending or already in progress (paragraph (a)); or assistance
to an Individual in respect of crimes of protest still in progress
(paragraph (b)) or crimes of protest of the past (paragraph (c)).
Except insofar as paragraph (c) is concerned, the assistance must be
provided with the intention of furthering the commission of crimes of
protest. This means that an unforeseen outbreak of crime during an
essentially legal campaign of protest would not constitute an offence
at the instance of those who had provided or accepted material
assistance in respect of that campaign, even if that outbreak of crime
was foreseeable.151 It also appears from the wording of section 60 that
the crimes of protest envisaged must specifically be aimed at a certain
law or laws, or the administration thereof. The law violated need not
be the one objected against.
Paragraph (c), which prohibits anyone from "unlawfully assisting any
person who has committed any offence referred to in paragraph (b)" did
not contain the adverb "unlawfully" in its 1953 equivalent. Taken
literally, the older provision could consequently be interpreted as
prohibiting anyone but the offender himself from paying for his legal
defence,152 and it could even be interpreted as prohibiting anyone from
acting as the lawyer for someone who has committed such an offence. It
could in fact be argued that the actions of a welfare officer or other
150Section 60(2). 151See Mathews Freedom, state security and the rule of law 55, who
convincingly argues that the rationale of S v Peake 1962 4 SA 288 (C) also applies in this case.
152This Interpretation was indeed endorsed in S v Sobale & others 1962 1 SA 411 (E) at 415. It is not inconceivable that the legal assistance which the accused in the cases currently under discussion received was viewed with a measure of irritation by the government of the day: the names of Mandela, Tambo, Slovo, Sachs, Wolpe and others frequently appear in the records as lawyers for the defence. For the adverse comments of an apparently otherwise sympathetic court on the influence which the fact that the defence of certain accused was sponsored by outside sources had on the conduct of the trial by the defence lawyer, see S v Motlhabakwe 8. andere 1985 3 SA 188 (N) at 208.
good Samaritan, who looked after the family of such a person while he
served a prison sentence, were criminalised.
To avoid such absurd consequences, the word "unlawfully" was introduced
in the 1982 Act. The problem now is what the term "unlawfully
assisting" means in the present context. It is submitted that a
feasible guideline would be the general legal position relating to
assistance given to persons who committed offences. Consequently,
paragraph (c) should be understood to have incorporated into section
60(1) the prohibition of being an accessory after the fact. An
accessory after the fact is someone who intentionally and unlawfully
assists the perpetrator of a crime to escape liability after the
commission of that crime.153 Paragraph (c) renders someone whose conduct
satisfies the requirements of that particular common law crime, liable
to the penalties for contravening section 60(1).
If that is the case, what then are the implications of section 60(1)
with regard to financial contributions and other assistance in respect
of the legal defence of persons who have engaged in crimes of protest?
It is submitted that the right to legal representation (at least if one
can afford it) is so basic that even the 1953 provision could not have
rendered such assistance unlawful. It is certain that the current
provision does not do so.
The raising of money for the defence of such a person or persons is
more problematic. It is submitted that where the money is raised or
promised before the commission of a crime or crimes of protest in order
to encourage the prospective offender to go ahead with his campaign,
such action could constitute a transgression of the provisions of
paragraphs (a) or (b). Where the money is promised or raised after the
commission of an offence for purely humane or even ideological reasons,
the requirement of assistance "to someone who has committed an offence"
would be satisfied, but because such assistance was not "unlawful" as
required by section (c), it would not come within the definition of the
offence under consideration.
A more difficult question arises when financial assistance is given to
an offender who has already committed a crime, with the purpose of
encouraging other persons and giving them the assurance that their
legal expenses will also be covered. If it should appear that such
153See Snyman Criminal law 236.
encouragement and assurance were intended, one would be dealing with
money given for the purpose of assisting future acts of civil
disobedience, as contemplated in subsections (a) and (b).
D. OTHER CRIMES
In the discussion thus far, the most important and direct implications
of the criminal law in respect of civil disobedience were analysed. To
a large extent, the statutory component of this body of laws emanated
from ad hoc legislation which followed in the wake of governmental
paranoia occasioned by the Defiance Campaign of 1952 and later
manifestations of political resistance. It will be submitted that civil
disobedience can have an important role to play in societies that
strive to uphold democratic values, and that tolerance of civil
disobedience is indeed one of the earmarks of such a society. The
special legislative "booster" provisions discussed above have no role
to play in such societies.
It could be argued, however, that the possibility of mass civil
disobedience can pose a serious threat to the modern state, especially
in a deeply divided society. Most of the crimes that might be committed
to express protest - the primary offences - were developed, and
penalties were determined, with transgressions by a limited number of
persons in mind. The legal impediments attached to the commission of
the primary crime might consequently in some cases be insufficient to
counter an unjustified but well orchestrated campaign of civil
disobedience. What would happen, for example, if a highly organised
group opposing the transformation of the South African society were to
launch a massive campaign of protest, paralysing the entire country?
Some "boosting" of the position of the state might in exceptional cases
be necessary.
It is submitted that, where feasible, specific campaigns of civil
disobedience can adequately be dealt with under the general provisions
of the law dealing with state security, and particularly the common law
crimes.154 This does not mean that the country’s security laws do not
also require revision. However, while they are in force, those laws are
more than might ever be needed to deal with any possible campaign of
154See also Ackermann Die reg insake openbare orde en staatsveiligheid 2, 3, 14 and Milton South African criminal law and procedure vol 2 27.
civil disobedience.
In what follows, the question win be discussed whether the
organization of, and participation in, a campaign of civil disobedience
can come within the ambit of any of the five most serious crimes
against the state: treason, sedition (the common law crimes), and
terrorism, subversion or sabotage (the statutory crimes).155 The
question whether civil disobedience could in given circumstances amount
to the crime of defeating or obstructing the course of justice, will
also be discussed.
(1) Treason
It was argued earlier that, contrary to what some American authors
maintain, civil disobedience can in principle be directed against "the
existing system seen as a whole". Illegal, non-violent, open, political
acts motivated by conviction do not cease to be acts of civil
disobedience simply because those acts are intended to bring about a
fundamental change in the basic constitutional structure of the
country. Certain protest campaigns against the apartheid state in South
Africa, Gandhi’s campaigns in India, and the Tiananmen Square
demonstrations in the People’s Republic of China, are examples of
revolutionary civil disobedience.
The question is whether revolutionary civil disobedience may constitute
treason as defined in South African law.156 As mentioned earlier, the
state contemplated bringing charges of treason against the leaders of
the Defiance Campaign of 1952.157 Evidence regarding the organization of
the Defiance Campaign also constituted a substantial part of the
state’s case in the Treason Trial.158 Towards the end of the proceedings
the prosecution mentioned the possibility of a conviction of treason
155The same question may of course be asked in respect of the commission of acts of civil disobedience where no campaign is involved, but the threat to the security of the state wi11 be considerably lower as far as individual civil disobedience is concerned.
156On the legal implications of the Rhodesian Unilateral Declaration of Independence in 1965 and especially the question whether it constituted treason, see Wharam Cambridge Law Journal 1967 189 and Barrie CILSA 1968 289.
157See "Treason, sedition searches made throughout Union" Rand Daily Mail 31 July 1952.
158See supra chap three III A (3)(c)(vi).
for illegal conduct aimed at the non-violent overthrow of the state.
This suggestion was called "[i]nteresting and important" by the Court.
However, since the case was brought and conducted on the basis of a
conspiracy to commit violence, the Court declined to consider
convicting the accused for treason on the basis of their non-violent
activities.159 It is conceivable, however, that a civil disobedience
campaign might be conducted in future, and the prosecution might then
decide to bring charges for treason.
The question whether an illegal campaign to overthrow the state non-
violently can constitute treason must be answered with a view to the
definitions of treason. As stated earlier, civil disobedience implies
illegality and non-violence. Civil disobedience can be coercive (for
example the blocking of traffic) or non-coercive (for example the
campaigns of Gandhi), but the higher the element of coercion, the less
would it be regarded as civil disobedience proper.
It follows from the non-violent nature of civil disobedience that if
the use of violence is a necessary element of treason, civil
disobedience will not qualify as treason. However, if any illegal
attempt to overthrow the state, whether violent or non-violent, would
suffice to constitute treason, revolutionary civil disobedience could
be treasonable. What then are the essential elements of the crime of
treason?
According to Milton: "High treason consists in any overt act unlawfully
committed by a person owing allegiance to a state possessing majestas
who intends to impair that majestas by overthrowing or coercing the
government of that state."160 According to Snyman: "High treason
consists in any act committed either inside or outside the borders of
159See S v Adams & others, unreported case no 1/58 SCC 1961, at 25 of the judgment of Rumpff J. The proceedings of the Treason Trial are discussed by Gardiner Journal of the International Commission of Jurists 1957 43; Blom-Cooper International and Comparative Law Quarterly 1959 59 and Karis Political Science Quarterly 1961 217. See also South African Institute of Race Relations A survey of race relations in South Africa 1956-1957 41ff; 1958-1959 44ff; 1959-1960 37ff and 1961 62ff.
160Milton Criminal law and procedure vo1 2 14. Majestas. in the context of the crime of treason, refers to the state's sovereignty. For a discussion of this element, see S v Banda & others 1989 4 SA 519 (BGD) at 521 and Devine SALJ 1990 184. See also Van der Vyver Emory International Law Review 1991 9.
the Republic by a person who owes allegiance to the Republic with the
intention unlawfully to overthrow, coerce, impair or endanger the
existence, independence or security of the Republic.161 De Wet and
Swanepoel maintained: "Hoogveraad is die wederregtelike, opsetlike
verstoring, aantasting of in gevaarstelling van die staatsbestaan."162
Ackermann defined treason as follows:
Hoogverraad teen die Republiek word gepteeg indien iemand wat trou aan die land verskuldig is, binne of buite die Republiek ‘n handeling verrig met die vyandige opset om op wederregtelike wyse die staat omver te werp, in gevaar te stel, die onafhankiikheid daarvan aan te tas, die grondwet daarvan te verander of die owerheid daarvan onder dwang te plaas."163
It is apparent from the above definitions that treason does not require
that one’s attempt at overthrowing or coercing the state should be
successful - certain acts committed with that intention will suffice.
In fact, treason will only be treason if it is unsuccessful, because
the successful overthrow of the government will put a new government in
power, and the new regime will have no incentives to prosecute
itself.164
The "key definitive element"165 or "hallmark"166 of treason is animus
hostil is, a hostile disposition against the state or government.167
What is required is a "vyandige opset"168, not "vyandelike opset":169 One
need not associate oneself with the enemy in a time of war; to act like
161Snyman Criminal law 257. 162De Wet & Swanepoel Strafreg 518. 163Ackermann Die reg Insake openbare orde en staatsveiligheid 8. 164According to Sir John Harrington's epigram: "Treason doth never
prosper; what is the reason? Why if it prosper none dare call it treason." Quoted in MacGuigan The Canadian Bar Review 1971 222 at 258.
165Milton South African criminal law and procedure vol 2 25. 166Snyman Criminal law 259. 167For the purposes of the law of treason the government is wholly
identified with the state. See R v Leibbrandt & others 1944 AO 253 at 281.
168As maintained by Gonin JCRDL 1951 1. Approved in S v Mayekiso & others 1988 4 SA 738 (W).
169As maintained by Coertze JCRDL 1937 274. See also S v Phi Hips (1896) 3 Off Rep 216 at 239, where "conspiracy and co-operation with a foreign enemy" was required.
the enemy in times of peace would constitute the required hostile
intent. In accordance with his definition of treason, Milton regarded
"hostile intent" as the intention "to impair the majestas of the state
by overthrowing or coercing the government."170 According to Snyman,
"hostile intent" is "an intention unlawfully to overthrow, coerce,
impair or endanger the existence, independence or security of the
government of the Republic."171
According to these interpretations of hostile intent - one might call
it the orthodox position - the intention to coerce or to overthrow the
state by illegal means would constitute hostile intent.
The striking feature of the orthodox position is the use of the word
"or". Either the intention to coerce or the intention to overthrow the
state illegally can constitute hostile intent. There might be an
overlap between the meaning of "intention to coerce" and "intention to
overthrow", but the disjunctive position172 in which the two terms are
used suggests that they cannot be identical, nor that the one term is
included in the other. It follows that neither the intention to coerce
nor the intention to overthrow by illegal means are necessary elements
of a hostile intent, but both intentions are in themselves sufficient
conditions of such an intent.173
The commission of illegal acts aimed at the overthrow of the
government, even in the absence of coercion, may therefore constitute
treason. Accordingly, Milton stated that "an intent to overthrow the
state certainly does constitute a ‘hostile intent’.”174
170Milton South African criminal law and procedure vol 2 29. 171Snyman Criminal law 261. See also Ackermann Die reg Insake
openbare orde en staatsveiligheid 11. 172According to Milton South African criminal law and procedure vol
2 28 compliance with "one or other" of the rubrics will constitute hostile intent.
173A condition or an element is "necessary" if its presence is a conditio sine qua non for a particular state of affairs to prevail; it is "sufficient" if its presence cancels the need for other conditions to be satisfied. A condition might, however, be necessary without being sufficient (there might be more than one necessary condition) or sufficient without being necessary (other conditions might also be sufficient).
174Id 26. De Wet & Swanepoel Strafreg 529 maintained that "sodra die wil om die bestaande staat omver te werp, dws die bestaande staat
The orthodox position, if correct, would clearly have far-reaching
consequences for civil disobedience. According to this approach, civil
disobedience both in its coercive and in its non-coercive form, as long
as it is aimed at the overthrow of the state, can be treasonable. It is
submitted, however, that the orthodox position does not correctly
express the essence of treason under South African law, as reflected in
the opinions of Roman-Dutch sources and in case law. Instead, it will
be proposed that an intention to illegally overthrow the government is
neither a necessary nor a sufficient condition for purposes of a
hostile intent, while an intention to coerce the government is both
necessary and sufficient.
What do the sources say? Voet regarded the intention to actually
overthrow the state as a necessary element of treason.175 Writers such
as Van der Linden176 and Moorman177, however, took the view that animus
hostilis is constituted by any intent to disturb, injure or endanger
the security of the state, and does not require an intention to
overthrow the government.
The Appellate Division endorsed the latter approach in R_v Erasmus,178
where it was held that a partial erosion of the government’s
independence of action already constitutes hostile intent. In this case
the appellant took part, as one of the leaders, in the armed uprisings
during the gold mine strikes on the Rand in 1921, which led to violent
clashes with the police. The trial Court came to the conclusion that,
deur 'n ander te vervang, maar deur die geringste gedraging blyk, word die staatsbestaan in gevaar gestel en is die handeling strafbaar [as treason]." See also Ackermann Die reg insake openbare orde en staatsvelligheid 12.
175After having given a number of examples of potentially treasonable activities, Voet stated that they constitute treason when they have "been committed against the commonwealth and with a view to its overthrow". Voet Comnentary on the Pandects 48.4.3.
176Van der Linden Koopmans handbook 2.4.2 defined treason as follows: "Deeze misdaad wordt begaan door hun, die met een vijandig oogmerk de onafhangelijkheid of veiligheid van den Staat stooren, benadeelen, of in gevaar brengen." (Original emphasis, footnote omitted.) See also R v Boers (1900) 21 NLR 116 at 121; R v De Wet 1915 OPO 157 at 167 and R v Wenzel 1940 WLO 269 at 272.
177Moorman Misdaden 1.3.2 defined treason as "uit een vyandlyk opzet, lets doen of ondernemen, ten nadele van den staat, of van's lands hoge overigheldt." See also 1.2.2.
1781923 AD 73 at 81.
on the facts of the case, it had not been proven that the appellant had
the intention of overthrowing the government, but nevertheless
convicted him of treason.
On appeal it was argued on behalf of the appellant that treason
requires an intention to overthrow the government, in the sense of
either altering the form of the constitution or changing the personnel
of the government. The objective of the strikers was only to induce the
existing government to change its policy and practices in respect of
the gold mines. The Appellate Division, after a thorough overview of
the authorities, rejected the notion that proof of an intention to
overthrow the government was a necessary condition of treason.
According to Innes C J, "the whole structure of society might be shaken
by the violent action of a body of men whose object was not to alter
the constitution or change the government, but to compel the latter to
obey their behests."179
The Court regarded as decisive the question whether there was an
attempt by the strikers "to impose their will" upon the government:
In a struggle between two belligerent nations the object of each is to impose its will upon the other - not necessarily to change its constitution. And where a number of citizens, endeavouring by force of arms to impose their will upon the government, embark upon warlike operations ... a trial court is justified in drawing the conclusion that they were actuated by a hostile mind.180
The basis for upholding the conviction consequently was the fact that
he acted like an external enemy - he imposed his will upon or coerced
the state. The intention to coerce the state is therefore regarded as a
critical element of high treason.181
The next question to be considered is whether any degree of coercion
would suffice to constitute the crime of treason. The facts in Erasmus
show that serious coercion was involved in that case. The accused led
179At 82. This conclusion was again endorsed by the Appellate Division in R v Christian 1924 AD 101 at 134 and R v Leibbrandt 8, others 1944 AD 253 at 280. See also S v Mavekiso & others 1988 4 SA 738 (W) at 749.
180At 82. According to Kotzé J A, the fact that the accused’s intention was "to compel the government of the Union to submit to the will of the strikers, or otherwise to render it powerless in the maintenance of law and order", was crucial. (At 83.)
181See also R v Mardon 1948 1 SA 942 (A) at 945.
one of several commandos, armed with fire-arms, in violent clashes with
the police. These commandos inter alia took possession of a police
station, and in total more than 200 people died in the ensuing
skirmishes.182
While some less-than-total attacks aimed at coercing the state can
therefore qualify as treasonable, it should be obvious that this does
not apply to all attempts to coerce the state. The takeover of a prison
by inmates who are holding some wardens hostage and who demand prison
reforms, will inevitably involve coercion of the state, but could
hardly qualify as treason. The language used in Erasmus suggests that
it is a question of how seriously the state is being coerced. The
violent actions of the strikers in that case were described by the
Court as "on no mean scale".183
According to Innes C J the question whether a hostile intent existed
was "a matter to be gathered from all the circumstances, of which the
probable consequences of the actions taken are supremely important."184
In R v Viljoen and others,185 another Appellate Division decision based
on the miners’ strike, the same approach was followed. In this case it
was held that hostile intent can be inferred from the "warlike
operations on a considerable scale undertaken with the object of
forcibly imposing the will of the participators upon the government of
their country."186
Again, an intention to impose one’s will or to coerce the state in a
serious manner was regarded as the feature that justified a finding of
hostile intent, even in the absence of an intention to overthrow the
state.
This approach of the Appellate Division indicates that an intention to
actually overthrow the government is not a necessary element of
"hostile intent". On the other hand, an intention seriously to coerce
the state is a sufficient condition. What is left open by these
conclusions, however, is the question whether an intention to coerce
182At 78. 183At 83. 184At 82. 185WS AD 90. Approved in R v Christian 1924 AD 101 at 133. 186At 92.
the state is also a necessary element of hostile intent and whether an
intent to overthrow the state, where present, can be a sufficient
condition even if no coercion is involved.
Coercion, as was stated earlier when the elements of civil disobedience
were identified, may involve the use of force, but it may also be non-
violent. Almost all the reported cases in South Africa's legal history
where people have been tried for treason involved the use of violence,
either directly (in the form of an armed rebellion or insurrection in a
time of external peace or physical participation in the military
efforts of the enemy in time of war), or indirectly (through more
indirect assistance to the enemy in a time of war).187 In the trial of R
v Leibbrandt and others188 Schreiner J defined hostile intent as "intent
to overthrow the government or to coerce it by force."189 No doubt,
coercion in the form of violence constitutes the usual manifestation of
treason, but there is ample authority which suggests that it is not a
187See eg S v Phillips & others (1896) 3 Off Rep 216 (members of the so-called "Reform Committee" convicted of treason after the Jameson Raid into the South African Republic); R v Boers (1900) 21 NLR 116 (citizens of Natal joined the Boer forces during the Second Anglo-Boer war); R v Gowthorpe (1900) 21 NLR 221 (accused joined the enemy in time of war); S v Randelhoff (1901) 22 NLR 59 (assistance given to the enemy in time of war); the "Cape treason trials" reported anonymously in the Cape Law Journal 1901 164 (taking up arms against the British government by Cape citizens sympathetic to the Boer cause during the second Anglo-Boer war); R v De Wet 1915 OPD 157 (instigating the 1914 rebellion against the government); R v Erasmus 1923 AD 73 and R v Viljoen & others 1923 AD 90 (taking part in armed clashes with government troops during the 1921 miners' strikes on the Rand); R v Wenzel 1940 WLD 269, R v Leibbrandt & others 1944 AD 253, R v Strauss 1948 1 SA 934 (A) and R v Neumann 1949 3 SA 1238 (SC) (assisting the enemy during the Second World War 1n various ways). See also S v Mange 1980 4 SA 613 (A) (members of the ANC Intended military attack on police and magistrates); S v Tsotsobe & others 1983 1 SA 856 (A) (members of the ANC attacked several civilian and state targets in South Africa); S v Lubisi & others 1982 3 SA 113 (A) (armed attack on police station by members of the ANC); S v Hogan 1983 2 SA 46 (W) (mere membership of the ANC and furtherance of its cause, without personal involvement in violence, held to be treasonable because of ANC's commitment at the time to violence); S v Gaber 1985 4 SA 734 (A) (explosions caused by members of the ANC) and R v Ramgobin & others 1986 1 SA 68 (N) (advancing the cause of the ANC and SACP through the use of violence).
188Unreported case no G 1/42 SCC 1943. 189At 1950. (Emphasis added.) Approved by the court a quo in R _v
Harden 1947 2 SA 768 (TSCC) at 774.
necessary condition.
Milton pointed out that the words "by force" in Schreiner's definition
in Leibbrandt were not repeated when the case reached the Appellate
Division. He argued that "unlawful but passive means of coercion, such
as an illegal strike or 'passive resistance campaign'" can also involve
coercion of the state that constitutes treason. Consequently, he
argued, the words "by force" should be omitted from the definition of
hostile intent.190
The view that the use of force was not a necessary element of hostile
intent was endorsed and followed in the case of S v Mayekiso and
others.191 The accused was charged with treason for having established
so-called "organs of people's power" as a type of alternative
government. They inter alia formed "people's courts" with their own
disciplinary structures, which also executed sentences against those
convicted. They also launched a number of boycott actions. According to
the charge sheet, by doing this the accused attempted "to coerce the
state".192
The charge sheet, however, did not allege that the accused intended or
actually used "violence towards the state". An application was brought
for the discharge of the appellants, inter alia on the basis that,
because such an allegation had not been made, the charge did not
disclose the crime of treason. Consequently the Court had to decide
whether "violence against the state" was a necessary element of
treason.
In a carefully researched judgment, Van der Walt J came to the
conclusion that the use of violence against the state is not an
essential element of treason. None of the old writers considered by the
190Milton South African criminal law and procedure vol 2 27. Milton's observation in respect of Leibbrandt does not rest on solid ground, since the reference by the court a quo to "the requisite element of force" was indeed repeated in the Apellate Division. (At 280.) His remarks are premised on the explicit assumption that the strike or campaign is "coercive". No provision is made for the possibility of I non-coercive campaign of civil disobedience. The same probably applies to the remarks of Ackermann Die reg insake openbare orde en staatsveiligheid 14, in respect of "lydelike verset".
1911988 4 SA 738 W, per Van der Walt J. 192At 739.
Court regarded violence as a necessary element of treason.193 Van
Leeuwen required an act "to the prejudice of the sovereign of the
country or the state"; Huber a "plan against the safety or dignity of
the sovereign power of the province"; Moorman an act "ten nadele van
den staat"; Van der Keessel a plotting against the state's "dignity,
safety, or sovereign authority", alternatively stated as an intention
"to bring about the destruction of the people or of the Emperor."
According to Van der Linden, treason is committed by someone who
"endangers the independence or safety of the state." A survey of these
writers led the Court to the conclusion that "anything done with the
intent to act as an enemy towards the state ... is treason."194 Violence
against the state was consequently not considered a necessary element
of treason, and the Court held that the charge sheet was therefore not
defective.195
The Court also identified itself with the approach of Schreiner J in
the Leibbrandt-trial.196 where it was noted that propaganda197 plays a
particularly important role in modern warfare, and for that reason
stated that even if the authorities did require force as an element of
treason (which they did not), it would no longer be appropriate in
modern times.198
It is clear, then, that in the view of the Mayekiso Judgment the net of
treason must be cast sufficiently wide to cover more than just illegal
acts of violence against the state. The question must consequently be
asked exactly how wide the concept of treason has been extended. Which
forms of non-violent action can be treasonable? Is some form of
coercion still necessary, or can non-coercive acts of illegal
"propaganda" be treasonable? It could possibly be argued that the idea
193The following quotations are from the Court's summary at 743ff. 194At 746. 195The accused were, however, ultimately discharged. The state had
not succeeded in presenting the evidence it had hoped to in order to substantiate the charge of treason. S v Mayekiso & others, unreported case no 115/89 W 24 April 1989. See also the comments by Van der Walt J, at 57, on the careful consideration which the framing of a charge of treason should enjoy.
196Approved in R v leibbrandt & others 1944 AD 253 at 282. 197As was mentioned earlier, Bertrand Russell described civil
disobedience as a form of propaganda. See supra chap two I B. 198At 750.
that illegal propaganda can be treasonable even if it is non-coercive,
finds some support in the Mayekiso Court's observation that "[i]n many
cases [modern] warfare takes the form of insidious rebellion with
hostile intent to unlawfully overthrow a particular state by any number
of means."199
Nevertheless, it is submitted that the Court's judgment should not be
interpreted as denying that the presence of some form of coercion
remains a necessary element of treason. In the first place, the
Mayekiso Court (like Milton) only rejected the words "by force" in
Schreiner J's definition of hostile intent. The words "or to coerce"
were left untouched. Schreiner's reference to the use of propaganda
furthermore applied in the context of physical assistance to the enemy
during the Second World War, which means that propaganda was part and
parcel of a wider coercive strategy. The factual situation in Mayekiso,
moreover, was one of (indirect) coercion against the state. Lastly, as
was pointed out earlier, the charge sheet in Mayekiso did allege that
the accused had coerced the state.
In S v Zwane and others(3)200 the accused were charged with treason on
the basis of facts similar to those in Mayekiso. The accused also set
up alternative governmental structures, such as "people's courts",
which enforced their findings inter alia through the imposition of
lashes with a sjambok. People were physically prevented from co-
operating with the police, and the accused conducted their own anti-
crime campaigns.
The approach of the Court was to regard unlawful acts aimed at
endangering or coercing the judicial authority of the state as
treasonable, provided those acts were committed with the intention to
impair the majestas of the state.201 On the facts, however, the Court
found that the state had not proved an objective on the part of the
accused to "'compel the government to obey their behests', as it was
put by Innes C J in the Erasmus case."202
It appears from the above that an intention to use violence or force
against the state is not a necessary element of treason. In one form or
199At 751. 2001989 3 SA 253 (W). 201At 260. 202At 318.
another, however, the intention seriously to coerce the state (either
violently or non-violently) has always been required. No convictions
for treason in South African law could be found where this element was
not present. The intention seriously to coerce the state should
therefore be regarded not only as a sufficient but as a necessary
element of "hostile intent". It follows that the intention to overthrow
the state illegally but not coercively will not suffice to constitute
treason.
This approach ties up with the nature of the interest which treason
endeavours to protect, namely the majestas of the state in the sense of
its sovereignty.203 This interest has also been described as the
"existence, independence and security" of the state.204 It is submitted
that these terms refer to the state's position of dominance in society
which allows it to make and enforce autonomous decisions. The only way
in which this ability of the state can be threatened is through
coercion of the state - that is, by forcing the state to make certain
decisions, or by making it impossible for the state to make other
decisions. This can be done directly through violent means, such as war
and rebellion, or through non-violent means, such as campaigns aimed at
flooding the prisons. It can also be done indirectly by assuming the
function of the state, for example by setting up alternative
governmental structures with their own coercive powers.205 It cannot be
done, however, by non-coercive civil disobedience that has as its aim
to persuade (as opposed to coerce) the state to bring about change.
Indeed, such civil disobedience is directed precisely at bringing about
the making of autonomous decisions by the state, not at preventing it
203Compare J 0 van der Vyver "The concept of political sovereignty" in Visser Essays In honour of Ellison Kahn 289.
204See Snyman Criminal law 262. See also R v Adams & others 1959 1 SA 646 (SC) at 649.
205According to Ackermann Die reg insake openbare orde en staatsveiligheid 14, the relevant question is: "Is die dwang gegrond op 'n oorname van owerheidsfunksies?" Traditionally a usurpation of the supreme functions of the state could take many forms, such as making war or peace, releasing hostages, and coining. See Anonymous 1938 SAU vol 55 14 at 16. The important fact in such cases is that the state is given no choice - the perpetrator imposes his will on it. The fact that the state is not the direct target of coercion should not detract from the fact that ultimately the intention is to coerce the state. A campaign of terror attacks, aimed at civilian targets, can after alt be treasonable.
from taking place. Non-coercive civil disobedience can consequently not
be treasonable, while a campaign of coercive civil disobedience, if the
coercion is serious enough, can be treasonable.206
In a number of cases, courts stated that treason can be directed not
only against the independence or safety of the state but also against
its authority. If these statements are correct and the term "authority"
refers to the moral standing of government, then even non-coercive
civil disobedience would threaten the interests protected by the crime
of treason. In the majority of these cases,207 however, it seems that
what the Court meant when stating that an attack "on the authority of
the state" can be treasonable was in fact that a limited attack on the
independence or safety of the state,208 or an attack aimed at the non-
executive branches of government,209 or an attack which is launched by
an internal enemy, could constitute acts of treason.210 In not one of
those cases was the interest protected merely the moral standing of the
government.
The reason why commentators traditionally regarded an intention to
overthrow the state by illegal means as a sufficient condition of
treason, can be traced back to the assumption that any illegal attempt
to overthrow the state must inevitably involve the use of force. This
assumption, valid for many centuries, was explicitly made by Schreiner
J in the trial of Leibbrandt:
206See also S v Baleka & others, unreported case no 482/85 T 15 Nov 1988, at 79 of the reasons for judgment, where Van Dijkhorst J remarked that "propaganda or protest action which has the object of coercing the government in a certain direction might in given circumstances amount to high treason." The remarks of the prosecutor in S v Adams & others, unreported case no 1/58 SCC 1961, referred to by Rumpff J as "[i]nteresting and important", were also to the effect that a "passive resistance campaign" could be treasonable only if it was embarked upon "with the object of coercing the government". (At 25 of the reasons for judgment.)
207See however, R v Colliers (1881) 1 Kotze 237 at 251. See in this regard also Milton South African criminal law and procedure vo1 2 28.
208R v Erasmus 1923 AD 73 at 88. See also R v Christian 1924 AD 101 at 134.
209S v Zwane & others (3) 1989 3 SA 253 (W) at 259. The reference in the latter case to Leibbrandt should be to pages 278-80 of that decision.
210See, in R v Leibbrandt & others 1944 AD 253 at 278, the Court's "[p]utting [of] the same argument in another way".
There is no intermediate course between constitutional action through the ballot box and treasonable action through the illegal use of force. Members of an organization may not themselves desire to use bombs or other weapons, but this will not avail them if their purpose is to act outside the constitution to achieve their ends.211
This approach was possibly warranted before the development of the
technique of civil disobedience as an instrument of mass mobilization,
capable of challenging the state in its entirety, but times have
changed. In fact, hardly four years after the judgment in Leibbrandt.
India became independent subsequent to a protracted struggle with
England in which Gandhi’s acts of civil disobedience, which were aimed
at bringing about a "peaceable revolution", played a significant role.
Nine years later civil disobedience challenged the very foundations of
the South African state.
The question how the proposed approach - according to which an
intention seriously to coerce the state is regarded as a necessary and
sufficient condition of a treasonable intention - should be
administered in practice need not unduly detain us. Hostile intent
could for example be defined as an intention to endanger the existence,
independence and/or security of the state through coercion. The words
"through coercion" can also be taken to be implied in the phrase
"endanger the existence". The point for present purposes is simply that
serious coercion of the state is an essential element of treason. How
serious this coercion must be, has to be determined with reference to
the criterion underlying all forms of unlawfulness - namely the legal
convictions of the community. In this regard considerations such as
freedom of expression, state security and the general criteria used to
determine the relationship between the individual and the state, should
be taken into account. In the latter regard something along the lines
of the "clear and present danger" test seems indispensable.212
211R v Leibbrandt & others, unreported case no G 1/42 SCC 1943, at 1970. See also S v Adams & others, unreported case no 1/58 SCO 1961, and S v Baleka & others, unreported case no CC 482/85 T 15 Nov 1988, at 88, 89. Milton South African criminal law and procedure vol 2 28 maintained that "someone who intends - perhaps only for a short period of time or among a small section of the community - simply to promote defiance of the government’s authority, can scarcely be said to Intend its 'overthrow'." He does not address the possibility of a more ambitious campaign of civil disobedience.
212For a discussion, see infra chap six IV B (2).
To summarise: According to the orthodox position, an intention to
illegally overthrow the state is not a necessary element of a hostile
intention, but it is sufficient. According to this approach, a non-
violent campaign aimed at the illegal overthrow of the state can be
treasonable, whether coercion is used or not. It is argued that the
orthodox position is wrong. The intention to overthrow the state
illegally is neither a sufficient nor a necessary element of hostile
intention. The intention seriously to coerce the state is both a
necessary and a sufficient element. A campaign of civil disobedience
can consequently constitute treason if, and only if, it involves
serious coercion. Non-coercive civil disobedience cannot be
treasonable, even if it has revolutionary objectives, but a coercive
campaign can qualify as treason.
To put this in concrete terms: an army of Gandhis who trespass on
government property throughout the country, demanding a change of
government, cannot be convicted of treason, but members of a nationwide
non-violent movement which sets out to block the major roads in the big
cities of the country for a couple of weeks, making government
impossible in order to bring it to a fall, may be so convicted.
One last point must be tied up. It was stated at the outset that, where
serious coercion is involved, even if violence is absent, it makes
little sense to treat protest actions as acts of civil disobedience.
Civil disobedience involves little or no coercion. Since treason
involves serious coercion, it follows that, if a campaign of protest is
coercive enough to qualify as treasonable (as with the blocking of the
roads example), it has in all likelihood ceased to be civil
disobedience. In this respect civil disobedience and treason can be
regarded, for all practical purposes, as mutually exclusive concepts.
(2) Sedition
The question will next be considered whether civil disobedience can
constitute sedition. Again it is a question of comparing the
definitions. The definition of civil disobedience need not be repeated.
According to Milton: "Sedition consists in unlawfully gathering,
together with a number of people, with the intention of impairing the
majestas of the state by defying or subverting the authority of its
government, but without the intention of overthrowing or coercing that
government."213 According to Snyman "[s]edition consists in the unlawful
and intentional gathering of a number of people in order violently to
challenge, defy or resist the authority of the Republic of South
Africa, or the unlawful and intentional causing of such a gathering
with such a purpose."214
The two definitions differ on the question whether violence is a
necessary element of the crime. We will return to this matter later on.
A common feature of the definitions is their identifying the protected
interest as the authority of the state and the act by means of which it
is done as defiance.215 "Authority" in this respect has been described
as the "[p]ower or right to enforce obedience: moral or legal
supremacy, the right to command, or give an ultimate decision."216
"Defy" was defined, inter a1ia. as to "reject, renounce, disdain,
revolt at"217. It should consequently be clear that sedition is aimed at
protecting exactly what civil disobedience notoriously can undermine,
namely respect for the government and its laws: that is, respect for
its authority.
Can civil disobedience then constitute sedition? According to the
definition of Milton, sedition is per definition non-revolutionary and
non-coercive, which means that non-revolutionary and non-coercive acts
of civil disobedience can in principle be seditious. Snyman, however,
regarded at least a threat of violence as an essential element of
sedition.218 If this latter view is correct it would imply that civil
disobedience cannot be seditious. In this vein Snyman argued that
a mere gathering of preservationists on Church Square, Pretoria, to protest against a government decision to demolish the old buildings forming the western facade of the square, would not be sedition, even if it were held in defiance of the government's
213Milton South African criminal law and procedure vol 2 46. 214Snyman Criminal law 263. 215See also R v Klaas and others 1915 CPO 58 at 63; R v Endemann
1915 TPD 142 at 147 and R v Viljoen & others 1923 AD 90 at 97. 216S v Twala & others 1979 3 SA 864 (T) at 870. 217Ibid. 218See also Snyman SALJ 1980 14 at 21. The author argued that the
view of the Court in S v Twala & others 1979 3 SA 864 (T) at 869, that "violence is certainly not an essential part of the seditions gathering," cannot be accepted without the qualification that there must at least be a threat of violence.
ban on public gatherings. It would only become a seditious gathering once the participants violently defied a police order to disperse or once they threatened forcibly to prevent the bulldozers from proceeding with the demolition.219
However, in a number of decisions over the past few years the view that
sedition does not require the use or the threat of violence has been
endorsed. In S v Zwane and others (1)220 Grosskopf J stated that
a seditious gathering need not necessarily involve an uprising or
riot, or be coupled with clamour, uproar, violence or threats of
violence. It seems to me that the weight of authority only
requires a gathering in defiance of the authorities for an
unlawful purpose to constitute the crime of sedition.221
This statement was based on the dictum of De Villiers J P in R v
Endemann222 that sedition "takes the form of a gathering or gatherings,
in defiance of the lawfully constituted authorities, for some unlawful
purpose."223 In S v Mayekiso and others,224 Van der Walt J stated that
"violence towards the state, either actual or contemplated, is not a
necessary element in the crime of sedition,"225
If this approach, which currently seems to be the prevailing one as far
as the courts are concerned, is carried through to its logical
conclusion, it would follow that there is no principled reason why a
civil disobedience campaign - whether coercive or not - cannot
constitute sedition.226
Before a conviction for sedition can follow, it must be established
that the necessary intention be present. That is, there must be an
intention not merely to break the law, but also to defy the authority
219Snyman SALJ 1980 14 at 22. 2201987 4 SA 369 (W). See also S v Zwane & others (3) 1989 3 SA 253
(W) at 261. 221At 374. 2221915 TPD 142. 223At 147. 2241988 4 SA 738 (W). 225At 751. See also S v Mayekiso & others, unreported case no
115/89 W 24 April 1989, at 56 of the reasons for judgment. 226It should be noted that according to the definition of Milton
sedition cannot involve violence, while in terms of the cases cited sedition can be violent but need not be.
of the state. As was stated in S v Zwane and others (3),227 "it is the
authority of the state that has to be defied or assailed intentionally
and a gathering with the intention to breach the law or to commit a
crime would in itself not be sufficient to constitute a seditious
gathering."228
It seems then that this matter must also be looked at from the angle of
the interests protected: the question is what sort of action can pose a
sufficiently serious threat to the authority of the state, as defined
earlier, to constitute sedition. It appears incontestable that the
"moral and legal supremacy" of the state can be challenged through a
campaign of civil disobedience. If the common law writers did not make
provision for this form of challenge in their definitions of sedition,
as Snyman maintained,229 it is probably because this form of protest was
largely unknown to them. And, indeed, it seems that Snyman also does
not take the possibility of a full-scale campaign of civil disobedience
into account. In a more refined version of the stark choice posed by
Schreiner in Leibbrandt between constitutional and violent protest,230
Snyman said that "[i]f there is no actual violence, there must at least
be threats of violence. A crowd gathering unlawfully but dispersing
peacefully at the request of the police can hardly be said to commit
sedition."231
Granted, but what, one may ask, about the case where crowds across the
country do not "disperse peacefully" at the request of the police but
also do not engage in violent resistance? That is, what if the crowd's
actions are part of a sustained campaign of civil disobedience? It is
submitted that there is in principle no reason why their conduct cannot
be seditious.
The above should not be taken to mean that all those who engage in
unlawful gatherings aimed against the authority of the state commit
sedition. A few observations should be made in respect of the
requirement of unlawfulness.
2271989 3 SA 253 (W). 228At 261. 229Snyman SALJ 1980 14 at 22. 230See supra chap four I D (1). 231Snyman SALJ 1980 14 at 21.
It is not sufficient that the dissident gathering should knowingly be
in breach of a legal provision. For example, a heated political meeting
does not become seditious if the fire-regulations pertaining to the
number of people allowed into the hall are knowingly violated.
Unlawfulness of the primary offence must be the vehicle through which
the authority of the state is being defied.
Also, not all acts of unlawful defiance of the authority of the state
would qualify as seditious. If a number of neighbours, in order to
protest municipal restrictions on the use of water in their gardens,
agree that they will a11 turn on their sprayers at a pre-arranged time
when it is forbidden, their conduct can hardly be said to constitute
sedition. Arguably, the decision of a group of people to engage in what
was called legality-based civil disobedience, that is where a claim of
right is being made, would also not qualify as sedition. In order to
comply with the requirement of unlawfulness for the purposes of
sedition, the action must in a serious way challenge the authority of
the state. In making the decision whether the challenge to the
authority of the state is serious enough to warrant a conviction of
sedition, a court will have to take into account the same matters
referred to under the heading of treason - such as freedom of speech,
the danger posed by such action, and so on.232
(3) Terrorism
The crime of terrorism as it stands today is codified in section 54(1)
of the Internal Security Act 74 of 1982.233 Since violence in one form
or another is an element of terrorism,"234 it 1s clear that acts of
civil disobedience (which are per definition non-violent) cannot
232Recognition of the fact that the accused had no other effective channel through which to voice their grievances (such as the vote) seems to underlie Van der Walt J's decision in S v Mayeklso & others. unreported case no 115/89 W 24 April 1989, that the "Alexandra Five", who had established alternative governmental structures in the townships, were not guilty of sedition. For a discussion of this case, see Bi1a et a1 SALJ 1989 595.
233Previously defined in s 2 of the Terrorism Act 83 of 1967. For a discussion on the effects of the old provision on acts of civil disobedience, see Dugard Human rights and the South African legal order 174. On the relationship between the old and the new provisions, see S v Hpetha 1985 3 SA 702 (A).
234See Ackermann Die reg insake openbare orde en staatsveiligheid 25.
constitute terrorism.
(4) Subversion
The crime of subversion was created by section 54(2) of the Internal
Security Act 74 of 1982, which lists a variety of ways in which this
crime can be committed.235 Some of these possibilities involve the use
of violence, but violence is not a necessary element of the offence.236
Since it would be virtually impossible to summarise the relevant
provisions, they have to be outlined in some detail.
Section 54(2) provides that any person who, with the intent described
in section 54(1), namely to
(a) overthrow or endanger the state authority in the Republic;
(b) achieve, bring about or promote any constitutional, political, industrial, social or economic aim or change in the Republic;
(c) induce the Government of the Republic to do or to abstain from doing any act or to adopt or to abandon a particular standpoint; or
(d) ... demoralize the general public, a particular population group or the inhabitants of a particular area in the Republic, or to induce the said public or such population group or inhabitants to do or to abstain from doing any act,
[does any of the following:]
(a) causes or promotes general dislocation or disorder at any place in the Republic, or attempts to do so;
(b) cripples, prejudices or interrupts at any place in the Republic any industry or undertaking, or industries or undertakings generally, or the production, supply or distribution of commodities or foodstuffs, or attempts to do so;
(c) interrupts, impedes or endangers at any place in the
235For a general discussion, see Ackermann Die reg Insake openbare orde en staatsvei1igheid 29ff and Mathews Freedom, state security and the rule of law 38ff. See also S v Radebe 1988 1 SA 772 (A).
236Where violence is present, even if it was not intended, it can be a statutorily recognised aggravating circumstance. Section 54(2)(ii) provides that "if the act with which the accused had been charged and by virtue of which he was convicted resulted in the commission of violence and the Court is of the opinion that in performing the said act the accused should have foreseen the commission of such violence as a reasonable possibility," imprisonment for a period not exceeding 25 years can be imposed.
Republic the manufacture, storage, generation, distribution, rendering or supply of fuel, petroleum products, energy, light, power or water or of sanitary, medical, health, educational, police, fire-fighting, ambulance, postal or telecommunication services or radio or television transmitting, broadcasting or receiving services or any other public service, or attempts to do so;
(d) endangers, damages, destroys, renders useless or unserviceable or puts out of action at any place in the Republic any installation for the rendering or supply of any service referred to in paragraph (c), any prohibited place or any public building, or attempts to do so;
(e) prevents or hampers, or deters any person from assisting in, the maintenance of law and order at any place in the Republic, or attempts to do so;
(f) impedes or endangers at any place in the Republic the free movement of any traffic on land, at sea or in the air, or attempts to do so;
(g) causes, encourages or foments feelings of hostility between different population groups or parts of population groups in the Republic, or attempts to do so
[or in a variety of ways commits acts related to the above]
shall be guilty of the offence of subversion and liable on conviction –
(i) to imprisonment for a period not exceeding twenty years.
It should be clear that these provisions can in many cases be
transgressed by means of both coercive and non-coercive acts of civil
disobedience. Most successful campaigns of civil disobedience would
cause or promote "general dislocation or disorder ... in the Republic"
in contravention of subsection (a), if coupled with the intent to bring
about one of the wide range of consequences listed in the Act.237 The
blocking of highways is explicitly covered by subsection (f). The wide
reach of the "common purpose" doctrine in this regard should also be
noted.238 Another obvious provision under which charges based on acts of
civil disobedience can be brought, is subsection 2(e). Consequently, it
can be said that nothing in principle seems to preclude a charge of
subversion from being based on acts of civil disobedience, as long as
the required intent is present.239
237See Minister of Law and Order v Pavlicevic 1989 3 SA 679 (A) at 690.
238See S v Safatsa & others 1988 1 SA 868 (A) at 894. 239See Ackermann Die reg insake openbare orde en staatsveiligheid
Lastly, it is important to note that according to section 69(5) of the
same Act, in prosecutions in terms of section 54(1) and 54(2), if it is
proved that "the accused has committed any act alleged in the charge,
and if such act resulted or was likely to have resulted" in the
achievement of any of the objects set out in respect of these crimes,
it is rebuttably presumed that the necessary intention was present.
(5) Sabotage
Section 54(3) of the Internal Security Act 74 of 1982 defines the
present meaning of the crime of sabotage.240 The crime covers an
incredibly wide range of behaviour.241 It entails the commission of any
act, attempt to commit an act etc, with the intention242 to bring about
any of the consequences listed in paragraphs (b), (c), (d), (f) or (h)
under the crime of subversion, or to "endanger the safety, health or
interests of the public in any place in the Republic."243 Upon
conviction, offenders are liable to a maximum of twenty years'
imprisonment.
The extraordinary wide reach of these provisions is evident from the
fact that, on a literal interpretation of section 54(3), even the non-
violent disruption of the activities of a home bakery can qualify as
sabotage.244 The need to limit the range of this statutory provision has
been explicitly recognised by the Appellate Division.245 In practice,
however, it seems that the particular section has not featured
prominently in prosecution for acts of civil disobedience. One reason
is certainly the wide range of other options open to the state.
(6) Defeating or obstructing the course of justice
The crime of defeating or obstructing the course of justice is defined
as an unlawful act which is intended to defeat or obstruct, and in fact
32. 240Previously, sabotage was circumscribed differently, in s 21 of
the General Law Amendment Act 76 of 1962. 241See Ackermann Die reg insake openbare orde en staatsvei1igheid
33ff and Mathews Freedom, state security and the rule of law 4lff. 242Dolus directus is required. S v Nel 1989 4 SA 845 (A). 243Section 54(3)(a). 244See Ackermann Die reg Insake openbare orde en staatsvei1igheid
34. 245S v Radebe 1988 1 SA 772 (A).
does defeat and obstruct, the due administration of justice.246
It was mentioned in the historical survey of civil disobedience in
South Africa that one of the expressed aims of some of the organisers
of the Defiance Campaign and the Positive Action Campaign was to flood
the prisons. This would in turn cause the breakdown of the whole system
of the administration of criminal justice. It is conceivable that such
action can constitute the crime of defeating or obstructing the course
of justice, or at least an attempt to do so.
II. EXECUTIVE POWERS AND CIVIL DISOBEDIENCE
The above survey focused on provisions of the criminal law which, to a
greater or a lesser extent, have a bearing on civil disobedience,
insofar as acts of civil disobedience may come within the confines of
specific statutory or common law provisions. At least in a formal
sense, the rule of law prevails in respect of the above provisions, in
that an attempt (with varying degrees of success) was made to establish
publicly the basis on which the wrath of the state would be unleashed
on those who resist it, and the implementation of these measures is
mostly left to the courts. The picture would, however, be incomplete if
reference is not also made, however brief, to the ability - and
tendency - of the executive to use powers, the exercise of which to a
greater or lesser extent lies in its own discretion, to curtail
activities which it disapproves of, including the promotion or practice
of civil disobedience.
These executive powers include the pervasive security powers of the
South African government, as well as the censorship system.
A. EXECUTIVE POWERS RELATING TO STATE SECURITY
The security powers of the state247 can be divided into the categories
of so-called "non-emergency powers" and "emergency powers".
(1) Non-emergency powers
The non-emergency or regular powers of government relate to various
ways in which people can be detained without trial and restrictions can
246See Snyman Criminal law 299 and S v Burger 1975 2 SA 601 (C) at 611. See also, on contempt of court, R v Pitje 1960 4 SA 709 (A), discussed supra chap three III A (3)(c)(vi).
247The general Issue of state security is discussed at some length infra chap six III B (5).
be imposed on individuals, organizations and events, without the
official declaration of an emergency or unrest situation.
(d) Detention
Two forms of detention without trial has traditionally been authorised
in terms of South Africa’s non-emergency security legislation:
"preventative detention", which is "designed to remove certain actors
from the stage of public life because they are deemed to be a threat
to its orderly conduct" and "pre-trial detention", which is designed to
facilitate the conduct of a trial.248 A government that has assumed
these powers and which is intent upon eradicating acts or campaigns of
civil disobedience, can be expected to take recourse especially to
preventative detention.249
Preventative detention, as provided for in the Internal Security Act 74
of 1982, has in turn manifested itself in three different ways. In the
first place, until July 1991, indefinite preventative detention could
be imposed by the Minister of Law and Order."250 Secondly, detention for
a period of up to 180 days could be authorised by a commissioned police
officer of or above the rank of lieutenant-colonel.251 This provision
has now also been repealed.252 Lastly, according to a provision which is
still in force, an officer of or above the rank of warrant officer may,
under warrant from a magistrate, order detention of up to fourteen
days.253
(b) "Banning"
The executive has the power to "ban" organizations, individuals and
meetings. This means that the activities of organizations or
248See Mathews Freedom, state security and the rule of law 62. 249The distinction between these two categories is not watertight,
in that pre-trial detention is also used to remove people from the political arena. For a discussion of pre-trial detention measures, see Mathews Freedom, state security and the rule of law 78ff.
250Section 28. For a discussslon, see Id 63ff. This provision was repealed by s 12 of the Internal Security and Intimidation Amendment Act 138 of 1991.
251Section 50A. For a discussion, see Id 77ff. 252By s 18 of the Internal Security and Intimidation Amendment Act
138 of 1991. 253Section 50. For a discussion, see id 75ff.
individuals, or the holding of meetings may be subjected to far-
reaching restrictions or that organizations or meetings may in fact be
declared unlawful.
(i) "Banning" of organizations
The Internal Security Act 74 of 1982 confers virtually unrestricted
powers on the Minister of Justice to declare organizations unlawful and
hence to render any association with such organizations an offence.254
This provision and its fore-runners have been used to silence a wide
array of protest movements which at one time or another have been
involved in organising campaigns of civil disobedience.255
(ii) "Banning" of -individuals
Until July 1991, the Internal Security Act 74 of 1982 vested in the
Minister of Justice a virtually unrestrained discretion to curtail the
personal freedom of individuals in respect of membership of
organizations, presence at certain places, attendance of gatherings,
etc.256
(iii) "Banning" of meetings
The executive also has the power, when it deems it necessary in the
interests of state security, to prohibit certain gatherings. A
manifestation of civil disobedience would occur if the organisers
nevertheless proceed with such meetings.257
254See ss 4(1) and 13. 255The Communist Party of South Africa was first declared an
unlawful organization by s 2(1) of the Internal Security Act 44 of 1950. The ANC and the PAC were declared unlawful organizations in accordance with the Unlawful Organisations Act 34 of 1960, by means of Proc 119, Government Gazette Extraordinary 6414, 8 April 1960. The position was perpetuated through the inclusion of these organizations in Schedule 4 of the Internal Security Act 74 of 1982. A11 these organizations were unbanned on 3 February 1990 by means of Proc R21, Government Gazette 12287, 3 Fob 1990. Another way in which the actions of an organization can drastically be curtailed is by means of the Affected Organizations Act 31 of 1974. Organizations which are declared "affected" are prevented from receiving financial assistance from abroad.
256Sections 18-22, now repealed by s 12 of the Internal Security and Intimidation Amendment Act 138 of 1991. The fore-runner of these provisions was s 10 of the Internal Security Act 44 of 1950.
257 See, for example, regarding the period just before the Defiance
Successive South African governments have for a long time taken upon
themselves the power to exercise strict control over public gatherings.
The Riotous Assemblies and Criminal Law Amendment Act 27 of 1914, which
conferred upon magistrates the power to prohibit public meetings in
their districts in order to preserve the public peace, made it an
offence to attend, advertise, etc such meetings.258 This legislation was
later re-enacted and expanded upon; first by the Riotous Assemblies Act
17 of 1956259 and later by the Internal Security Act 74 of 1982.260
Today, section 57 of the last-mentioned Act prohibits anyone from
convening, advertising, attending, etc a gathering which has been
prohibited in terms of the Act by either the magistrate of the
particular district, or the Minister of Law and Order, or which is not
held in accordance with the conditions laid down for such gatherings by
the magistrate or the Minister.
(2) Emergency powers
The most important emergency powers of the state are contained in the
Public Safety Act 3 of 1953.261 These powers can be divided into two
categories: The State President has the power to declare "macro" or
more extensive emergencies (a "state of emergency" is declared in a
certain area), and the Minister of Law and Order has the power to
declare "micro" or less extensive emergencies (a certain area is
declared an "unrest area").
(e) "Macro emergencies"
The Public Safety Act 3 of 1953 empowers the State President to declare
a twelve month state of emergency if he is of the opinion that "the
safety of the public, or the maintenance of public order" is seriously
threatened, and that the ordinary law of the land is inadequate to deal
Campaign of 1952, when a number of leaders defied orders to resign from the organizations responsible for the Campaign and not to participate in public gatherings, supra chap three III A (3)(1). See, in general, on state control over public meetings, Pretorius Die begrip openbare belang en burgervryheidsbeperking 227ff.
258See supra chap four II A (D(b)(iii). 259Section 2. 260Sections 46-53. 261For a discussion of the other emergency powers at the disposal
of the state, see Mathews Freedom, state security and the rule of law 215.
with the situation.262
In 1960 a state of emergency was declared in virtually the entire
country, and it remained in force for 156 days.263 The limited state of
emergency announced in 1985 was expanded to cover the entire country in
1986. It was renewed from time to time until 1990.264
The State President is authorised to proclaim regulations in areas
where a declared emergency is in force. Such regulations have in the
past greatly enhanced the powers of the police to detain people without
trial, to preclude access to legal representation and to use force
against people who fail to respond to an order to proceed to any place
or to desist from specified conduct.265
In terms of the Emergency Regulations in force during the 1980’s, it
was also an offence to make, possess or disseminate "a subversive
statement",266defined, inter alia. as "a statement which contains
anything which is calculated to have the effect or is likely to have
the effect ... of inciting the public or any person or category of
persons to ... take part in any acts of civil disobedience."267 These
powers have indeed been used to curb the practice of civil
disobedience.268
(f) "Micro emergencies"
A 1986 amendment to the Public Safety Act introduced a mechanism
262Section 2. 263For a discussion, see Mathews Law, order and liberty In South
Africa 224. 264For a discussion, see Du Plessis & Olivier SAPL 1987 84, 197;
SAPL 1988 111, 267; SAPL 1989 95, 290; SAPL 1990 260 and SAPL 1991 126.
265For a general discussion of the effect of these regulations, see Burns Woord en Daad 1988 7.
266See eg s 10 of Proc 109, Regulation Gazette 3964, Government Gazette 10280, 12 June 1986.
267Id s 1 viii (b) iv; definition of "subversive statement". 268In 1987, for example, an affidavit by a police sergeant revealed
that two journalists were detained in terms of the regulations under the state of emergency because they had planned to publish "in a newsletter, news about radical persons and organizations in which the community would be incited to civil disobedience." See "Newsmen still trying for freedom" City Press 28 June 1987.
whereby the Minister of Law and Order can declare certain areas to be
"unrest areas"269. Although the initial declaration can be valid for a
maximum of only three, months, the provisions which govern abridgments
of legal processes that can be authorised in the case of a micro
emergency are substantially the same as those which apply in the case
of the macro emergencies.270
B. CENSORSHIP AND STATE SECURITY
Executive control of matters perceived to affect state security can
also be found in the country’s elaborate and controversial censorship
system.271
The statutory foundation of the censorship system is the Publications
Act 42 of 1974. This Act provides for an administrative structure with,
as its highest "appellate" authority, the Publications Appeal Board
(the "PAB"),272 which has the power to declare certain publications
"undesirable".273 It constitutes an offence to produce274 or distribute275
an undesirable publication. In some cases possession may also be
prohibited.276
In terms of section 47(2)(e), a publication may be declared undesirable
if it is found to be "prejudicial to the safety of the state, the
general welfare or the peace and good order." Clearly, this provision
could have far-reaching implications for those who wish to promote a
campaign of civil disobedience through the media. The scope of those
implications depends on the exact meaning of this clause. What exactly
does the particular provision attempt to protect, and what criterion
269Public Safety Amendment Act 67 of 1986. 270See Mathews Freedom, state security and the rule of law 214. 271For a discussion of the trends in and criticisms of the system,
see Van der Vyver De Jure 1988 182; G Marcus "Reasonable censorship?" in Corder Essays on law and social practice in South Africa 349 and Van der Westhuizen SAJHR 1990 425.
272The Supreme Court has no appellate Jurisdiction in matters of censorship but can exercise a power of review over the proceedings of the PAB. Section 39.
273The term "publication" is used here to include any object, film or public entertainment as defined in s 47(1).
274Section 8(1)(a). 275Section 8(1)(b). 276Section 8(1)(d).
should be applied to establish whether a sufficiently serious threat to
this interest exists to warrant a finding that a particular publication
is undesirable?
First, then, the interest protected must be considered. According to
Kobus van Rooyen, a former chairperson of the PAB, "[i]t would seem
that the interests protected by this paragraph are related to a society
which is free of political violence."277 The only threats to the "safety
of the state, general welfare or the peace and good order" which,
according to this approach, can render a publication undesirable are
those which involve violence, either actual or potential. If this view
were correct, it would follow that the promotion of civil disobedience
could not bring a publication within the reach of section 47(2)(e),
since civil disobedience is per definition non-violent.
What, then, is the criterion to be used in this regard? According to
Van Rooyen the PAB
has held itself guided by the "clear and present danger" doctrine of the United States Supreme Court - hastening, however, to add that this is limited to that doctrine’s requiring a real threat and that s[ection] 47(2)(e) goes further by employing the term "prejudicial", which, even if read with "is" points to a (substantial) contribution being sufficient and that an "imminent" danger is not a requirement.278
The threat posed by the publication in order to render it undesirable
consequently need not be "imminent" or "present" - it, must simply be
"real" or "clear". According to Van Rooyen, this means that section
47(2)(e) "obviously deems more material to be undesirable than [the
clear and present danger] doctrine would."279
This interpretation, if correct, would render it easy to find a
publication undesirable if there is any chance, however remote or
fanciful, that the publication in question may lead to serious
disruptions of the safety of the state, the general welfare or the
peace and good order by the protesters themselves, or eventually by the
community at large. The question whether or not a danger is imminent or
present would be immaterial.
It is submitted that, purely on the level of statutory interpretation.
277Id 105. 278Id note 54. 279Ibid.
Van Rooyen’s identification of the interest protected by section
47(2)(e) is too narrow, while his exposition of the criterion according
to which possible threats to that interest are to be evaluated is too
wide.
In respect of the interest protected, the language used in section
47(2)(e) seems to leave little doubt that it is aimed not only against
the promotion of violence, but also against other forms of social
turbulence. It was argued earlier that there are many non-violent, yet
highly coercive, ways in which protest can find expression.280 Again,
the familiar example of the sealing off of a city’s highways could be
referred to. The advocacy of such acts through publications clearly
could compromise the "peace and good order" and there appears to be no
reason why it could not come within the range of section 47(2)(e). It
is consequently submitted that the section is directed not only against
political violence, but also against certain instances of non-violent
political expression. In principle, the promotion of civil disobedience
cannot be excluded.
With regard to the criterion to be applied when determining whether a
threat to public order is serious enough to warrant a finding of
undesirabi1ity, it is submitted that the words "is prejudicial"281 as
used in section 47(2)(e) pose a clear requirement of imminence or
presence of the danger. The language used in fact conveys this idea in
particularly strong terms. What is required by the section is not
merely the potentiality of prejudice (a "danger" or a "threat") but
actual prejudice. The use of the present tense form of the verb "is",
instead of the imperative "can be", indicates the requirement that the
probability of the violence should actually be present.
It consequently seems that the wording of section 47(2)(e) is more
closely comparable with the present increasing emphasis in American
First Amendment jurisprudence on the requirement of imminence than
with the classical clear and present danger approach.282 Presumably the
introduction of a freedom of speech clause in the South African
constitution will compel the PAB to adhere to a more liberal criterion
280See supra chap two I B. 281In the Afrikaans text, which was signed by the State President,
the words "nadelig is" are used. 282See Cheh SAJHR 1986 29.
in this regard.
In spite of the above, the PAB in practice uses the "clear and present
danger" test, and has in the past, in its adjudication of section
47(2)(e), followed a course that is generally protective of free
speech.283
The PAB aligned itself with the "free trade in ideas" philosophy which
underlies the protection of speech.284 It also recognised the need to
allow "sharp political criticism" and emphasised the "safety valve"
function of uninhibited speech.285 Most instructively for our present
purposes, however, is the fact that the PAB has accepted the approach
that "claims of national security must always be viewed with a high
degree of scepticism", and that there "cannot be a search for total
security".286 In respect of the approach to be followed in times when a
"revolutionary climate" is said to exist, the PAB did not regard the
existence of a state of emergency as conclusive proof that the
interests protected by section 47(2)(e) are more vulnerable than at
other times.287
The PAB’s approach regarding publications encouraging civil
283See Grassroots 54/85, where it was stated that s 47(2)(e) serves to protect the state, inter alia. from civil disobedience. On the basis of the "clear and present danger" doctrine, the publication in question was described as "provocative" but not "undesirable". In Anti-SAIC News 38/83 the PAB endorsed the dictum in Whitney v California 274 US 357 (1927) at 377 that "no danger flowing from speech can be deemed clear and present unless the incidence of the ev11 apprehended is so imminent that it may befall before there is opportunity for full discussion." See also SASPU National 107/84. In SASPU National 105/83 the PAB adopted the approach in Abrams v United States 250 US 616 (1919) at 630 that the expressions of opinion considered dangerous should not be suppressed "unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country." The courts also held that the danger must be immediate before speech is banned. In United Democratic Front (Western Cape Region) v Theron NO 1984 1 SA 315 (C) the Court remarked that a "slight or remote danger" is not enough to warrant the prohibition of a public meeting in terms of s 46 of the Internal Security Act 74 of 1982.
284See SASPU National 105/83. 285See Grassroots 200/83 Annexure. 286SASPU National 221/84. 287Two Dogs and Freedom 129/86.
disobedience, however, is not entirely clear. The Board has held that
the "ultimate question is whether the [publication in question] will
contribute to a violation of state security and good order and the
general welfare by contributing to terrorism, sabotage ... and civil
disobedience."288 On the other hand, it also stated that "the mere call
for a boycott or a strike - even an unlawful strike - is not
undesirable."289
In Benoni Student Movement,290 the PAB declared a publication
undesirable, stating that the
main problem [of the publication] centres around the fact that the majority of the articles have civil disobedience as their basis. In some cases this kind of action is directly promoted by the use of references to the deprivation and frustration of the blacks in the areas of education, health, labour, housing and welfare.
The PAB’s view that the publication was undesirable was based on its
finding that "[t]he present publication is opposed to the whole system.
The publication is also interlarded with typical socialistic
terminology. In this manner extra-constitutional methods of change are
subtlety (sic) and even directly propagated."
The above decision provides a good example of the need for the PAB to
give recognition to the requirement of imminence. Nowhere in the
decision is any indication given of facts that go to show that
disorders might ensue on a scale large enough to warrant the banning of
speech in consequence of civil disobedience incited by the particular
publication.
In view of the above, it is submitted that publications promoting civil
disobedience can in principle be brought within the ambit of section
47(2)(e), but then only when the danger of grave social upheaval is
imminent.
C. EXECUTIVE LENIENCY FOR POLITICAL OFFENDERS
There are a number of ways open to the executive, should it want to
show leniency to political offenders. The state may, for example,
288Grassroots 54/85. See also Izwe lase Township 144/82, 289See Grassroots 200/83 and Heartland 43/82 Annexure. 290159/81.
refuse to prosecute, withdraw charges, stop a prosecution,291 reduce a
term of imprisonment,292 or grant a pardon.293
In order to facilitate the present process of negotiations between the
government and previously outlawed organizations, the Indemnity Act 35
of 1990 was passed, increasing the government’s options in this regard.
According to the preamble to this Act, "for the sake of reconciliation
and for the finding of peaceful solutions," provision was made for the
granting of temporary immunity as well as permanent indemnity by the
executive to those against whom criminal charges could be instigated or
were pending.
In terms of the Indemnity Act the State President may, "if he is of the
opinion that it is necessary for the promotion of peaceful
constitutional solutions in South Africa," grant either conditional
or unconditional immunity from prosecution to any person or category of
persons294 for a stipulated period.295 Similarly, indemnity from
prosecution - either conditional or unconditional - may be granted to
any person or category of persons.296
In the course of discussions between the government and the ANC, the
so-called "Groote Schuur Minute" and "Pretoria Minute" were agreed
upon. Following these discussions the government issued some guidelines
regarding its approach to political offences.297 In this latter document
it was stated that "[i]n the interests of the process of reconciliation
the government considers it appropriate that all persons, irrespective
of their affiliations, who have committed political offences in the
South African situation, should be considered for the grant of pardon
or indemnity.298
291In terms of s 6(2)(d) of the Criminal Procedure Act 51 of 1977. 292In terms of ss 61-72 of the Prisons Act 8 of 1959. 293In terms of s 6 of the Republic of South Africa Constitution Act
110 of 1983. See also ss 325-327 of the Criminal Procedure Act 51 of 1977.
294Section 1(1). 295Section 1(2). 296Section 2. 297Government Notice R 2625, Government Gazette 12834 Regulation
Gazette 4584, 7 Nov 1990. 298Paragraph 1.3.
A set of guidelines were adopted, in terms of which the following
considerations should be taken into account when the grant of pardon or
indemnity is considered:
(i) The motive of the offender, ie whether the offence was
committed for a political motive (eg to further or oppose the
aims of a political organization, institution or body) or for
a personal motive.
(ii) The context in which the offence was committed; in
particular whether it was committed in the course of or as part
of a political uprising or disturbance, or in reaction thereto.
(iii) The nature of the political objective (eg whether to force
a change in the policy of or to overthrow or destroy the
political opponent).
(iv) The legal and factual nature of the offence, including its
gravity.
(v) The object and/or objective of the offence (eg whether it was
committed against the political opponent or his property, or
directed primarily against private individuals or property; or
was committed on the assumption that a particular cause,
governmental or otherwise, was being served).
(vi) The relationship between the offence and the political
objective being pursued, eg the directness or proximity of the
relationship, or the proportionality between the offence and
the objective pursued.
(vii) The question whether the act was committed in the execution
of an order or with the approval of the organization,
institution or body concerned.299
Unconditional indemnity was granted to persons who had left South
Africa without being in possession of valid travel documents300 and
persons who left South Africa at a place other than an officially
recognized port.301
Provision was also made for the establishment of indemnity committees,
299Paragraph 3.2. 300Paragraph 6.1(a). 301Paragraph 6.1(b).
which are to investigate evidence and make recommendations to the State
President regarding the exercise of the powers conferred on him in
terms of the Indemnity Act.302 At the same time unconditional indemnity
was also granted to members of the ANC as well as other people who
subscribed to "the principles of peaceful solutions and developments",
and who have been involved, with the motive circumscribed in the
guidelines referred to earlier, in one of the following activities:303
Illegal gather ings;304 arson, public violence or malicious damage to
property;305 treason, except where certain serious violent crimes were
also committed;306 attempted murder;307 possession of firearms,
ammunition and explosives308 and trespassing.309
A number of observations are called for in respect of the above. It
should be clear that the definition and justification of political
crimes are to a large extent conflated. The fact that someone’s actions
are regarded as a "political offence" is seen as a strong indication
that she should be treated with leniency. The guidelines also disclose
a strong tendency to show more tolerance for those who were members
of established organizations and who acted within the scope of the
discipline of that organization, when they committed the acts in
question.
The fact that the gravity of the offence is considered relevant seems
to indicate that the level of coercion will be important, while the
reference to the "directness" of the relationship between the offence
and the objective pursued suggests that indirect acts of resistance
will be more difficult to justify than direct resistance.
302See Government Notice R 2633, Government Gazette 12838 9 Nov 1990, for the regulations in respect of these committees. For the promulgation of the names of the ad hoc members of these committees, see General Notice 381, Government Gazette 13201, 24 April 1991.
303Government Notice R936, Government, Gazette 13202, Regulation Gazette 4689, 24 Apr-11 1991.
304Annexure paras (1),(ii). 305Id para (iii). 306Id para (v). 307Id para (vi). 308Id paras (vii)-(ix). 309Id para (x).
Most important for our purposes, however, is the fact that the focus in
the criteria posed is not on the merits of the political convictions
involved, but rather on formal or "content-neutral" criteria, such as
the question whether the actions were directed against private
individuals or political opponents. We will return to this issue later.
III. CIVIL DISOBEDIENCE OF MEMBERS OF THE LEGAL PROFESSION
Members of the legal profession are generally perceived to stand in a
special relationship toward the law. Since they are entrusted with the
administration and enforcement of the laws of the country, they are
widely considered to have a more stringent obligation than other people
to observe the law and not to undermine respect for law by
transgressing its provisions.310
This raises several questions: In the first place, should someone who
has committed a crime - any crime - be allowed to practise law? In the
second place, what is the position when the offence committed by a
lawyer happens to be a political crime, and, in the third place, what
if the act complained of was one of civil disobedience? Is there not a
fundamental contradiction between open and deliberately - illegal
resistance and legal practice?
These questions are complicated by the fact that lawyers are regarded
as having a special obligation, not only to the law of the land, but
also to advance the cause of justice,311 and - to paraphrase André Brink
- law and justice are often distant cousins. Civil disobedience is in
most cases motivated by the conviction that a conflict between law and
justice exists in circumstances where only one of these values could
prevail. Since lawyers have a special commitment to both values, civil
disobedience by a lawyer presents a particularly difficult problem. A
310This more stringent duty of lawyers to obey the law has been recognised by the courts. See Incorporated Law Society v Scholtz (1902) 19 SC 439 at 440; (1) Incorporated law Society. Transvaal v Visse & others: (2) Incorporated Law Society. Transvaal v Viljoen 1958 4 SA 115 (T) at 131 and Ex parte Cassim 1970 4 SA 476 (T) at 477. For a ritical discussion of the philosophical arguments normally advanced in support of the existence of such an obligation, see Lyons Cornell Law Review 1973 833.
311Somewhat surprisingly no support for this apparently self-evident statement seems to be readily available in South African jurisprudence. See, in respect of American Law, MacGuigan The Canadian Bar Review 1971 222 at 235.
legal system’s most considered attitude towards civil disobedience will
to a large extent be reflected in its approach to such activities by
members of the legal profession.
In South Africa, the right to practise law is regulated by statute. An
applicant who wishes to be admitted to practice, either as an advocate
or as an attorney, is required to satisfy the court, inter alia, that
he or she is "a fit and proper person to be so admitted."312 Following
admission, a court can suspend an advocate or attorney from practice,
or order the removal of a person’s name from the roll of practitioners,
if the court is satisfied that the person concerned is no longer a
"fit and proper person to continue ... practice."313
A substantial body of case law has developed in connection with the
interpretation of the phrase "fit and proper person", as used in this
context. Except in one important respect, which will be pointed out
later, the phrase carries the same meaning where (i) admission to and
(ii) suspension from practice, and (iii) removal from the roll are
concerned. There is also no substantial distinction between the
interpretation of these words as far as attorneys and advocates are
concerned. In essence the court is called upon to evaluate the
integrity of the prospective or practising lawyer. In general, it can
be said that a person will only be denied the right to practise if the
Court finds that she is of a dishonest, dishonourable or disgraceful
character.314
A. THE GENERAL IMPLICATIONS FOR LEGAL PRACTICE OF EARLIER CONVICTIONS
One important fact that must be taken into account to evaluate the
suitability of a person’s character for legal practice, is his previous
312In terms of s 3(1)(a) of the Admission of Advocates Act 74 of 1964 and s 15(1)(a) of the Attorneys Act 53 of 1979. Earlier statutes contained similar provisions. For a detailed history of the power of the court as regards legal practitioners, see Hassim (also known as Essack) v Incorporated law Society of Natal 1977 2 SA 757 (A) at 760ff and Kaplan v Incorporated Law Society. Transvaal 1981 2 SA 762 (T) at 770ff.
313Sect1on 7(l)(d) of the Admission of Advocates Act 74 of 1964 and s 22(1)(d) of the Attorneys Act 53 of 1979. Earlier statutes contained similar provisions.
314See Ex parte Cassim 1970 4 SA 476 (T) at 477.
convictions.315 As a general rule, the fact that someone has a previous
conviction for a serious offence would preclude him from practising
law. The rule is not, however, absolute. What really matters is whether
the previous offence reflects upon the character of the person
concerned. There are some offences that usually reflect negatively upon
the character of the offender - the so-called "tainted offences",316such
as theft and fraud. However, even this classification should not be
regarded as a hard and fast rule.
Evidence of a serious previous conviction should, at the most, be
considered as constituting prima facie evidence of unsuitabi1ity for
legal practice. It is not conclusive proof.317 Courts are expected - by
the legislature - to make value judgments based on the particular facts
of each particular case.318 What must be determined is not whether the
particular person should be punished again - that, after all, has
already been done.319 The only matter for the Court to decide is
whether, given the fact of his previous conviction, the person
concerned is of such a character that he is worthy of being admitted to
the ranks of the legal profession, which is an honourable profession.
In a number of important cases the general rule was not applied and
persons with previous convictions for serious crimes have been allowed
to practise law, since their previous convictions were not regarded as
conclusive evidence of their not being "fit and proper" persons to
315Courts have taken many considerations into account. In the somewhat archaic case of Ex parte Stanley 1902 TS 105, the Court admitted the applicant provisionally, due to some outstanding debts. See also Lambert v Incorporated Law Society 1910 TS 77 and Severs v Pretoria Balieraad 1966 2 SA 593 (A). In Haves v The Bar Council 1981 3 SA 1070 (ZAD) the general attitude of the applicant to the court before he wished to practise was taken into account. See also Fine v Society of Advocates of South Africa (Witwatersrand Division) 1983 4 SA 488 (A).
316The term is used by Lewis Legal ethics 301. The stereotypical example of such an offence is embezzlement of trust money. See eg Solomon v Law Society of the Cape of Good Hope 1934 AD 401.
317See Incorporated Law Society v Vrolik 1918 TPD 366; Incorporated Law Society v Levin 1928 TPD 229; Law Society of SWA v Weiss 1934 SWA 58 and Hassim (also known as Essack) v Incorporated Law Society of Natal 1977 2 SA 757 (A) at 770.
318See Incorporated Law Society. Natal v Hassim (also known as Essack) 1978 2 SA 285 (N) at 291.
319Ex parte Krause 1905 TS 221 at 223.
practise law.320
What needs to be assessed, is the extent to which the "personal
honour"321 of the particular person has been affected by his criminal
conduct, the conviction and the sentence imposed. The Court must take
into account the probable effect which these factors will have on
public opinion322 and the relationship of the convicted lawyer with his
clients, professional colleagues323 and the court.324
Given these parameters, the difficult question can now be addressed as
to the guidelines to be followed in order to distinguish between those
cases of criminal conduct where the general rule should be followed,
and those where the exception should be applied. It is clear that
courts in cases of this nature cannot simply apply the black letter of
320A number of South African judges also had criminal records. The applicant In Ex Parte Krause 1905 TS 221 later became Judge President of the Orange Free State, in spite of his earlier conviction for attempt to solicit murder. He was given an executive pardon. See the discussion of this case Infra chap four III B (1)(a) and Roberts SAU 1959 364 at 369. Judge Maritz, Judge President of the Transvaal Provincial Division 1947-1959, was arrested and detained during the 1914 Rebellion. See Kahn SALJ 1989 192 at 214. A more controversial move "from bars to bench" was that of Judge Strydom of the Transvaal Provincial Division. As a member of the outlawed Ossewabrandwag during the Second World War, he was engaged in anti-war activities which resulted in him being convicted on six counts, including car theft. On two of the counts he was sentenced to imprisonment for six months. He was nevertheless admitted to the bar. See MihaUk SALJ 1990 304 at 309. See also Anonymous The Cape Law Journal 1896 129. One of the greatest Roman-Dutch jurists, Grotius, spent a considerable time in prison due to his religious beliefs. See infra chap five I O.
321See Ex parte Krause 1905 TS 221 at 223. 322See Society of Advocates of SA (Witwatersrand Division) v
Fischer 1966 1 SA 133 (T) at 136. 323In In re Weare 1893 (2) QB 439 an application was brought to
have a solicitor struck from the roll for having "allowed himself to be the landlord of brothels". In granting the application. Lord Esher M R asked rhetorically (and suggestively): "Ought any respectable solicitor to be called upon to enter into that intimate intercourse with him which 1s necessary between two solicitors, even though they are acting for opposite parties?" (At 446.) This dictum was quoted with approval in Incorporated Law Society. Natal v Hassim (also known as Essack) 1978 2 SA 285 (N) at 291.
324It is clear from Natal Law Society v N 1985 4 SA 115 (N) that courts do not require absolute obedience to their orders by officers of the court when considering their fitness for practice.
the law but must apply their discretion based on practical wisdom.
In the first place, it must be determined exactly how serious the
particular crime was.325 Insignificant offences, such as traffic
violations, are ignored. One indication of the degree of seriousness
with which the trial court regarded the offence, is the sentence
imposed. A sentence of imprisonment is often regarded as a strong
indication that a particular person (at least for the time of
imprisonment) should formally be excluded from practice. The idea of a
lawyer practising from a prison cell does indeed seem intolerable, and
a suspension, at least, would in many cases be appropriate. The use of
violence increases the seriousness of the crime. Nevertheless, as will
be illustrated, the fact that the offence committed was a serious one
and that imprisonment was imposed, does not in itself necessarily imply
that the most stringent approach will be followed.
Another factor which courts take into account is the motive that
inspired the crime. Was the offence motivated by self-interest (as is
typically the case with the embezzlement of trust monies) or was it
committed with an altruistic or idealistic objective in mind?326 The
latter motivation is considered more honourable. In this regard it is
important to establish whether an element of dishonesty attended the
crime.327 Since the relationship between a legal practitioner and the
public, his colleagues and the court is based on trust, and since
dishonesty destroys trust, crimes involving an element of dishonesty
are viewed in a serious light. The particular person’s untruthfulness
during his trial would likewise be to his detriment, although it is not
necessarily fatal.328
325See Society of Advocates of Natal & another v Knox & others 1954 2 SA 246 (N).
326In Natal Law Society v N 1985 4 SA 115,(N) the Court dismissed an application to strike an attorney from the role who had refused to testify in a criminal case against a friend, in contravention of s 189 of the Criminal Procedure Act 51 of 1977.
327Re Hill [1868] 3 QB 543 at 545, approved in Incorporated Law Society. Transvaal v Mandela 1954 3 SA 102 (T) at 107. See also Ex Parte Swain 1973 2 SA 427 (N) and Hassim (also known as Essack) v Incorporated Law Society. Natal 1979 3 SA 298 (A).
328See Incorporated Law Society. Natal v Roux 1972 3 SA 146 (N) at 150. See also Olivier v Die Kaapse Balieraad 1972 3 SA 485 (A). For a model of truthfulness of a law student on trial, see S v Cheadle 1975 3 SA 457 (N) at 458, where the record indicates that the appellant had
A further important consideration is the question whether or not the
offence was committed by the legal practitioner in his professional
capacity. If not, this is often regarded as a mitigating
circumstance.329 Nevertheless, crimes which are not directly related to
the particular person’s legal practice can, in appropriate
circumstances, be regarded as sufficiently corruptive to render the
perpetrator unfit for legal practice.330
In this context, the one important respect in which admission to legal
practice differs from suspension or exclusion from legal practice, is
that crimes committed before the offender commenced practice, are
generally viewed in a much kinder light, especially if there is some
indication of reform.
Often such actions are viewed as consequences of the indiscretions of
youth.331
Courts will also consider the chances of a recurrence in future of the
criminal conduct.332 Many factors can affect prognoses in this regard.
Where it is found that the offence was committed in circumstances of
extraordinary personal pressure, the chances of a recurrence might be
viewed as remote.333 Similarly, repentance is sometimes viewed as a
positive indication of reform.334
B. CONVICTIONS FOR POLITICAL OFFENCES
said he found the temptation to break his banning order "truly quite frankly ... too much to resist".
329See Incorporated Law Society v Luyt 1915 CPD 763. In this case an application was brought to remove the name of the respondent from the roll of attorneys on the basis of his conviction of a contravention of s 32 of the Franchise and Ballot Act of 1892, in hat he falsely witnessed a claim to be registered as a voter. The application was unsuccessful, inter alia because the Court held that the false declaration was made in a matter in which the respondent was not acting as an attorney. (See 765.)
330See eg Incorporated Law Society (OFS) v Van Deventer 1933 OPO 124.
331See Matthews v Cape Law Society 1956 1 SA 807 (C) and Ex Hoseneke 1979 4 SA 884 (T).
332Law Society. Cape v Koch 1985 4 SA 379 (C) at 389. 333Natal law Society v N 1985 4 SA 115 (N). 334See the judgment of Kriek J in Natal Law Society v N 1985 4 SA
115 (N) at 128.
While South African courts in general follow a "policy of severity"335in
respect of crimes such as the misappropriation of trust funds, insofar
as the capability of the person involved to practise law is concerned,
a much more lenient approach is followed in respect of crimes committed
with a political motive, although some commentators have pointed out a
gradual tightening in the course of the latter half of this century of
the courts' indulgence.336
(1) Political crimes in general
There are good reasons for courts to follow a lenient approach in
respect of certain politically motivated crimes. History abounds with
examples of respectable leaders in their societies who at some stage n
the political development of their countries were incarcerated for
political offences. To exclude such people from legal practice would be
to deny the legal profession the services of some of society's most
conscientious members. Politics is inherently fickle. Law and the legal
profession must be protected against becoming a mere instrument in the
hands of those who at any particular moment in time control the levers
of power. On the other hand, not all types of criminality by legal
practitioners can be condoned simply because it was committed in the
name of politics. How do the courts deal with this issue in practice?
Here, as earlier in the study, it is useful to distinguish between the
era of white against white conflict, and the era of black against white
conflict.
(g) The era of white against white conflict
A number of cases stemming from the Second Anglo-Boer War dealt with
(prospective) legal practitioners who committed crimes while inspired
by their convictions during the War. In two separate cases heard during
the War, applications were brought to strike from the roll the names of
two attorneys who had been convicted of treason and sentenced to
imprisonment.337 Both were merely suspended from practice for an
unspecified period. Judged by the way in which the orders were phrased,
335See law Society. Cape v Koch 1985 4 SA 379 (C) at 387. 336See Mihálik SALJ 1990 304. He discussed the meaning of the term
"political offence" at 306. For a thorough discussion of the origins and meaning of the term "political trial", see Wanke Political justice 3ff.
337Incorporated Law Society v Vermooten (1900) 17 SC 312 and The Incorporated Law Society v Badenhorst (1902) 19 SC 73.
it seems that the Court was of the opinion that this period should not
necessarily be very long. A similar case was heard, with similar
results, directly after the War.338
The locus classicus in this regard is Ex parte Krause,339 decided in
1905. In this case the petitioner was taken prisoner while fighting on
the Boer side in the Anglo-Boer War. While on parole, he practised as a
barrister in England. Apparently while the War was still in progress,340
he sent a letter to someone in South Africa, instructing that person to
bring about the killing of a certain member of the staff of the British
General Officer Commanding, since that person was regarded as a serious
threat to the Boer cause. The petitioner was convicted in England of
attempt to solicit someone to commit the crime of murder. Although this
is not evident from the judgment, according to a newspaper report he
was sentenced to two years' imprisonment.341 Upon his return to South
Africa, he applied for admission as an advocate in the Transvaal.
On granting the application, Innes C J stated that the important
question to be considered was whether the conviction reflected upon the
character of the applicant in such a way that he was not worthy to be
admitted to the ranks of "an honourable profession".342 Although the
crime was a serious one, the Court held that the motive behind the
letter was "political, and not personal".343 He honestly believed that
he was furthering "the cause of his own country".344 The Court also took
into account the fact that war "blunts the moral sense",345 and
expressed the hope that its approach would help in "eradicating from
memory many things which have been done in the past and which should
338Incorporated Law Society v Scholtz (1902) 19 SC 439. See also Petition De Klerck (1903) 20 SC 161.
3391905 TS 221. Approved, inter alia. in Natal law Society v N 1985 4 SA 115 (N).
340See 224. 341Supreme Court" The Star 10 May 1905. See also the headnote of
the case, and Roberts SALJ 1959 364 at 368. 342Ex parte Krause 1905 TS 221 at 223. 343At 227. 344At 231. (Solomon J, concurring.) 345At 227.
now be forgotten."346
After the abortive Rebellion of 1914 the courts were confronted with
similar cases. In one of those cases, three attorneys who had been
convicted of treason and sentenced to a period of imprisonment were
merely temporarily suspended from practice.347 In another,348 however,
one of the leaders of the Rebellion was indeed struck off the roll on
the basis of having taken and broken the oath of allegiance.349
(h) The era of black against white conflict
It was only a matter of time before the combination of the freedom
struggle against white domination in this country, on the one hand, and
the pervasive security system used by the state to suppress it, on the
other, would percolate into similar cases.
In Ex parte Cassim350 the applicant who sought admission as an advocate
had two previous convictions: common assault (apparently resulting from
a minor incident) and defacing post office property, by placing posters
on the property of the post office protesting against what was known as
the 90 Days Detention Act. The record does not indicate whether the
property of the post office was in any way physically damaged. The
Court remarked that the applicant’s conduct "obviously was an act
calculated to incite others so also to protest."351 Although, according
to the Court, it was the duty of all legal practitioners, and also of
aspirant practitioners, "not to incite persons to commit breaches of
the law,"352 the application was granted. The applicant’s previous
offences did not indicate that he was guilty of dishonest, disgraceful
346At 228. 347Incorporated Law Society v Roos & others 1915 OPD 112. See also
Incorporated Law Society v Van der Merwe 1915 OPD 131. 348Incorporated Law Society v De Villiers 1915 OPD 98. 349The argument that legal practitioners convicted of treason had
broken the oath of allegiance is apparently used, or ignored, by the courts as it suits them, and this factor is not regarded as crucial. See, in general. Ex parte Kriger 1945 CPD 252; Anonymous SALJ 1945 414 and K Van Dijkhorst & H F Mellet "Legal practitioners" in Joubert LAWSA vo1 14 par 248. See also Natal Law Society v Magubela 1986 3 SA 849 (N) at 857.
3501970 4 SA 476 (T). 351At 477. 352Ibid.
or dishonourable conduct.
In Ex parte Moseneke353 the applicant was admitted as an attorney in
spite of a previous conviction for a contravention (at age 14.5 to 15)
of section 21 of the General Law Amendment Act 76 of 1962, commonly
known as the Sabotage Act. He was convicted purely on the basis of
attending meetings at which the ends, aims and objects of the PAC, then
an unlawful organization, were promoted and not because of any violent
acts on his part. He was sentenced to and served 10 years’
imprisonment, during which time he completed a substantial portion of
his legal studies.
The Court aligned itself with the view that the decisive consideration
was whether the applicant was of such character as to be worthy to be
admitted to the ranks of an honourable profession. Although the Court
found that the crime of which the applicant was convicted was of a very
serious nature - the equivalent of treason - it was found that no
evidence had been placed before it to show that the applicant did not
undergo a complete and permanent transformation.
Although political motives generally evoke tolerance in the context
under discussion, there are limits to such tolerance. There were recent
indications that courts would possibly regard a practising lawyer’s
involvement in the use of violence to overthrow the government, as a
good reason for striking the name of such a person from the roll,
especially if innocent people were injured.
The first case which hints in this direction does not provide a clear
precedent. In Hassim (also known as Essack) v Incorporated Law Society,
Natal,"354 a practising attorney was struck off the roll after being
convicted of contraventions of the Terrorism Act 83 of 1967, in that he
was a party to a conspiracy aimed at recruiting persons in the Republic
to undergo political and military training with the intent of
overthrowing the government by force of arms.
The Court declined to consider the earlier high treason cases where a
generally lenient approach was followed, claiming that "[n]o useful
purpose will be served in discussing these cases as I think that each
3531979 4 SA 884 (T). 3541979 3 SA 298 (A).
case must be dealt with on its own merits."355 Since the attorney
concerned was in addition found to be an untruthful witness, this case
cannot be relied upon as authority for the proposition that involvement
in violent resistance against the state, even if remote, will
necessarily constitute sufficient grounds for excluding a person from
legal practice.
The case of Natal Law Society v Maoubela is much more to the point.356
In that case a practising attorney was struck off the roll after he had
been convicted of high treason and sentenced to twenty years’
imprisonment. The basis of the conviction was his close personal
involvement in a series of explosions over a period of nine months, in
which nine civilians were injured (some seriously) and nearly half a
million rands of damages were caused. The Court found that even if the
offence was politically inspired, the inherent character of the offence
still had to be considered. In view of the seriousness of the offence,
which involved violence targeted at civilians, and the fact that the
respondent had not renounced his actions, his name was struck off the
roll.
(2) Civil disobedience
Civil disobedience is per definition non-violent, which means that the
last consideration should not apply to such acts of political
resistance. If it is correct that courts recently started to view
politically inspired crimes committed by lawyers in a more serious
light, and that this tendency is the result of the increased use of
force against civilians, this should then not affect the way in which
civil disobedience is treated. The element of openness of civil
disobedience, however, is often seen as an aggravating circumstance in
this context - the idea being that lawyers make a mockery of their
profession if they deliberately and openly break the law. Lawyers, in
the words of Du Plessis, must show respect for "die weg van die
reg".357
Nevertheless, the question should be asked whether the actions of
someone who breaks the law openly and allows retribution to take its
course, show less respect for the way of the law than the actions of
355At 307. 3561986 3 SA 849 (N). 357Du Plessis Die professionele gedrag van die juris 32.
someone who defies the law and tries to escape the consequences of his
unlawful act. In the latter case, one could argue that the person
involved shows fear for the law, but surely there is a difference
between fear and respect.
This issue was addressed in two seminal cases on the topic in the South
Africa legal history. Both cases took place in the context of black
against white resistance, and concerned incitement to civil
disobedience during the Defiance Campaign of 1952.
In Incorporated Law Society. Transvaal v Mandela358 an application was
made to the Transvaal Provincial Division to have the name of the
respondent, who was a practising attorney at the time, struck from the
roll. He had been convicted, along with others, of contravening section
11(b) of the Suppression of Communism Act 44 of 1950.359 The indictment
alleged that he had advocated and encouraged a "scheme" - the Defiance
Campaign - which was aimed at bringing about certain social and
political changes in the country by means of disobeying a number of
laws. The accused was sentenced to nine months’ imprisonment, which was
conditionally suspended.
In dismissing the application, Ramsbottom J stressed that the question
was not whether the respondent should be punished for his actions -
that had already been done. He then proceeded:
The sole question that the Court has to decide is whether the facts which have been put before us and on which the respondent was convicted show him to be of such character that he is not worthy to remain in the ranks of an honourable profession. To that question there can, in my opinion, be only one answer. Nothing has been put before us which suggests in the slightest degree that the respondent has been guilty of conduct of a dishonest, disgraceful, or dishonourable kind; nothing that he has done reflects upon his character or shows him to be unworthy to remain in the ranks of an honourable profession. In advocating the plan of action, the respondent was obviously motivated by a desire to serve his fellow non-Europeans. The intention was to bring about the repeal of certain laws which the respondent regarded as unjust. The method of producing that result which the respondent advocated is an unlawful one, and by advocating that method the respondent contravened the statute; for that offence
3581954 3 SA 102 (T). 359For particulars of the charge, see R v Sisulu & others 1953 3 SA
276 (A) at 283, 284, and the discussion supra chap three III A (3)(c)(iii).
he has been punished. But his offence was not of a 'personally disgraceful character’, and there is nothing in his conduct which, in my judgment, renders him unfit to be an attorney.360
The facts in Matthews v Cape Law Society,361 decided a year later by
the Cape Provincial Division, were for almost all practical purposes
identical to those of Mandela.362 The only real difference lay in the
fact that Mandela was already a practising attorney at the time of his
conviction, while Matthews only later applied for admission to the
attorney’s profession. Matthews’ application to be admitted was opposed
by the Law Society on the basis of his previous conviction.
The Cape Court, per De Villiers J P, held that the performance of acts
of civil disobedience - and especially if accompanied by incitement of
others to engage in similar acts - were incompatible with a practising
attorney’s duty as an officer of the court; that is, the duty not to
break the laws of the country and not to incite others to do so.
Opposition to laws which he regarded as unjust could manifest itself
only in the form of criticism of such laws or attempts to secure their
repeal by legal means. The Court stated that the approach followed by
the Mandela court was too narrow. In that case the Court only
considered the question whether the respondent’s personal honour had
been affected. The-obligation which an attorney has to the court was
not considered at all. Consequently, the approach of the Mandela court
was rejected.
Nevertheless, because the crimes of which Matthews was convicted
occurred a considerable period before he applied for admission as an
attorney, the Court held that it could not be said that he was an
officer of the court at the time when he was convicted and hence that
he had violated his duties to the court. The application was granted on
these grounds.
The Mandela case and the comments in the Matthews case regarding the
360At 108. 3611956 1 SA 807 (c). 362Mandela was the national President of the ANC Youth League
during the Defiance Campaign while Matthews was the Secretary. Matthews, the son of Prof Z K Matthews, later became national President of the Youth League. While Mandela's case dealt with his conviction as a national organiser of the Defiance Campaign, Matthews' case dealt with his convictions as an organiser of local campaigns in Port Elizabeth and Kimberley.
Mandela case provide striking illustrations of the two opposite
approaches which can be followed in cases of this nature. In the one
case a previous conviction for involvement in civil disobedience was
not regarded as an automatic disqualification to practise law, whereas
in the other it was. While the Mandela court made greater allowances
for members of the legal profession to pursue (their understanding of
the demands of) justice, and followed a natural law approach, the
Matthews court emphasized the duty of the lawyer to uphold the positive
law.
Even if it could be said that the Mandela case focused on the
individual concerned and the Matthews case more on the interests of
society (as perceived by the Court), the issues raised by the Mandela
court were more universal, while the bottom-line concerns in Matthews
were more local or parochial. Whereas the respondent in Mandela was
evaluated morally as a human being and with a view to the honesty,
grace and honour of his character, the applicant in Matthews was judged
primarily on the grounds of the political message which his admission
to the legal profession would at the time convey to society. The
insistence of De Villiers J P in Matthews that officers of the court
have an absolute duty not to engage in acts of civil disobedience, was
almost explicitly motivated by his fear that such actions would incite
others (read: "black people"), described in the application of the Law
Society as "generally uneducated and unenlightened".363In the course of
his judgment, this sentiment was repeated twice by the Judge
President.364 The approach of Ramsbottom J in Mandela to the enterprise
of the accused seems to be much more positive. In the jargon of the
time he stated, as indicated above, that "the respondent was obviously
motivated by a desire to serve his fellow non-Europeans."365
Which of the two approaches accords with the values underlying the
South African legal system? This question can be answered from
different angles. The merits of the cases in question can be compared
on the basis of (1) the support the two approaches received in later
court cases, (ii) the soundness of the jurisprudence involved, and
(iii) the extent to which each case complies with the general approach
363At 810. 364At 813. 365At 108.
- followed in respect of previous convictions of legal practitioners as
outlined above. These aspects wi11 next be considered.
With a view to precedent, it may be argued that the comments in
Matthews in respect of the Mandela case were made obiter, since the
Court decided the case on different grounds. At the same time, however,
the Mandela decision was repudiated (but not overruled) by a Transvaal
full bench in Society of Advocates of SA (Witwatersrand Division) v
Fischer.366
In Fischer an application was brought to have the name of a senior
advocate struck from the roll after he had forfeited his bail while
awaiting trial on charges, inter alia, of being an office-bearer of the
South African Communist Party. In this case, as in Matthews, the Court
relied heavily on the impact of such conduct on public opinion. In
granting the application, De Wet J P distinguished the case under
consideration from the Mandela case, inasmuch as the Mandela court
"was apparently of the view that the respondent had been punished for
his unlawful activity, which had ceased and was not likely to recur (a
wrong view, as it turned out)."367
The Court proceeded: "But I would also say, with respect, that the
[Mandela] court appears to have overlooked the fact that it is the duty
of an attorney to further the administration of justice in accordance
with the laws of the country and not to frustrate it."368 The Court
stated that bail applications would in future be seriously jeopardized
unless it acted against Fischer.369
On a personal level, the more cautionary approach taken by the
presiding judge in Fischer’s case is perhaps not difficult to
understand. He was, after all, also the judge who presided in the
Rivonia trial, where it became apparent that the respondent in the
Mandela case did not cease his unlawful activity. Hence the remark: "a
3661966 1 SA 133 (T). 367At 137. 368Ibid. 369At 136. The observation of Mihálik SALJ 1990 304 at 315 that
this finding is "based on the false premiss that the majority or perhaps all of the applicants for bail wish to become fugitives from justice" seems questionable. Why, after a11, do courts require bail 1n certain cases if no danger exists that the accused might not appear to stand trial?
wrong view as it turned out."
Nevertheless, although the judge in Fischer said that the Mandela and
the Fischer cases were distinguishable, he did not identify the
essential difference, which makes his reference to the Mandela case
unwarranted. In Mandela an act of civil disobedience was at stake,
which implied that the respondent openly defied certain laws. He did
not attempt to evade the sanction of the law of the country; he in fact
invited it. In Fischer the respondent did the exact opposite: In order
to avoid the sanction of the law he became a fugitive from justice.
Fischer, as Du Plessis indicated, specifically tried to evade "die weg
van die reg".370Even though Mandela broke the law, he still sought "the
way of the law". Moreover, the offence in Fischer was directed against
the administration of justice.
The remark in Fischer aside, however, it should be noted that the
Mandela case has been quoted with approval in many subsequent cases,
including judgments of the Appellate Division, even though not always
directly on the point in question.371 It is also revealing to note that
the name of the respondent in the Mandela case, in spite of his
subsequent incarceration following the Rivonia trial, has not been
removed from the roll of attorneys in the Transvaal.372
From a jurisprudential point of view, the reasoning underlying the
Matthews case can at best be classified as "positivism gone wrong". The
fact that the duty of an attorney was merely described as being "to
uphold the existing laws",373 while nothing was said concerning the
need to pursue justice, suggests a point of departure, in terms of
which everything enacted by parliament is accepted as legitimate and
binding. Many people accept this approach as valid, and the intention
370Du Plessis Die professionele gedrag van die juris 32. 371See law Society of the Cape of Good Hope v C 1986 1 SA 616 (A)
at 640 as well as Natal Law Society v Hagubela 1986 3 SA 849 (N) at 851. See also Annual Survey of South African Law 1956 at 404 and Sampson The South African attorneys handbook 119. See also Lewis Legal ethics 303.
372Information obtained on 9 March 1990 from C M Prinsloo, Director: Professional Affairs, Law Society of the Transvaal. Mandela's name is on the so-called list of non-practising attorneys. See also "Could Mandela practise law again?" Weekly Mail 16-22 Feb 1990.
373 At 813.
is not here to attack the basic premises of positivism. The problem
with the way in which it was applied in the Matthews case, however, is
that while the Court was required by a particular statute (that is, by
parliament) to make a moral assessment of the applicant, it accepted
without question that parliament’s will as expressed in other statutes
disposes of the question of what, morally, is the right thing to do.
Not even the most committed positivist needs to, or rather should,
arrive at that conclusion. In fact, the central claim of positivism is
the distinction between law and morality.374 As was observed by Mi liner
with regard to the two cases under consideration: "[E]ven if law does
not cease to be law when it is unjust, the act of opposing it then
ceases to be ethically reprehensible. The boundless sovereignty of the
legislature obliges the judge to treat the breach of its statutes as
illegal but not to pronounce it as immoral."375
Perhaps the clearest warning against an approach such as the one
endorsed by the Matthews court comes from the doyen of positivism, H L
A Hart, who warned of "the danger that the existing law may supplant
morality as a final test of conduct."376
The third and final basis upon which the two cases may be compared is
to consider how they fit in with the general approach of the courts in
respect of earlier convictions, as set out above. A number of
considerations which the courts take into account were identified, and
will now be discussed.
It was stated that the seriousness of the crime of which the person
involved was convicted is considered when her suitability for legal
practice is considered. One aspect to be considered in this regard
concerns the extent of violence and destruction of property that was
involved. The fact that civil disobedience is non-coercive calls for a
lenient approach.
It was also pointed out above that our courts tend to be more strict
where an element of dishonesty attended the offence in question. It has
already been noted that the true feature that distinguishes Mandela
from Fischer is the fact that the respondent in the latter case tried
374See infra chap five I DD. 375Millner SALJ 1957 342 at 346. 376See Hart Harvard Law Review 1958 593 at 598. See also 618.
to evade the law. This he managed to do by using his status as a senior
advocate of unquestioned integrity. It is this element of dishonesty
which led to his exclusion from the legal profession. Since that
element is normally not present in the case of civil disobedience,
where the protest per definition is open, this guide-line points to the
more lenient approach followed in Mandela.
This can indeed be described as the greatest weakness of Matthews: the
fact that the Court excluded acts of civil disobedience from the
operation of the general rule, namely that politically motivated crimes
are to be treated with special leniency. This would imply that the only
category of crimes to which the rule can apply are those where the
perpetrator attempted to escape detection. Certainly one cannot follow
this approach and at the same time claim to take "the road of the law"
seriously.
The consideration that crimes committed in a professional capacity are
treated more harshly does not provide any guidance as to the general
approach to be followed in cases of civil disobedience by practising
lawyers. It does not favour either Mandela or Matthews on the point
under discussion. (It is, however, probable that lawyers who take part
in a protest march in their robes wi11 not be looked upon kindly. The
case of Pitje, a lawyer who practised civil disobedience in court, was
discussed earlier.)
It was furthermore stated that the chances of recurrence should be
taken into account. This consideration tends to support the Matthews
approach, because acts of civil disobedience are almost inevitably
committed with a political motive, and, unless the conditions which
gave rise to that motivation change, the convictions of the persons
concerned would most likely also remain the same. As alluded to
earlier, this is collaborated by the later history of the respondent in
the Mandela case, culminating in the Rivonia trial and in his
subsequent statements. At a certain point, if it is established clearly
that the person concerned intends to engage in acts of civil
disobedience with some regularity, this consideration will become
paramount. In many cases it might, however, be appropriate to grant -
or bring - an application for removal or suspension only after a
repetition of unlawful conduct. If that is not the case, however, and
it is clear that an isolated incident is at stake, it is submitted that
this consideration should not be regarded as crucial. Courts have
simply sidestepped the question whether the particular person has shown
remorse, at least where no violence was involved.377
It was pointed out that courts should guard against becoming mere
instruments of the powers that be, and should protect their own
relative autonomy from becoming entangled in the inconsistencies of
politics. To be sure, courts cannot always avoid being affected by the
whims of politics when, for example, in criminal trials they have to
enforce law reflecting that which the government of the day has
earmarked as offences. That being the case, the least they can do is to
avoid becoming civil service rubber stamps when they are required by
statute to evaluate the Integrity of a particular person. In such a
case a court should rather uphold a I long-term perspective.
The facts of the Moseneke case, discussed earlier, provide a good
example of this approach: The applicant was sentenced to ten years’
imprisonment for the statutory offence of being a member of a banned
organization. Three years before his conviction, and 17 years after his
release, the same conduct’s would not have been regarded as an offence
at all. In such circumstances it would be extremely short-sighted for a
court to bar such a person from legal practice. Other offences, such as
the forfeiture of bail in Fischer. are less closely linked to the
policies of a particular government, and are unlikely to be materially
affected by future changes of the political dispensation. Such an
offence is also very closely related to the administration of justice
and the judicial process. Consequently, in those cases the same degree
of leniency might not be appropriate.378
377See eg Ex parte Moseneke 1979 4 SA 884 (T). The Court's emphasis on the need for remorse In Natal Law Society v Magubela 1986 3 SA 849 (N) at 8S8 must be seen against the background of the violence in that case having been aimed at innocent people.
378The observation of Mihálik SALJ 1990 304 at 323 that "[m]edica1 practitioners who have served prison sentences for politically motivated offences as serious as high treason are not subsequently convicted on disciplinary charges of improper and disgraceful conduct" might be correct (he cited only one instance in support of this contention) but it does not follow (as he suggested) that lawyers should be granted "free pardons" in respect of political offences. The direct analogy between the legal and the medical profession does not hold water, because different codes of conduct apply to different professions. Certainly the severe approach which courts follow in respect of embezzlement of trust money is justifiable in respect of lawyers, but the same degree of strictness should not necessarily apply in the case of medical doctors. Mihálik's general "free pardon"
From the above it must be concluded that the Mandela court’s lenient
approach was under the circumstances correct.379 Obviously, whether
tolerance should be shown, and if so the extent of such tolerance, win
also be affected by the measure in which the particular acts of civil
disobedience may be described as justified - a separate inquiry which
will be dealt with elsewhere.380 For the moment the only claim made is
that the Mandela-approach, according to which legal practice and
participation in civil disobedience is not necessarily incompatible,
most accurately reflects the values which underlie the South African
legal system.
IV. CONSCIENTIOUS OBJECTION TO MILITARY SERVICE
The armed forces of a country specialise in the application of violence
including, where deemed necessary, the killing of human beings. Some
governments view it to be essential for their survival that citizens be
compelled, through the threat of criminal sanctions, to render service
in the armed forces.381 Not surprisingly, many people find this
unacceptable.
One of the reasons why some people refuse to serve in the military is
based on narrow self-interest. Service in the armed forces can expose
one to grave personal risks and discomfort. A very different reason may
be the convictions of the individual involved, who for a variety of
reasons might believe that rendering such service in a particular case
or in all cases is wrong or immoral. Such persons belong to the
category of "conscientious objectors",382 who often regard their
convictions in this regard as most fundamental and for which they are
prepared to go to prison or even die.
approach makes no provision for the fact that political crimes can differ in terms of their merits and in the light they cast upon the character of those who committed them.
379For a discussion of the very tolerant approach followed in these matters in the United States, see Weckstein Professional responsibility in a nutshell 37ff. See also MacGuigan Canadian Bar Review 1971 222 at 235.
380See infra chap six III. 381For the reasons why this is deemed necessary, see D F S Fourie
"Universal service - a military view" in Centre for Intergroup Studies Conscientious objection 42 at 48.
382The term "conscientious objection" was circumscribed supra chap two V.
The issue of conscientious objection to military service clearly
involves a strong tension between the interests of the state and the
rights of the individual. Can the individual enjoy the benefits of
communal life but refuse to participate in the country’s military
efforts? But on the other hand, can the state force someone to
participate in military activity even if that would mean the violation
of that person’s deepest beliefs?
In most jurisdictions the principle is recognised that freedom of
conscience is a value worthy of at least some protection in this
context, and systems have been devised for allowing conscientious
objectors to military service in one way or another to render
alternative service.383 In order to discourage those who have other,
less noble motivations for not wanting to serve in the armed forces,
such alternative service is typically made less appealing than the
duties included in conscription. The period of alternative service
would normally be at least equal to or surpass that required of
ordinary conscripts.
In most cases, the issue is not one of recognising the broad principle
that certain convictions might warrant exemption, or the practice of
requiring alternative service.384 What is highly controversial, however,
is the way in which such a system is applied. Central to the dispute is
the question of the kinds of conviction that should be recognised as
grounds warranting exemption from regular military service.
The demands made by national service in South Africa over several
decades on those subjected to such service, and the extent to which a
person’s conscience might be involved, are indeed extraordinary. Apart
from the problems experienced by many people regarding military service
383Resolution 337 (1967) of the Council of Europe provides as follows: "Persons liable to conscription for military service who, for reasons of conscience or profound conviction arising from religious, ethical, moral, humanitarian, philosophical or similar motives, refuse to perform armed service shall enjoy a personal right to be released from obligation to perform such service."
384Johan van der Vyver reluctantly endorsed this practice. From his Calvinist perspective, "the state is ... clearly competent to compel a11 citizens to make an appropriate contribution towards the military defence of the body politic." Out of generosity, however, the state could relieve conscientious objectors from their duty to do military service. See Van der Vyver Philosophical Papers May 1979 - Oct 1980 56 at 62.
in any country, the South African Defence Force ("SADF") has in recent
years been perceived by many as an instrument of the apartheid state
which through its operations in neighbouring states and in black
townships came to be agencies of repression.385 In addition to
resistance by those who subscribe in general to the pacifist position,
military conscription in South Africa has consequently elicited
resistance from the ranks of those who believed that the government was
engaged in what, in Augustinian terms, is called an "unjust war".386
Conscientious objection, in one form or another, was supported by
particular groups in the mainline English language churches, while the
idea of military conscription was to a large extent supported by the
Afrikaans churches.387
Given these circumstances, conscientious objection to military service
by some members of society was inevitable, and bound to be
controversial.388 In what follows, the legal basis of compulsory
military service and the approach of South African law to conscientious
objection relating to military service will be considered. This will be
done against the backdrop of American jurisprudence on conscientious
objection,389 since, as Robinson observed, there are strong indications
that the South African legislature in this regard simply copied
385See eg Catholic Institute for International Relations Out of step 28ff. The history of war resistance, and especially the activities of the End Conscription Campaign, are dealt with at 75ff. See also Berat Vanderbilt Journal of Transnational Law 1989 127 at 170.
386The stand taken by the Jehova's witnesses against national service represents virtually the only universal pacifist tradition in the country. See eg S v Schoeman: S v Martin & andere 1971 4 SA 248 (A) and S v Lewis 1985 4 SA 26 (T), as well as the discussion by Robinson JCRDL 1987 219 and Potgieter & Munnik Militere diensplig en dienspligweiering. On the justum bellum doctrine, see Dugard SALJ 1976 144; D S Bax "The just war and situational objection" in Centre for Intergroup Studies Conscientious objection 56 and Du Plessis Strategic Review for Southern Africa 1990 14. Grotius, for example, advised subjects to refuse to do military service if they regarded the cause of war as unjust. See Grotius De Jure belli ac pads 2.26.3.1.
387See infra chap five II B. 388See eg Degenaar Insig Sept 1988 18. 389For an overview of the position in the United States, see
Anonymous Harvard Law Review 1978 1056; Fox Cleveland State Law Review 1982 77 and Calabresi Tragic choices 158.
American legislation.390
As mentioned earlier, a distinction should be drawn between legal and
illegal conscientious objection.391 In the case of legal conscientious
objection, the objector qualifies for alternative service in terms of
the relevant statute. In the case of illegal conscientious objection,
the person concerned does not qualify for alternative service, but
nevertheless refuses to do military service. In doing so he commits an
offence.
Illegal as well as legal conscientious objection warrant our attention,
although the latter category of actions does not strictly speaking
constitute civil disobedience. One reason why legal conscientious
objection shall be considered is because it provides an important
illustration of a concession on the part of the legal system to
conscience. Moreover, it is necessary to establish the limits of
legally recognised alternative service, which denotes the confines
where civil disobedience begins.
A. THE LEGAL SANCTION OF COMPULSORY MILITARY SERVICE
The Defence Act 44 of 1957 determines the maximum period of compulsory
military service to which the government may subject every white male392
citizen between the ages of 17 and 65 years,393 namely "a) a first
period of service not exceeding 24 months;[and] b) subsequent periods
of service during six cycles of two years each of which none shall
exceed 90 days."394
Legal provision for compulsory military service in the country has at
least been made since the formation of the Union in 1910.395
390See Robinson De Jure 1987 374 at 376. The problems raised by South African law on conscientious objection have spilled over into the United States law in the form of applications for asylum by those who fled from South Africa when called up for military service. See eg "SA man kry nie assiel" Beeld 9 March 1990.
391See supra chap two V. 392Section 2(l)(b) excludes "females and persons who are not white"
from compulsory military service. 393Section 3(1)(b). 394Section 22(3). For a discussion, see J Forder "Conscription" In
Robertson South African human rights and labour law yearbook 1990 36. 395An early forerunner of military conscription in the country can
Nevertheless, until after the Second World War, the South African
Defence Force relied almost exclusively on volunteers to supply its
numbers.396
Conscription in its modern form, administered on the basis of the
ballot, was introduced in the 1950’s, first for a three months period
and later, as from 1961, for nine months. In 1967 the ballot was
abolished and universal conscription for a one year period was
introduced. Since 1977, national servicemen were called up for the
maximum period of two years. At the beginning of 1990 this period was
again reduced to one year.397
B. ILLEGAL CONSCIENTIOUS OBJECTION
be found in the requirement of the Dutch East India Company for Free Burgers to render service in the militia. See Van Riebeeck Daghregister part 3 34. When the British occupied the Cape, they abolished the militia, but retained the informal commando system, which was Initiated in about 1715. This system was also implemented in the Boer Republics. Every white man between 16 years of age and 60 was liable to combat duty. In the Nineteenth Century, universal service under the Zulu and Matabele was standard practice. See D F S Fourie "Universal service - a military view" in Centre for Intergroup Studies Conscientious objection 42 at 44. The South Africa Defence Act 13 of 1912 provided that white citizens (s 7) of the newly formed Union who were selected by ballot (ss 56, 57) could be called up for military training 1n times of peace (s 2) for an initial period of 30 days and for subsequent periods (s 64). In time of war or internal disorder, citizens could be called up for combat duty (ss 1, 78, 79). The original version of the Defence Act 44 of 1957 provided for compulsory military training for an initial period of three months (s 22(2)(b)) of persons selected by ballot (ss 66, 67, 70). The citizen force, the reserves and the commandos could also be mobilised in time of war (s 1) and internal disorder (s 2). Provision was made for universal conscription of white males by s (c) of the Defence Amendment Act 85 of 1967.
396For an historical overview of the period before and during the two World Wars, see D F S Fourie "Universal service - a military view" in Centre for Intergroup Studies Conscientious objection 42 at 44ff. As Fourie suggests, the fact that conscription was not used during the two Wars was largely due to political resistance against the Union's participation in those wars. In a sense, this can be seen as a concession to selective secular conscientious objection.
397Announced by State President F W de Klerk, in a speech delivered on 7 Dec 1989 and reprinted in the booklet Military Service, Issued by the South African Defence Force, at 3. For a discussion of the practical implications of modern conscription, see J Forder "Conscription" in Robertson South African human rights and labour law yearbook 1990 36.
A refusal to render service or a failure to report when called up for
military service, whether for reasons of conscience or otherwise, has
been subjected to a variety of penalties since the inception of the
system of compulsory, military services.398 At present the Defence Art
provides that any person who is called up and refuses to render service
is guilty of an offence and liable on conviction to imprisonment (that
is in a civilian prison) "for a period one-and-a-half times as long as
the aggregate" of the periods of service required by the Act and still
outstanding against his name, or for a period of 18 months, whichever
is the longer. No provision is made for the option of a fine. A person
who had been convicted and has served his sentence imposed in terms of
this provision is not liable for further military service.399
Any person who fails to report for service is guilty of an offence and
liable to detention (that is imprisonment in a military prison) or
imprisonment for a period "not exceeding eighteen months", or a fine. A
person who has paid his fine or has served his sentence may again be
called up for military service.400
The courts initially ruled that the imposition of the maximum prison
398In terms of the South Africa Defence Act 13 of 1912 a failure to undergo military training as prescribed constituted an offence (s 64(5)) punishable with a fine not exceeding £ 25 or in default of payment, Imprisonment of up to three months (s 109(1)(c)(11))(see also s 109(2)). Failure to render service in time of war constituted desertion (s 100). The original version of the Defence Act 44 of 1957 provided that: "Any member of the South African Defence Force or the Reserve who without just cause, the burden of proof whereof shall He on him, fails to attend at any time and place appointed for instruction, training or exercise, or who evades or fails to perform duly and with proper zeal the full course of training allotted to him 1n any training year, shall be guilty of an offence" (s 126) for which a fine not exceeding £100 or six months' imprisonment could be imposed (s 127). It was held in the case of S_v Lovell 1972 3 SA 760 (A) that the religious universal pacifist convictions of a Jehova's Witness did not constitute a "just cause' within the meaning of the Act. Failure by members of the Defence force to render service in time of war or internal disorder constituted desertion (s 114). The Defence Amendment Act 49 of 1978 (s 7) introduced the current s 126A, discussed in the text. At present desertion is a crime in terms of s 13 of Schedule 1 of the Defence Act, known as the Military Discipline Code.
399Section 126A(1)(a). For a discussion, see Foundation for Peace and Justice Facing prison 10.
400Section 126A(1)(b). See also Foundation for Peace and Justice Facing prison 9.
sentence in the case of refusal to render military service was
mandatory.401 However, in the cases of S v Toms: S v Bruce402 the
Appellate Division ruled that the Court had a discretion to impose a
lighter sentence of imprisonment, which may even be suspended.
In Toms, an appeal was noted against the sentence imposed for a
conviction related to the appellant’s refusal to render further periods
of training for reasons of political conviction. The appellant, a
medical doctor, had some years previously completed his initial period
of military training. By the time his appeal was heard in the Appellate
Division, he had served nine months of a sentence of eighteen months’
imprisonment. His sentence was reduced to the nine months he had
already served.403
Bruce was convicted for his refusal to do his basic military training,
also for reasons of political conviction. The trial court was of the
opinion that it was bound by statute to impose the maximum sentence of
one-and-a-half times the four years which the accused was required by
law to serve. Bruce became the first person to be sentenced to six
years imprisonment for this offence. The sentence was confirmed in an
appeal to the Local Division, but the Appellate Division set the
sentence aside and remitted his case to the trial court to consider the
question of sentence afresh.404 The trial court sentenced Bruce to the
20 months prison sentence he had already served.405
It is also a crime in terms of the Defence Act to use any language or
do anything "to recommend to, encourage, aid, incite, instigate,
suggest to or otherwise cause any other person" to refuse or to fail to
render compulsory military service. The punishment that can be imposed
for this offence is imprisonment of six years or a fine of five
thousand rand.406
401See eg S v Toms 1989 2 SA 567 (C). 4021990 2 SA 802 (A). The appellants were convicted of
contraventions of s l26A(1)(a). See also "Torr se appél gedeeltelik gehandhaaf" BeeId 21 May 1991.
403At 821. 404Ibid 405See "David Bruce freed from the spectre of jail" The Meekly Mail
21 Sept 1990 406Section 121(c). This provision was introduced by s 10 of the
C. LEGAL CONSCIENTIOUS OBJECTION
Traditionally, the only legal concession for conscientious objectors
was a provision authorising that they could, in the discretion of the
Defence Force, be assigned to perform non-combatant military service in
a time of war. The criterion applied was largely objective, in the
sense that this limited concession was available only to those who were
bona fide members of and adhered to "a recognised religious
denomination, by the tenets whereof its members may not participate in
war."407 All other forms of conscientious objection were considered
illegal,408 including religious objection to military training.409
During 1983, the Defence Act was amended and a more subjective test
was introduced in terms of which the religious beliefs of the objector
Defence Further Amendment Act 83 of 1974, which was passed -In response to the so-called "Hammanskraal resolution" of the South African Council of Churches of 1974, which supported conscientious objection. See infra chap five II 8.
407In respect of military training in peace time, the South Africa Defence Act 13 of 1912 provided that exemption from inclusion in the ballot list could be obtained from an Exemption Board (s 58) on the grounds, inter alia. of one's "bona fide religious tenets" (s 58(6)(d)). In respect of times of war, the Act provided as follows: "A citizen who bona fide belongs and adheres to a recognised religious denomination, by the tenets whereof its members may not participate in war, may be granted exemption from serving in any combatant capacity in time of war, but may be required to serve in a non-combatant capacity if called upon to do so" ( s 82(2)). The original version of the Defence Act 44 of 1957 also made provision for an Exemption Board (s 68), which had the power to exempt people from the ballot list for a variety of reasons, but those reasons did not include conscientious objection (s 69(4)). However, the Defence Amendment Act 85 of 1967 introduced s 67 (3) which provided as follows: The registering officer shall as far as may be practicable allot any person who to his knowledge bona fide belongs and adheres to a recognized religious denomination by the tenets whereof its members may not participate in war, to a unit where such person will be able to render service in a non-combatant capacity." With respect to war, the Act provided that "[a] person who bona fide belongs and adheres to a recognised religious denomination, by the tenets whereof its members may not participate in war, may be granted exemption from serving in any combatant capacity in time of war, but shall, if called upon to do so, serve in a non-combatant capacity" (s 97(3)).
408Section 61 of the Defence Amendment Act 85 of 1967. 409See S v Lovell 1972 3 SA 760 (A), affirming the decision in S_ v
Schoeman: S v Martin & andere 1971 4 SA 248 (A).
as an individual would become decisive.410 The alternative types of
service open to those conscientious objectors who complied with the
requirements for such service were also increased.
The Defence Act now provides in section 72 that if the Board of
Religious Objection (the "Board"), established in terms of the Act,411
is satisfied that it is against the "religious convictions" of someone
who has been called up for military service to serve in specified
capacities in "any armed force", such a person may be classified as a
"religious objector".412 This entails that he will not be forced to
serve in the Defence Force in a capacity that would violate his
beliefs, but that he will have to render alternative service as
prescribed in the Act. Since the convictions of the appellants in the
Toms and the Bruce cases were of a political and moral nature, they did
not qualify for classification as "religious objectors", and their
refusal to serve in the armed forces therefore constituted a crime.
The courts have stated that provisions for exemption from military
service should be interpreted strictly, because the effect of not doing
so would be "to cast an unfair burden upon the more patriotic of the
country's citizens."413
In order for the Board to find that anyone is a "religious objector",
he must be classified in one of three categories:
category (i) non-combatants, whose religious convictions do not
allow them to render combat service in any armed force;414
category (ii) non-combatants who also refuse to perform maintenance
tasks of a combat nature in any army and who refuse to wear
a military uniform;415 and
category (iii) non-combatants who also refuse to perform any tasks
410Section 9 of the Defence Amendment Act 34 of 1983. See Taitz De Jure 1988 239 at 241.
411Section 72A. 412Section 72D(1)(a). The English text of Act 34 of 1983 was signed
by the State President. 413S v lovell 1972 3 SA 760 (A) 766. See also Willem de Klerk's
editorial "Moker die ontdulkers" Rapport 30 Jan 1983. 414Section 72D(1)(a)(i). 415Section 72D(1)(a)(ii).
connected with any armed force.416
Those in
category (i) must serve the normal period of military service in the
SADF in a non-combatant capacity;417
category (ii) must serve one and a half times the period for which
they could still be called up in the SADF (unless the
Minister of Defence provides for a shorter period), not in
uniform418 and doing maintenance tasks of a non-combatant
nature,419 and
category (iii) must serve one and a half times the period for which
they could still be called up, doing community service
outside the SADF (unless the Minister provides for a
shorter period).420
Exactly how limited the concessions in terms of the Defence Act to
conscientious objectors are, becomes clear when an index of the full
range of possible motivations for conscientious objection to service in
the armed forces is considered. Schematically the different
possibilities could be summarised as follows:421
Universal Selective objectors(those who object to
416Section 720(1)(a)(iii). 417Section 72E(1). 418Section 72E(2)(a)(ii). 419Section 72E(2)(b). Failure to render such service constitutes an
offence in terms of s 721(1). 420Section 72E(3). Section 72I(2)(a) provides that "[a]ny person
referred to in section 72E(3) who refuses or falls to render community service shall be guilty of an offence and liable on conviction to detention for a period which is equal to the period of community service which ha still had to render at the time of such refusal or failure." It was held in S v Sangster 1991 1 SA 240 (0), on the basis of S v Toms: S v Bruce 1990 2 SA 802 (A), that the sentence provided for in this section is not mandatory. The periods of community service were also reduced proportionately when military service was halved. See "Minder diensplig sus nie die gewete nie" Vrye Weekblad 26 Jan 1990, but also "Objectors are freed, but mixed feelings over 'reprieve'" The Argus 31 Jan 1990.
421See also Harris SAJHR 1987 240 at 241.
pacifists(those
who refuse to
serve in any
army)
fighting for a particular regime; against
a particular enemy or with certain
weapons)
Religious objectors
(those who refuse to serve
for religious reasons)
a) UNIVERSAL
RELIGIOUS
PACIFISTS
b) SELECTIVE RELIGIOUS OBJECTORS
Secular objectors
(those who refuse to serve
for non-religious reasons)
c)UNIVERSAL
SECULAR
PACIFISTS
d) SELECTIVE SECULAR OBJECTORS
If a literal meaning is given to the words of section 720(1)(a) of the
Defence Act (namely that those who find service in "any armed force"
repugnant to their "religious convictions" can be classified as
religious objectors), only those objectors in category a) in the above
diagram are covered by its provisions and qualify for alternative
service. Objectors in all three the other categories will be guilty of
criminal acts if they refuse to serve.
While the protection which section 72 affords to conscientious
objectors is clearly extremely narrow, its exact demarcations are
nevertheless hard to define. After all, exactly what does the term
"religious conviction" mean? Predictably, the interpretation of this
phrase has been the focus for those who seek wider recognition for
objection to mi1itary service.
The locus classicus in this regard is Hartman v Chairman,Board for
Religious Objection.422 In this case the Board had found that universal
pacifism based on mainstream or Theravada Buddhist beliefs does not
4221987ST 1 SA 922 (0). For a discussion of this case, see Harris SAJHR 1987 240 and Robinson De Jure 1987 374. The approach followed in respect of the 1983 legislation before Hartman was summarised by the first chairman of the Board, in Steyn Compendium luris Re1igionis. During that time the Board did not only require a strictly religious, as opposed to secular, belief; it also specifically required a theistic belief. See also 13ff and 190ff of the same work. See also Taitz De Jure 1988 239 at 243. The general issue of religion under South African positive law is discussed by J D van der Vyver "Religion" in Joubert LAWSA vo1 23 175.
constitute a "religious conviction" in terms of the Defence Act,
because this form of Buddhism is non-theistic in the sense that it does
not recognise the existence of a God or a Supreme Being. Instead it
prescribes a certain way of understanding life and dealing with it.
On review before the full bench of the Orange Free State Provincial
Division, Smuts J P found, on the strength of expert evidence, that
Theravada Buddhism is one of the great recognised religions of the
world, even though it is non-theistic. The preamble to the Republic of
South Africa Constitution Act 110 of 1983 states as a national goal the
"recognition and protection of freedom of faith and worship"; the
legislature was obviously aware of the diversity of "faiths, religions
and creeds" in the country; and it is presumed that the legislature
does not intend to treat people unequally. Consequently, the Court
found that the applicant's genuine Buddhist belief did constitute a
"religious conviction" proclaiming that it is wrong to perform any
tasks connected with the military. This brought the appellant within
the confines of the Defence Act insofar as it provides relief for all
"religious objectors" who object to all wars423. The appellant
consequently qualified for alternative service.
The Court's finding was liberal in respect of the case under review,
but the Court added that it did not accept the argument that "an
applicant need not even belong to an association of individuals but
even an individually held view would be sufficient to qualify as a
religious conviction."424
The Hartman court explicitly rejected the reasoning of the United
States Supreme Court in United States v Seeaer.425 In that case the
Court had to interpret section 6(j) of the Universal Military Training
and Service Act426 which exempted from combat training and service in
the armed forces of the United States any person who, by reason of his
"religious training and belief", was conscientiously opposed to
participation in war in any form. "Religious training and belief" was
defined in section 6(j) as "an individual's belief in a relation to a
Supreme Being involving duties superior to those arising from any human
423At 924. 424At 929 425380 US 163 (1965). 4265O USC App S 456(j) (1958 ed).
relation, but [not including] essentially political, sociological, or
philosophical views or a merely personal moral code."
Seeger was convicted in a lower court for having refused unlawfully to
submit to induction in the armed forces. He was denied the status of
religious objector in terms of the Act by the lower court, which held
that his convictions did not qualify as religious beliefs as
circumscribed in section 6(j). In his application to be classified as a
religious objector, Seeger left the question whether he believed in a
Supreme Being open, and stated that his belief was a "belief in and
devotion to goodness and virtue for their own sakes, and a religious
faith in a purely ethical creed." Seeger cited Plato, Aristotle and
Spinoza as authorities for his ethical belief in intellectual and moral
integrity, which precluded him from doing military service.427
The Court found that the appellant's beliefs were covered by section
6(j), because Congress
in using the expression 'Supreme Being' rather than the designation 'God', was merely clarifying the meaning of religious training and belief so as to embrace a11 religions and to exclude essentially political, sociological, or philosophical views. We believe that under this construction, the test of belief 'in relation to a Supreme Being' is whether a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God of one who dearly qualifies for the exemption.428
Consequently, it was held that the appellant qualified for an exemption
from normal service.
This strongly subjective approach of the United States Supreme Court
was rejected by the Orange Free State Provincial Division. Instead, the
Hartman court identified itself with the dissenting opinion of Marian J
in Welsh v United States.429 In that case, of which the facts were
similar to those of Seeger,430 the United States Supreme Court went even
further than in Seeger in upholding a subjective approach, and held
427At 166. See also the facts regarding the other two appellants, whose cases were heard together with that of Seeger, at 167.
428At 165. 429398 US 333 (1970). 430The basis of the objector's pacifism in this case was that he
sincerely believed that taking anyone's 1ife was morally wrong. (See 343.)
that even though an objector's pacifism was to a "substantial" degree
based merely upon considerations of public policy, he was still
entitled to an exemption as long as those beliefs were deeply held and
were to some degree based upon "moral, ethical, or religious
principle", and not "solely upon considerations of policy, pragmatism,
or expediency."431
Harlan J agreed with the conclusion of the majority, namely that the
appellant's conviction had to be set aside. However, he differed from
the majority in this case, and from his own opinion in the Seeger case,
on what the basis should be for such a finding. Harlan now argued that
through its wide interpretation of section 6(j) the Court "has
performed a lobotomy and completely transformed the statute by reading
out of it any distinction between religiously acquired beliefs and
those deriving from 'essentially political, sociological, or
philosophical views or a merely personal moral code'."432
As a matter of statutory interpretation, according to Harlan, the
wording of section 6(j) could not be stretched as far as was done in
Seeger and in Welsh. In view of its natural meaning, however, the
provision would have to be regarded as unconstitutional because it
would, in Harlan's opinion, violate the establishment clause of the
First Amendment, since it draws a line between theistic religious
beliefs on the one hand, and non-theistic religious beliefs and secular
convictions on the other.433 Section 6(j) could be scrapped in its
entirety consistent with the First Amendment. But in that event the
long standing congressional policy of exempting religious objectors
from military service would be nullified. In order to avoid this result
section 6(j) has to be "patched", and relief must be given to the
appellant.434
The interesting feature of the Hartman court's embracing of the
position of Marian in Welsh is that only that part of Marian's opinion
that criticised the majority's interpretation of the phrase "religious
training and belief" - that is, the conservative prelude to the most
radical opinion expressed in the Welsh case - was quoted and applied
431At 343. 432At 351. 433At 357. 434At 367.
by the Hartman court.435
The interpretation of what should be regarded as "religious
convictions" which emanates from the majority opinions in the American
cases, is tied up in what Paul Tillich calls a person's "ultimate
concern".436 The effect of following this approach would be that secular
resistors (categories c) and d) objectors in the above diagram) are
treated the same as religious resistors (categories a) and b)
objectors). The question as to whether selective pacifists categories
b) and d) objectors) should be treated in the same way as universal
pacifists (categories a) and c) objectors) is, however, left
unanswered.
The Court in Hartman acted boldly in interpreting the phrase "religious
conviction" widely enough to include non-theistic religious beliefs.
Strictly speaking, the Court was not required to say more.
Nevertheless, the Court rejected in anticipando a further expansion of
the interpretation of the phrase to include protection of secular
beliefs.
Could the Hartman court have followed the wider American approach in
its interpretation of section 72D(1)(a)?437 The Court referred to the
fact that a narrower and a wider meaning of the words "religious
convictions" can be identified. The narrower meaning requires a belief
in a Supreme Being or Beings while the wider meaning refers to
"convictions which are held conscientiously and which are observed
435See also Harris SAJHR 1987 240 at 245. 436See Anonymous Harvard Law Review 1978 1056 at 1066. According to
Robinson SAPL 1987 35 at 46 "behoort die staat ... a11e innerlik-gefundeerde besware as relevant vir doeleindes van inilitere dienspligweiering te aanvaar." He rejected any attempt by the state to ascertain the nature and veracity of the conviction. See also Robinson JCRDL 1984 210; Robinson Obiter 1987 100 and Robinson Wetenskaplike Bydraes van die PU vir CHO 1990 235.
437For a defence of a restricted construction of the legal provisions relating to religious objection, see Oosthuizen JJS 1985 189. As basic premise, the author did not take the Idea of human rights, but the idea of human duties. (See 205.) The mistake he made was to assume that one has to choose between the two concepts, and not to recognise that both human rights and human duties have legitimate roles to play. In the process the author made no provision for fundamental rights such as freedom of conscience.
scrupulously or strictly."438 In regarding a belief in Theravada
Buddhism as a "religious conviction", the Court eventually opted for a
middle road - wider than the narrow meaning but narrower than the wide
one. The narrow meaning was rejected by the Court for the reasons
outlined above. But why was the wide meaning rejected?
As justification for rejecting the wide meaning, the Court referred to
the fact that the Defence Act requires a religious objector to state in
his application the "books of revelation and the articles of faith"439
on which hit convictions are based. The Court saw this provision as an
indication that the legislature regarded it to be essential that the
convictions in question must be based on such books or articles.
According to the Court the source of these texts must be "'something'
or 'someone' outside a human being which communicates with him."440
This argument is weaker than it might seem.
- According to section 728(3) of the Defence Act, the Board has a
discretion as to whether the applicant is required to "state the
books of revelation and the articles of faith" upon which his
religious convictions are based - there is not an absolute
obligation on the Board to require such a statement.441
- Insofar as it is necessary to make such a statement, it should be
noted that the term "books of revelation and articles of faith"
is also susceptible to a narrower and a wider interpretation. It
is clear from the evidence taken into account by the Hartman
court that the Buddhist revelation, the Pali Canon, does not
claim to be a work inspired by a Supreme Being. Surely, then,
insofar as such documents are necessary, the work on non-violence
espoused by, for example, Gandhi (who drew heavily upon both
Christianity and Hinduism) can presumably constitute the
necessary texts.442
438At 924. 439Section 72B(2)(d). 440At 929. 441See Robinson De Jure 1987 374 at 379. 442At least one person who was sentenced to imprisonment for ("non-
religious") conscientious objection specifically cited Gandhi's teachings as his inspiration. See "Gandhi influence on peace fighter" Natal Post 22 Oct 1986.
- Reduced to absurdity, the Hartman court's approach implies that
both the founder of a faith and his followers, until he writes
down his beliefs, would have to do military service. After that
has been done, they may be exempted.
D. EVALUATION
It is submitted that South African courts in appropriate cases in the
future can go beyond the Hartman court, in accepting that genuine
secular pacifism, adhered to on the level of an "ultimate concern", may
qualify for the same protection as religious pacifism. In other words,
at least category c) resistors in the diagram should also be protected.
This suggestion is based on the following:
- As has been suggested, the court in Hartman simply had to
establish whether a non-theist belief should be regarded as a
religious belief. Its finding that other beliefs should not be
treated as religious beliefs was made obiter.
- As mentioned earlier, the direction in which our legislation has
been moving in respect of conscientiously-based objection to
military service has been from a more objective to a more
subjective approach.
- Freedom of conscience is a value that seemingly is gaining ground
in the South African legal system,443 Freedom of religion and a
commitment to equality, if taken seriously, do not only imply the
right to choose a religion, but also the equal right not to
choose any. The ratio behind the (limited) provisions relating to
religious objection in the South African law must be to protect
the deepest feelings or convictions of people. To a non-believer
or agnostic, his ethical or humanistic convictions reflect his
deepest feelings. In a secular state, the convictions of those
who are not religious should not be treated with less concern and
respect than the convictions of those who are religious, as
though the feelings of non-religious people were less important
and worthy of protection.
- If, as the Hartman court found, a belief in some kind of Supreme
Being is not required for purposes of qualifying as a religious
objector, there seems to be no reason why only Buddhism and not
443See infra chap six IV B
other value systems which reflect the concerned person's most
profound convictions should qualify as a religious belief. True,
it would be easier for the purpose of proving that a particular
conviction is sincerely held if the requirement of religious
conviction, in the traditional sense of the word, were to be
insisted on. Nevertheless, considerations of expediency cannot
compromise the important principle of freedom of conscience.
Either no exemption should be made for objection on the basis of
conscience, or such exemption should be provided for all whose
deepest convictions are violated by military service, irrespec-
tive of whether those convictions are traditionally seen as
religious or not.
- It is also true that the granting of an exemption to some
increases the burden on others, especially in times of danger.444
It should also be remembered, however, that what is at stake is
not exemption from service to the community, but merely
alternatives to specific forms of national service. What is
requested by those who object to military service is an
alternative way of serving the community.445
- The United States Supreme Court in Seeger held that sincere and
meaningful beliefs should also be treated as religious
convictions, even though "religious training and belief" in the
Act under consideration in that case was defined as a "belief in
relation to a Supreme Being involving duties superior to those
arising from any human relation."446 While the words of the
statute, therefore, clearly spelled out the narrow meaning of
religion (referred to by the Hartman court), the Court in effect
substituted it with the wider meaning. The course taken by the
Court was indeed far-reaching. Under the South African Defence
Act, courts need not be so bold. The Defence Act merely refers to
"religious convictions" without defining the term. Because the
phrase is ambiguous and constitutes a serious inroad on the
freedom of the individual, courts should make the choice which
444See the judgment of Ogilvie-Thompson C J in S v Love11 1972 3 SA 760 (A) at 766.
445See B Steyn "The case for alternative service" in Centre for Intergroup Studies Conscientious objection 104.
446Section 6(j), quoted supra
would be in favorem 1ibertatis.
It is consequently submitted that, under the Defence Act, all
objections to military service, held on the level of ultimate concerns,
should be treated on the same footing.
This still leaves unanswered the complicated question whether selective
pacifists should be treated in the same way as universal pacifists. As
the Defence Act currently stands, it seems clear that only universal
pacifists are covered. The Act explicitly requires objection to serve
in "any armed force". It is submitted that this limitation cannot be
justified. The philosophical basis of the legal recognition of
conscientious objection is the protection of people's integrity or
"ultimate concerns", and objection to participation in a particular
war, just as much as objection to participation in all wars, can be
one's "ultimate concern". Insofar as integrity is involved, resistance
to conscription should be treated with a high degree of leniency.447
To summarise: As the Defence Act currently stands, not only category
(a) but also category (c) objectors may and should be classified as
religious objectors who qualify for alternative service. Because of the
explicit requirement that the conscientious objector must believe it to
be wrong to serve in the specified capacities in "any armed force", it
is submitted that categories (b) and (d) objectors cannot under the
present provisions of the Defence Act be so classified, although it is
argued that these provisions ought to be amended.
447See infra chap six III C.
CHAPTER FIVE:
CLASSICAL VIEWS ON POLITICAL AND LEGAL OBLIGATION AND RESISTANCE
The views of some of the most influential shapers of Western and South
African political, religious, philosophical and jurisprudential thought
on political and legal obligation and resistance will be considered
next. The primary focus will be on the conditions of justified
disobedience, but in the course of such an inquiry the basis and limits
of political obedience or obligation must also be established. After
all, the one defines the limits of the other.1
At the outset, a problem pertaining to discussions of a right of
resistance must be noted. Public endorsement or rejection of a right to
resist, however generally phrased, might have far-reaching practical
consequences. Commentators might be induced to play down their true
views on the topic for fear of governmental sanction, or because they
anticipate that by endorsing a right to resist they might provide the
oxygen for drastic action. On the other hand, in situations where
change is desperately needed but a sufficient stimulus is absent, some
observers might overstate their support for resistance. It is
consequently necessary to take the particular social context of each
different contribution into account.
This chapter will follow the following sequence: First, an exposition
will be given of the most important biblical text (Old and New
Testament) on the relationship between the individual and the state.
Some of the most influential Greek philosophers (Socrates, Plato,
Aristotle and the Stoics) wil thereafter be discussed, as well as the
1For general discussions of the right of resistance, see D Lumb "Legality and legitimacy: The limits of the duty of obedience to the state" in Alexandrowicz Grotian society papers 52; H J Laski "Historical introduction" in Brutus A defence of liberty against tyrants 1; Sumida "The right to revolution" in McDougal & Reisman International law in contemporary perspective 167; Berman Law and revolution in general and the essays contained in HacCormick & Bankowski Enlightenment, rights and revolution. See also Van der Vyver Contours of the Kingdom May, June 1979 6 and Paust Emory Law Journal 1983 545 as well as C W Emmet "Resistance and non-resistance" in Encyclopaedia of Religion and Ethics vol 10 736; M C Smith "Rebellion, revolution" in Encyclopaedia of Religion and Ethics vol 10 598; P N Steams "Protest movements" in Dictionary of the History of Ideas vol 3 670; H J Berman "Law and religion in the West" in The Encyclopaedia of Religion vol 8 472 and G Lewy "Revolution" in The Encyclopaedia of Religion vo1 12 374. A useful summary of the literature available on the topic is contained in Macfarlane Political disobedience 79ff. See also Hurd The Yale Law Journal 1991 1611.
legacy of Roman law and jurisprudence. The contribution of the most
important Christian theologians of earlier times (Augustine, Aquinas
Luther and Calvin, as well as some aspects of their legacy and the
dominant political philosophers (John of Salisbury Bodin, Hobbes,
Locke, Rousseau, Blackstone, Kant, Bentham Hegel, the anarchists and
Marx), as well as some of the most prominent contributors to the Roman-
Dutch legal tradition (Germanic jurisprudence, Azo, the Canon law,
Philip of Leyden, Bartolus, Grotius, Pufendorf, Huber, Noodt and Wolff)
is next in line. Certain contemporary views of political scientists are
also considered. Because of the extensive influence they had on each
other, these contributions will be discussed, as far as is possible, in
chronological order.
In light of the important role of Christian religion in the theoretical
discourse concerning political resistance in South Africa, the chapter
includes a synopsis of the position taken by certain churches in this
regard. Some aspects of political resistance in traditional African
society are also discussed. An attempt is then made to arrive at some
generalisations from the material considered.
I. WESTERN POLITICAL THOUGHT
The approach of Western civilization to political obligation has two
main roots: the Judeo-Christian and the Greco-Roman traditions.2 The
Judeo-Christian contribution largely concerns political and social
ethics as opposed to science. For example, the idea of a covenant as
the basis of relationships, which underlies the notion of the social
contract, is a recurrent theme in the Old Testament. But more
fundamentally, the concept of the "brotherhood" of all people, linked
to each other through their allegiance to the same God - the notion of
"one world" - is deeply rooted in the monotheistic doctrine of the
Bible. The basically egalitarian premise of the Old Testament is
reinforced by the New Testamentical emphasis on the importance of love.
The notion that all human beings were created in the image of the same
God makes this tradition singularly susceptible to the idea that human
dignity should be preserved - which in turn is basic to the idea of
inalienable human rights. At the same time, the Judeo-Christian
tradition accepts that a part of the human spirit is regarded as beyond
the reach of temporal government.
2See Ebenstein Great political thinkers 1.
However, there is also another side to this tradition. Both Judaism and
Christianity has a long history of official endorsement in different
societies, which means that one might expect a strong emphasis to be
placed on the duty of obedience rather than on the right of resistance.
Both traditions place great emphasis on the divine endorsement of the
institution of political power.
Greek and Roman thought, with its politheistic religious orientation,
lacked a universalistic ethical basis. This, in turn, made it difficult
for members of this tradition to transcend and relativise the claims of
their immediate social grouping.
In the time of the golden age of Greek philosophy - the era of
Socrates, Plato and Aristotle - the Greek polis was seen as a social,
economic and political unity, and also as a spiritual and religious
one, and consequently high priority was placed on obedience to its
demands. In addition to the fact that membership of the polis was
regarded as a condition for meaningful existence, Greek philosophy
during this era emanated mainly from the elite, resulting in a
propensity to require blind obedience from the ruled, coupled with a
strong aristocratic slant in its view of political life. However, as a
more lasting contribution the Greeks had their philosophy to offer,
which would provide a rational basis for dealing with the question of
government. That is, they made a science of political philosophy.
Judeo-Christian ethics and Greek science combined to form the basis of
the Western approach to political obligation.
Roman law, in the classical and post-classical age, also afforded to
government a primary position. The Roman contribution, however, lay in
its powerful demonstration of the extent to which legal science could
be used to regulate human relationships. Western political thought
largely developed on the foundations of Judeo-Christian values by means
of Hellenistic and Roman science.
However, to some extent the above observations, which largely represent
the orthodox view, oversimplify the contribution of Greek and Roman
philosophy in the field of ethics. As will be indicated later on, the
Greek Stoics, who made their contribution after the golden age of Greek
philosophy, had a major influence on Roman and also Christian thinking.
The Stoic-Christian conception of political obligation and legitimate
resistance dominated Western thought for many centuries. This school of
thought posited a general duty of political obedience. Nevertheless, it
regarded integrity-based, religious, defensive civil disobedience as
permissible, and indeed in some cases saw it as a positive duty,
although result-oriented resistance of any kind was considered
unacceptable. It is submitted that these aspects of Greek and Roman
political culture ultimately survived, while the more aristocratic and
in fact autocratic tendencies did not, because the former fitted in
well with the values which underlay the Judeo-Christian tradition.
These values will now be discussed in more detail, after which the
contribution of the greatest Greek philosophers will be considered.
A. THE BIBLE
Throughout history, religion has been one of the primary sources of
social solidarity and political mobilisation in human society. The
observation of the late-Sophist, Critias, that rulers invented the gods
to ensure compliance with their commands by people not under their
physical control, might be cynical but it is not for that reason
necessarily untrue.3
In respect of obedience to earthly authority, the belief in an
omnipotent god, however, is a two-edged sword. Religion can legitimise
the prevailing system to believers, when that system is seen as
conforming to their basic ideals. But when the system is not seen in
that light, it can also mobilise people to resist the existing
political dispensation. Because of the transcendental loyalty of the
believer, religion has a strong subversive potential.
The idea that the political ruler represents God on earth affords
special authority to his station in life, but, at the same time, the
fact that rulers sometimes do act unjustly and even require their
subordinates to sin, confront believers with the theodicy problem: how
can a good and omnipotent God allow, and in this case sanction, evil?
This problem requires believers to accept that not a11 rulers represent
God.
It will be argued, however, that the Stoic approach of the early church
in the time of its persecution, and identification of the church with
the governing elite since Christianity became the state religion of the
Roman Empire, caused active or result-oriented resistance, aimed at
openly challenging the state, never to acquire a dominant position in
the tradition of the church.
3See Greyer Die wysbegeerte van die Grieke 69. The influential research of Emilé Durkheim in this regard is discussed -In Lukes & Scull Durkheim and law.
There are a number of important passages in the Bible in which the
issue of political obligation is canvassed, directly or indirectly.
(1) The Old Testament
Religion played a major role in sustaining the political unity of
Israel and obedience to its internal leaders. At the same time, it
inspired much of Israel’s resistance against foreign domination.
Religious inspiration for political disobedience is evident, for
example, in the history of Hezekiah, the king of Judah, when "[h]e
rebelled against the king of Assyria and did not serve him."4 Similarly,
Daniel's friends, Shadrach, Meshach and Abednego, refused to worship
the image of gold set up by King Nebuchadnezzar. They told the king:
"We want you to know, D king, that we will not serve your gods or
worship the image of gold you have set up."5 Daniel himself defied a
decree of king Darius not to worship his God. Three times a day he
prayed at open windows towards Jerusalem. Daniel was thrown in the
lion's den, but according to Scripture, remained unharmed.6
It should not be presumed, however, that the internal power
relationships between Israel’s rulers and their subjects were based on
the divine power of kings. The Old Testament portrays Israelites as a
most rebellious nation, whose kings were servants of Javeh and were
subject to the censorship of his prophets.7
(2) The New Testament
The most important event of the New Testament - the crucifixion of
Christ - was the result of an act in defiance of the existing worldly
order by the Son of God In obedience to the authority of God himself.
At the same time, the defiance was non-violent and open. As indicated
earlier, in secular terms this central pivot of Christianity, and
consequently of much of Western civilization, can therefore be
described as an act of civil disobedience through which the present
world order was established. It inspired many who defied worldly
authority to believe that their defiance was justified.
42 Kings 18.7. 5See Daniel 3.18. 6Daniel 6. 7See M C Smith "Rebellion, revolution" in Encyclopaedia of Religion and
Ethics vol 10 598 at 598. See also Calvert Revolution 49. For a discussion of the rulers of the Bible, see Weber Power 47ff.
At the same time, the New Testament contains passages which maintain,
in strong language, that earthly authority should be obeyed. We will
now consider some of the most important texts regarding non-violent
political resistance, while brief reference will be made to
interpretations of those texts.
In his teachings, Christ emphasised the need not to take violent
revenge. In the Sermon on the Mount, in a passage often quoted by
proponents of non-violent resistance, he said:
You have heard that it was said, "an eye for an eye, and a tooth for a tooth." But now I tell you: do not take revenge on someone who does you wrong. If anyone slaps you on the right cheek, let him slap you on the left cheek too.8
Upon being arrested, Christ ordered Simon Peter to put away his sword.9
Peter would later say, with reference to Christ: "When he was insulted
he did not answer back with an insult; when he suffered he did not
threaten, but placed his hopes in God."10 The Gospel, however, also
recounts the incident where "Jesus went into the temple and drove out
all those who bought and sold in the temple; he overturned the tables
of the money-changers and the stools of those who sold pigeons."11
Although the use of violence is consequently not excluded altogether,
the emphasis is on non-violence. How did Jesus see political
obligation?
When he was asked by Pontius Pilot whether he was the king of the Jews,
Jesus answered: "My kingdom does not belong to this world."12 This
statement seems to suggest that earthly political obligations should be
relativised.
Christ was asked by the Pharisees whether tax should be paid to the
Roman Emperor by the Jews. Christ responded by saying, "[S]how me the
coin to pay the tax!" They brought him the coin, and he asked: "Whose
face and name are these?" They answered, "The Emperor’s", to which
Jesus said: "Well, then, pay to the Emperor what belongs to him, and
8Matthew 5.38, 39. See also Luke 6.29, 30. 9John 18.11. 10See 1 Peter 2.23. 11Matthew 21.12. See also Mark 11.15-19; Luke -19.45-48 and John 2.13-22. 12John 18.36.
pay to God what belongs to God."13
Jesus’ teachings directly inspired disobedience of earthly authorities
amongst his immediate followers. His disciples, Peter and John were
arrested for spreading the gospel in the temple, and were brought
before the Council. After being told not to speak or teach in the name
of Jesus under any circumstances, Peter and John told the Council: "You
yourself judge which is right in God's sight, to obey you or to obey
God. For we cannot stop speaking of what we ourselves have seen and
heard. "14
The leaders of the church realised the threat posed by the apostles to
their position and had them arrested. According to Scripture, the
apostles were then given divine instructions to disobey: "[A]n angel of
the Lord opened the prison gates, led the apostles out, and said to
them, ‘Go and stand in the temple, and tell the people all about this
new life.’ The apostles obeyed, and at dawn they entered the temple and
started teaching."15
They were again arrested and brought before the Council, where the High
Priest questioned them. "’We gave you strict orders not to teach in the
name of this man’, he said; ‘but see what you have done! You have
spread your teaching all over Jerusalem, and you want to make us
responsible for his death!’"16
Peter and the other apostles then gave their famous answer, recorded in
Acts 5.29: "We must obey God, not men." The Counci1 decided not to put
the apostles to death.
They cabled the apostles in, had them whipped, and ordered them never again to speak in the name of Jesus; and then they set them free. The apostles left the Council, full of joy that God had considered them worthy to suffer disgrace for the name of Jesus. And every day in the temple and in people's homes they continued to teach and preach the good news about Jesus the Messiah.17
Paul, however, placed much emphasis on the duty of Christians to obey
state authority. No doubt, the best known exposition n this regard,
13Matthew 22.19-21. See also Mark 12.13-17 and Luke 20.20-26. 14Acts 4.19, 20. 15Acts 5.19-21. 16Acts 5.28. 17Acts 5.40-42.
which is encountered again and again in the works of later writers, is
contained in Romans 13:1-6:
Everyone must obey the state authorities, because no authority exists without God’s permission, and the existing authorities have been put there by God. Whoever opposes the existing authority opposes what God has ordered; and anyone who does so will bring judgment on himself. For rulers are not to be feared by those who do good but by those who do evil. Would you like to be unafraid of the man in authority? Then do what is good, and he will praise you. For he is God’s servant working for your own good. But if you do evil, be afraid of him, because his power to punish is real. He is God’s servant and carries out God’s wrath on those who do evil. For this reason you must obey the authorities - not just because of God’s wrath, but also as a matter of conscience.
This is also the reason that you pay taxes, because the authorities are working for God when they fulfil their duties. Pay, then, what you owe them; pay them your personal and property taxes, and show respect and honour for them a11.
Paul wrote this to the congregation in Rome, which was subjected to the
rule of the Roman government. That government was described in
Revelation 13 as a "beast from the sea" that cursed God. Paul also
said: "Remind your people to submit to rulers and authorities, to obey
them ..."18
Peter urged the early Christians to "submit yourselves, for the Lord’s
sake, to every human authority: to the Emperor, who is the supreme
authority, and to the governors, who have been sent by him to punish
the evil-doers and praise those who do good."19 He also urged them to
"respect the Emperor".20
Not surprisingly, these texts have been the object of widely divergent
interpretations. Insofar as resistance is allowed, many commentators
emphasised the strong - although not absolute - insistence of the Bible
on non-violence.21
18Titus 3.1. 191 Peter 2.13, 14. 201 Peter 2.17. 21See eg Wink Jesus' third way 12ff and Régamey Non-violence and the
Christian conscience 79ff. See also IDO-C When all else falls and Culliton Non-violence, where it is argued that non-violence is central to Christian spirituality. It should be noted, however, that 1t has been estimated that of approximately 980 million professed Christians in 1971, probably less than 600
However, controversy centred upon the question how the general duty to
obey the state, as exemplified in Romans 13, is to be reconciled with
the first loyalty of Christians toward God, as posited in Acts 5.22 In
view of the general message of the Bible, which requires ultimate
obedience to God, some have rejected Romans 13 as a supposed
interpolation.23 It has also been claimed that Christ was in fact a
political rebel and sympathised with the Zealots, who strove towards
the liberation of Israel from oppression by Rome. Paul then supposedly
covered this up through his attempt to portray Christ as a divine
saviour in non-political terms, inter alia in Romans 13.24 Others saw
this pericope as entailing a strict requirement of obedience to any
government.25
One of the more popular - and feasible - views is to regard Romans 13
as a corrective on the "over-enthusiastic" congregation in Rome who, as
citizens of God’s Kingdom, rejected the very notion of secular
authority and regarded themselves only as citizens of the Kingdom of
God. The message of Romans 13 is, therefore, that the institution of
the state as such accords with God's wishes, but it does not at all
address the issue of an unjust government. The latter issue, according
to this interpretation, is addressed by texts such as Acts 5.29.26
In conclusion, it seems fair to say that the Bible poses a general duty
of obedience to secular authority. This duty is secondary, however, to
000 were universal pacifists. That is less than a one-thousandth part of the total number. See D P Whitelaw "Christian responses to violence: A historical survey" in Vorster Views on violence 21 at 34.
22For a general discussion of the texts, see Van der Walt Wetenskaplike Bydraes van die PU vir CHO 1983 1. According to E1off Die subordineringsopdrag van die owerhede 82ff, Christian disobedience must necessarily be non-violent, non-reactive and non-demonstrative: "Dit is nie 'n reaksie teen 'n stelsel of selfs 'n spesifieke wet nie, maar primer gehoorsaamheid aan God. Dit mag dus nie polities geïnspireerd wees nie."
23See the discussion by J De ViTliers "Die Christen en die staat volgens die Nuwe Testament" in Du Toil Staatsgesag en burgerlike ongehoorsaaiBheld 20 at 35.
24Id 27. 25Id 20. 26This approach, usually associated with the name of Kasemann (id 21), was
also adhered to in the South African Kairos document (see infra II B). See also 0 J Bosch "Kerk en politick in die Suid-Afrikaanse konteks" in Smith et a1 Stonn-kompas 24.
the higher duty of disregarding the authorities if they were to require
their subjects to disobey the will of God. In such cases, where one’s
religious integrity is at stake, defensive civil disobedience is
justified. There is no explicit endorsement or rejection of stronger
forms of resistance to be found in the Bible.27
B. GREEK PHILOSOPHY
(1) Socrates and Plato
Political philosophy finds its illustrious origin in the thought of
Socrates (469-399 BC)28 and his student, Plato (427-347 BC).29 Socrates
did not produce any writing himself, and his life and thought is known
to us mainly through the dialogues of Plato, in which he played the
dominant role. Plato, however, had his own objectives in the way in
which he portrayed Socrates.30 The political message contained in
Plato’s account of the death of Socrates was discussed earlier, when
the double-barrel legacy of Socrates was considered: Through the device
of sacrificial civil disobedience he reconciled the need to be true to
one’s own conscience with the obligation to obey the law.31 In this
section Plato’s views on political obligation will be considered.
Plato’s political thought is set out mainly in three books: The
republic, The statesman and The laws. The influence of these books, and
especially The republic, considered to be the first work on political
science in the history of philosophy, throughout the twenty three
centuries of its existence, is incalculable. The first recorded
articulation of virtually all the modern day issues of political
philosophy can be found in Plato’s writings.
27On political resistance among the early Christians, see supra chap three II D.
28On Socrates' philosophy in general, see Copleston A history of philosophy vol 1 117ff. On Socrates' political philosophy, see Strauss & Cropsey History of political philosophy 2ff. On his legal philosophy, see Du P1essis Westerse regsdenke tot en met die middeleeue 66ff.
29 On Plato's philosophy in general, see Copleston A history of philosophy vol 1 151ff. On his political philosophy, see Ebenstein Great political thinkers Iff; Strauss & Cropsey History of political philosophy 7ff and Lee's Introduction in Plato The republic 11ff. His views on political resistance are discussed by Calvert Revolution 32ff. On Plato's legal philosophy, see Du P1essis Westerse regsdenke tot en met die middeleeue 77ff.
30See Copleston A history of philosophy vo1 1 120. 31See supra chap three II C.
Plato was the first to subject government as an institution to rigorous
rational analysis. Moreover, he established the crucial connection
between what psychology reveals about individuals on the one hand and
political theory on the other (although much of what he said concerning
the individual’s psyche is no longer accepted). Plato also introduced
the concept of the "public" as distinct from the "private".32
Although Plato’s subjection of political institutions to scientific
inquiry, and the concepts he introduced, have been central to the
development of Western political philosophy, his political views are
largely discredited. His approach was distinctly elitist or
aristocratic, and expressly anti-democratic and anti-individual.
Plato’s position was that those who know should rule over those who do
not know, regardless of the latter’s consent. The philosopher-king has
the right to rule (and the subjects must obey) because he has the
clearest view of the unchanging "idea of the good" - the concept which
is central to Platonic philosophy.
A number of causes can be cited for Plato's opposition to democracy,
and his commitment to the rule of the aristocracy. The first had to do
with his own personal position in Athens of the Fifth and Fourth
Centuries. Being from a noble family, Plato apparently had personal
political aspirations which never materialised, due to the rise of
democracy. Moreover, after the Peloponnesian War (419-404 BC), two of
Plato’s uncles led the Thirty Tyrants, and were eventually killed by
the democrats. When democracy was restored, Socrates was tried and
executed. Plato blamed democracy for the death of Socrates.33 Plato
regarded his society as sick and maintained that it had to be cured.
Plato's diagnoses and proposed cure were far-reaching. Democracy, to
him, was only a symptom of a more basic problem that was destroying
society from within. The problem was change - itself, manifested in its
worst form in social revolution. The world was moving away from its
original form - its divine form or idea - in the image of which it was
created. As organisms, political structures are subjected to changes in
32See Ebenstein Great political thinkers 2. 33In The trial of Socrates, I F Stone argued that the main reason for the
trial of Socrates and its outcome was Socrates' association with the Thirty Tyrants, and his failure to take a stand against them. In essence, the charge was that he was undemocratic - a charge which, according to Stone, was not entirely unfounded.
accordance with the ebb and flow of nature. Social change had to be
arrested, because it inevitably involves social deterioration.
Timocracy (a state governed by by people whose primary motivation is
love of honour) would naturally evolve into oligarcy, thence to
democracy and eventually to tyranny.34
Plato’s approach is perhaps best understood - if contrasted with that
of Hegel, which will be discussed later. Although both proceeded from
the ideal situation, Hegel saw conflict and change as healthy and
conducive to development, and consequently endorsed a far-reaching
right of resistance to authoritarian government, while Plato
entertained the exact opposite view.
Pre-Socratic Greek philosophy identified the alternative sources of
political obligation as either "nature" (physis) or "convention" (also
called law or nomos).35 The first implies a measure of necessity, the
latter contingency. Not surprisingly, then, given his objectives, Plato
would latch onto the former, which placed him in the category of the
natural lawyers. The term "natural law", as perceived by its early
proponents, however, referred to a basis for the legitimacy of the
coercive power of the state and consequently for political obligation,
rather than to a formulation of a right to resist, as would be the case
with later adherents to natural law such as Locke.
Plato developed a cosmology and political theory which would posit a
most rigid hierarchical structure embracing the individual and which
would allow very little scope for individual decision-making and
political resistance.36 According to Plato, someone who disagrees with
the state should speak his mind, if that is likely to produce a good
result.
But force against his native land he should not use in order to bring about a change of constitution, when it is not possible for the best constitution to be introduced without driving men into exile or putting them to death; he should keep quiet and offer up prayers for his own welfare and for that of the country.37
34See the discussion by Calvert Revolution 32. 35See Strauss & Cropsey History of political philosophy 3. 36See Karl Popper's contribution entitled "Plato" in International
Encyclopaedia of the Social Sciences vol 12 159 at 162. 37See "Plato to the relatives and friends of Dion: Welfare", reprinted as
Letter 7 in Plato The Platonic epistles 115 at 123, 331a-331e.
The central question addressed in The republic was what is dikaiosune -
what is "justice" or "doing right"?38For Plato this was the same as
asking what is the basis of social and moral obligation. This problem
was addressed in four stages.
First Socrates - the main character in the dialogue - showed that the
conventional view, that justice meant honesty and rendering what is due
to gods and men, had some merit but was ultimately inadequate.39 The
view that justice consists in helping one’s friends and harming one’s
enemies was also rejected.40
Especially interesting is Socrates’ next encounter, with Thrasymachus
of Chalcedon, who regarded justice as "simply what is in the interest
of the stronger party".41 Obedience is enforced by the stronger group in
society and is not voluntarily granted by the weak. Morality is nothing
more than the code of behaviour so extracted. Justice or law is
consequently not necessarily good for the subjects - it might even be
bad. For the rulers, justice simply does not exist as a constraint -
they lay down the law with exclusive concern for their own advantage.
Socrates, in responding to these statements, asked how this
understanding of justice was affected by the fact that rulers may often
be mistaken about their own interests. Thrasymachus replied that
rulers, as rulers, are never mistaken - when they are mistaken they are
not rulers. Socrates argued that government is a skill, and the
exercise of any skill as such is disinterested.42 Consequently, justice
cannot simply be the interests of the stronger.
As always, Plato arranged for Socrates to have the better of this
particular encounter (not least by portraying Thrasymachus as extremely
rude), but history would prove the debate to be far from over.43 Indeed,
38Plato The republic 331c. 39Id 331e-334b. 40Id 334b-336a. 41Id 338c. 42Id 342. 43It seems that Plato was deeply troubled by the argument advanced by
Thrasymachus. His claim is repeatedly addressed in the other dialogues of Plato. See eg Plato's Gorgias 483, where Callicles observed "This is, in fact, how justice is determined: the stronger shall rule and have the advantage over his inferior."
as " Dahrendorf indicated, the Socrates-Thrasymachus debate is the
first recorded exposition of the opposition between what would become
two dominant notions in political theory.44 The Socratic position would
be taken up by Rousseau and others, who emphasised the need for
political power to be executed legitimately or with authority. On the
other hand, Thrasymachus’ position would be followed by people like
Machiavelli and Hobbes, who maintained that power is unequally divided
in society and argued, in the words of Dahrendorf, which "legitimacy
amounts at best to a precarious preponderance of power over the
resistance it engenders."45 To them political obligation is determined
by control and not by authority.
After his encounter with Thrasymachus, Socrates was confronted by
Glaucon with the argument that an individual’s morality and political
obedience is prompted merely by the prospect of reward or social
approval - that is, by convenience. It is simply in order to avoid
social and other sanctions that people act "justly".46If people had no
fear of detection there would have been no obedience.47
To counter this, what in modern terms would be called consequentialist
view, Socrates maintained that justice should be welcomed "both for its
own sake and for its consequences".48 Socrates argued that it is easier
to study objects on a large scale than on a small scale, and proposed
firstly to discuss justice in the state or country and then to apply
the conclusions so reached to the individual.
How, then, would the natural state look? This question leads one
directly to Plato's discussion of the ideal city-state or "Cal1ipolis".
The reason for this device is that "justice" or "law-abidingness" can
be good only if the law is good; and good laws can emanate only from a
good city.49
Plato’s description of the ideal city is well-known and need not be
elaborated upon in any detail. Plato, through Socrates, described a
44See Dahrendorf Essays in the theory of society 129ff. 45Id 138. 46See Plato The republic 358b. 47Id 360a. 48Id 358a. 49See Strauss & Cropsey History of political philosophy 16. See also Plato
The laws 201ff.
"first city" - a type of state of nature that would develop naturally
before a "feverish condition" or serious instability sets in. Rational
considerations then lead to division of society into three classes,
which correspond with the "three parts of the soul". At the lowest
level there are the workers, who satisfy material wants or appetite and
are guided by the virtue of industriousness. At the intermediate level
there are the fighters or auxiliaries, whose conduct is conditioned by
the virtue of courage. At the highest level there are the rulers, whose
characteristic attribute is wisdom. For Plato, the ultimate ideal is
that of the philosopher-king, trained to have a proper understanding of
the good and subjected to the most rigorous discipline.50 Justice
prevails in such a state when every individual occupies the station in
life most suitable to his abilities and the three classes do not
interfere "with each other’s jobs".51 Similarly, justice in the
individual means that all parts of the soul are subjected to reason.52
The important point, then, is that justice is the harmony of the
individual soul and of the classes in society.
"Doing right", therefore means acting in harmony with nature, as it
reveals itself through reason. One has to take one’s place in the
hierarchical structure of the state and ultimately the cosmos, which
has at its apex the "idea of the good".
A number of "imperfect societies" were then discussed by Socrates -
oligarchy,53 democracy54 and tyranny,55 in order to show that the life of
the just man and the philosopher is more worthy than that of any other.
Tyranny and democracy, for example, are characterised by surrendering
to the basic desires. At the end of the exposition, Socrates concluded
that goodness and justice brings its own reward.56
The Platonic model can to a considerable extent be regarded as the
prototype of the traditional natural law approach, which saw political
structures in hierarchical terms, legitimised from above, by a
50See Plato The republic 471. 51Id 434c. 52Id 441b-444e. 53Id Book 8.4. 54Id Book 8.6. 55Id Book 8.8. 56Id Book 9,2.
metaphysical ideal. Because Plato’s ideal state had transcendental
sanction, it needed no popular recognition and resistance could not be
justified.
(2) Aristotle
Aristotle (384-322 BC),57 the greatest systematic thinker of ancient
Greece, unlike his teacher, Plato, concentrated not primarily on the
ideal, the perfect, but on that which is actually possible and
attainable. A major part of Aristotle’s teachings dealt with government
and ethics, and he wrote what is still today considered to be an
introductory textbook to the entire field of political science - The
politics, which should be considered together with his Nicomachean
ethics.
Although intimately associated with the Macedonian monarchy, and the
tutor of Alexander the Great, Aristotle - himself from a middle class
background - would be much less elitist than Plato. Nevertheless, it is
clear that Aristotle’s political perspective was from the side of the
rulers, not the ruled. Aristotle placed the virtue of the rulers above
the consent of the governed. In contrast to the Sophists, who based
political obligation on convention or contract, he regarded its source
as the natural order. Like the other early proponents of this school of
thought, Aristotle saw natural law primarily as a basis for political
obligation, not resistance.58
Aristotle’s political philosophy should be seen against the background
of his philosophy as a whole, to which only the scantiest reference can
be made here. According to Aristotle’s teleological approach humankind
strives towards eudaimomia, which refers to the fulfilment of each
person’s function or "happiness". In the course of this pursuit the
correct choice is always the avoidance of extremes - the mean must be
chosen. In his political philosophy Aristotle was primarily interested
in establishing how, in the less than ideal circumstances of real life,
57On Aristotle's philosophy in general, see Vorländer Geschiedenis van da Wijsbageerte vol 197ff and Dreyer Die wysbegeerte van die Grieke 121ff. On his political philosophy, see Ebenstein Great political thinkers 66 and Strauss & Cropsey History of political philosophy 64. His views on political resistance are discussed by Calvert Revolution 33ff. His legal philosophy is dealt with by Du Plessis Westerse regsdenke tot en net die middeleeue 102ff and Van Eikema Homines Major trends in the history of legal philosophy 17ff.
58Aristotle's defence of the institution of slavery and of the inferior position of women was also based on what he saw as the natural order.
this could be approximated in the social context.
In the opening lines of The politics, Aristotle set out two crucial
ideas: (i) the polis59 is a community; and (ii) it is the highest of all
communities.60 The description of the polis as a community must be
contrasted with the instrumentalist view of the state, which sees the
state as an instrument to be used for a higher purpose than itself.
This latter view, adhered to by the Sophists and later revived by
Hobbes and Locke, was rejected by both Plato and Aristotle.
Instead Aristotle regarded the state as an organic community; an
organism with the attributes of a living being. "Man" in his view, "is
naturally a political animal" which can reach his telos only in the
polis.61
Moreover, the polis is not just a community like any other. It is also
the highest community, aimed at the highest good. The family exists for
the preservation of life; the village for the comforts of
companionship; but the polis exists for the sake of the good life, and
not for the sake of life only. Humankind’s moral nature can be
expressed only in the polis - not in a bigger and not in a smaller
context. To Aristotle the polis was held together not by impersonal
laws, but by personal bonds of friendship and morality.62
To Aristotle the polis was natural in two ways: (i) Social institutions
evolve from the family through the village to the polis, which is the
natural and final stage in the growth of human relations, and (ii) the
polis was also natural in a philosophical sense, "[f]or the whole must
needs be prior to its part."63 Political obligation to Aristotle was
therefore, to use a modern expression, a "natural duty",64in the sense
that it is simply the result of one’s citizenship, which in turn is a
natural consequence of being human.
59For a discussion of the proper translation of the word "polls", see Strauss & Cropsey History of political philosophy 65. Although the usual translation is "state" or "city-state", these terms do not properly signify the all-inclusive nature of the polls.
60Aristotle The politics 1.1 61Id 1.2. 62Ibid. 63Ibid. 64Sea infra chap five I EE (4).
This, however, does not imply that Aristotle expected rigid conformity.
In spite of his belief in the organic nature of political society,
Aristotle did not place the same emphasis on unity or uniformity in the
polis as Plato. Aristotle recognised that "not only does a state
consist of a number of individuals but the individuals are different in
kind,"65 Having been raised on the edge of the Greek sphere of
influence, where there was much exposure to different cultures,
Aristotle’s approach was one of tolerance for diversity. His po1is was
heterogeneous, not homogeneous.
What type of state would best serve humankind's needs as a "political
animal"? Aristotle distinguished three forms of government which could
each be either unperverted (conducted in the interests of the ruled) or
perverted (conducted only in the interest of the rulers). The three
forms of genuine or unperverted government are kingship, aristocracy,
and polity (a democracy limited by a considerable property
qualification). In perverted form these types of government become
tyranny, oligarchy, and democracy (in the sense of the rule by the
poor, for the poor).66 The distinguishing feature of bad government is
consequently the element of exploitation.
Aristotle’s deep anti-democratic sentiments are evident in his
discussion of the phenomenon of the "individual of pre-eminent virtue".
Such an individual, Aristotle maintained, should not be subjected to
the law, "for we might as well presume to rule Zeus. It remains then,
as indeed seems natural, that all should render willing obedience to
such a one, and that he and his like should thus be perpetual kings
within their states."67
In the ideal, therefore, Aristotle would have preferred an enlightened
monarchy. Nevertheless, he realised that this would require a standard
of virtue absent in most societies.
Consequently, as a practical matter, he accepted that decisions should
rather be taken by many than by one. Aristotle accepted political
participation as the hallmark of citizenship. In order to steer between
the dangers of oligarchy (rule by the rich) and democracy (rule by the
poor) Aristotle chose polity, in the sense of a kind of middle class
65Aristotle The politics 2.2. 66Id 7. 67Id 3.13.
rule. In accordance with his general approach, he also in this instance
took the middle option.
Aristotle is widely regarded as the founder of the study of
revolutions. In Book 8 of The politics, commonly known as the "Book of
revolutions", he provided a most perceptive account of the origins of
revolutions. He regarded their prime cause not in the stereotypical
manner, as the design of malignant instigators who must be repressed by
force, but rather as social conditions which often could and should be
rectified.
Aristotle regarded the general author of sedition and insurrection as
inequality and what in modern terms could be called the "sense of
injustice".68He outlined various more specific reasons for political
revolutions, such as the disproportionate distribution of power between
classes69 and diversity of race.70 In accordance with his wider political
system Aristotle also dealt at length with the different causes of
revolutions in democracies,71 oligarchies72 and aristocracies,73 A
monarchy becomes a tyranny if the monarch pays no regard to the public
weal, but instead seeks only his own pleasure.74 Revolution can be
averted inter alia by preventing a monopoly of power in the hands of a
single class or order75 and through political education.76
Aristotle unlike Plato viewed revolutions to some extent as an
inevitable component of political change. Political change takes place
in cycles, which means that, while Plato was correct in describing the
decay of political systems into tyranny, it should also be recognised
68[W]henever one party or the other fails to enjoy such a political influence as is consistent with its own conception of Justice, it becomes the author of sedition." Id 8.1. (Original emphasis.)
69Id 8.3.7. 70Id 8.3.11. 71Id 8.5. 72Id 8.6. 73Id 8.7. 74Id 8.10. 75Id 8.8.10. 76Id 8.9.
that tyranny in turn decays and initiates new cycles of change.77
Aristotle, then, also adhered to the view that obedience was based on
the natural order. At the same time, however, while he did not
recognise a right to resist, he regarded revolutions as natural
phenomena under certain circumstances.
As will be demonstrated, Aristotle’s views gained considerable
prominence when it was integrated into Christian theology by Aquinas.
(3) Stoicism
Stoicism, one of the dominant philosophies of the Hellenistic-Roman
period, was founded during the last years of Fourth Century Greece by
Zeno of Citium (336-264 BC) and his successor Chrysippus of Soli (c
280-c 206 BC).78 Stoicism spread to Rome when Diogenes of Seleucia and
Carneades the Sceptic visited the city in 156 BC. It flourished and
eventually declined in Rome in the First and Second Centuries AD.
The specific contribution of the Roman Stoics - and especially Cicero -
will be dealt with later.79 Only a general survey of some of the
recurrent themes in Stoic thought will now be given.
It is revealing to note that Stoicism came to the fore in the moral
vacuum that emerged when the Greek polis declined. The central role of
the polis in the Greek world view and political life was discussed
earlier. Where security could be found if not in the polis? Clearly not
in the fickle and frivolous Greek gods.
Zeno had the same premise as his predecessors, the Cynics, who
maintained that unhappiness and insecurity resulted from the pursuit of
that which was beyond the control of the individual. One had to know
the difference between that which can be changed, and that which
cannot, and concern oneself only with the former. The only aspect of
our existence which is really within our power is pursuit of the
correct moral attitude or virtue. We must become indifferent to all the
passions, and even death should hold no fear, because one can do
77See Calvert Revolution 33ff. 78Greek Stoicism and its political and legal implications are discussed by
Wenley Stoicism and its influence; Vorländer Geschiedenis van de wijsbegeerte vol 1 l20ff; Van Eikema Homines Major trends in the history of legal philosophy 29ff and Du Plessis Westerse regsdenke tot en met die middeleeue 115ff.
79See infra chap five I C.
nothing about it. The only possible good is virtue, and the only evil
is vice - all else is morally indifferent. One’s highest loyalty should
be to be true to oneself, to one’s own nature or integrity. Each person
must be the captain of his own soul - nothing more, but also nothing
less.
What does it mean to be true to one’s own nature? Reason is the active
force in the universe, and it is also an active force in human beings.
Humans must consequently accommodate their own beings to universal
nature or reason. Virtue means that one lives in harmony with nature.
In place of the polis, the Stoics therefore postulated the cosmos-po1is
- a universal community in which all people (or at least all men) are
equal. He whose being is in harmony with nature, will also be a citizen
of the universe.
Clearly, these premises had far-reaching political implications. The
very basis of the authoritarian view of the state of earlier Greek
philosophers - the notion that perfect life could be lived in the polis
only - was rejected. The highest possible moral achievement was no
longer compliance with the positive law of the polis, but obedience to
natural law as it reveals itself in human reason. The preservation of
one’s integrity was now regarded as more important than any earthly
obligation.
The Stoa were not as radical as the Cynics, who refused to participate
in the institutions of state and family.80 Nevertheless, the idea that
each person is the captain of his own soul has definite implications
for the idea of political obedience. On the one hand, the Stoics took
it to mean that those commands of the state that do not affect one’s
virtue should be obeyed, even if it causes discomfort, because it
belongs to the realm of things beyond one’s control. Resistance would
here serve no purpose. On the other hand, it meant that in respect of
laws that could compromise one’s virtue there is no obligation to obey
the state. In those cases one has a higher obligation - namely to
natural law. This does not mean that the state should in such cases be
actively resisted. It merely means that its demands should simply not
be obeyed. Natural law as perceived by the Stoics did not in the first
place endorse political power, as other early proponents of natural law
80See Van Eikema Homines Major trends in the history of legal philosophy 31.
perceived it to do – instead it provided a criterion that could be used
to establish the limits of obedience. In this sense. Stoicism can be
seen as an exception to the traditional natural law approach and as the
early forerunners of the modern notion of inalienable fundamental
rights.
Stoicism postulated the idea that one should be faithful to one’s own
nature. The demands of nature are conveyed to the individual through
the voice of his own nature, ie his conscience. That inner voice should
be obeyed at all costs, and if it conflicts with laws of the state,
conscience should prevai1.
To express the Stoic approach to political resistance in the
terminology used, in this study - the preservation of one’s integrity
can justify and indeed demand integrity-based defensive civil
disobedience, but not result-oriented resistance. This idea would
largely be taken over by Christianity, although "integrity" would be
interpreted to refer only to religious convictions. As will be
demonstrated, the Stoic-Christian idea of a general duty of obedience,
except where one’s personal highest values are compromised, would until
at least the Reformation dominate Western political thought, and it
continues to exercise a strong influence to this day. Although their
claims were limited, the Stoic emphasis on human conscience lies at the
basis of the Western approach to political resistance.
C. ROMAN JURISPRUDENCE
Roman civilization produced some of history’s most outstanding leaders.
While Augustine represented the apex of enlightenment of that time,
others, like Diocletian, were notorious tyrants.81 The rule of Julius
Caesar was more controversial - some regarded him as a hero and others
as a villain. Not surprisingly, then, Rome harboured a wide spectrum of
political dissidents.
This raises questions as to what the nature of the power of the Roman
rulers was, whence they derived their powers, how dissidents were
treated and, in general, to what extent recognition was given to
illegal political resistance.
81For a useful overview of the political history of Rome, see Gary & Scullard A history of Rome and for the legal background, see De Villiers JSAL 1979 83 at 86ff. See in general Kunkel An Introduction to Roman legal and constitutional history.
While, in the time of the Republic (510/509 - 27 BC), provision was
made for relatively widespread political participation and a system of
checks and balances, political power became more and more centralised
during the Empire (since 27 BC).82 Since at least late Republican times,
the ruler, according to Roman thinking, was without doubt dominus
mundi.83 Often quoted in this regard are the maxims: princeps legibus
solutus est84 and salus rei publicae suprema lex.85 Ulpian’s observation,
quod principi placuit, legis habet vigorem,86 has been described as
"perhaps the most influential passage of the whole of the Corpus Juris
Justiniani in the formation of Western political thought."87 Roman
politics granted the Emperor merum imperium - the highest form of
public power - which included the ius gladii or right of the sword and
the right to make laws.88 At least on the face of it, the powers of the
Roman rulers seems absolute. What was the foundation of this power?
The Romans, since the time of the Republic, invested the consules with
imperium by means of the lex de imperio. Traditionally the imperium was
invested in the consules upon election at the comitia or meeting of the
people. During the Empire, the successors of Augustus invoked the lex
de imperio as the basis of their power as Emperors.89 Ulpian and
Justinian called the lex de imperio, lex regia and referred to it as
the foundation of the legislative power of the princeps.90 However,
little is known about the exact provisions of the lex regia.
82See Kunkel An Introduction to Roman legal and constitutional history l4ff, 35ff.
83See Skinner The foundations of modern political thought vol 1 8. 84The Emperor is free from the operation of the law." D 1.3.31. See, for
a discussion of this maxim, Steyn Die uitleg van wette 73ff. 85On the obscure origins of this maxim, see Venter JCRDL 1977 233 at 235. 86Whatever the Emperor has decreed has the force of law; since by a royal
ordinance [the lex regia] which was passed concerning his sovereignty, the people conferred upon him all their own authority and power." D 1.4.1.
87See Hahlo & Kahn The South African legal system and its background 431. 88See Skinner The foundations of modern political thought vo1 2 127. 89See Van den Bergh The life and work of Gerard Noodt 194. 90See D 1.4.1 pr and Inst 1.2.6. Ulpian also referred to the case of
Barbarius Philippus, who was chosen as praetor while he was a runaway slave by people who were unaware of his true status. U1p1an argued that the edicts of such a praetor should not necessarily be deemed nullities since the Roman people were competent to confer such power on a slave. D 14.3.
Since earliest times, Roman law made provision for the imposition of
harsh penalties upon those who were perceived to threaten the security
of the state.91 The law of the Twelve Tables had already mentioned
perdue11io as a capital crime, stating: "If anyone would stir up war
against his country, or delivers a Roman citizen into the hands of the
enemy, he shall be punished with death."92
This provision was supplemented by the introduction of other crimes
against the state or its officials, such as proditio and seditio.93 The
exact demarcations of these different offences is a matter of
controversy, but they were all compounded under Justinian as different
ways in which the crimen laesae majestatis (forerunner of the crime of
treason in South African law) could be committed.94
The lex Julia de majestatis provided: "The crime of lese majesty is
committed against the Roman people, or against their safety."95 Acts
through which this crime could be committed included not only a variety
of threats to the state through the use of arms and the provision of
assistance to the enemy,96 but also desertion from military service97 and
the fraudulent performance of "some act of authority or magistracy".98
In a general clause the law provided that "he who injures the dignity
of the state shall be liable."99
Various other laws, such as the lex Julia de vi publica,100 also
protected state authority and the public order. It should be noted that
91See eg the discussion of tyrannicide under Roman law in Strachan-Davidson Problems of the Roman criminal law vo1 1 )7.
92Table 9 Law 7. See also D 48.4.3. 93See Coertze JCRDL 1937 274; Gonin JCRDL 1951 1 and De Wet & Swanepoel
Strafreg 518. 94See also Milton South African criminal law and procedure vol 2 2. For a
full discussion, see Bauroan The crimen maiestatis 1n the Roman Republic and Augustan Principate. See also the discussion of the crime of treason, supra chap four I D (1).
95D 48.4.1. 96Ibid. 97D 48.4.3. 98Ibid. 99Ibid. 100D 48.6.
some of the provisions of the last-mentioned law could also be made
applicable to the rulers. It rendered liable, for example, someone who,
"being invested with power or authority, acts in any other way than the
law decrees and requires that he should"101 as well as "[t]hose who
impose new taxes arbitrarily".102
The status and influence of Roman jurisprudence is often discarded when
it is compared with the highly developed Roman positive (and
particularly private) law. Some loose comments were made by Roman
authors regarding the philosophical basis of state power, but as Berman
observed: "The Roman texts themselves reveal little political or legal
theory of any kind."103 The orientation was explicitly positivistic.
This lack of theory, it is widely agreed, was the consequence not in
the first place of inability but of design - it was the result of the
often-noted Roman distrust of abstract speculation.104
What, then, could the value be of references to Roman law in a
discussion of the development of theoretical notions concerning
political resistance? The effects of Roman legal thought on Western
attitudes to political obligation should not be underestimated, and the
positivistic orientation of Roman lawyers should not be overemphasized.
In important respects Roman legal thinking provided the concepts which
would be used in the development of Western notions concerning the
right to resist.
In the first place, the exact meaning of the concept of merum imperium
would later become the subject-matter of an intense debate. As will be
demonstrated later on, some medieval commentators, most notably the
Glossator Azo, would claim that this notion had to be interpreted
"constitutionally". This meant that the "inferior magistrates" were
also regarded as bearers of this power and that they could use it to
resist a tyrannical ruler. This so-called "constitutional theory" of
resistance would later find support in especially the Calvinistic
tradition.105
101D 48.6.10. 102D 48.6.12. 103Berman Law and revolution 239. 104See eg Syme Ten studies in Tacitus 119. 105See infra chap five I L (2).
Secondly, Roman private law had a well developed notion of self-
defence, which recognised the principle of vim vi repellere licet,106
which made it lawful under certain circumstances for one citizen to
repel with force an unlawful attack by another. Although the Romans
applied the rule strictly to private law relations, this principle
would later be made applicable to public law as well, most notably by
Lutheran lawyers, as the basis for the right of political resistance.107
In the third place, the true implications of the lex regia would also
become the subject-matter of a lively debate, with some commentators
claiming that although a number of powers were reserved for the
Emperor, power ultimately resided in the people, who could take it back
if it were to be abused.108
Fourthly, commentators would later also emphasise those instances (some
of which were referred to above) where Romans subjected those who
governed, as well as those being governed, to law. Hence, political
obligation was tied to legal obligation - the central notion that
underlies the modern concepts of the "rule of law" and the
"Rechtsstaat" as the basis of legitimate government.
The above relates to aspects of Roman positive law. On the
philosophical level, a number of prominent Roman lawyers and
philosophers towards the end of the Republic and the beginning of the
Empire made a significant contribution to the development of Stoicism.
It has been suggested that this philosophical approach deeply
influenced Western political thought.109 While the influence of Roman
positive law on Western notions of political obligation will be
discussed as we follow the course of history, the approach of Roman
proponents of Stoicism - among them Lucius Annaeus Seneca (c 5 BC-65
AO),110 Epictetus (c 55-135) and Marcus Aurelius (121-180)111 will now
106Galus advanced as a general principle the adagium that naturalis ratio made it lawful for every man to defend himself against an unlawful attack. D 9.2.4.
107See infra I L (1). 108See eg the discussion of the views of Noodt infra chap five I T. See
also Hahlo & Kahn The South African legal system and its background 434 n 26. 109See Skinner The foundations of modern political thought vol 1 xiv and
vo1 2 275. 110To be distinguished from his father, Marcus Annaeus Seneca. As to
Seneca's political thinking, see Griffin Seneca. Seneca, like Calvin, saw
be considered. The eclectic, Cicero, (106-43 BC)112 also professed some
Stoic views.
The concept of natural law, as advanced by the Stoics, would embrace
all human beings into a single unit, and not exclude some who are
considered inferior, as was the case in the philosophy of someone like
Aristotle.113 Whereas other early notions of "natural law" largely
served to justify the institution of the state. Stoic natural law would
provide a criterion for evaluating the acceptability of state action,
and hence in itself carried the potential of resistance.114
Especially Cicero's articulation of the doctrine of natural law that
made this notion accessible to Roman and Romanist lawyers and to the
fathers of the Christian Church.115 As Ebenstein observed: "[W]herever
human imperfection and sin as the source of the need for the state. See Fortuin De natuurrechtelijke grondslagen van De Groot's volkenrecht 46.
111A discussion and extracts from the works of Epictetus and Marcus Aurelius may be found in Ebenstein Great political thinkers 139ff.
112On Cicero's political views, see Ebenstein Great political thinkers 124ff; Strauss & Cropsey History of political philosophy l30ff and Smith & Weisstub The Western idea of law 345. His legal philosophy is discussed by Van Eikerna Homines Major trends in the history of legal philosophy 31ff and Van Zyl Cicero's legal philosophy 20ff. See also Wirszubski Libertas 143ff.
113In emphasising the dignity of human beings, the Stoics would indeed be closer to Kant than to Aristotle. See Smith & Weisstub The Western idea of law 346.
114Stoicism was seen as subversive and was outlawed after it was invoked by Thrasea Paetus as justification for his refusal to participate in the activities of the Senate to express his opposition to the way in which it functioned. Griffin Seneca 362ff. Thus, Stoicism gave people the courage to resist a government which they considered repressive. See Wirszubski Libertas 146.
115In a famous passage in The republic 3.33.22 Cicero said: "True law is right reason in agreement with nature; it is of universal application, unchanging and everlasting; it summons to duty by its commands, and averts from wrongdoing by its prohibitions. And it does not lay its commands or prohibitions upon good men in vain, though neither have any effect on the wicked. It is a sin to try and alter this law, nor is it allowable to attempt to repeal any part of it, and it is impossible to abolish it entirely. We cannot be freed from its obligations by senate or people, and we need not look outside ourselves for an expounder or interpreter of it. And there will not be different laws at Rome and at Athens, or different laws now and in the future, but one eternal and unchangeable law win be valid for a11 nations and a11 times, and there will be one master and ruler, that is. God, over us a11, for he is the author of this law, its promulgator, and its enforcing judge. Whoever is disobedient is fleeing from himself and denying his human nature,
the Roman law expanded – and it usually stayed once it had taken root -
it carried with it an openness and universality that it owed to the
Stoic sense of all men living in ‘one world’."116
Cicero, like the Stoics, maintained that there is a divide beyond which
unjust laws cease to be laws. According to him, a state which lacks
law "must ... for that reason be considered no state at all".117The mere
fact that legislative formalities have been executed does not imply
that law has been created. Cicero maintained that "the many deadly, the
many pestilential statutes which nations put in force ... no more
deserve to be called laws than the rules a band of robbers might pass
at their assembly."118
According to him, "[l]aw is the distinction between things just and
unjust"119 and, in order to be law, it must "inflict punishment upon the
wicked but defend and protect the good".120
Stoicism, with its strong emphasis on the individual conscience,
claimed that certain aspects of the human life are beyond the control
of the state.121 Christianity and Stoicism established the fundamental
idea of a private realm over which the state has no jurisdiction.
There is, however, an important limitation on what can called the
subversive potential of Stoicism and for the matter of Christianity.
Both systems urge one to disregard the external world and emphasise the
spiritual life of the individual. Since the outside world is broken and
cannot I repaired, one must expect to have to put up with son
injustices. As a general rule, the demands of incumbents of state
authority belong to the category of these "outside things to which one
should be indifferent. It is consequently not worth resisting the
demands of those in positions of authority, even if that involves
suffering, which must be borne with "Stoic" forbearance.
and by reason of this very fact he will suffer the worst penalties, even if he escapes what is commonly considered punishment."
116Ebenstein Great political thinkers 147. 117Cicero De legibus 2.12. 118Id 2.13. 119Ibid. 120Ibid. 121See Post Studies in medieval legal thought 261.
Cicero maintained that "a man is bound, not only to suppress all
mention of a parent's offence, but even to endure it with
resignation."122 Also often quoted is Cicero's remark that "to me any
peace with citizens seemed more profitable than civi1 war."123
Abstract notions concerning justice and how the world should function,
cannot warrant disobedience. What should not be obeyed, however, are
positive orders which would require the individual concerned personally
to embark on immoral) behaviour, or negative orders which would prevent
that person from doing what he regards as ethical. In other words the
Stoic approach amounted to an endorsement of what we have called
positive and negative integrity-based defensive civil disobedience, but
a rejection of justice-based and result-oriented resistance, whether
violent or not.124 This basic Stoic-Christian perception provided the
link between Greek science and Roman legal and political practice, on
the one hand, and Judeo-Christian ethics on the other, and would
inspire much of Western jurisprudence regarding political resistance.125
The emergence of the Roman Empire, which embraced nearly the entire
world known to the Romans, in the view of many commentators of the
time, rendered the republican form of government obsolete. Sallust (86-
34 BC), who has been described as the first imperial Roman author, made
it clear that he valued liberty, but nevertheless concluded that order
in a political dispensation such as the Empire could only be maintained
by submitting to and enforcing centralized authority: cum domino pax
ista venit.126 If in the Republic there was a degree of tolerance in
respect of resistance, that accommodating spirit soon disappeared in
122See "Pro Cluentio" in Cicero The speeches 17. 123Cicero Philippics 2.15. 124Cicero's eclecticism becomes apparent when the following non-Stoic
observations from his pen are considered: "[I]f anyone kills a tyrant ... he has not laden his soul with guilt, has he? The Roman people, at all events, are not of that opinion; for of a11 glorious deeds they hold such an one to be the most noble". Cicero De officiis 3.4.19. He did, however, specifically invoke Stoicism as authority for this statement. See Id 3.4.20; 2.7.23; 3.8.36 & 3.21.83. A willingness and indeed a lust to kill tyrants was also expressed by Seneca's Hercules: "[N]o more pleasing stream had stained the altars; no greater, richer victim can be sacrificed to Jove than an unrighteous king." Seneca "Hercules furens" 908, reprinted in Seneca Seneca's tragedies 81.
125See eg Skinner The foundations of modern political thought vol 2 279. 126See Syme Ten studies in Tacitus 120.
the Empire. An even greater emphasis was placed on the need to accept
the dictates of the prevailing government and, where necessary, to
endure it with fortitude.
One of the most prominent descriptions of the views that prevailed in
the new era of the Principate is contained in the writings of the
historian, Cornelius Tacitus (c 55-116).127 Although Tacitus was not a
lawyer, his works would become a source of reference for many great
writers of the Roman Dutch legal system, such as Grotius128 and
Pufendorf.129 Having been largely a reporter of the views of others,
Tacitus encapsulated much of the Stoic ethics of the time.
In a number of his writings, Tacitus described the practice of
political opposition in the Empire, as opposed to the Republic, as a
foolish and perhaps even dangerous anachronism. What mattered now was
not the question how a particular ruler acquired his position - even if
that involved the use of force. The important question was whether he
was capax imperii. Could he maintain peace?130 Clearly any form of
result-oriented disobedience was out of the question.
While the writings of Tacitus bear testimony of his hostility to
tyranny, he did not show much sympathy for its victims.131 The speakers
in his historical reconstructions took for granted the "honour due an
Emperor".132In typical Stoic fashion, a speaker in The histories
(completed c 109) remarked that "he prayed for good Emperors, but
endured any sort",133while another advised: "You endure barren years,
excessive rains, and all other natural evils; in like manner endure the
extravagance or greed of your rulers."134 These phrases capture the
essence of the Stoic-Christian approach: as long as one’s soul is not
affected, political dispensations should be placed in the same category
127For a thorough contextualised discussion of the political opinions of Tacitus, see Syme Ten studies in Tacitus 119ff.
128See eg Grotius De jure belli ac pacis chap 4. 129See eg Pufendorf On the law of nature and nations 7.8.4. 130See Syme Ten studies in Tacitus 132. 131Id 136. 132Tacitus The histories 4.8. 133Ibid. See Syme Ten studies in Tacitus 138, for a discussion of the
irony involved in this observation. 134Tacitus The histories 4.74.
as the weather: it is something one can do nothing about. It should
simply be endured, because it cannot be changed. The position is
different in respect of one’s soul, because that lies in one’s control.
D. GERMANIC JURISPRUDENCE
The early Middle Ages in Europe were dominated by the traditional
Germanic concept of the "law-based state", which proclaimed that the
state existed "in the law and for the law".135Law was not seen as a
product of the state, but as something to which the state was also
subjected.136
These points of departure culminated in a liberal approach to the right
of resistance, which would emerge whenever the ruler exceeded his
powers. Kern, in an in-depth discussion of the subject, observed that
"[t]he right of resistance was an integral part of medieval Germanic
constitutional ideas."137 According to Gierke "the purely medieval
doctrine did not only allow’ the right and duty of a martyr’s ‘passive
resistance’’ - it taught that every command which exceeded the limits
of the ruler’s authority was as far as his subjects were concerned a
mere nullity and did not oblige anyone to obedience."138
Medieval jurisprudence also proclaimed "the right of resistance, and
even armed resistance, against the compulsory enforcement of any
unrighteous and tyrannical measure - such enforcement being regarded as
an act of bare violence. Nay more, it taught ... that tyrannicide is
justifiable or at least excusable."139
This approach appears, for example, from the Sachsenspiegel, a
compilation of customary law of the Saxons and the most outstanding
legal monument of German feudal law of the Middle Ages. Probably
written between 1215 and 1233 by Eike von Repgow (c 1180-1233), the
Sachsenspiegel represents the beginning of German jurisprudence, and
135See Gierke Political theories of the middle age 73. 136See Hahlo & Kahn The South African legal system and its background 339,
430. See also, on the precarious position of the king in the Visigothic kingdom, King Law and society in the Visigothic kingdom 23ff.
137See Kern Kingship and law in the middle ages 85ff. 138Gierke Political theories of the middle age 35. 139Ibid.
exercised a great influence on the development of European law.140
The Sachsenspiegel provided: "The man must resist the injustice of his
king and his judges, and will help counter [injustice] in any way in
his power or in his master’s, and [by doing so] does not act against
his loyalty."141 In the process, one could without violation of his
fidelity wound or slay his lord.142
E. AURELIUS AUGUSTINE
St Augustine (354-430), from Roman North Africa, represented the
critical juncture where the era of the Roman Empire made way for the
Middle Ages; when antiquity was deposed by Christianity.143 The
teachings of this "African writing to Africans", as he described
himself,144 and father of the Christian churches (both Catholic and
Reformed), dominated Western thought for centuries. He integrated the
philosophy of the Greco-Roman world (particularly Plato, but also
Cicero and the Stoics) into the emerging ethos of Christianity. More so
than any other dominant religion, Christianity would be tolerant of,
and in fact open to, the influence of philosophy.
Augustine’s political writings should be evaluated in view of the
central political event of his time, namely the fall of the Roman
Empire. The fall of Rome at the hands of barbarians left the world
stunned. How could such a rock crumble so easily? Was this course of
events not a consequence of the influence of Christian faith which
supposedly precluded Christians from being patriotic citizens?
140See K1sh Sachsenspiegel and Bible 3 and Van Zyl Geskledenis van die Rome1ns-Ho11andse reg 69.
141Sachsenspiegel 3.78.2. (Own translation, with assistance from Philip Thomas, from Eckhardt's edition of Sachsenspiegel Landrecht 260.)
142Id 3.78.6. See the discussion in Carlyle & Carlyle A history of medieval political theory in the West vol 3 61ff.
1430n his philosophy in general, see Vorländer Geschiedenis van de wijsbegeerte vol 2 28ff and Versfeld St’ Augustine’s confessions and City of God. For a discussion of Augustine’s political views, see Strauss & Cropsey History of political philosophy 151ff; Ebenstein Great political thinkers 170ft; Deane The political and social Ideas of St Augustine, especially 116ff, Villa-Vicencio Between Christ and Caesar 20ff and Villa-Vicencio Civil disobedience and beyond 73, 93ff. As to the implications of his teachings for legal philosophy, see Du Plessis Westerse regsdenke tot en met die middeleeue 148ff.
144See Augustine Letters 17.
Following its initial persecution, Christianity in 313, under
Constantine, by virtue of the Edict of Milan, became the official state
religion of the Roman Empire.145 When Rome fell in 410, the charge that
this was a result of the introduction of Christianity was to be
expected.
Augustine’s most elaborate work with political implications,146 The city
of God against the pagans, was largely an attempt to respond to these
charges. In the first place, Augustine would deride the value which
people placed on an earthly institution such as the Roman Empire with
all its weaknesses. In the second place, he rejected the notion that
Christians were by nature unpatriotic citizens. After Augustine, there
would be less scope for the political indifference of the early
Christians, although, as win be pointed out, much of that indifference
remained.
According to Augustine, justice is the highest virtue and the
cornerstone of civil society. Philosophy in itself, however, cannot
reveal the meaning of perfect justice - a higher and more genuine form
of justice is needed, which can only be provided by the grace of God.
The essence of justice, according to Augustine, following the lead of
Plato in this regard, is constituted by the right ordering of things,
which alone can bring peace. For Plato, this "right ordering" referred
largely to the relationship of the virtues in the individual himself
and in his station in life. For Augustine, it signified in the
harmonious relationship between man and God.147
Augustine agreed with Plato that the lower aptitudes should be governed
by reason, but for him reason should in turn be regulated by God. Like
the later Reformers, Augustine saw the need for state authority, and
indeed for civil rule, as a necessary consequence of the fallen nature
of human beings and their proneness to sin, which propensity entails
that the lower appetites or desires take over. Good government is
government in accordance with the virtue of justice. In typical
145See Cary & Scullard A history of Rome 547. 146The impression should not be gained that Augustine was primarily a
political writer, or offered a systematic political view. He was a theologian whose work had political overtones.
147See Augustine The city of God against the pagans 19.13: "Order is the classification of things equal and unequal that assigns to each Its proper position."
Platonic terms Augustine saw human justice as merely an imperfect
imitation of divine justice.
Eternal law (lex aeterna) is the supreme norm of justice. It is
universal and has been imprinted upon the human mind by God himself.
Temporal law (lex temporalis) can vary according to circumstances and
without being unjust, because its aim is to permit the lesser evils and
to avert the greater evils in a particular society. The function of the
law is to provide the peace in which service to God is possible.
Without justice peace would not be possible, because "if justice is
left out, what are kingdoms except great robber bands?"148 The
centrality of the virtue of justice in Augustine's thought is evidenced
by his well-known statement that "an unjust law, it seems to me, is no
law."149 This phrase would become one of the central maxims of the
traditional natural law approach in respect of the limits of political
ob1igation.
Central to Augustine’s perception of the relationship between Christian
and civic duty was his doctrine of the duality of the two cities in
which humanity finds itself: the city of God (civitas dei) and the
earthly city (civitas terrenea). Citizens of the city of God are those
(irrespective of race or national origin) who follow Christ and lead
virtuous lives - those who pursue virtue and truth. The earthly city is
the fallen world - the world of those who pursue narrow self-
interest.150 The problem of the Christian, then, is his double
citizenship, and hence his double loyalties - he belongs to both of
these worlds. This brings us to the question as to which citizenship
should be afforded priority.
A conflict between the two citizenships is not inevitable. If the
rulers should act in accordance with Christian principles, the demands
made by the two jurisdictions would coincide. In such a case, the
Christian can pursue the life of general obedience - and to Augustine
obedience was, "in a sense, the mother and guardian of all
148Id 4.4. 149Augustine The free choice of the will 1.5.11. 150“The two cities then were created by two kinds of love: the earthly
city by a love of self carried even to the point of contempt for God, the heavenly city by a love of God even to the point of contempt for self." Augustine The city of God against the pagans 14.28. See also id 14.13.
virtues".151The Christian can be submissive to God while at the same
time being obedient to political authority. Political authority, after
all, was instituted by God for the purpose of administering the
material goods which people need on earth.
But what if the demands of the two cities do not coincide? Augustine
argued that Christianity does not weaken earthly patriotism but in fact
strengthens it. Relying heavily on Romans 13, Augustine argued that
obedience to temporal authorities is a religious duty. In a passage
strikingly reminiscent of the much later Marxist ideal of an
administration of things (not a government over people) Augustine
reminded us that in paradise God placed man in charge of the animals152
but did not give him dominium over fellow rational creatures - "not man
over man, but man over the beasts".153The good order of nature, however,
was disrupted by sin. To restore order, government had to be
established. Every man has an obligation to obey the law, even if he
disagrees with it. In spite of its weaknesses, civil society is still
the best option of its kind, and as a general rule its demands should
therefore be obeyed. Augustine therefore reinforced Ambriose’s earlier
repudiation of a right of resistance.154
It is true, according to Augustine, that the Christian is in the first
place a citizen of the heavenly city. But this does not mean that he
should disobey the state: on the contrary, it means that he has little
reason to oppose the state. Augustine, in what can be regarded as a
classic exposition of the Stoic-Christian approach, argued in favour of
remaining indifferent to unjust demands of the state, as long as one’s
citizenship of the heavenly city is not threatened: "As far as this
mortal life is concerned, which is passed and ended in a few days, what
difference does it make for a man who is soon to die, under what rule
he lives, if only the rulers do not force him to commit unholy and
unjust deeds?"155
As indicated in the emphasised section of this passage, the general
rule of obedience to the law applies, unless the law requires one to
151Id 14.12. 152Genesis 1.26. 153Augustine The city of God against the pagans 19.15. 154See Calvert Revolution 51. 155Augustine The city of God against the pagans 5.17. (Emphasis added.)
violate God’s law. No one need to, or should, obey a command to do sin
- for example an edict which proclaims: "Do not worship God." In that
case there is a conflict of interests in which God’s law enjoys
priority. The latter law should be upheld even if that means (earthly)
death.156
By becoming a martyr under such circumstances, one gives strength and
courage to one’s fellow believers. One might even win over more
believers. However, martyrdom should not be used to discredit or
otherwise undermine the law-giver, even if he is wicked. Its aim is
solely to protect the redeemed from sin, not the advancement of
personal or societal ends.157 Ultimately, it is within God’s power to
remove a tyrant.
Augustine approved and even propagated the right of Christians in such
cases to disobey the law, but not to resist the authorities. One cannot
actively place oneself in opposition to the existing authorities,
because they receive their power from God with a view to preserving the
order and tranquillity of society. God does not, however, control the
application of this power by the authorities. That is why there are
sometimes wicked laws.
Augustine’s often-quoted adage that an unjust law should not be
regarded as a law at all, should consequently not be taken as a licence
for result-oriented disobedience of the law. In fact, he explicitly
rejected this. Augustine’s profound commitment to justice did not imply
a concomitant right to resist. To him, the maintenance of law and order
was a religious duty. The only type of political disobedience endorsed
and, in fact, in some cases required by him was the narrow category of
defensive, religious, integrity-based civil disobedience. Even his
imagery revealed the defensive attitude which he required Christians to
adopt: "You must take up your faith as a shield with which you will put
out all the burning spears of your enemies."158
F. JOHN OF SALISBURY
156On the relationship between death and political resistance in the thought of Augustine, see Van Home The Journal of Religious Thought 1981/2 34 at 41.
157Augustine The city of God against the pagans 8.20. 158Augustine "Sermo" 62.13, contained in Augustine Opera omnia. (Own
translation.)
Modern Western political science has an early forerunner in the
writings of the Englishman, John of Salisbury159 (c 1120-1180), a
Christian humanist, who tried to wrest political thinking from the hold
of Stoicism. In his most important work, Policraticus,160 John startled
his contemporaries when he presented an elaborate defence of
tyrannicide. A staunch champion of the supremacy of ecclesiastical over
temporal power, John was particularly perturbed by the murder of his
friend, Thomas Becket, by the henchmen of Henry II.
As the point of departure in his discussion of tyrannicide, John
accepted the orthodox premise of his time that all rulers, including
tyrants, should be obeyed because, according to Romans 13, they are
ministers of God.161 There is a difference between kings and tyrants, in
the sense that the king rules in accordance with the law while the
tyrant rules by force alone.162 Nevertheless, the general rule of
obedience also applies to tyrants, "[f]or tyrants are demanded,
introduced, and raised to power by sin."163 To get rid of a wicked king,
John maintained in accordance with conventional ecclesiastical
political theory,164 one should pray to God to bring his judgment over
that king165 - which God will do in his own good time.
In respect of commands by the ruler threatening to make one the
instrument of sin, John also defended the orthodox position:
Loyal shoulders should sustain the power of the ruler so long as it is exercised in subjection to God and follows his ordinances; but if it resists and opposes the divine commandments, and wishes to make me share in its war against God, then with unrestrained voice, I answer back that God must be preferred before any man on earth.166
159For a general discussion of his political thought, see Ebenstein Great political thinkers 190ff; Copleston A history of medieval philosophy 91ff; Berman Law and revolution 277ff and Dickenson's introduction in John of Salisbury Policraticus xviiff. For a discussion of his views on tyranny, see id 1xviff.
160Completed in 1159, and sometimes translated as "The statesman's book", although the Latin title is more commonly used.
161John of Salisbury Policraticus 4.1. 162Id 8.17. 163Id 8.20. 164See Dickenson's introduction id 1xx 165Id 8.20. 166Id 6.25.
John’s choice of words seems to suggest that in such a case defensive
civil disobedience should normally be practised: "If princes have
departed little by little from the true way, even so it is not well to
overthrow them utterly at once, but rather to rebuke injustice with
patient reproof until finally it becomes obvious that they are stiff-
necked in evil-doing."167
The qualifying phrase, "at once", also suggests that one's patience
need not be endless, and that defensive, non-violent civil disobedience
is not necessarily the end of the road. In what at the time was widely
considered a shocking statement, John maintained that the persistent
tyrant, subject to some reservations,168 should be killed: "To kill a
tyrant is not merely lawful, but right and just." This he motivated as
follows:
[I]f in the crime of lese majeste all men are admitted to be prosecutors, how much more should this be true in the case of the crime of subverting the laws which should rule even over Emperors: Truly no one will avenge a public enemy, but rather whoever does not seek to bring him to punishment commits an offence against himself and the whole body of the earthly commonwealth.169
John’s approach is extraordinary in several respects: In the first
place, the forthrightness with which he advanced the proposition that
under certain circumstances a king could be killed was unheard of at
the time. Later, writers like Calvin would seem deliberately vague on
the point, presumably in order not to rule out this possibility but at
the same time not to encourage people to engage in such action too
readily. Ultimately, they seem to have suggested that every person has
to accept responsibility for such action himself and personally bear
the moral cost. John, for his part, described such action as a public
duty. He did not only, like Augustine, regard a refusal to comply in
some cases as one’s duty but also saw the actual killing of the ruler
as a duty. He was one of the first to cross the line from the
propagation of defensive to result-oriented resistance.
It is also remarkable that, whereas other early writers such as
Augustine confined the function of disobedience to the protection of
167Id 5.6. (Emphasis added.) 168“It should be done without loss of religion or honor” and not by
someone who is bound to the tyrant "by an oath or by the obligation of fealty". Id 8.20.
169Id 3.15.
one’s personal religious integrity, John seems also to have advocated
disobedience in the pursuit of the public benefit. His approach was
consequently also anti-exploitation.
But John went even further: While Calvin would demand that any
insurrection should be led by recognised leaders of the people, John
did not require any form of organised collective action and in fact
advocated individual tyrannicide – an approach which would be rejected
by Aquinas as being subversive of all civil order.170
In spite of the fact that John, no doubt, in the eyes of hi*
contemporaries and most of his successors overstated hit case, he is
important because he was one of the first writers to establish the
doctrine that obedience to the political ruler is not absolute but
conditional; that it depends upon the way in which the latter rules.171
Few of the later writers would unconditionally accept his ideas
concerning the conditions and limits of justified resistance, but it
could not be denied that the issue was placed squarely on the agenda of
political discourse, to counteract the traditional conservative
approach.
G. THE RE-EMERGENCE OF ROMAN LAW AND THE GLOSSATORS
The legal systems which comprise the Roman-Germanic legal family have
as their common point of departure the inherent values of the Roman and
Germanic dispensations. In this regard, Roman-Dutch law is no
exception. At the same timer, this body of law to a large extent
reflects the particular social and political context of the societies
of Europe in which the system developed, as well as the political
convictions of the commentators responsible for its development. In no
other area can this be seen more clearly than in the principles
pertaining to political obligation and resistance.
At the end of the Eleventh Century, when Roman law revived at the
universities of Bologna and Ravenna in Italy, the Roman emphasis on the
supreme powers of the rulers re-emerged and supplanted the more liberal
Germanic approach. In this process, Roman law was amplified by the
Canon law. Whereas, in the Germanic tradition, people were seen as the
source of all power, power was now increasingly regarded as descending
170See infra chap five I H. 171See Ebenstein Great political thinkers 197.
from above. Under the new approach there would be an almost
unconditional duty of obedience to the ruler, who was subjected only to
the laws of God and of nature.172 Nevertheless, the idea survived that
since the government is established for the protection of the law, it
can forfeit its right to rule if it fails to uphold the law.173
A number of intellectuals, including most proponents of the first major
school of Romanists, the Glossators, supported the absolutist rule of
the Emperor. Consequently, it is not surprising that they did not
exploit the possibilities which imaginative interpretation of the Roman
texts left for the recognition of a right to resist. Placentinus (ob
1192), for example, maintained that, according to the lex regia, the
Roman people had once and for a11 transferred all the power they had in
the Republic to the Emperor.174 The method of legal scholarship
practiced by the Glossators, characterised by a literal adherence to
the original Roman texts with their broad assertions of the powers of
the ruler, served their conservative political disposition well.
At the same time, however, the idea of libertas of the cities as
against the German Empire was developing into a powerful political
aspiration. The notable exception among the Glossators, who shared this
aspiration, was Azo (1150-1230).
Through consolidation (and manipulation) of Roman law texts he
developed a forerunner to the concept of sovereignty, as subsequently
elaborated upon Jean Bodin.
Azo maintained that "jurisdiction" or the power to rule did not descend
downward from the Emperor but emanated upward from the community. More
important is the fact that Azo, in a dispute with the jurist Lothair,
advanced an interpretation of the concept of merum imperium in terms of
which the ius gladii could be exercised by the Emperor and also by the
"inferior magistrates". According to this approach, the Emperor could
be said to have signed a contract, at his election, with the electors
and other "inferior magistrates" to uphold the good of the Empire and
to protect the liberties of his subjects. The jurisdiction of "inferior
172See Hahlo & Kahn The South African legal system and its background 430ff.
173See Kern Kingship and law in the middle ages 195. 174See Van den Bergh The life and work of Gerard Noodt 194. See also Hahlo
& Kahn The South African legal system and its background 434 n 26.
magistrates" was more limited than that of the Emperor, but it did not
derive from his power - it was independent.175 Consequently the
"inferior magistrates" had the power to use the sword against the
Emperor, if he did not uphold his coronation oath.176 This approach,
called the "constitutional theory" of resistance, would later play an
important role in Calvinistic thinking.
H. THOMAS AQUINAS
The early middle ages were dominated by Augustinian Platonism,
according to which the world is bad, and the only good world belongs to
the realm of the ideal which can be known in this life only through
revelation or vision.
The pessimism and other-worldliness of Christianity in the "dark middle
ages" came under increased challenge after the millennium. New ideas
and modes of thought were developed in the emerging universities. At
the same time, crucial texts of Aristotle for the first time became
accessible to the West, setting out his views that the (earthly) state
was the highest achievement of man. This threatened the very
foundations of the Augustinian world view espoused by the church of the
time. The state was placed in a new, positive light. At the same time
the church was experiencing strong internal tensions, due to the fact
that it was becoming a major worldly institution. To put it bluntly,
the fact that the second coming did not materialise at least at the end
of the millennium put the church under new pressure to make peace with
this world, and to reassess its role in it.
The task to pilot the church in these shifting currents would fall on
the shoulders of one of the most outstanding intellectuals who has ever
served the church, the Italian scholastic Thomas Aquinas (c 1225-
1275)177. Aquinas’ political thinking is largely contained in his works
175See Berman Law and revolution 289ff. 176See the discussion in Skinner The foundations of modern political
thought vol 2 127 177On Aquinas' philosophy in general, see Copleston A history of medieval
philosophy 176ff. On his political philosophy, see Ebenstein Great political thinkers 212ff; Strauss & Cropsey History of political philosophy 223ff; Villa-Vicencio Between Christ and Caesar 23ff and Villa-Vicencio Civil disobedience and beyond 73. See also the penetrating discussion of D'Entrèves in Aquinas' Selected political writings viiff. On his legal philosophy, see Du Plessis Westerse regsdenke tot en met die middeleeue 160ff.
On princely government178 and Summary of theology.179
While Augustine integrated Plato into the thinking of the early church,
it was Aquinas who reconciled Aristotelianism and Christianity.
Aristotle thus replaced Plato as the philosophical guiding star of
Christian theology (that is, until the Reformation). Aquinas’ scattered
references to Aristotelian politics were, at the same time also
extremely influential. His views on political obligation, seen in the
context of his views on natural law, will now be considered.
As mentioned, Augustine traced the foundations of the state to sin. In
the state of innocence there would have been no domination of one
person over another, and consequently no state. In contrast Aquinas’
starting point, like that of Aristotle, was an organic view of society,
which regarded humankind’s social impulse as natural and consequently
as basic to all further relations. He stated repeatedly that "man is
naturally a social and political animal."180 Man is unthinkable without
the state, because it is in the state that human fellowship finds its
highest expression and all that depends on that fellowship is natural
to man.
According to Aquinas, two types of dominium should be distinguished:
subjectio servilis and subjectio civilis. Slavery is contrary to
nature, because it degrades man to a tool for someone else’s good. But
- and here the Aristotelian influence is clear - the political
subjection of someone for the common good (or of women to men) is not
inherently wrong or unnatural: "Such subjection already existed before
sin: for it would argue a lack of reasonable order in human society if
it were not regulated by those who are more wise."181 The capable should
govern the incapable.
The heart of Aquinas’ treatment of politics can be regarded as his
conception of natural law, as developed in his Summary of theology.
Aquinas distinguished four forms of law:
i) Lex aeterna is identical to the divine reason that governs the
universe, and is called eternal because God’s reason is eternal.
178Reprinted in Aquinas Selected political writings 3ff. 179Id 103ff. 180See eg Aquinas On princely government 1.1. 181Summary of theology 1.1
All things, irrational animals and rational man, are subject to
divine reason or eternal law.182
ii) Lex natural is refers to the special way in which human beings,
as rational creatures, participate in the divine providence and
reason by providing for themselves and for others. Rational
creatures
have a certain share in the divine reason itself, deriving
therefrom a natural inclination to such actions and ends as
are fitting. This participation in the eternal law by
rational creatures is called the natural law.183
iii) Lex divina refers to the fact that man’s reason is not the only
or the most reliable guide to his understanding of truth and
justice. Divine law is revealed to man through the Old and the
New Testaments, and does not contradict natural law as
apprehended by reason.184
iv) Lex humana, the lowest form of law, is what we would call
positive law.185
There are four conditions which law must meet in order to have the
nature of law. Firstly, it must be derived from natural law. In the
second place, human law must be directed to the common welfare of the
city. Thirdly, the law should be promulgated by the rulers of the
community. In the last place it must be enacted "by the common sanction
of nobles and people".186
Obedience to the demands of law is therefore required by nature itself
- no social contract is required in this regard. The obligatory nature
of law is derived from its divine origins. Sin also has no part in the
rational justification of the state, because political obligation is
inherent in man’s nature.
It is important to note that while Aquinas is considered one of the
primary natural lawyers of all time, his conception of natural law was
182Id 1.5. 183Ibid. 184Ibid. 185Ibid. 186Id 1.9.
the traditional one. It primarily stressed duties: the duty of the
state to follow its pattern, and the duty of citizens to obey - not
their right to disobey.187
Although Aquinas, under normal circumstances, regarded the duty to obey
the political ruler as natural, he did perceive limits to this duty.
The individual could not be absorbed entirely by the state.
Not all that a man has or is, is subject to political obligation: hence it is not necessary that all his actions be considered worthy of praise or blame with respect to the political community. But all that a man is, and all that he has or can be, must bear a certain relationship to God.188
Although the need for "stability in human affairs" gives rise to a
general duty to obey the political ruler,189 one is not obliged to obey
certain kinds of tyrants.190 In order to distinguish a tyrannical
government or unjust government from its opposite, Aquinas posed the
question whose interests are being served. A tyrant pursues his own
private benefit, while a just ruler pursues the common welfare.191 In
other words, the criterion is exploitation.
Aquinas specifically addressed the question what action should be taken
should a king become tyrannical. He distinguished between tyranny which
is not excessive, and tyranny which is intolerable. In respect of the
former he maintained that "it is certainly wiser to tolerate it in
limited measure, at least for a time, rather than to run the risk of
even greater perils by opposing it."192 A rebellion might fail and
inspire the tyrant to greater savagery. But even if it succeeds, it
might create grave social turmoil or even prepare the road for a more
vicious tyrant.193
In respect of tyranny which has become so excessive as to be
intolerable, Aquinas stated that "it has been argued that it would be
187See Aquinas Selected political writings xiv. 188Aquinas Summary of theology 1.3. 189Id 1.23. 190Id 1.16. 191Ibid. 192Aquinas On princely government 1.6. 193Ibid.
an act of virtue for the more powerful citizens to kill the tyrant."194
However, such an assumption of authority by individual subjects would
be dangerous to the whole society. Wicked people find the rule of a
good king no less burdensome than that of the tyrant. The remedy
against the evils of tyranny consequently lies rather in the hands of
public authority than in the private judgment of individuals.195
A number of different possibilities present themselves in this regard.
In the case where the people have the right to elect their leader, they
may lawfully depose him or restrict his powers, should he abuse it. If
the ruler has been appointed by a higher sovereign, it lies in the
hands of that sovereign to depose him. "Finally, when there is no hope
of human aid against tyranny, recourse must be made to God the king of
all ... For it is in his power to turn the cruel heart of a tyrant to
gentleness."196 Tyranny should be seen as a punishment for sin.197
Aquinas agreed with Augustine that "there is no law unless it be just",
and stated that the validity of law depends upon its justice. "[I]f a
human law is at variance in any particular with the natural law, it is
no longer legal, but rather a corruption of law."198
In accordance with the general Stoic-Christian position, Aquinas
maintained that one should not obey the authorities when their commands
clash with those of God, and when they exceed their authority.199
I. CANON LAW
Canon law, with its doctrine of vicarius Dei, according to which the
earthly king derived his powers directly from God, generally reinforced
the position of the rulers and delegitimised resistance.200
However, to some extent Canon law, like Roman law, could be relied upon
to justify resistance against the government. One of the main sections
194Id 1.6. Presumably he was referring to the arguments of John of Salisbury. See supra chap five I F.
195Ibid. 196Id 1.6. 197Ibid. 198Aquinas Summary of Theology 1.9. 199Id 1.23. 200See Hahlo & Kahn The South African legal system and its background
431ff.
that could be used in this regard, was the decree dealing with unjust
judges. The original decree stated that judges were not to be resisted
with violence. The great Canonist, Panormitanus (1386-1445), commented
that this should been seen in the context of the opinion of Pope
Innocent IV that "if a judge does any injury to anyone", then "he may
be resisted violently and with impunity".201 On this basis, Panormitanus
endorsed a far-reaching right of political resistance.
J. PHILIP OF LEYDEN
The early Dutch jurist, Philip of Leyden (c 1330-1382),202 opposed the
vast political powers of the gentry of his time, and instead supported
the view that the ruler has an inalienable right to rule the country.
When a ruler does not protect his subjects against exploitation (by the
gentry), "the subjects have a right to resist, on the basis that if
ordinary medicine does not provide a cure, extraordinary measures
should be taken.203 This thought would be repeated in the Placcaet van
Verlatinge of 1581, to which we will presently turn.
K. BARTOLUS OF SASSOFERRATO
The Italian ideal of freedom of the cities as against the Holy Roman
Empire found its legal champion in the work of the post-Glossator or
Commentator, Bartolus of Sassoferrato (1314-1357), arguably the most
outstanding jurist of the Middle Ages. This new political approach was
made possible by a change in the basic approach to scholarship which he
and his colleagues practised. To Bartolus, the primary objective of
legal writing was not strict adherence to the Roman texts, but
faithfulness to truth and reason. If necessary, the law had to yield to
facts.
Bartolus set out his views in commentaries on the principal divisions
of the Corpus Juris Civilis. On the question of the power of the
Emperor, Bartolus began his commentary on the Code by conceding that,
de jure, the Emperor was the sole dominus mundi and had merum imperium.
De facto, however, many people did not obey the Emperor’s decrees. This
de facto position, he argued, had to be officially recognised. Insofar
201See Skinner The foundations of modern political thought vol 2 125. 202See Van Zyl Geskiedenis van die Romeins-Honandse Reg 330. 203See Van der Heijden Aantekenlngen bij de geschiedenis van net oude
vaderlandse recht 28 and Rofflein Erflaters van onze beschaving 127. See also Feenstra Philip of Leyden 64.
as the cities and not the Emperor exercised power over their own
subjects, they had to be regarded as the true law-givers. This power
was confirmed by the fact that it had been exercised for a long time.
According to Bartolus, since the cities were governed by free peoples
wielding their own imperium, they could be said to be a princeps unto
themselves - civitas sibi princeps. This led Bartolus to the conclusion
that rex in regno suo est imperator - according to Skinner, the first
decisive move toward articulating the modern legal concept of the
state.204
The above exposition served as a legal foundation for asserting the
freedom as against the Empire of the Italian cities and also of the
kingdoms of Northern Europe. It could consequently be said to deal with
resistance by political communities against external domination. The
truth of the matter was, however, that most of the rulers of the
communes were tyrants. How were they to be treated? Bartolus, with a
view to these questions, also addressed the issue of revolt against
domestic authority. Among the most notable of his works was "On the
tyrant", the first treatise by a jurist dedicated exclusively to the
subject of tyranny and the way in which it should be handled.205 We
shall consequently dealt with it at some length.
In "On the tyrant", Bartolus, as in his other writings, was at pains to
emphasise the independence of the city-state (civitas). He rather
idealistical1y regarded the fact that Italian communes of the
Fourteenth Century were characterised by tyranny as a temporary
phenomenon, which, under certain circumstances, gave the people the
right of resistance.
Bartolus defined a tyrant as "one who rules unlawfully",206and
distinguished two main types of tyrants: the manifest tyrant and the
concealed tyrant. A ruler can become a manifest tyrant by defect of
title or through conduct. Someone can be a tyrant by defect of title
in a number of ways. He may make himself ruler in a town which does not
204See Skinner The foundations of modern political thought vol 1 9. 205Contained in the University of Chicago readings in Western civilization
vol 5 The Renaissance 7. References are to the paragraphs of this version. See also Woolf Bartolus of Sassoferrato 162ff, 173ff and Van der Kamp Bartolus de Saxoferrato 62, for a discussion of Bartolus' views on tyranny and how it should be dealt with.
206“On the tyrant” paras 2, 5.
have the right to choose a leader. This would subject him to the lex
Julia majestatis. His term of office may also have expired, or he may
have forced the citizens to elect him.207 The acts of such a tyrant are
ipso jure nulla, even if he rules well.208 This is also true in respect
of the actions of officials appointed by the tyrant. To resolve the
question as to the validity of the actions of officials during a time
of tyranny, where such officials had been appointed by the city (and
not by the tyrant), Bartolus drew a distinction between acts which the
people performed themselves and would have performed even if there had
been no tyrant, which he regarded as valid; and those acts which would
not have been performed had there been no tyrant, which he regarded as
invalid.209 Contracts between the tyrant and subjects were void.210
A ruler could also be a manifest tyrant in spite of the fact that he
possessed a lawful title. He could be a tyrant by virtue of his conduct
- that is, "because he performs tyrannical acts".211 After a discussion
of the approach of Aristotle, Bartolus concluded that keeping the city
divided and pauperising the subjects were true manifestations of
tyranny, and rendered the tyrant liable under the lex Julia de vi
publica.212
Again the question must be asked whether the actions of such a tyrant
were valid. A process instituted by him against exiles and rebels was
not valid, "since no one is bound to appear before a notoriously
hostile judge".213 Other processes were valid as long as the tyrant was
tolerated. The distinction seemingly made by Bartolus here was between
political and other trials.
The above deals with manifest tyranny. Concealed tyranny, on the other
hand, can take on three different forms.
Someone could have been given jurisdiction for a limited time only, and
then have his position reaffirmed while he still held power. Such a
207Id para 6. 208Id para 7. 209Ibid. 210Ibid. 211Id para 8. 212Id para 9. 213Id para 11.
tyrant must be treated like a tyrant by defect of title.214
Even if one did not claim full jurisdiction over an entire state, like
a king, one could still be a tyrant, as is the case with those who had
themselves made captains of mercenaries, who exercised de facto control
over the conduct of the officials of the state. Common knowledge of
such a state of affairs was enough proof of its existence.
To establish to what extent acts performed during tyranny of this kind
were valid, Bartolus proposed the same approach followed in respect of
officials elected by the people themselves during a manifest tyranny,
discussed earlier. If, however, only a fraction of the people were
abused by this tyranny, while in general the city was well governed,
"then the person having a title of this sort or a similar distinction
would not be a tyrant in the plain meaning of the word, since the
public welfare is cared for by such a government which is the direct
opposite of a tyranny."215
The mere fact of the pursuit of self-interest by a ruler does not imply
that his rule is tyrannical. "[J]ust as one is seldom found who is
completely healthy indeed from all bodily defect, so it is a rare thing
to find a government that is completely devoted to the public good
without some of the qualities of a tyranny."216 The decisive question is
whether the ruler's personal or the public welfare prevails.
Bartolus added a third category of concealed tyranny, when the tyrant
has no title of any sort, but everything nevertheless proceeds
according to his will. This type of tyrant should be treated in the
same way as was the case with the previous category.217
The above should be seen against the background of the general
provision that, where the tyrant himself has a superior (as is the case
with dukes and counts), the superior should get rid of him.218
The importance of Bartolus’ approach, it is submitted, lies in the fact
that he regarded not only violations of integrity as a basis for
resistance, but also exploitation, and that he provided a legal basis
214Id para 12. 215Ibid. 216Ibid. 217Ibid. 218Id para 9.
for such resistance.
L. THE PROTESTANT REFORMATION
Resistance, and eventual revolution or at least secession within the
Roman Catholic Church in the Sixteenth Century, produced the modern
Protestant churches. The Reformation hit been called the religious
component of the Renaissance, in the sense that it broke the stifling
hold which the church authority had come to have on the spiritual life
of medieval times. The revolution of the Protestants took the form of
an uncompromising choice for divine inspiration over earthly orthodoxy;
it had the categoric nature, in the words of Luther, of "Here I stand
for I can do no other."
Nevertheless the Protestants by and large represented a conservative
view regarding the question of political obligation. Protest in the
sense of rejecting the dogma of the Roman Catholic Church formed a
clearly targeted component of their message. In essence, they purported
to affirm the Biblical revelation as they saw it, which included a
demand for the separation of church and state, a view earlier defended
by Augustine but subsequently abandoned. Earthly authority did not
belong to the church, as was maintained by the Roman Catholic Church,
but - and this is important in the context of political resistance - it
did belong to the state. The two-tier notion of the state and the
church both exercising earthly authority, was rejected. For the
Reformers there could be only one sword - that of the state.
Consequently, one would not expect from them a robust theory of
political resistance.
The Reformers’ revived emphasis on the inner or spiritual experience of
faith, as opposed to external action or deeds, was also not suggestive
of an aggressive approach to political resistance. Nevertheless,
circumstances existed which prompted the Reformation eventually to
develop a theory of resistance which represented a decisive step
further to the modern-day position.
According to Aquinas, and the Roman Catholic tradition, the state
preceded sin - it was in the state where humans had to fulfil their
true earthly existence. Like Augustine, the Reformers regarded the
existence of the state as a consequence of sin. The function of the
state is to counter the sinful nature of man. Since the state was the
only institution on earth which could counter the chaos which resulted
from sin, it had to be obeyed. The use of coercion by the state
counteracted the consequences of sin and constituted the means whereby
God in his mercy provided for the blessing of a peaceful social life.219
In accordance with these points of departure, the Reformers saw as a
critical part of the Christian message the divine endorsement of
political authority. Their view was not founded on the notion of a
social contract which lost its binding force once the state failed to
keep its promise. To them, political authority and obligation did not
depend upon consent and the rulers had to answer for their use of power
only to God himself.
The Reformers recognised the fact that some rulers were wicked, but
regarded that as God’s punishment for our sins. As a general rule, if
it was impossible to flee from oppression one was expected to suffer
injustice. One could not, however, become a partner in injustice, which
meant that if the authorities required one to act unjustly one should
not co-operate. Because the state was the only legitimate holder of the
earthly sword, however, private individuals could not challenge the
state.
Only after the Reformation itself came under serious threat from
political rulers, would its leaders recognise a right under certain
circumstances of more confrontational resistance against the state. The
fact that the state was now seen as an instrument destined to serve a
certain purpose, carried in itself a powerful potential for
disobedience; that is if the state were to disregard that purpose. At
the same time, it should be noted that, although Luther and Calvin
rejected and resisted this view, a number of their followers maintained
that rulers who failed to exercise their divine duties could be
resisted. This meant that they recognised a right to resist "heretical
rulers".
The approach of the two most dominant figures of the Reformation, and
aspects of their legacy, will now be considered.
(1) Martin Luther
Although he offered no systematic account of political obligation, it
can safely be said that the German theologian, Martin Luther (1483-
219See the discussion of this point in Strauss & Cropsey History of political philosophy 309.
1546),220 was as conservative in the political sphere as he was willing
to oppose authority in the church. In his essay, "Temporal authority:
To what extent it should be obeyed" (1523), Luther entertained the view
that the power of the sword exercised by the state is ordained by God,
and that even unjust and cruel rulers should be obeyed. The reason lies
in Luther’s convictions regarding the total depravity of man - applying
equally to those who rule and those who are being ruled. Luther’s
conception of the natural state of man reminds one of the description
later given by Hobbes of the state of nature; one of a war of every
person against all others.
In the second part of "Temporal authority", Luther outlined limitations
of the state's authority. "External affairs" fail within the scope of
secular authority, but the state has no jurisdiction over "the
soul".221If a political leader were to suppress the Bible or other books
(Luther’s own writings were banned and burned by several rulers) and
enforce outward compliance to certain religious beliefs, one should
simply not co-operate.222 The use of violence against any leader is
prohibited by the Biblical injunction against resisting evil with evil.
In another writing, Luther also rejected the notion of a holy war to
enforce one's beliefs on others.223
It is because of our sins that we are ruled by ruthless rulers. "The
world is too wicked, and does not deserve to have many wise and upright
princes. Frogs must have their storks."224 Only God can relieve us from
such rulers - something which he occasionally does through the
220For a discussion of Luther's views on political obligation, see Ebenstein Great political thinkers 304ff; Strauss & Cropsey History of political philosophy 293ff; Porter's introduction in Luther Selected political writings Iff and Skinner The foundations of modern political thought vol 2 3ff. His views on political resistance are also discussed by Alien A history of political thought in the Sixteenth Century 15ff and Villa-Vicencio Between Christ and Caesar 39ff; Manenschijn Burgerlljke ongehoorzaamheid 165ff; Douma Politieke verantwoordelijkheid 44; Villa-Vicencio Civil disobedience and beyond 73ff and Smith Hervonnde Teologiese Studies 1988 434 at 437ff.
221Luther "Temporal authority", reprinted in Luther Selected political writings 51 at 61.
222Ibid. 223See Luther "On war against the Turk" (1529), reprinted in Luther
Selected political writings 121. 224Luther "Temporal authority" in Luther Selected political writings 51 at
63.
interference of other rulers or the violent uprising of the unfaithful
masses.225
In spite of Luther’s own conflicts with temporal authorities of his
time, he for the most part supported the absolutist rule of the
monarchs of his time. In 1525, he endorsed the vicious suppression of
the uprising which resulted in the Peasants’ War; one of the causes of
which was a mistaken interpretation of his own writings.226 In his
commentary on these events, Luther made some shocking statements,
including an admonition to "everyone who can" to "smite, slay and stab,
secretly or openly" the rebels, just "as one must kill a mad dog",
because "nothing can be more ... devilish than a rebel."227
In 1531, however, Charles V of Germany prohibited the preaching of
Lutheran thought. The use of force by the state to suppress the
Reformation seemed imminent. The question of a right to resist now
became existential to Luther. Two arguments in favour of disobedience
in extreme cases were presented by lawyers to Lutheran theologians.228
According to Augustine, the ruler does not hold the sovereign power by
himself - if he is chosen (or deemed to have been chosen) by lower
magistrates they share his power, granted by God. According to
constitutional theory, when the ruler uses his powers contrary to the
purposes for which he was appointed, these lower magistrates have the
power to take up the sword against him. As argued by Azo, in doing so
they are not usurping the divine power of the ruler - they already have
such power. According to the so-called private law theory, on the other
hand, everyone has the right to defend himself against violence. The
basis of this theory was the rule of Roman private law that vim vi
repellare licet.229 Similarly, every citizen (and not only the lower
magistrates) has the right to defend himself against a violent
government.
225See Luther "Whether soldiers, too, can be saved" (1526), reprinted in Luther Selected political writings 101.
226The peasants were embittered by increased taxation which they regarded as exploitive, and by the imposition of Roman law and private property concepts which undermined their communal lifestyle.
227Luther "Against the robbing and murdering hordes of peasants" (1525), reprinted in Luther Selected political writings 85 at 86.
228See Manenschijn Burgerlijke ongehoorzaaroheid 166. 229See supra chap five I C.
Faced with an emergency, Luther chose the latter, more extreme of the
two options. In "Dr Martin Luther’s warning to his dear German people"
(1531),230 Luther described the use of force to crush the Gospel as
blasphemy and maintained that rulers who wage such a war are the true
rebels. Those who resist the "murderous and bloodthirsty papists", act
in self-defence. Those against whom they act cannot properly be
considered "rulers", because through such actions the perpetrators have
relegated themselves into being mere citizens. It seems that under
these circumstances Luther was indeed prepared to abandon his earlier
view that political resistance could never involve more than defensive
civil disobedience, and sanctioned the use of violence.
The latter views, however, constituted an exception to his normally
pro-state attitude, which more properly reflects his legacy. Because of
his enthusiastic endorsement of the absolute state, nationalism and
even racialism, Luther has been described as one of the spiritual
ancestors of the excesses of the Third Reich, although this view may be
contested especially in view of his later disenchantment with the state
and his willingness then to endorse resistance. On the whole, however,
Luther’s inconsistencies can be regarded as a reflection of the strain
which the traditional Stoic position was undergoing.231
(2) Jean Calvin
In theological terms, the modern, more activist approach to political
resistance was introduced by the great figure of the Reformation, Jean
Calvin (1509-1564),232 Calvin’s ideas exerted a great influence on
Holland and subsequently on South Africa, where it has been used and
230Reprinted in Luther Selected political writings 133ff. 231See Ebenstein Great political thinkers 305. 232For a discussion of Calvin's legal and political thought, see Strauss a
Cropsey History of political philosophy 293ff and Ebenstein Great political thinkers 306ff. See also Alien A history of political thought in the Sixteenth Century 52ff and L du Plessis "Calvin, 'Calvinism' and present-day South Africa" in Corder Essays on law and social practice in South Africa 31, especially 44, where his views on political resistance are discussed. The latter topic is also addressed by Stoker Die stryd om die ordes 243; Villia-Vicencio Between Christ and Caesar 43; Vi11a-Vicencio Civil disobedience and beyond 67; Manenschijn Burgerlijke ongehoorzaaroheid 170 ff; Skinner The foundations of modern political thought vo1 2 189ff and Smith Hervormde Teologiese Studies 1988 434 at 441. Van der Watt Die reg van verset may be used to find references to the work of some of those who write in the Calvinistic tradition.
abused for legitimising political systems of opposing kinds.233
Although Luther and Calvin derived their ideas from the same tradition,
Calvin placed more emphasis on the division between church and state,
which entailed less tolerance for state interference in spiritual
matters.234 Consequently, one would expect Calvin to be more favourably
inclined than Luther to a right of resistance against state absolutism,
at least insofar as the state’s encroachment on religious matters was
concerned. And indeed, eventually Calvin would go much further than
Luther as far as his motivation for resistance and the type of
resistance are concerned. His initial views, however, did not differ
much from those of Luther.
In Institutes of the Christian religion (first edition 1536) Calvin
instructed subjects to see their rulers as exercising "a jurisdiction
bestowed by God". Governments should not be seen as a "necessary evil"
and should not be obeyed purely out of fear.235 As stated in Romans 13,
obedience to the government is required because it entails obedience to
God, and disobedience to the government amounts to disobedience of
God.236
The general requirement of obedience applies in respect of "all who, by
whatever means, have got control of affairs", regardless of whether or
not they are unjust rulers and even tyrants. For Calvin, "a wicked king
is the Lord’s wrath upon the earth." Although rulers are required to
rule justly, a wicked ruler can also accomplish God’s work on earth by
punishing his subjects for their sins. The best and the worst king
233See L du Plessis "Calvin, 'Calvinism' and present-day South Africa" in Corder Essays on law and social practice in South Africa 31, who tried to salvage Calvinism from those who misused it as a spiritual source for apartheid. People to the left and the right of the political spectrum in South Africa have invoked Calvin's views as a justification for political resistance. On Calvinism and the Ossewabrandwag. see Van Rooy Koers 1948 89. See also Dr Treurnicht's remarks in Parliament, House of Assembly Debates col 839 12 Feb 1988 and "Net soos vir Boesak moet Calvyn ook vir Treurnicht instaan" Beeld 18 Feb 1988. See also "Dr T staan by 'reg van verset'" Beeld 6 Sept 1990 and the response to Treurnicht by Amie Van Wyk "Nie einde van Afrikanervolk" Beeld 18 Sept 1990.
234The Calvinistic concept of "sphere sovereignty" is outlined in Van der Vyver Die jur1d1ese funksie van staat en kerk. See especially 98.
235Calvin Institutes of the Christian religion 4.20.22. 236Id 4.20.23.
should be held in the same reverence, since both represent God.237 As
Calvin put it in "Commentaries on the first epistle to Timothy":238 "The
universal doctrine is this, that we should desire the continuance and
peaceful condition of those governments which have been appointed by
God" - and that means all governments.239 The only possible relief
from continuous oppression can come from God, who, in response to the
prayers of the suppressed, will send a "hero" or outside agency
("benevolent background force"?) to rid the people of the oppressor.
These views of Calvin differ little from the orthodox position of the
early church fathers.
From the early 1550’s, those who participated in the Reformation in
Europe and England experienced increased persecution. The punishment
for heresy was death. Again, the whole movement’s survival was at
stake. Calvin continued to defend the line taken in Romans 13 in
respect of resistance by private individuals. Nevertheless, at the end
of the last edition of the Institutes (1559), he now inserted a passage
on resistance to political authority, which constituted, in the opinion
of many, the nucleus of modern liberty.240 Following immediately on the
exposition of the general rule in favour of obedience, the passage
proceeds as follows:
I am speaking all the while of private individuals. For if there are now any magistrates of the people, appointed to restrain the willfulness of kings (as in ancient times the ephors were set against the Spartan kings, or the tribunes of the people against the Roman consuls, or the demarchs against the senate of the Athenians; and perhaps, as things now are, such power as the three estates exercise in every realm when they hold their chief assemblies), I am so far from forbidding them to withstand, in accordance with their duty, the fierce licentiousness of kings, that, if they wink at kings who violently fall upon and assault the lowly common folk, I declare that their dissimulation involves nefarious perfidy, because they dishonestly betray the freedom of the people, of which they know that they have been appointed protectors by God’s ordinance.241
237Id 4.20.25. See also id 4.20.26. 238Reprinted in Calvin Commentaries on the epistles to Timothy, Titus and
Philemon 19. 239Calvin "The first epistle to Timothy" 2.2. 240See the references in Murray Acta Juridica 1958 275 at 300. 241Calvin Institutes of the Christian religion 4.20.31. The "ephors", the
"tribunes" and the "demarchs", which he cited as examples of "magistrates of
The important contribution here concerns resistance through the
intervention of "lesser authorities". That is, it is not for the
individual to take matters in his own hands. Calvin therefore aligned
himself with the constitutional approach outlined above (also called,
after him, the "Ephoren theory") by expressing his approval of
opposition to tyranny by the so-called populares magistratus.242 He in
fact declared that resistance in such cases was not only a right but
also a duty.
Several observations are called for in this regard. It should be noted,
in the first place, that the above, at least in the view of Calvinists,
does not technically constitute an exception to the general rule of
obedience to authority. The point is that the lower magistrates are
part of the governmental structure and are therefore also "rulers", who
are endowed with divine authority and are under the divine duty to rule
justly. It is the exercise of this duty that can bring them in direct
confrontation with the rulers - not a "right of resistance".
Nevertheless, insofar as the exercise of this power may in given
circumstances be appropriate, it could involve more than non-co-
operation or defensive civil disobedience. It can be used to protect
the "freedom of the people", and especially those in positions of
political weakness - the "lowly common folk". This passage, almost in
so many words, justifies active, result-oriented disobedience, based
not only on the protection of integrity but also as a defence against
exploitation.
Another aspect of this passage which is worth noting is the absence of
restraints pertaining to the methods that could be employed by the
lower officials in opposing the higher officials. Consequently, this
passage is commonly interpreted as an endorsement of the use of
violence, under certain circumstances, as a political instrument.243
As stated earlier, the above does not technically constitute an
exception to the general rule of obedience to the state by private
citizens. The only real exception to the general duty of obedience lies
in the principle that "such obedience is never to lead us away from
the people", were a11 elected to office by annual popular vote. See also Manenschijn Burgerlijke ongehoorzaamheid 174.
242See Manenschijn Burgerlijke ongehoorzaamheid 172ff. 243See Van Wyk Orientation 1988 73 at 74.
obedience to [God]".244 After all, Acts 5 demands just that: "We must
obey God rather than men." Because God is "the king of kings", Calvin
preached non-co-operation when co-operation would "incur the
displeasure" of God. "If they command anything against him, let it go
unesteemed." To do so is not only a right but also a duty, which should
be executed even if it means losing one's life. It happened, for
example, that the Israelites were condemned for being too obedient to
wicked kings.245 Calvin, consequently, endorsed defensive, integrity-
based civil disobedience by individuals and result-oriented, anti-
exploitation resistance by officials.
The Reformers, through their insistence on the separation of state and
church, prepared the way for a more sceptical view of secular
authority, even though this was not their specific aim. They expanded
the traditional Christian emphasis on personal responsibility and hence
the inviolability of the individual conscience, and restored the idea
of the state as an instrument destined to serve a certain purpose.
Theologians in the Calvinistic tradition would take Calvin’s ideas on
resistance a step further. In a real sense, Calvin can be said to have
opened the sluice-gates for Christian theology to follow a much more
activist approach to political resistance.246 Particularly influential
in this regard would be the "trilogy" of the Vindiciae (to which we
will presently turn), Hotman and Beza.247 The Scottish Reformer, John
Knox, would later argue that to remain silent in the face of tyranny
was tantamount to complicity with the tyrant.248 in this Century,
Abraham Kuyper further developed the idea of "spheres of liberty" and
244Calvin Institutes of the Christian religion 4.20.32. Calvin also stated, in regard to the Fifth Commandment, that if our parents "spur us to transgress the law, we have a perfect right not to regard them as parents, but as strangers who are trying to lead us away from obedience to our true father. So should we act toward princes, lords, and every kind of superiors." Id 2.8.38.
245Id 4.20.32. See also Hosea 5.13. 246See Alien A history of political thought in the Sixteenth Century
l03ff. 247In his influential work. Concerning the rights of rulers, Beza outlined
the principle of fundamental law and his justification of the right to revolt. 248See Vi11a-Vicencio Between Christ and Caesar 68 and Skinner The
foundations of modern political thought vol 2 l89ff.
placed an even greater emphasis on the independence of the church.249
Brunner was noted for defending the private-law approach to the right
of resistance.250
Calvin’s constraint, that only the magistrates could initiate revolt,
was interpreted by oppressed people around the world, including South
Africa, to mean that, where they did not enjoy representation, those
leaders who would probably have represented them if there were free
elections can initiate resistance.251
(3) The Vindiciae contra tyrannos
History proved the concerns of Reformers regarding the approach of the
political rulers toward the Reformation to be well-founded. The
prosecution of the Protestants reached a climax in the massacre of St
Bartholomew (1572) in which 30 000 Hugenots - the French Catvinists -
lost their lives.
From this tragic course of events emerged a document called the
Vindiciae contra tyrannos (1579), which was written by an author whose
identity is not certain, under the pseudonym of Stephen Junius
Brutus.252 This document, translated into English in 1689 as A defence
of liberty against tyrants, dominated political thought in Europe and
in Britain until the appearance of Rousseau in the Eighteenth Century
and had a markedly strong influence in the Netherlands. The declaration
which attended Dutch severance with the rulership of Philip of Spain -
the Placcaet van Verlatinge of 1581 - was taken from the Vindiciae.
From the Netherlands, which at that stage was the centre of world
liberalism, the ideas advanced in the Vindiciae spread across the globe
249See Treurnicht Die verhouding van die staat tot die kerk by dr Abraham Kuyper 487ff. For Treurnicht's discussion of Calvinistic views on political resistance, see id 242ff.
250See Van Eikema Hommes Major trends in the history of legal philosophy 343.
251See Villa-Vicencio Civil disobedience and beyond 94. 252The author was probably Philippe du Plessis Mornay, with a contribution
by the lawyer, Hubert Languet. For a discussion of the Vindiciae, see H J Laski's "Historical introduction" in Brutus A defence of liberty against tyrants 1ff; Murray Acta Juridica 1958 275; Ebenstein Great political thinkers 307ff and P Coertzen "Burgerlike ongehoorsaamheid: ‘n Kerkhistoriese perspektief" in Du Toit Staatsgesag en burgerlike ongehoorsaamheid 54 at 60.
and to South Africa.253
According to the Vindiciae, the king’s position is established by two
contracts. In the first place, the people conclude a contract with
God, to be his people. In the second place, the people conclude a
contract with the king, whereby they promise to obey him if he rules
justly. The king occupies the position of trustee of the people, who
established him as their king. If the king violates his duty to rule
justly, the people are allowed and indeed obliged to resist or depose
him on the basis of their first contract with God. The king is but an
instrument of the law and should rule the people in their own best
interest. A king rules unjustly if he does not rule according to law or
does not serve the commonwealth.254
Two types of tyrants could be distinguished. In the first place, there
are those who illegally usurp power. The proper response to this type
of tyrant depends on how he rules, for such a tyrant can rule justly.
The tyrant who has the legitimate title to rule but rules unjustly can
only be deposed by the magistrates and assemblies of estates. The
"double tyrant", however, who usurps power and rules unjustly, can be
resisted - if there are no other alternatives - by any citizen, even if
that involves tyrannicide.255
Although the main purpose of the Vindiciae was to vindicate the right
of protecting one’s religious convictions through non-co-operation in
religious matters, it could also provide a basis for result-oriented
disobedience in pursuit of non-religious objectives. These ideas,
considered radical at the time, would have a powerful effect on the
development of particularly Dutch and English political thinking.
M. THE REVIVAL OF THOMISM
The Reformation prompted a revival of Thomism, which manifested itself
most clearly in the work and writings of the "Spanish Schoolmen" or the
"School of Salamanca", who played an important role in the development
of international law and the Roman Dutch legal system. The most
prominent writers in this tradition were the Dominicans, Francisco de
Victoria (c 1485-1546) and Domingo de Soto (1494-1560), and the later
253See Murray Acta Juridica 1958 276 at 312, 313. 254Brutus A defence of liberty against tyrants 71ff. 255Id 87ff.
Jesuits, Luis de Molina (1535-1600) and Francisco Suarez (1548-1617).
These Neo-Thomists delivered their contributions at a time when
Christianity had been split by the Reformation and, in its place, the
new international community was emerging. Some forty years after
Columbus took possession of the New World on behalf of the Spanish
sovereigns, Victoria256 transformed Christian morality into an
international science - that is, into the law of nations, which would
be endowed with its philosophy by Suarez and its literary form by
Grotius.257
The prime target of these writers was, what they called, "the heretics
of the age" - meaning the followers of Luther (not Luther himself), who
not only denied the law-making powers of the Pope but also rejected the
natural-law foundation of the Thomist perception of the state and human
nature. Their contention that civil government cannot remain in the
hands of ungodly rulers and that the commands of an ungodly prince were
not binding in conscience, were regarded as particularly dangerous and
subversive. In the hands of the "heretics", the notion of a right to
resist a tyrant was replaced by a right to resist a heretical ruler. At
the same time, the Thomists were concerned about the Spanish conquest
and enslavement of Indians in America, which had been justified on the
basis that the latter were not Christians and that their repression,
consequently, amounted to a war against infidels.258
In accordance with Romans 13, Victoria expressed the view that all
authority emanates from God, and just as much as it is sinful to
transgress the laws of God, so too is it a sin "in the court of
conscience" to transgress human laws of whatever government.259 When the
sovereign fails to act in a way "advantageous to the state", he simply
does not create law.260 The possibility of conflict between natural and
human law was defined away: if human law finds itself in such a
256In accordance with established custom, when his full name is used the Spanish form, "Francisco de Vitoria" is employed. When reference is made only to his last name the Latinized (and Englished) form "Victoria" is used.
257See Scott The Spanish conception of international law and of sanctions 2.
258See Skinner The foundations of modern political thought vo1 2 135. 259See Victoria "Concerning civil power", reprinted in Scott The Spanish
conception of international law and of sanctions Ixxi at Ixxxiii. 260See Kennedy Harvard International Law Journal 1986 1 at 17.
conflict, it is not law.261 This co-incided with the traditional
Thomistic natural-law approach, which equated morality and law.
N. JEAN BODIN
The idea of state sovereignty was first explicitly analysed by the
Frenchman, Jean Bodin (1530-1596),262 in The six books of the
commonwealth (1576). Bodin defined sovereignty as "the absolute and
perpetual power vested in the commonwealth which in Latin is called
majestas".263 He also declared that "there are none on earth, after God,
greater than sovereign princes."264
Although Bodin was a prophet of monarchy, and clearly intended to
refute the claim of the church possessing higher authority than the
state, he did not believe that the state was free from all bondage. To
him, the royal monarch was bound to obey "the laws of God, and natural
liberty" and in certain cases also had to keep his own laws.265 Bodin
saw the difference between what he regarded as legitimate kings, on the
one hand, and tyrants, on the other, as follows: "A tyrannical monarchy
is one in which the monarch tramples underfoot the laws of nature, in
that he abuses the natural liberty of his subjects by making them his
slaves, and invades the property of others by treating it as his
own."266
The king "bases his rule on the love of his people [and the tyrant] on
their fear".267 In other words, the one depend for political obedience
primarily on authority, the other on control.
Nevertheless, the mere fact that someone was a tyrant did no justify
disobedience. Bodin stated:
I conclude then that the subject is never justified in any circumstances in attempting anything against he sovereign prince, however evil and tyrannical he might be. It is however
261See Koskenniemi From apology to Utopia 77. 262For a general discussion of his political philosophy, see Ebenstein
Great political thinkers 349. 263Bodin Six books of the commonwealth 1.8. 264Id 1.10. 265Id 2.2 & 3. 266Id 2.4 & 5. 267Ibid.
permissible to fail to obey him in an command contrary to the law of God and of nature, but one must then seek refuge in flight, go into hiding or suffer death rather than attempt anything against his life or his honour.268
Bodin did recognise the right to "just tyrannicide",269 but in his view
the determining factor in this regard was not the substantial justice
of the ruler’s reign, but instead a procedural question, namely how did
the ruler acquire power.270 If he did so illegally, he could be killed;
if not, the question must be asked whether he is sovereign. If he is
not sovereign (for example if he was elected by a sovereign people),
legal channels should be used to dispose of him. If that does not
succeed, the use of force may be appropriate. If he is sovereign, he
cannot be deposed and no amount of injustices on his part can justify
the use of force.271
In essence, Bodin’s position consequently amounted to a radical
positivism which did not allow for an external vantage point from which
the quality of a ruler can be judged.272
O. GROTIUS
Hugo de Groot (1583-1645) is widely recognised as one of the greatest
jurists in the Roman-Dutch legal tradition and indeed of the world.273
He has acquired the reputation of father of international law and as
one of the major proponents of natural law. The enduring appeal of his
most famous work, De jure belli ac pacts, lies, according to John
-----------------------------------------------------------------------------------------------------------------------
273
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268Ibid. 269Ibid. 270Ibid. 271Ibid. 272For a discussion of Johannes Althusius' views on political obligation
and the right of resistance, which radically contradicts those of Bodin, see Van Eikema Hommes Major trends in the history of legal philosophy 77ff.
273See Kahn SALJ 1983 192 at 192.
Dugard, in its "attempt to inject morality, justice and idealism into
the international legal order".274
Grotius (his self-assumed nom de plume) represents the transition from
the medieval to modern philosophy and as such his views represent
elements of both worlds. While his approach to international law was
modern, his views on political obligation showed Grotius to belong to
the pre-modern rather than the modern age.275 The modern conception of
the state would emerge in the writings of people like Hobbes, who saw
no metaphysical element in state authority. Grotius recognised that
political obligation is based on consent, but since the obligations
that arise from consent derive their force from the law of nature, the
ultimate source of political obligation is natural law. Based on this
premise, the otherwise liberal Grotius, who himself spend time in
prison in consequence of his religious beliefs,276 arrived at a
surprisingly restricted view on political resistance.
Grotius accepted that people focus their lives on seeking their own
interest. Hobbes, who proceeded from the same premise, proclaimed that
"justice", insofar as it does exist, is simply a guise in which self-
interest is pursued.277 Grotius, on the other hand, maintained that
man’s unique rational faculty demonstrates to him that justice is a
virtue, a good in itself, apart from any consideration of self-
interest. Consequently the natural inclination of humans as rational
creatures is to act justly and to seek social intercourse with others.
The result is the social contract.278
A ruler might, according to the social contract, be sovereign and not
be responsible to the people. In that case, a general principle of non-
resistance pertains, according to which one cannot actively oppose the
ruler. According to Grotius, this rule can be deduced from the Bible as
well as from Plato and the Stoics, and is written in the hearts of all
people: "If unjust treatment be inflicted on us, we ought to endure it
274Dugard SALJ 1983 213 at 215. 275For commentary on his political views, see Strauss & Cropsey History of
political philosophy 360. 276See Kahn SALJ 1983 192 at 196. 277See Infra chap five I P. 278For a more detailed discussion, see Van der Vyver Die juridiese sin van
die leerstuk van menseregte vol 1 86ff.
rather than resist by force."279
Grotius advised people who were wronged to "take it patiently"; "to
bring goodwill to [one’s] master, no matter how unjust." He quoted Livy
as saying that "[h]arsh treatment on the part of our country, as on the
part of our parents, we must assuage by suffering and enduring."280
Through an overview of the history of the early Christians, Grotius
illustrated their refusal to engage in armed resistance in spite of
their being severely persecuted.281
The general rule of non-resistance does not preclude one, however, from
simply not obeying the authorities in certain cases. Directly invoking
Christianity282 and Stoicism283 Grotius maintained that "among good men
one principle is established beyond controversy, that if the
authorities issue any order that is contrary to the law of nature or to
the commandments of God, the order should not be carried out."284
This means that extreme cases may arise in which a right not to co-
operate would manifest itself. However, we are to endure unjust
treatment rather than positively resist the government, at least by
force.
Consequently, in the case of rulers who are not responsible to the
people, there is a general rule against rebellion and in favour of
obedience to the state. This is based on the fact that the unlimited
licence to defend oneself, which prevails in the state of nature, was
relinquished once the pactum unionis is had been concluded. Without
limitations on the common right of resistance which obtains in the
state of nature, government cannot achieve its end of ensuring public
tranquil1ity.285
Grotius remarked that the punishment for rebellion, according to Hebrew
law, was death. The only avenue open to the oppressed was that they
279Grotius De jure belli ac pads 1.4.1.3. 280Id 1.4.4.6. 281Id 1.4.5. 282Ibid. 283Id 1.4.4.6. For a discussion of the influence of Stoicism on Grotius,
see Fortuin De natuurrechtelijke grondslagen van De Groot's volkenrecht 35ff. 284Grotlus De jure belli ac pads 1.4.1.3. 285Id 1.4.2.1.
"should implore the help of God, because, in fact, there would be no
recourse at the hands of man".286 Rebellion, in the opinion of Grotius,
is even less compatible with the message of the New Testament. Romans
13 demands subjection and with that non-resistance. This requirement
should be observed not only to ward of a greater evil (that is for
consequentialistic reasons) but also because of a duty of obedience to
God (that is, for deontological reasons).287 Considerations of one’s own
advantage are not Irrelevant, however: Ultimately Grotius viewed the
safety of the state as the sine qua non for the safety of the
individual.288
Grotius rejected the view that subordinate officials - populares
magistratus - were entitled to rebel against sovereign authority, since
the former are also subject to the authority of the latter, both
logically289 and in terms of Romans 13.290
In order to find an answer to the question whether the general
"principle of non-resistance", which has been alluded to above, obliged
people to prefer being killed above offering violent resistance,
Grotius asked himself what the opinion of those who formed the original
social compact would have been at the time when they were designing
their future society. His approach can be regarded as a classic example
of recourse to the device of the original position, which we will also
apply later. Grotius argued, cautiously, that they would not have
required such absolute obedience:
If these men could be asked whether they purposed to impose upon all persons the obligation to prefer death rather than under any circumstances to take up arms in order to ward off the violence of those having superior authority, I do not know whether they would answer in the affirmative, unless, perhaps, with this qualification, in case resistance could not be made without a very great disturbance in the state, and without the destruction of a great many innocent people.291
This course of conduct is not denied to minorities or even individuals
286Id 1.4.3. 287Id 1.4.4.1. 288Id 1.4.4.4 & 1.4.4.5. 289Id 1.4.6.1. 290Id 1.4.6.3. 291Id 1.4.7.2.
as a last resort but without abandoning considerations of the common
good.292 Nevertheless, the person of the king must be saved.293
Grotius identified a number of other cases where the general rule of
non-resistance does not apply.294 One is where the king sets out with a
truly hostile intent to destroy "one people ... for the sake of
another" - that is, in cases of exploitation.295 It can also be
expressively part of the arrangement under which the king governs that
he might be resisted under certain circumstances.296
The above dealt with the ruler who is not responsible to his people.
The overall situation is quite different in respect of rulers who are
responsible to the people. Grotius quite blandly maintained that "if
such rulers transgress against the laws and the state, not only can
they be resisted by force, but, in case of necessity, they can be
punished by death."297 Also, where a king possesses only part of the
sovereign power, while "the people or senate" possess the other part,
"force can lawfully be used against the king if he attempts to usurp
that part of the sovereign power which does not belong to him."298
In the situations described above - that of the ruler who has
sovereignty and that of the ruler instated by the people - the ruler
has, at least formally, the right of governing. The question remains as
to the position obtaining to the ruler who has usurped political power.
In general, the laws of such a ruler would not be valid. However,
citing, amongst others, Cicero, Grotius argued that grave danger to the
state, due to utter confusion that would ensue from denying the
292Id 1.4.7.4. 293Id 1.4.7.6. 294Id 1.4.9 8. 1.4.10. 295The right to resist with force obtains also when "a king [who] rules
over several peoples ... wish[es] to have one people destroyed for the sake of another, in order that he may colonise the territory thus made vacant". Id 1.4.11. The political application of this opinion in both the old and the new South Africa should be evident. In the old South Africa the government was often accused of genocide; at present it is accused', from different quarters, of "selling out" the whites.
296Id 1.4.14. See also the reference to art 20(4) of the German Constitution supra chap two I A.
297Id 1.4.8. 298Id 1.4.13.
validity of such laws, might reinstate the necessity of obedience to
such laws.299 Nevertheless, in a number of cases the right to use force
against unscrupulous rulers is recognised.300 In general Grotius agreed
with Cicero that "peace on any terms between citizens seems more
advantageous than civil war."301
De jure belli ac pacis did not provide any justification for wars of
national liberation, since Grotius listed the "desire for freedom among
a subject people" as an unjust cause of war.302
Grotius’ conservative approach in respect of political resistance is
epitomised in the following words: "Above all, in case of a controversy
the private individual ought not to take it upon himself to pass
judgment, but should accept the fact of possession [of the governing
power as conclusive]."303
His approach can consequently be regarded as being in the traditional,
pre-modern Stoic mould.304
P. THOMAS HOBBES
Seventeenth Century Britain witnessed the kind of turmoil that often
accompanies fundamental change. On the continent, the Reformation led
to the Thirty Years War (1618-1648) which brought widespread
belligerency and ruin to Europe. In Britain, the puritan revolution
took place and two civil wars were fought. In 1649, King Charles I was
executed. The days of the "divine right of kings" were over, but it was
by no means clear that democracy would bring stability. To many, the
opposite seemed more probable.
Under these circumstances and while in exile in Europe due to his close
299Id 1.4.15.1 & 1.4.15.2. 300Id 1.4.16; 1.4.17 & 1.4.18. 301Id 1.4.19. 302Id 2.22.11. 303Id 1.4.20. Grotius also argued that agreements reached with tyrants
should be honoured. Id 3.19.2. 304However, Grotius is listed as a proponent of the "right of resistance"
by Sudima "The right to revolution" in McDougall & Reisman International law in contemporary perspective 167 at 168. See also Paust Emory Law Journal 1983 545 at 561, who made the same point. Contra Dugard SALJ 1983 213 at 218. See also Fortuin De natuurrechte1ijke grondslagen van De Groot's volkenrecht 144.
ties with the royalty, Thomas Hobbes (1588-1679)305 wrote the famous
Leviathan (1651), the first general theory of politics to be published
-in England. In it Hobbes provided an elaborate and well-reasoned
defence of absolute government. In this and his other works on
political philosophy,306 Hobbes, following Machiavelli, broke with the
tradition of Socrates, Plato and Cicero, which he believed had failed
to secure peace since it tried to achieve too much. It had focused,
Hobbes and the new generation of political theorists believed, on what
humans could be and aspired to, instead of on what they were. Hobbes
wanted to establish a theory of government on a scientific basis, which
dealt with goats people actually pursue and attain. In the process, he
would proclaim an even more constricted view of resistance than the
Stoics.
Hobbes did not accept as his point of departure the usual premise of
absolutist rule, namely the inequality of men, but on the contrary
adopted as his basic premise precisely the basic equality of all
persons.307 In a state of nature - that is, in the absence of government
- all people were more or less equally strong and equally vulnerable.
All people had the ability to kill one another. Because all had "a
perpetuall and restlesse desire of power after power, that ceaseth
onely in death,"308 they were each natural enemies. This led to war,
which was the natural state of man, "and such a warre, as is of every
man, against every man".309 No civilization could develop in such a
desperate situation, and "the life of man [is] solitary, poore, nasty,
brutish, and short."310
This situation severely threatened one's most basic passion - the will
to self-preservation. Driven by the fear of violent death, reason
305For a discussion of Hobbes' political thought, see Ebenstein Great political thinkers 362ff; Strauss & Cropsey History of political philosophy 370ff; Höffding A history of modern philosophy vo1 1 259ff; Vorlander Geschiedenis van de wijsbegeerte vo1 3 62ff; Van Eikema Hommes Major trends in the history of legal philosophy 104ff and MacPherson's introduction in Hobbes' Leviathan 9ff. His approach to legal and political obligation is discussed in Macfarlane Modern political theory 98.
306The elements of law (1640) and De cive (1642). 307Hobbes Leviathan 1.13. 308Id, 1.11. 309Id 1.13. 310Ibid.
eventually suggested certain rules for peaceful co-existence. Because
adoption of these rules was suggested by nature itself, of which reason
was a part, they were called "rules of reason", "laws of nature" or the
"moral law". Ultimately, however, they had their origin in the selfish
passions and desires of human beings.311
Reason demands of each person to lay down his unlimited right to do
anything and not to do to others what one reasonably expects them not
to do to oneself. Such an arrangement cannot be maintained, however, if
there is not an enforcement agency. An absolute sovereign, a Leviathan,
the greatest power on earth to which all are subject, is necessary to
constrain the pride of man. Hence, a social contract was entered into
whereby such a sovereign authority was established, which could enforce
those rules necessary to secure the protection of the parties to the
contract. Thus the sovereign state came into being.
Hobbes’ social contract regulated two matters: (i) on the one hand, it
was a covenant of each member of the future body politic with each of
the others, to acknowledge, as sovereign, the body they so elect; and
(ii) on the other, it ordained the vote determining who is to be that
sovereign.
The validity of the covenant was not affected by duress. All living in
a commonwealth, thereby accepting the protection of the sovereign, is
to be regarded as having tacitly entered into the covenant and as
having lost their right to resist. Once the state of nature is replaced
by civil government and the sovereign is designated according to the
social contract, "he that dissented must now consent with the rest ...
or else justly be destroyed by the rest."312 The position of the ruler
is now virtually unassailable: "[N]o man that hath soveraigne power
can justly be put to death, or otherwise in any manner by his subjects
punished," because through the social contract the subjects are
regarded as the authors of these actions.313 According to Hobbes, "he
who hath the supreme power can do his subject no injury."314
It should be noted that, according to Hobbes, the contract is one
311Id 1.14. 312Id 2.18.3. 313Id 2.18.5. 314Hobbes "Philosophical rudiments concerning government and society",
reprinted in Hobbes The English works of Thomas Hobbes of Malmesbury 111.
between the subjects and not between the subjects and the state. The
state is a result of the contract, not a party to it. Hence the state
cannot "breach contract" or in any other way act illegally or unjustly.
The state, through its positive laws, determines what is lawful and
just, and what is not. The sovereign "may commit iniquity; but not
injustice, or injury in the proper signification", because per
definition the state cannot act illegally.315 To put it bluntly: The
state is above the law. This amounts to the position that even if a
weak right of resistance could be recognised, there is no room for a
strong right.
If, then, it is the task of the state to bring security, the next
question is what form of government is most likely to render that
result. On practical grounds, Hobbes opted for a monarchy, since it is
not susceptible to competition for office as are aristocracies and
democracies and it is easier for one to reach a decision than for many.
Nevertheless, Hobbes was willing to submit to Cromwell’s rule, because
he considered it the most effective at the time.
From Hobbes’ point of departure of the all-pervasive requirement of
security, the need for the state to be all-powerful followed naturally.
There should be no division of powers, and the subjects must be
absolutely obedient.316 No private judgments on what is good and what is
evil should be tolerated. If compliance with a command of the sovereign
is sinful, it is the sovereign’s sin, not the sin of the subject. Not
being a religious believer himself, Hobbes viewed religion as a serious
threat to the authority of the state.317
In his quest to make government unassailable, Hobbes sought to destroy
the tools by which it could be attacked and criticised. He rejected the
traditional notion of natural law as a higher law, whether based on
religion or reason, and denied the validity of any universal values.
The judgment that something is "good" or "evil", for Hobbes, merely
indicated the personal emotional disposition of the person expressing
that opinion. Consequently, the judgment that a particular ruler is a
315Id 2.18.4. 316Id 2.18.8 & 2.20. 317Ebenstein Great political thinkers 367 remarked that Hobbes with
penetrating insight foresaw the revolutionary implications of the new natural law ideas as they became manifest only a century later in the American and French Revolutions.
tyrant did not, as far as he was concerned, indicate that there was
anything ethically the matter with the way in which that person
governed. It merely indicated a personal preference, and an unwarranted
preference at that, because it undermines the authority of the state.
The doctrine that tyrannicide is lawful, according to Hobbes, amounts
to saying that it is lawful to murder a king as long as he is called a
tyrant first.
If he wanted to stay in power, the sovereign should prevent his
legislation from becoming so oppressive to his subjects that they will
make an appeal to their original right of self-preservation and will
prefer the state of nature to the civil state. However, this constraint
on the sovereign is a practical and not a moral one.318
This suggests, however, that the citizen in Hoboes’ state is not
completely at the mercy of the state. Political obligation is not
entirely absolute in the sense that the subject that considers himself
wronged can do nothing about it. Not all natural rights are transformed
through the social contract, for it is deemed a voluntary act, "and of
the voluntary acts of every man the object is some good to himseife".319
Because "[t]he end of obedience is protection",320 one retains the right
to defend one’s own interests, for the protection of which the state
was established in the first place.
Consequently, Hobbes argued that "[i]f the sovereign command a man
(though justly condemned), to kill, wound, or mayme himselfe ... yet
hath that man the liberty to disobey."321 No one can be obliged to bring
about his own destruction, either in battle, by submitting peacefully
to execution, or testifying against himself in court. Each person,
consequently, has an inalienable right to life, and a right of
resistance insofar as one’s own life is threatened.322
This right can be exercised if the state does not properly protect
318See the discussion in Van Eikema Hommes Major trends in the history of legal philosophy 105.
319Id 1.14. (Original emphasis.) 320Id 2.21. 321Ibid. 322Id 2.21.
those interests or if they are threatened by the state itself.323 The
right to personal self-protection of life, bodily integrity and freedom
is consequently inalienable, and in defence of this right one can, if
necessary, use force against the officials of the state. As far as the
protection of other persons’ interests is concerned, however, one in
general has no right to interfere with the actions of the state.324
It should be noted, however, that even in those cases where the subject
considers his life to be threatened by the state, Hobbes merely granted
the subject a weak right to resist. The sovereign retained the right to
punish resistors, even when the resistance was justified.325
The right of resistance is therefore a right of self-defence which
primarily covers the protection of one’s own life and body. Hobbes
regarded as "seditious" and "repugnant to civil society" the doctrine
"that whatsoever a man does against his conscience is sin [because] it
depends on the presumption of making him the judge of good and evil."
Instead, it must be accepted that "the law is the public conscience."
Failure to adhere to this principle is the reason for political
instabi1ity.
In spite of his rejection of the traditional Stoic-Christian notion of
integrity-based civil disobedience, Hobbes’ notion of justified
resistance nevertheless did provide limited protection for moral
convictions. According to him, one is also "not obliged not to resist"
if one is forced to contribute to the conviction of one’s own parent,
or a benefactor, or to do any act that is so shameful that it would
result in one’s being so miserable that one would grow weary of one’s
own life.326 His primary focus, however, was on the protection of
physical and not moral integrity.
In a word, it may be said that Hobbes restricted his endorsement of
disobedience (violent or otherwise) to that which is necessary for the
defence and preservation of bodily integrity, with a very limited scope
323Ibid. 324Id 1.14. 325See the discussion of this point by Macfarlane Political disobedience
25. 326Id 1.14. See also Strauss & Cropsey History of political philosophy
382. Hobbes also recognised that when people are conscripted to fight in a war, provision should be made for "timorousnesse", and he suggested the creation of alternative forms of notary service. Id 2.21.
for the protection of spiritual integrity.327 The basis of such a right
was the state’s breach of contract.
No doubt, Hobbes has been an inspiration to totalitarian regimes rather
than to democracies, and he can rightfully be described as an
authoritarian. Nevertheless, it would be unfair to altogether dismiss
him as a totalitarian. Hobbes’ great contribution was to identify the
protection of the interests of the individual as the touchstone of
political obligation. By doing this, he wrested political theory from
the grasp of metaphysical speculation (such as the divine right of
kings) and from being completely determined by the common good.
He narrowly interpreted the interests of the individual that had to be
protected, which led to a conservative view of the position of the
individual. Hobbes’ preoccupation with physical security led to an
almost obsessive view of the need for a powerful state. What is
important, though, is his notion of the inalienability of the
individual's right to survival. This right cannot even be alienated by
the all-powerful state, since the latter’s function is to serve the
former. The state, according to this approach, is merely an instrument
for serving human and specifically individual needs. Where the state
does not reach this goal, it loses its legitimacy and may be resisted.
Soon theorists like Locke would use this same construction, but would
afford a wider interpretation to those interests of the individual
which are to be regarded as inalienable. This resulted in a more
liberal view of the relationship between the state and its subject. In
this new development, the contribution of Hobbes, in spite of his
absolutist tendencies, was crucial.
Q. SAMUEL PUFENDORF
In Germany, Samuel Pufendorf (1632-1694), professor of law at
Heidelberg, made an important contribution towards the establishment of
natural law thinking in the Seventeenth Century.328
Pufendorf’s acceptance of a natural social inclination among humans led
him to regard the social contract theory as the basis of political
327Spinoza largely shared Hobbes' views regarding political and legal obligation, but exempted the areas of religious practice and scientific enquiry from state control. See Van Eikema Hommes Major trends in the history of legal philosophy 107
328Van Zy1 Geskiedenis van die Romeins-Hollandse Reg 197.
obligation. Pufendorf dealt with the question concerning the limits of
obedience to the political ruler in his best-known work. On the law of
nature and nations (1672), in a chapter entitled "On the sanctity of
supreme sovereignty in states".329 With regard to sovereign rulers,
Pufendorf maintained that it would be "to mankind’s greatest interest"
that supreme civil sovereignty be held sacrosanct. There is an
"obligation of non-resistance" and "immediate obedience" of rulers as
long as they remain within the limits of their power.330
Pufendorf rejected Hobbes’ premise that there was no pact between state
and citizen, and that the citizen should be regarded as having
consented to whatever the state might do. Instead, Pufendorf maintained
that such a contract existed in terms of which the subjection by
citizens of their will to the state is limited by the objectives of the
state. Only the state can do what is needed for its own preservation.331
However, Pufendorf claimed that "there is always a presumption of
justice on the part of the prince."332 The general duty of obedience may
not readily be disregarded. Allowance must be made for the state’s
inability to satisfy all the demands of everyone, and not every cause
for discontent should be seen as an "injury". Articulating the
traditional Stoic position, Pufendorf declared that "even Jupiter does
not suit everybody whether he sends fair weather or foul. "333
However, the state can "injure" the citizen because there is a
"community of natural law between them". "Injuries" can take one of two
possible forms. The ruler can either treat his people (i) not as
citizens, or (ii) not as "men".334 The case where people are not treated
as citizens can also manifest itself in two ways: The ruler can do
injury to them as a political whole or as individual citizens. The
ruler can do injury to the citizens as a political whole, by abandoning
all care of the commonwealth, or (worse still), by acting with hostile
intent against the safety of the state - that is, if he "puts on the
329See Pufendorf On the law of nature and nations book 5. 330Pufendorf On the law of nature and nations 7.8.1. See also Pufendorf
The elements of universal jurisprudence 2.5.21. 331Pufendorf On the law of nature and nations 7.8.2. 332Id 7.8.6. 333Id 7.8.3. 334Id 7.8.4.
guise of an enemy".335 The same applies when he subverts basic laws. The
ruler owes to individuals - as citizens - "the enjoyment of the right
each holds in common with the rest".336 Pufendorf also identified ways
in which the ruler can do injury to his subjects as persons or private
individuals.337
In such cases the state acts beyond the scope of its powers. But does
this justify resistance? With reference to Tacitus, Plato and Cicero,
Pufendorf counseled an endurance of at least the lesser injuries. In
the case of more frightful injuries, one’s first attempt should be to
flee and if necessary to leave the country.338
When it is impossible to flee but the ruler requires one to commit a
sin, even if one has agreed to being ruled by a political sovereign,
one would remain subject to God’s sovereignty, since the latter is
superior to the former. Consequently, one can never have the duty to
commit a sin or to do that which is "worse than death itself". Because
the ruler in such cases acts as an enemy instead of a prince, "he is
understood to have released the citizen also from the obligation by
which the latter was held bound to him".339 In effect, the social
contract is dissolved through non-compliance by the ruler with his
obligations under the agreement.
Yet, this does not imply that the individual subject has a right to
resist the ruler through the use of - force. If a ruler claims to act
"under a plea of right" - that is, if he maintains that he is punishing
a citizen for a breach of law - and it is impossible to flee, one has
no right to defend oneself. According to Pufendorf, in such cases "a
man should be killed rather than kill."340 The reason for this is that
using violence against the sovereign under such circumstances would
threaten the whole commonwealth with "grave tumults",341
335Ibid. 336Ibid. 337Eg by disgracing an honourable man, denying a promised reward or debt,
etc. Ibid. 338Id 7.8.5. 339Ibid. 340Ibid. 341Ibid.
Only under the most extreme circumstances can violent revolution be
justified. Should a prince
assume a mind utterly hostile towards his subjects, and openly seek their destruction without the pretext of a cause which has at least the appearance of justice, his subjects can rightly employ against him also the means customarily used against an enemy, for the sake of defending their own safety."342
If he acts against individuals like an enemy, the same principle
applies.343 Pufendorf hastened to add, however, that "it is scarcely
possible for it to happen that a prince should assume such a mind
towards the whole people."344
Pufendorf further argued that, even if there were cases in which it was
not wrong for some one citizen to defend his safety by force against the most open injuries of a superior, yet it will not be allowable for the rest of the citizen on that account to drop their obedience and protect the innocent person by force. [A]n injury done to on citizen in no wise releases all the rest from their obligation towards their prince. The reason for this is that each citizen bargains originally on his own behalf for the prince’s care and protection, and doe not lay down as a condition of his subjection, that he will treat each and every other citizen justly.345
The above applies to sovereign rulers. Like Grotius, Pufendorf
recognised a far-reaching right of resistance against those "who bear
the name of king but are in fact subject to the power of the people".
Pufendorf did not state dearly under what circumstances this right
could be exercised, but stated explicitly that the citizens could, if
necessary, oppose him with force.346
There is no obligation to obey usurpers or "unlawful invaders of
sovereignty". Necessity might require compliance with such a person's
rule, but someone who does that "is not chargeable with a fault in case
he throws off that unjust necessity".347 In practice, however, the need
for order might preclude active resistance.348
342Pufendorf The elements of universal jurisprudence 2.5.22. 343Ibid. 344Ibid. 345Pufendorf On the law of nature and nations 7.8.5. 346Id 7.8.8. 347Id 7.8.9. 348Id 7.8.10.
Consequently, Pufendorf’s views may also be seen as extremely cautious
as far as the recognition of a right of resistance is concerned. He
advanced two reasons for his conservative approach to resistance.
Citizens, on their part, do not always obey their ruler; and violent
resistance often leads to "the great slaughter of citizens".349
Nevertheless, he contributed towards the development of the idea that
political resistance can be justified in terms of natural law and a
right of self-defence.
R. JOHN LOCKE
The Englishman, John Locke (1632-1704),350 is commonly regarded as the
father of modern liberalism, and one of the most influential figures in
the emergence of contemporary democracies. His influence nowhere
appears more clearly than in the foundation of the American system of
government. The Declaration of Independence of 1776, both in language
and in underlying philosophy, is purely Lockian, as are the main
features of the American constitution: limited government based on the
consent of the people, and the recognition of inalienable individual
rights. In its turn, the United States constitution, the first to give
extensive recognition to the ideas of liberty, especially in its Bill
of Rights, had an immense influence on the promotion in the world of
liberal and egalitarian ideals.
Locke’s most important work on political philosophy. Two treatises of
government351 (first published in 1690), written largely while he was in
self-imposed exile in liberal Holland, was aimed against despotism and
sought to justify the overthrow by revolution of repressive regimes.352
349Id 7.8.5. 350For a discussion of Locke's political philosophy, see Ebenstein Great
political thinkers 401ff; Strauss & Cropsey History of political philosophy 451ff; Hoffding A history of modern philosophy vol 1 377ff; Vorländer Geschiedenis van de wijsoegeerte vol 3 109; Laslett's introduction in Locke Two treatises of government ixff and Van Eikema Hommes Major trends in the history of legal philosophy 133ff. His approach to legal and political obligation is discussed by Macfarlane Modern political theory 98.
351The second book, often published separately and called the "Second treatise" or "Of civil government", contains the roost crucial exposition of Locke's thought on natural rights and political obligation.
352See the discussion by Sumid "The right to revolution" 1n McDougal & Reisman International law in contemporary perspective 167 at 168 and Villa-Vicencio Civil disobedience and beyond 72. Contra Van der Vyver Contours of
Written several years before the "Glorious" or "Bloodless" revolution
of 1688, it was published only after that event. It provided the
intellectual justification for the transition from royal absolutism
under the Stuart Dynasty to a constitutional monarchy under William of
Orange in which parliament would be supreme. Locke substituted the
principle of consent of the governed as the ultimate source and
delimitation of political power for the concept of the divine right of
kings.
The point of departure for Locke - as for Hobbes - was the state of
nature where there was no civil government.353 A "state of nature" can
manifest itself in a variety of ways: it can exist before a civil
government is formed in a particular region, it can exist between
states, or after a government has been formed to the extent to which
that government is ineffective (for example where one encounters a
robber on a deserted road), or insofar as government has degenerated
into lawlessness.
In the state of nature everyone is free and is bound only by his own
consent.354 For Hobbes, the absence of government implied the absence of
any law and an ongoing struggle for survival. In the state of nature,
said Hobbes, there is no law of nature. Locke, on the other hand,
maintained that the law of nature applied in the state of nature.
Reason - the law of nature - taught human beings that, as equal and
independent persons, "no one ought to harm another in his life, health,
liberty, or possessions."355 It is in the self-interest of every
individual to accept as a basic rule that these interests of everyone
must be protected. They are inalienable natural rights which, if
violated, may be avenged by anyone, not only the injured party.356
In the state of nature, the law of nature depends for its execution on
the protection by each person of his own interests. This will obviously
give rise to problems. Because each person is a judge in his own case,
his reason might be clouded, and even if he rightfully claims to have
the kingdom May, June 1979 6 at 7 and Van Zy1 & Van der Vyver Inleiding tot die regswetenskap 163. See also Van der Vyver Die juridiese sin van die leerstuk van menseregte vol 1 165ff.
353Locke Two treatises of government 2.1.4. 354Id 2.11.119. 355Id 2.2.6. 356Id 2.2.6 & 2.2.8.
been wronged, there is no guarantee that he will be strong enough to
survive.357 The interests of all involved are unsafe and insecure
because three conditions necessary for their preservation are absent:
an "establish’d, settled, known law";358 a "known and indifferent judge,
with authority to determine all differences according to the
established law";359 and "the power to back and support the sentence
when right, and to give it due execution".360 The "inalienable" rights
can therefore in practice be alienated.
To remedy these defects of the state of nature and to protect each
person’s inalienable rights (collectively called "property" by Locks361)
and because of natural human social instincts,362 rational human beings,
either explicitly or tacitly,363 enter into a contract with each other
to form a society which - is governed by law.364 Political or civil
society is set up to remove the uncertainties of the state of nature by
establishing a legal system which is to be openly, impartially and
effectively administered.365
Most important for our purposes is to note that control over those
areas covered by the basic human rights are, however, not transferred
to the state by those who participate in the social contract. "And this
judgement they cannot part with, it being out of a man's power so to
submit himself to another, as to give him a liberty to destroy him."366
In short: the state is created to ensure that inalienable rights are
indeed not alienated to those rights itself.
Locke therefore saw the state as an instrument of the people, devised
to serve a specific function, namely the protection of their most basic
rights. This view has far-reaching consequences; the most important
357Id 2.2.13. 358Id 2.9.124. (Original emphasis omitted.) 359Id 2.9.125. (Original emphasis omitted.) 360Id 2.9.126. (Original emphasis omitted.) 361Id 2.3.25; 2.3.51 & 2.9.123. 362Id 1.7.77. 363Id 2.8.110. 364Id 2.8.95. 365Id 2.9.127. 366Id 2.14.168.
being that the people and not the state are viewed as supreme. Even
though the people enter into an original contract to set up a state
(and we will return to the terms of this contract shortly) no contract
is concluded with the state. Instead the state is set up in the form of
a fiduciary trust, of which the people are both the trustor and the
beneficiary.367 The trustee has obligations only and no rights, and if
these obligations are not properly executed the trust can be revoked by
the people, who can then appoint a new trustee. Within the structure of
the state, the legislature is superior to the executive, because the
legislature represents the popular will of the people. However, the
ultimate source of legitimacy, and consequently of political obedience,
remains the consent of the governed.368
Neither Hobbes nor Locke, consequently, maintained that government
derived its powers from a contract with society, but their reasons for
this were very different. A contract implies rights and duties on both’
sides. For Hobbes, the absence of such a contract implied that people
do not have rights against the government and that the government has
no duties. For Locke, the absence of a contract implied that people do
not have duties and that the government has no rights against the
people.
The theory of the divine right of kings placed the ruler above the
subjects; the social contract placed them on an equal level; Locke’s
notion of the state as trustee placed the people above the state. To
him, the state was a mere servant of the people.369 Government finds
law, to which itself is subjected - it does not create law.
As pointed out earlier, there is a certain continuity between the views
of Hobbes and Locke. Hobbes saw the pursuit of life by the subject as
an inalienable right, while Locke extended that right to include the
pursuit of not only life but also of the much wider concept of liberty.
As a result of this difference, however, Locke had a perception of
political resistance which was qualitatively different from that of
Hobbes.
To Locke, an absolute monarchy was "no form of civil government at
all", because it entails the use of force without authority, as was the
367Id 2.11.142. 368Id 2.13.149. 369Ebenstein Great political thinkers 396.
case in the state of nature. It is in fact worse than the state of
nature, because in the state of nature everyone was at least the judge
in his own case, whereas in an absolute monarchy only one person, the
king, has that prerogative over everybody else. 370
Locke emphatically recognised a right of revolt against a despotic
ruler. In a famous passage he stated:
[W]henever the legislators endeavour to take away, and destroy the property [ie the natural rights] of the people, or to reduce them to slavery under arbitrary power, they put themselves into a state of war with the people, who are thereupon absolved from any farther obedience, and are left to the common refuge, which God hath provided for all men, against force and violence. Whensoever therefore the legislative shall transgress this fundamental rule of society; and ... endeavour to grasp ... absolute power over the lives, liberties, and estates of the people; by this breach of trust they forfeit the power, the people had put in their hands, for quite contrary ends, and it devolves to the people, who have a right to resume their original liberty, and, by the establishment of a new legislative ... provide for their own safety and security, which is the end for which they are in society.371
In such a case, violence may be used: "Force is to be opposed to ...
unjust and unlawful force."372
One reason for the existence of such a right, alluded to above, is the
fact that a tyrannical government does not act as a trustee and
consequently has no authority. Any government which breaks the law acts
ultra vires and may for that reason be opposed: "He that hath authority
to seize my person in the street, may be opposed as if he as a thief
and a robber, if he breaks into my house to execute a writ."373
Ordinary citizens also have a right of self-defence against a despot,
which is a part of the law of nature.374 "Whosoever uses force without
right ... puts himself into a state of war with those, against whom he
so uses it, and in that state a11 former ties are cancelled ... and
every one has a right to defend himself, and to resist the
370Locke Two treatises of government 2.7.90. 371Id 2.19.222. (Original emphasis omitted.) 372Id 2.19.204. (Original emphasis omitted.) 373Id 18.202. 374Id, where Locke Quoted Barclay to this effect.
aggressor."375 The people must decide whether or not to bring the rule
of a tyrant to an end.376
Anticipating charges that the "unsteady opinion" of the people will
lead to unduly frequent rebellion, Locke argued that his approach would
not invite anarchy and revolution any more than other views of
political obligation.377 People by nature do not easily engage in
revolution, and revolution "happen not upon every little mismanagement
in public affairs".378 At the same time, no divine or theoretical
foundation can prevent revolution when people are "made miserable" and
are ill-treated.379 The human drive towards freedom is simply too
strong. To provide people with the opportunity of changing the
government peacefully when they so wish is indeed "the best defence
against rebellion".380
In Locke, then, we find a major watershed in the way in which political
and legal obligation was perceived. Justice was no longer regarded
merely as an ideal of which the non-realisation should be lamented,
while nothing could be done about it. Justice and more particularly
natural rights was now intricately associated with a right of
resistance, which meant that its pursuit was not only left in the
hands of the state, but it was also the prerogative of the people.
Natural law would no longer merely justify the existence of the state:
it would also be seen as the basis of the rights of the people against
the state, including, where necessary, their right to resist. While
Augustine maintained that an unjust law was no law at all, and could be
disobeyed passively, Locke recognised a right actively to resist an
entire governmental structure. Locke’s ideas would, however, take some
time to be incorporated into mainstream jurisprudence.
S. ULRICH HUBER
A prominent figure in the discussions about the Dutch Revolt was the
Frisian jurist Ulrich Huber (1636-1694), who espoused views similar to
375Id 2.19.232. 376Id 2.19.240. 377Id 2.19.223. 378Id 2.19.225. (Original emphasis omitted.) 379Id 2.19.224. 380Id 2.19.226. (Original emphasis omitted)
those of Hobbes. In a debate with Jacob Perizonius, Huber argued that
the transfer of power by the people was absolute and indivisible and
could never be revoked. The Dutch Revolt, in his view, consequently
replaced the absolute rule of Philip II with the absolute rule of the
aristocracy.381
T. GERARD NOODT
The Dutch humanist, Gerard Noodt (1647-1725), entered the debate
concerning the real implications of the lex regia, also as far as the
Netherlands was concerned, when he delivered his first rectorial
address at Leiden in 1699. It was an intellectual defence of the Dutch
Revolt, much along the lines of Locke’s defence of the Glorious
Revolution. In this address, Noodt argued that a careful analysis of
the lex regia would reveal that it never granted the ruler unqualified
sovereign power. Instead, it enumerated a series of precisely defined
matters that were placed under his control, but which could be revoked
whenever the ruler became a tyrant.382
Natural law also limits the power of the ruler. Rulers are not
instituted by nature and can be deposed if they destroy the people.
Noodt rejected Ulpian’s adage princeps legibus solutus est. According
to Noodt, this maxim was contrary to reason and was in conflict with
other texts of Ulpian. Noodt pointed out that the lex regia explicitly
subordinated the Emperor to those laws which bound his predecessors.383
Noodt’s address received international fame after its translation from
Dutch into French (1707) and English (1708), and was one of the
Important intellectual sources of the rising idea of sovereignty of the
people in the Europe of the Eighteenth Century.384
U. CHRISTIAN WOLFF
Christian Wolff (1679-1754) was deeply influenced by the natural law
approach of Pufendorf. He dominated the German intellectual world
during the greater part of the Eighteenth Century and is today widely
381On Huber, see id 82ff and Van den Bergh The Life and work of Gerald Noodt 193.
3820n Noodt's contribution in this regard, see Van den Bergh The life and work of Gerard Noodt.
383Id 202. 384Van den Bergh argued that the importance of Noodt's contribution should
be ranked equal to that of Locke. Id 198.
regarded as one of the founders of modern natural law ideas.385
According to Wolff, by nature all persons are equal and all have
certain innate rights. By nature, no one has the right to dominate over
the actions of others. Civil society involves the subordination of the
individual by a ruling will, and it can therefore only be founded on
an express or tacit contract. Only in pursuit of the common welfare
(procuring the means of subsistence and ensuring internal and external
security) may liberty be curtailed. The ultimate source of governmental
authority and of legal obligation is the consent of the citizens.386
Wolff insisted that there was not a duty of obedience to the government
when it demanded anything that contradicted the laws of nature or
imposed obligations that would violate the fundamental laws of human
society. He also recognised an extensive right of resistance that could
be exercised whenever government encroached upon the rights expressly
reserved by the constitution for the people or for certain classes of
the people. The constitution is the fundamental law and Wolff
maintained that the government has no right to command its subjects to
act contrary to fundamental laws.387
In spite of these liberal points of departure, Wolff "made concessions
to the spirit of his times" by claiming that wherever absolutist forms
of government prevail, people have voluntarily renounced their power.388
A number of authors have described Wolff's approach as inherently
contradictory, because of his simultaneous adherence to state
absolutism and the doctrine of human rights.389
V. JEAN-JACQUES ROUSSEAU
The major political event, of the Eighteenth Century, which to a large
extent shaped the modern world, was the French Revolution of 1789. The
intellectual environment in which the Revolution could take place was
385See Nippold's "Introduction" in Wolff The law of nations vo1 2 xi. See also Van der Vyver Die juridiese sin van die leerstuk van menseregte vo1 1 333.
386Wolff The law of nations vol 2 xxxi. 387See Wolff Institutiones luris naturae et gentium par 1079 and Wolff Ius
naturae 8 6 1091-7. 388Id xxxiii. 389See eg Van der Vyver Die juridiese sin van die leerstuk van menseregte
vol 1 340.
to a considerable degree shaped by Jean-Jacques Rousseau (1712-1778).390
Rousseau set out his political ideas in "A discourse on the moral
effects of the arts and the sciences" (1751);391 "A discourse on the
origin of inequality" (1755);392 "A discourse on political economy"
(1775)393 and his most famous work, "The social contract" (1762).394
The first two discourses mentioned above were primarily devoted to an
attack on what Rousseau regarded as the lamentable conditions of modern
civilization. Civilization had developed into a hopeless race to
discover remedies for the evils it produced. Private property resulted
in an unnatural inequality between the rich or powerful, and the poor
who are locked into servitude. Rousseau saw modern man as being totally
alienated from his own nature. Rousseau substituted the simple passions
of natural life for the rationalism and materialism of the Age of
Reason. He exalted freedom of the human being in nature. People
dominate and exploit each other through inequality, which finds its
extreme form in despotism.
In "The social contract", Rousseau developed what he regarded as a more
satisfactory account of how the relationship between the state and the
individual should be regulated. The central issue addressed in that
work, was political obligation. How can citizenship and individual
freedom be reconciled: "Man is born free; and everywhere he is in
chains."395 As he put it: "The problem is to find a form of
association which will defend and protect with the whole common force
the person and goods of each associate, and in which each, while
390On his philosophy in general, see Höffding A history of modern philosophy vo1 1 485ff and Vorlander Geschieden1s van de wijsbegeerte vol 3 l59ff. On Rousseau's political philosophy, see Masters The political philosophy of Rousseau; Ebenstein Great political thinkers 438ff; Strauss & Cropsey History of political philosophy 532ff and Cole's introduction in Rousseau The social contract and discourses viiff. On his legal philosophy, see Van der Vyver Die juridiese sin van die leerstuk van reenseregte 251 and Van Eikema Hommes Major trends in the history of legal philosophy 157ff. His approach to legal and political obligation is discussed in Macfarlane Modern political theory 106.
391Reprinted in Rousseau The social contract and discourses 125ff. 392Id 155ff. 393Id 247ff. 394Id 1ff. 395Rousseau "The social contract" 1.1.
uniting himself with all, may still obey himself alone, and remain as
free as before."396
Rousseau, therefore, rejected the notion of rule by the strongest.
Under such a system he held that "[a]s soon as it is possible to
disobey with impunity, disobedience is legitimate; and, the strongest
being always in the right, the only thing that matters is to act so as
to become the strongest."397 Consequently, "(l]et us then admit that
force does not create right, and that we are obliged to obey only
legitimate powers."398
The only solution against government by force is the use of force:
A popular insurrection that ends in the death or deposition of a sultan is as lawful an act as those by which he disposed, the day before, of the lives and fortunes of his subjects. As he was maintained by force alone, it is force alone that overthrows him. Thus everything takes place according to the natural order.399
How, then, would a society be composed in which the maximum individual
freedom is preserved? That would be the case if people are only bound
by laws to which they themselves have consented. We must therefore ask
what sort of arrangement people in the state of nature would accept.
The reason why humans cannot live in the state of nature is that, while
the person who pursues his own self-interest in a state of nature is
basically good, he eventually finds his self-interest to be in conflict
with that of others to the extent that he cannot preserve himself
against their combined efforts. He then enters into a social contract
to obtain security while maintaining liberty.400
This, however, can occur only if the individual surrenders himself
totally to the group. The terms of Rousseau's social contract involve
"the total alienation of each associate, together with all his rights,
to the whole community".401 This means that each individual places
396Id 1.6. 397Id 1.3. 398Ibid. 399See Rousseau "A discourse on the origin of inequality", reprinted in
Rousseau The social contract and discourses 155 at 236. 400Id 1.6. 401Ibid.
himself under "the supreme direction of the general will".402 People
thus do not surrender themselves to the state but to all other
citizens. Rousseau's commitment to liberty led him to demand direct
popular rule in which "each man, in giving himself to all, gives
himself to nobody ... he gains an equivalent for everything he loses,
and an increase of force for the preservation of what he has."403
True freedom is not to be found in the state of nature, because under
it one is enslaved by uncontrolled appetites. In contract, in the
civil state, one can acquire moral liberty, which makes one master of
oneself, because one then submits to a law which one prescribes to
oneself. Self-imposed law is legitimate law. Rousseau rejected
representative democracy, and held that people could be bound only to
laws in the formation of which they had participated directly.
Central to Rousseau's thinking, is the concept of the "general will",
which aims at the general good and comes from all and applies to all.
It is more than the sum of the wills of the individuals concerned - it
is that which, all things considered, best serves the common interest.
However, once a state has been established, one cannot obey the law
selectively. "The citizen gives his consent to all the laws, including
those which are passed in spite of his opposition, and even those which
punish him when he dares to break any one of them."404 According to
Rousseau "whoever refuses to obey the general win shall be compelled to
do so by the whole body. This means nothing less than that he will be
forced to be free:"405 Whereas Kant would demand total obedience to the
moral law, Rousseau demanded total obedience to the "general will".
The demands of the general will can be far-reaching. At the end of the
final version of "The social contract", Rousseau inserted a section on
"civil religion".406 He believed that the state should banish as "anti-
social" anyone who does not believe in a number of "social sentiments
without which a man cannot be a good citizen or a faithful subject,"
such as
402Ibid. (Original emphasis omitted.) 403Id 1.6. 404Id 4.2. 405Id. 1.7. 406Id 4.8.
[t]he existence of a mighty, intelligent and beneficent divinity, possessed of foresight and providence, the life to come, the happiness of the just, the punishment of the wicked, the sanctity of the social contract and the laws: These are its positive dogmas. Its negative dogmas I confine in one, intolerance, which is a part of the cults we have rejected.407
Rousseau rejected the instrumentalist view of the state as propounded
by Hobbes and Locke, and revived the organic theory of the state of
Plato and Aristotle. Before Rousseau, political philosophers
concentrated either on the aim of good government (Plato and Aristotle)
or self - government (Locke). Rousseau, through the concept of the
"general will", attempted to synthesise good government and self-
government.408
The concept of the "general will" has been subjected to severe
criticism. Because of the total surrender of the individual to the
group - of individualism to collectivism Rousseau has been held
responsible for dictatorships and tyrannies, ranging from the excesses
of the Jacobines to the Bolshevist doctrines of this Century.409
It seems fair to say that, according to Rousseau, fundamental rights
could not be surrendered to the state, but it could be surrendered to
the group. His ideas can consequently be used to justify only a limited
form of anti-exploitation civil disobedience - only civil disobedience
by the majority against a minority government (as in the Defiance
Campaign in South Africa) but not by a minority against a majority (as
in the Civil Rights Movement in the United States) would be
permissible.
W. WILLIAM BLACKSTONE
The liberal ideas of Locke were embraced and popularised by William
Blackstone (1723-1780),410 in his Commentaries on the laws of England
(1765-1770). Although his natural law approach was vigorously attacked
by Bentham in his Fragment on government, and was described by others
as shallow, it proved to be highly influential in England, the United
407Ibid. 408Ebenstein Great political thinkers 448. 409See Duguit Sovereignty and liberty 135. 410For a discussion of his political philosophy, see the introduction of G
Jones in Blackstone The sovereignty of the law ix and Van der Vyver Die juridiese sin van die leerstuk van menseregte vol 1 342ff.
States and on the European continent. In respect of the right of
resistance, however, Blackstone's approach is far from consistent.
Proceeding from a natural law position, Blackstone proclaimed the
rights of human beings in ringing terms. He maintained that individuals
"merely as individuals or single persons" had absolute rights, which
"would belong to their persons merely in a state of nature, and which
every man is entitled to enjoy, whether out of society or in it."411 He
proceeded: "This natural liberty consists properly in acting as one
thinks fit, without any restraint or control, unless by the law of
nature; being a right inherent in us by birth."412
In accordance with his view that the law of nature "is of course
superior in obligation to any other", Blackstone endorsed a right of
political resistance against a corrupt ruler.413 One has a right to
vindicate one's rights when they are "violated or attacked". He
recognised "the natural right of resistance and self-preservation, when
the sanctions of society and laws are found insufficient to restrain
the violence of oppression".414 In order to be able to meet such
eventualities, English subjects have "the right of having and using
arms for self-preservation and defence".415 When James II "invaded the
fundamental constitution of the realm", natural law prevailed over
positive law and "the convention declared an abdication, whereby the
throne was rendered vacant, which induced a new settlement of the
crown."416
At the same time, however, Blackstone also defended an absolutist
position in respect of political obligation on the basis of the
hypothetical social contract. He maintained that government must be "a
supreme, irresistible, absolute, uncontrolled authority, in which the
jura summi imperil, or the rights of sovereignty, reside[s]".417
Moreover, "society cannot be maintained ... without obedience to some
foreign power: and obedience is an empty name, if every individual has
411Blackstone Commentaries on the laws of England 1.1. 412Ibid. 413Id intro s 1. 414Id 1.1. 415Ibid. 416Id 1.7. 417Id intro s 2.
a right to decide how far he himself shall obey."418
The above contradictions have led commentators to observe that
Blackstone's ideas about natural law could not be reconciled with his
absolutist tendencies.419
X. IMMANUEL KANT
Immanuel Kant (1724-1804) is widely considered to be a proponent of the
natural law approach, and is regarded as one of the fathers of
liberalism and the notion of the Rechtsstaat. He was seen by many,
including no one less than Karl Marx, as the philosophical champion of
the American and French Revolutions.420 He asserted the inviolability of
the individual and placed the issue of human freedom squarely on the
agenda of the modern world.
Most famous in this regard are the following formulations of Kant's
categorical imperative: "Handle nur nach derjenigen Maxime, durch die
du zugleich wollen kannst, dass sie ein allgemeines Gesetz werde"421 and
"Handle so, dass du die Menschheit, sowohl in deiner Person, als in der
Person eines jeden Andern, jederzeit zugleich als Zweck, niemals bloss
als Mittel brauchst."422
To a large extent Kantian ethics, and more specifically its requirement
of non-exploitation of the individual, constitutes the philosophical
basis of the modern recognition of fundamental human rights. At the
same time, however, Kant denied the existence of a right to resist any
sovereign, irrespective of how just or unjust its commands are.423 Can
these two propositions be reconciled, and if so, how?
A brief survey of some aspects of Kant's philosophical notions in
general would be required for an understanding of his views on
political obligation. Kant distinguished the world of theoretical
reason - the Sein of nature - and the world of practical reason - the
Sollen of freedom. At the height of the Enlightenment, the question was
418Id 1.7. 419See G Jones in Blackstone The sovereignty of the law xxxviii. 420See Reiss Journal of the History of Ideas 1956 179 at 179. 421Kant "Grundlegung zur Metaphysik der Sitten", reprinted in Sämmitliche
Werke vol 5 269. 422Id 227. 423See Williams Kant's political philosophy 198ff.
how can these two worlds co-exist without destroying each other? How
could the determinism of natural science be reconciled with the
autonomy required by morality?
Turning first to nature, Kant brought about, what he called, a
"Copernican revolution", by insisting that the laws of nature do not
reside in the reality outside us, but that they are founded in the
synthesis of sensual experience and our categories of understanding.
Nature does not prescribe its laws to human understanding - instead,
understanding is nature's law-giver.424 At the same time, however, the
categories of understanding can only apply to the reality as revealed
by the senses. The mathematical method could not be used to penetrate
the realm of metaphysics, the world of the Dina an sich or the
unconditioned.425
This approach, on the one hand, safeguarded the foundations of
classical natural science against the scepticism of empirists such as
David Hume. On the other hand, Kant also rescued the human soul from
the encroaching determinism of the natural sciences. Kant regarded
autonomy and freedom, and not scientific achievement, as the essence of
human existence.426
What, then, does truly autonomous, moral action entail? Only by being
motivated entirely by respect for the moral law itself can one act
morally, not by acting for the sake of empirical motives (to achieve or
to avoid pleasure, pain, etc). The nature of the moral law is
consequently categorical (or deontological) and not hypothetical
(consequentialist or conditioned). True freedom lies in obedience to
the moral law.
The contents of moral legislation is given to us as a fact of pure
reason, of which we have an a priori awareness. It is constituted of
rules of conduct or maxims which may be elevated to the status of
universally valid legislation for all of mankind.
Logic demands the absence of contradiction. The principle that one
should never make a false promise can be universalised without
contradiction; however, the principle that in emergencies one can make
424See Kant Critique of pure reason 12. 425Id 13ff. 426Id 16.
promises without intending to keep them cannot be universalised,
because in such a case all faith in promises win be destroyed. "Thus my
maxim would necessarily destroy itself as soon as it was made a
universal law."427 Consequently, the first principle is a rule of the
universal moral law, the second not.
Reason indicates to people that only by forming a civil society can we
escape the insecurity of the state of nature, can justice be
established in human relationships and can individuals enjoy freedom.
Individual judgment has to be suspended and transformed to the state,
which must then on our behalf make laws. In this regard, Kant used the
fictional notion of the social contract to explain the existence - and
necessity - of the state. Because reason dictates the necessity of the
state, and the state cannot survive if it is not obeyed, the moral law
demands obedience to the laws of the state, whatever the contents of
these laws might be.428
It would, of course, be best if the law-giver modelled the positive law
on the rational or moral law. However, as Kant readily acknowledged, in
practice that does not always happen. However, in respect of positive
law, the law of reason has a regulative and not a constitutive
function. Even if positive law conflicts with rational law, it remains
law and must be obeyed. Kant restated Romans 13 as follows: "It is a
duty to obey the law of the existing legislative power, be its origin
what it may."429
The essence of Kant's argument against a right of resistance turns on a
point of logic. Sovereignty is indivisible. The sovereign is he who
judges and coerces, and if the sovereign is judged or coerced by the
citizen, it is no longer the sovereign. The law cannot outlaw itself,
and can consequently not allow resistance.430 Just as it would undermine
the worth of a promise if it can be made with no intention to keep it
in an emergency, so too would it undermine the sovereignty of the state
if one were to be allowed to disobey the state when its laws are
427Id 64. 428See also Van Eikema Hommes Major trends in the history of legal
philosophy 170. 429See Kant The philosophy of law 175. 430For a discussion of this argument as advanced in respect of, what was
called, legality-based civil disobedience, see supra chap two I A.
considered repressive. Kant, in fact, believed that tyranny cannot
last, but while waiting for it to come to an end, one shows greater
respect for human dignity by obeying than by resisting, because the
latter always brings about greater suffering.431
Hence it follows that the supreme power in the state has only rights,
and no (compulsory) duties towards the subject.
Further, if the ruler or regent, as the organ of the supreme power, proceeds in violation of the laws, as in imposing taxes, recruiting soldiers, and so on, contrary to the law of equality in the distribution of the political burdens, the subject may oppose complaints and objections (gravamina) to this injustice, but not active resistance.
There cannot even be an article contained in the political constitution that would make it possible for a power in the state, in case of the transgression of the constitutional taws by the supreme authority, to resist or even to restrict it in so doing. For, whoever would restrict the supreme power of the state must have more, or at least equal power as compared with the power that is so restricted; and if competent to command the subjects to resist, such a one would also have to be able to protect them, and if he is to be considered capable of judging what is right in every case, he may also publicly order resistance. But such a one, and not the actual authority, would then be the supreme power; which is contradictory.432
At the same time, however, it should be noted that, according to Kant,
if the authorities command something which is directly in opposition to
the moral law, it should not be obeyed.433 Disobedience in order to
avoid acting unjustly should not be regarded as illegitimate, because
it is not regarded as a manifestation of resistance. There cannot be a
categorical imperative which compels one to break another categorical
imperative.434 In other words, integrity-based, defensive disobedience
is acceptable, but not any form of result-oriented resistance.
Kant's approach to the right to resist revealed him to be even further
removed from the natural lawyers than most positivists, who at least
recognised a moral right of resistance, although they denied the
existence of such a legal right. Kant denied the existence of both a
legal and a moral right, and in this sense he can be regarded as an
431See Reiss Journal of the History of Ideas 1956 179 at 190 432Kant The philosophy of law 175. (Original emphasis.) 433See Schwartz Ethics 1963 126 at 130. 434See Nicholson Ethics 1976 214 at 218.
absolutist. However, despite Kant's conservative views in respect of
resistance, his insistence on the non-exploitation of the individual
would inspire much of the modern human rights ethos, and consequently
also much of the modern recognition of the right of resistance,
Y. JEREMY BENTHAM
In spite of all the problems nowadays associated with utilitarianism,435
there can be no doubt that it, through its stress on the importance of
the common good as opposed to the good of a small elite at the top of a
hierarchy, and through its emphasis on the value of real facts as
opposed to metaphysical speculations, had a liberating influence on
Western civilization.
The Londoner, Jeremy Bentham (1748-1832 ),436 is the most prominent
figure in the utilitarian tradition. Bentham's philosophy developed
naturally from the opening lines of An introduction to the principles
of morals and legislation (first printed in 1780 and published in
1789): "Nature has placed mankind under the governance of two sovereign
masters, pain and pleasure."437
Like other utilitarians, Bentham saw political obligation in terms of
this basic philosophical premise. Whether such an obligation exists,
has to be established in terms of the "principle of utility", which
Bentham regarded as the fundamental directive of moral and political
science. "By the principle of utility is meant that principle which
approves or disapproves of every action whatsoever, according to the
tendency which it appears to have to augment or diminish the happiness
of the party whose interest is in question."438
Bentham popularised Hutchinson's phrase, "the greatest happiness for
the greatest number", and took that as the ultimate measure of worth,
of right and of wrong. The guiding star for the legislature in framing
legislation should be the question how effective that legislation would
435See infra chap five I EE 2. 436For a general discussion of Bentham's political philosophy, see
Ebenstein Great political thinkers 505ff and Strauss & Cropsey History of political philosophy 679ff. On Bentham's theory of legal obligation, see Hart Essays on Bentham 127ff.
437Bentham An introduction to the principles of morals and legislation 1.1. (Original emphasis omitted.)
438Id 1.2.
be in promoting happiness, and the question as to what extent that
legislation should be obeyed or disobeyed should be answered on the
same basis.
In A fragment on government (1776), Bentham attacked the hypothetical
contract theory as advanced by Blackstone as a philosophical
explanation for political obligation.439 To Bentham, the difference
between a political society and a natural society lay in psychology,
not in a fictitious social contract. In the one society, according to
Bentham, exists a "habit of obedience", in the other not.440 Whether
such a habit should be followed in any particular case, does not depend
on fictitious ideas like natural law or concepts of justice. He
declared that the "season of fiction is now over".441 Subjects should
obey, he argued, "so long as the probable mischiefs of obedience are
less than the probable mischiefs of resistance"442 and it is the duty of
subjects to obey "just as long as it is in their interest, and no
longer".443
Bentham described immoral action as a miscalculation of self-interest.
However, he saw self-interest in a very broad sense which could also
incorporate concerns for the interests of others.444 It can perhaps be
said that to him morality was simply long-term rationality, taking into
account all the interests of the person concerned - including her
feelings for other people.
Although Bentham recognised the value of a "habit of obedience", he did
not exclude the possibility or acceptability of any form of resistance
if that were to be in a person's best interest.
Z. GEORG W F HEGEL
Reference was made earlier to the German philosopher, Georg Wilhelm
Frederich Hegel (1770-1831).445 His dialectical approach is well known.
439Bentham A fragment on government 1.1 & 2. 440Id 1.12-14. 441Id 1.37. (Original emphasis omitted.) 442Id 1.43. (Original emphasis omitted.) 443Ibid. (Original emphasis omitted.) 444See Bentham "Deontology", reprinted in Bentham The collected works of
Jeremy Bentham 121. 445See, for a general discussion, Strauss & Cropsey History of political
According to him, all progress is the result of opposition and
contradiction of ideas. Every thesis posits its own antithesis, without
entirely abandoning its own nature. There then occurs an aufheben of
both - a "lifting up" - and a more complete synthesis, which
constitutes a new thesis, is created. Tension and conflict therefore
underlie the development of human history.446
Given the above, Hegel's view that the contradiction of law - including
its violation - is a necessary vehicle of social progress follows
naturally.447 In spite of his conservative views on the German
constitutional dispensation, Hegel was consequently a philosopher of
revolution.448 To Hegel the French Revolution was the final culmination
of the inner contradiction of the Enlightenment. Despite its
destructive effects, the Revolution was necessary to make room for the
replacement of the and en regime by new structures.449
AA. ANARCHISM
Anarchy, or the absence of government, according to most political
philosophies, is the long-term ideal and the short-term enemy of human
society. Anarchy is the ideal in the opinion of a wide range of
political theorists who contemplated the eventual disappearance of
reasons for the existence of the state - and therefore the
disappearance f the state itself - as the ultimate goal. Both Adam
Smith and Karl Marx envisaged this eventuality. On a different level,
Augustine, Luther and Calvin regarded the state as a consequence of sin
and as a temporary institution. Eventually, in the life hereafter, the
state will become redundant. This approach can be described as Utopian
or long-term anarchism. Its prevalence reveals a widespread sense of
discomfort with coercion, associated with the state and political
power. Democracy will later in this study be defined, in idealistic
philosophy 686ff. 446Hegel Philosophy of right paras 341-360. 447For a fuller discussion, see H Klenner "On the right to revolution: A
German dilemma" in MacCormick & Bankowski Enlightenment, rights and revolution 287 at 294.
448Ibid. 449See Hegel Political writings 40ff. See also Taylor Hegel 418. On the
ambivalence which Hegel felt because of the reign of terror which followed the Revolution, see Prior Revolution and philosophy 4ff and 115ff.
terms, as the absence of repression.
At the same time, political theory for the greater part has as its
prime objective, justification of the state's function of regulating
human affairs, by force if necessary, insofar as utopia remains a
figment of the imagination. In this time-frame anarchy is the worst
possible enemy: it represents failure and heralds doom. To Hobbes and
Locke, it was the "state of nature" where no one can enjoy security and
from which the social contract was designed to rescue human kind. To
the fathers of Christianity, disobedience to political rulers was often
perceived as dangerous and a disposition that would lead to chaos.
Many of the long-term anarchists were consequently very authoritarian
in their short-term approach.
However, there is a group of political commentators who sought the
disappearance of the state, not only in the distant future but
immediately. To them, the state as an institution has no legitimacy.
These theorists, the anarchists, did not, like other political
theorists, reject certain manifestations of governmental authority and
propose alternatives - they rejected political authority as such. They
did not propose a political theory which carefully sets out the
conditions of legitimate resistance by describing what kind of
sovereigns could be resisted: they advocated a general right of
resistance against the state as an institution.
Anarchism in many respects represents extremes in political thinking.
It is at the same time one of the oldest, the most unsuccessful, and
the most persistent political doctrines. Its roots can be traced to the
Chinese Taoists, the Cynics of Greece, the Stoics and to early
Christianity.450
Although anarchism is a wide (and often misunderstood) term, some
features common to anarchistic thought can be identified:451
450On the early history of anarchism, see Bose A history of anarchism. A very useful discussion of the most important proponents of anarchy is contained in Joll The anarchists. For a general overview, see also Carter The political theory of anarchism and Calvert Revolution 85. Extracts from the work of the most important writers in this tradition are contained in Hoffman Anarchism. Apter & Joll Anarchism today studies its contemporary application from a number of perspectives.
451See D T Wieck "Essentials of anarchism", reprinted in Hoffman Anarchism 86 and Carter The political theory of anarchism 13ff
- The state is seen as inherently an instrument of exploitation. It
legitimises oppression. Democratic government simply entails the
oppression of the minority by the majority.
- People do not need the state, because they are basically good
when not corrupted by the state. Voluntary institutions are best
suited to express humankind’s natural social instincts.
- Anarchists, mostly on the basis of an inalienable right to
conscience, do not recognise a moral obligation to obey the law
qua law.452
- Social reforms must be initiated from below by the people and not
from above by the state. The state cannot be expected to
orchestrate its own demise.
Some of the most influential proponents of anarchism will next be
considered.
(1) William Godwin
Although he never used the term "anarchy", the first systematic
anarchist was the Englishman, William Godwin (1756-1836).453 In his most
important work, An enquiry concerning political justice (1793), Godwin
rejected as prejudicial to human progress any institution which gives
one person power over another.
To Godwin there were two evils: government and property. The objective
of both institutions is exploitation. Godwin rejected the idea of an
anarchistic revolution, and believed that the idea of justice will
induce individuals to eliminate the state through a social contract.
Good will eventually triumph through its own inherent power. Godwin had
a boundless faith m the ability of human beings to improve and
eventually to reach perfection.454
Government, by taking decisions on behalf of individuals and forcing
them to obey, deprives these individuals from finding truth and virtue
for themselves. Hence, their actions become worthless. Only in the
absence of external coercion can individual actions mean anything.455
452See in this regard Richards Georgia Law Review 1984 vol 18 771 at 771. 453See Joll The anarchists 31ff and Bose A history of anarchism 78ff. 454See Godwin An enquiry concerning political justice vo1 1 6ff. 455Id vo1 2 77.
(2) Pierre-Joseph Proudhon
In contrast to the radical individualistic anarchism advanced by
someone like Max Stirner, Pierre-Joseph Proudhon (1809-1865)456 proposed
mutualist anarchism, and opened the way for anarchism to become a mass
movement.
To the question "what is property?", Proudhon answered "[i]t is
robbery",457 indicating his opposition to the abuse of property through
its exclusive allocation to some. Proudhon, nevertheless, based his
economic approach on individual possession of the means of production
by peasants and small craftsmen united in a framework of credit
arrangements, who would exchange goods on the basis of labour notes.
(3) Michael Bakunin
The exiled Russian, Michael Bakunin (1814-1876),458 propagated
collectivism although he rejected communism.459 Bakunin and his
followers advocated public ownership of all the means of production,
and regarded the workers as the basic unit of society. He rejected the
role Marx envisaged for the authoritarian state.
In God and the state, Bakunin described religion as the weapon whereby
the state enslaves and annihilates humanity, which must be smashed to
make self-determination possible.460 Bakunin introduced into the
anarchist movement the idea that society could rid itself of the state
through the use of violence only - an element which through the years
would greatly stigmatise anarchism.
(4) Peter Kropotkin
Anarchistic collectivism was largely replaced in Europe during the
1870's by anarchistic communism, as introduced by another exiled
Russian, Prince Peter Alexander Kropotkin (1842-1921).461 Kropotkin,
however, also rejected authoritarian communism, and envisaged a new
456See Jo11 The anarchists 61ff and Bose A history of anarchism 115ff. 457Proudhon What is property 37. 458See Joll The anarchists 84 and Bose A history of anarchism 179ff. 459See his essay "Statism and anarchy", reprinted in Bakunin Bakunin on
anarchy 325. 460Bakunin stated: "[I]f God really existed, it would be necessary to
abolish him." Bakunin God and the state 28. 461See Joll The anarchists 125ff and Bose A history of anarchism 257ff.
society comprised of independent free village communities. Anarchistic
communism differed from collectivism and mutualism on a fundamental
point. According to the latter approaches, the worker had to be
remunerated according to the hours he worked. Anarchist communists
introduced the influential slogan "From each according to his means, to
each according to his needs." They envisaged open warehouses to which
everyone should contribute what they could, and from which anyone could
take what they needed.462
(5) Leo Tolstóy
Whereas most anarchists rejected religion as an impediment to the
emancipation of mankind. Count Leo To1st6y (1828-1910)463 of Russia,
drawing on the early tradition of the Christian church, maintained that
the gospel of Christ demanded the destruction of the state. Tolstoy
rejected any form of patriotism as "an unnatural, irrational, and
harmful feeling, the cause of a great part of the ills from which
mankind is suffering".464
He also rejected communism and the use of violence as a political tool.
The influence of this brand of pacifist anarchism on Gandhi was
referred to earlier.465
In essence, anarchism can consequently be described as a theory of
radical human freedom based on a highly idealistic view of human
nature. It does, however, serve the important goal of highlighting the
coercive nature of the state as an institution, and it keeps the ideal
of full human autonomy and a non-repressive society alive.
BB. MARXISM
Much of the political debate and developments of the Twentieth Century
centred upon communism, which to a greater or lesser extent was
regarded as a revolutionary ideology. Without going into the general
nature of the Marxist thought as initially developed by Karl Marx
(1818-1883) and Friedrich Engels (1820-1895), some fundamental aspects
462Kropotkin's ideal society is set out in his books, Fields, factories and workshops and The conquest of bread.
463See Joll The anarchists 152ff and Hoffman Anarchism 70ff. 464See L Tolstóy "Patriotism and government", reprinted in part in Hoffman
Anarchism 70 at 70. 465See supra chap three III B (2)(a).
of that ideology, which are relevant to the issue of political
obligation, should be noted.466
Marx proceeded from the Hegelian premise of the dialectical development
of society. However, whereas Hegel maintained that ideas or the
"absolute spirit" were the driving force in history, Marx regarded the
"productive forces", the material means of existence, as "the real
foundation, on which rises a legal and political superstructure and to
which correspond definite forms of social consciousness". He went on to
explain that "the mode of production of material life conditions the
social, political and intellectual life process in general. It is not
the consciousness of men that determines their being, but, on the
contrary, their social being that determines their consciousness."467
Human history is the history of class conflict, and in this process law
is used by the bourgeoisie to repress the workers and to protect its
own privileges.468 The key to social change, consequently, lies in
changing the material conditions of living. However, privilege
entrenches and reproduces itself, to the detriment of those who have
nothing, and ultimately the latter group has nothing to lose "but their
chains". Consequently, Marx stated that the communists "openly declare
that their ends can be attained only by the forcible overthrow of all
existing social conditions. Let the ruling classes tremble at a
communistic revolution."469 To Marx, therefore, "[r]evo1utions are the
locomotives of history."470
466For an introduction to Marxist political thinking, see Ebenstein Great political thinkers 689ff and Strauss & Cropsey History of political philosophy 755ff. For a discussion of the Marxist view of political resistance, see Macfarlane Political disobedience 30ff and R C Tucker "The Marxian revolutionary idea" in Friedrich Revolution 217.
467Marx "Preface to A contribution to the critique of political economy" in Marx & Engels Selected works vol 1 327 at 329.
468For extracts from the work of Marx and Engels on the repressive function of law, see Cain & Hunt Marx and Engels on law 165ff.
469See Marx & Engels "Manifesto of the communist party", reprinted in Marx & Engels Selected works vo1 1 21 at 61. See also, in the same work, "The eighteenth brumal re of Louis Bonaparte" at 221 and "The civil war in France" at 429, where the revolutionary nature of communism is discussed. See also Esterhuyse Karl Marx 47ff, 62ff. For Lenin's views on the same topic, see Ebenstein Great political thinkers 749.
470Marx "The class struggles in France 1848-1850" in Marx & Engels Selected works vo1 1 109 at 198. For a discussion of the "theory of
At the same time, it should be noted that, to Marx, it was not
"morality" or even "justice" which made a bloody revolution desirable;
it was the iron laws of history which made it inevitable.471
Although Marxists share the ultimate ideal of Gandhi - a stateless
Utopia - their materialistic and consequently coercive approach placed
them in direct opposition to the essentially moralistic approach of
those who believe that society can be changed through persuason.472
Whereas Gandhi argued - from morals to matter, the Marxists argued from
matter to morals. Consequently, the negative assessment of acts of
civil disobedience as a tool of liberation by Marxist writers should
come as no surprise.473
In essence Marxism presents a radical defence of the right to resist,
on the basis of exploitation in the form of a denial of economic,
social and welfare rights.
CC. THE AGE OF REVOLUTIONS
During the last four centuries, revolutions have had a considerable and
lasting influence on the course of world history and on political
thought. The increased incidence of major revolutions was the result,
most notably, of the liberal insistence on the inalienability of basic
human rights, on the one hand, and the spread of Marxist ideas, on the
other. The earlier notion that all authority was mandated from above
was clearly crumbling.474
Particularly important in the history of the Roman Dutch legal system
Inevitability" of social revolution, see Calvert Revolution 78ff. Macfarlane Political studies 1968 335 at 346ff described the feasibility of resistance activities aimed against Stalinist Russia and Maoist China.
471For a discussion of the views of Marcuse in this regard, see Paust Emory Law Journal 1983 545 at 577.
472Speaking at a public meeting in Amsterdam in 1872, Marx did, however, say: "We know that we must take into consideration the institutions, the habits and customs of different regions, and we do not deny that there are countries like America, England, and - if I knew your Institutions better I would perhaps add Holland - where the workers can attain their objectives by peaceful means. But such is not the case in all other countries." Quoted in Ebenstein Great political thinkers 699.
473See eg Simons Class and colour in South Africa 161, who described the Gandhian campaigns in South Africa as "valuable as methods of political education, [but] ineffective techniques of liberation".
474See Calvert Revolution 67ff.
was the Dutch Revolt. In 1581, during the Eighty Years War (1568-1648),
the Netherlands formally renounced their allegiance to Philip II of
Spain by means of the Act of Ajuration or the Placcaet van Verlatinge,
on the basis that, ultimately, political power was granted - and could
be revoked - by the people (or at least the estates).475 The Placcaet
provided as follows:
A prince is constituted by God to be ruler of a people, to defend them from oppression and violence, as the shepherd his sheep; and whereas God did not create the people slaves to their prince, to obey his commands, whether right or wrong, but rather the prince for the sake of the subjects, to love and support them as a father his children, or a shepherd his flock ... and when he does not behave thus but ... oppresses them, seeking opportunities to infringe their ancient customs, exacting from them slavish compliance, then he is no longer a prince but a tyrant, and they may not only disallow his authority, but legally proceed to the choice of another prince for their defence.476
Much of the political debate in the Netherlands during its golden age -
the Seventeenth Century - centered upon justification of this Revolt,
which, as we saw earlier, highlighted the question concerning the exact
implications of the lex regia.477 The theory of sovereignty was
developed to a high level by writers such as De la Count, Spinoza and
Van der Muelen.478
In global terms the American and French Revolutions deeply affected the
way in which political obligation was seen. After the English civil
wars of the 1640’s, the right to resist was cautiously canvassed by
jurists like Grotius. It was John Locke’s formulation of the right to
resist, however, which came to serve as the principal justification for
the American Revolution of 1776; that is, as a defence of fundamental
human rights against tyranny and oppression. The American Declaration
of Independence stated: "Whenever any form of government becomes
475See Van Zy1 Geskiedenis van die Ronieins-Hollandse reg 296. 476The above is a somewhat shortened translation of the first page of the
Placcaet. There is a reprint of the original in Romein et a1 De Tachtigjarige Oorlog 65.
477This discussion was revived in the Fourteenth Century when a tablet was discovered in Rome, purportedly containing a fragment of the 1ex de imperio given to the Emperor Vespasian at his inauguration. See Van den Bergh The life and work of Gerard Noodt 194.
478See Kossmann Po1itieke theorie in net Zeventiende-eeuwse Nederland 36, 50, 69.
destructive of [the protection of fundamental rights], it is the right
of the people to alter or to abolish it, and to institute new
government."479
This commitment to freedom is deeply embedded in the American psyche.
In his inaugural address in 1861, President Abraham Lincoln said:
This country, with its institutions, belongs to the people who inhabit it. Whenever they shall grow weary of the existing government, they can exercise their constitutional right of amending, or their revolutionary right to dismember or overthrow it.480
The French Revolution of 1789 permanently changed human history, and
was widely regarded as the unequivocal announcement of he age of
democracy.481 Even if it remains controversial, the French Revolution
gave the concept of revolution in pursuit of basic freedoms a glory and
credibility which it retained to a large extent up to this day.482 In
1791, Thomas Paine, in his Rights of man, announced a new age in which
revolutions would for the first time challenge the very foundations of
society.
In 1917, the Bolshevik Revolution put the Communist Party in power in
what became known as the Soviet Union. Many East-European countries
followed suit, and in the-middle of the century, in the early 1990’s,
nearly a third of the world population was under Marxist rule.
Revolutions also served to undo much of the influence of communism in
Eastern Europe.
An act of resistance that failed but which nevertheless gripped the
imagination of the world, was that of the German theologian, Dietrich
Bonhoeffer. He opposed the Nazi regime and was involved in an
assassination attempt on the life of Hitler. Bonhoeffer was arrested
and executed just before the end of the war. This and other attempts to
take the life of Hitler made a lasting impression on the world’s
understanding of the right to resist. The only regret most people felt
in respect of these attempts was that they had failed.483
479Quoted from Hammond "We hold these truths ..." 43. 480Id 206. 481See Tilly et a1 The rebellious century 17ff. 482See Calvert Revolution 75. 483See Villa-Vicencio Civi1 disobedience and beyond 92ff and De Gruchy
The idea that violent revolution could be justified if people were
subjected to sufficiently serious injustices while having no other
recourse, gained sufficiently widespread acceptance after Nazism and
the Second World War to be incorporated into the Universal Declaration
of Human Rights of 1948. The Declaration states that "it is essential,
if man is not to be compelled to have recourse, as a last resort, to
rebellion against tyranny and oppression, that human rights should be
protected by the rule of law."484 Several writers consequently concluded
that the right of people to revolt against tyranny has become a
recognised principle of international law.485
As mentioned earlier, the decolonisation process in Africa and the East
found inspiration in the stance - and success of Gandhi. The second
half of the Twentieth Century saw the liquidation of the European
colonial empires. At least in Africa this was to a large extent brought
about by national revolutions in which violent uprisings played a
significant role.486
DD. THE NATURAL LAW - POSITIVE LAW DEBATE
The issue of fidelity to the law underlies much of the debate between
the proponents of natural and positive law.487 It is often claimed by
disobedients that they defy the positive law in the name of natural
law. The views of most of the major proponents of both schools of
thought are discussed at different places throughout this study, and
will not be repeated here. Instead an attempt will be made to set out,
in concise form, the main differences between the two approaches as far
as the issue of political and legal resistance is concerned.
Positivism gained prominence in the Nineteenth Century in the wake of
the Enlightenment and the emergence of the natural sciences. It is
Scottish Journal of Theology 1981 245. 484See the publication of the United Nations Human rights 1. 485This issue is discussed by Paust Emory Law Journal 1983 545 at 560. 486This process is recorded in some detail in Ungar Africa. For a
discussion of revolutionary approaches in other parts of the world - most notably China and Latin America - see Macfarlane Political disobedience 31ff.
487The roost celebrated debate in this regard was probably between H L A Hart and Lon Fuller. See Hart Harvard Law Review 1958 593 and Fuller Harvard Law Review 1958 630. For a discussion of the debate, see Lloyd & Freeman Introduction to Jurisprudence 129ff. See also Blackstone Georgia Law Review 1969 679 686 and especially 689, where the implications of this debate for civil disobedience are discussed.
often said that the central claim of positivism is the separation of
law and morals.488 This is accurate in the sense that positivists accept
that if decree X was issued according to the essential law-making
procedures of the particular society, X constitutes law irrespective
of the moral acceptability of its contents. The maxim could be
misleading, however, insofar as positivists do not see the question of
obedience or disobedience to the law as morally neutral. They accept
that there is a prima facie moral obligation to obey the law qua law.
This obligation, however, is not absolute. The mere fact that a "law"
requires one to do something does not imply that it has to be done. As
H L A Hart put it, "laws may be law but too evil to be obeyed."489
Nevertheless, the provision in question remains a legal provision,
which continues to carry some weight, however little, even though it is
outweighed by other considerations.
Natural law ideas, long considered outdated, retrieved some of is
appeal after the atrocities of World War II. The failure of the legal
system of Germany to uphold civilized values, and the active role which
it in fact played in the destruction of those norms, seemed to many to
be proof of the need to maintain the connection between law and
morality.
Natural lawyers maintain that there is an overriding duty to obey the
law. However, not all decrees passed in accordance with established
law-making procedures should be regarded as law. They cease to be law
if they pass a certain threshold of injustice. The fact that something
is called "law" implies that it meets certain minimum requirements of
justice. Law must always be obeyed, but it must first be established
whether one is in fact dealing with law. The term, "wicked law", is a
contradiction in terms.
Both the positivists and the natural lawyers consequently believe that
certain commands of the authorities should not be obeyed if they are
wicked. The difference, however, is that, according to the positivists,
these commands remain "laws", while, according to natural law thinking,
they cease to be law.
Charles Villa-Vicencio argued that the above does not simply constitute
a difference of terminology. "Most people are socialised to believe
488See eg Hart Harvard Law Review 1958 593. 489Id 620.
that law has an intrinsic quality requiring obedience, which means that
to call an immoral decree a ‘law’ goes a long way to insuring that it
should be obeyed."490
The important question is what type of jurisprudence would ensure that
people do not obey wicked governmental decrees. The chain of causality
which leads to such a result is as follows: Step one: People are
socialised to obey the law. Step two: Wicked commands are called law.
Result: People do wicked things. In order to avoid this result, the
natural law approach focuses on step two and insist that wicked
commands should not be called law. The problem with this approach is
that it is counter-intuitive. What should one call a decree issued
according to the correct procedures if not a law? In order to be able
to analyse and evaluate a phenomenon, one first needs terms to describe
it. Moreover, the natural law-approach perpetuates the idea that law
qua law is something good, something inherently deserving of obedience,
while the morality of a particular law might be controversial.
The positivists concentrate on step one. They see the problem as the
fact that people are socialised to obey official orders
unquestioningly. This tendency is encouraged through the reverence in
which natural law holds law. Instead of artificially delimiting the
meaning of the word "law", and requiring blind obedience to it, a
culture should be fostered in which people would be willing to
challenge laws on independent moral grounds.
From the perspective of the decision-maker the question is how people
should be treated who have defied - or obeyed - a clearly immoral
decree. Perhaps the difference between the two schools of thought under
discussion can best be illustrated with reference to a famous German
case, which deals with precisely this question.491
During the Nazi era a woman, wishing to get rid of her husband,
denounced him to the authorities for insulting remarks which he had
made about Hitler. He was arrested and sentenced to death, apparently
in terms of statutes making it illegal to make statements detrimental
to the Third Reich. Eventually his sentence was commuted and he was
sent to the front. In 1949 the wife was prosecuted in a West German
court for having illegally deprived her husband of his freedom. Her
490Villa-Vicencio Civil disobedience and beyond 67. 491See Hart Harvard Law Review 1958 593 at 618.
defence was that she had acted in pursuance of a valid statute. The
court, in what has been hailed as triumph for the doctrine of natural
law, described the statute as "contrary to the sound conscience and
sense of justice of all decent human beings" and held that she was
guilty. The law on which she relied for her defence was not was not
regarded as a valid law.
Hart criticised the decision from a positivist perspective. According
to him, it is conceptually dishonest not to call something which was
clearly a law by that name. He argued that the laudable objective of
punishing the woman for her "outrageously immoral act" could only be
achieved through the use of legislation which retrospectively repealed
the statute in terms of which she acted.492
EE. CONTEMPORARY POLITICAL THEORY
In recent times, the issue of political and legal obligation attracted
considerable attention amongst philosophers, political scientists and
legal theoreticians.493 Typically, the question they addressed was:
Should law qua law - that is, simply because it is law - be obeyed,
and if so, why? To put it in a slightly different way: Apart from
considerations such as one's agreement or non-agreement with the
demands of a particular law, or fear of sanctions in the case of non-
compliance, does the fact that the law requires certain conduct, in
itself provide an independent reason why one should observe that
demand? Does law as an institution have legitimacy, or would only
particular legal systems and laws have legitimacy?
It is clear that, short of the Utopian ideal, few people accept the
anarchist position that law never represents any moral value. The
extreme realist position, that law simply offers choices between
compliance and non-compliance coupled with compensation or
punishment,494 is also no longer widely accepted. At the other extreme,
the view that a duty exists to uphold any law, however instituted and
492Ibid. 493For an overview of modern approaches to the issue of political
obligation, see Raphael Problems of political philosophy 78ff. See also Wasserstrom UCLA Law Review 1963 780.
494A caricature of the arguments advanced by Holmes Harvard Law Review 1897 457 at 461.
enforced, has also largely been discredited.495
Many contemporary writers accept, in the first place, that a general
duty to obey the law only arises under certain specific circumstances,
and, in the second place, that under such circumstances there is only,
what W D Ross called, "a prima facie obligation to obey the law."496
Where such a prima facie obligation can be demonstrated, one has a
moral duty to obey the law, although that duty must in certain cases
give way to more stringent obligations. This construc-tion entails that
the duty to obey the law can be real, but it is not absolute. In cases
where the duty exists, it never "disappears", although it might, for
sufficient reason, be trumped: In short, the existence of a prima facie
obligation to obey the law implies a rebuttable presumption in favour
of obedience to the law. What must be explained under such
circumstances is disobedience, not obedience. Insofar as this is the
case, the important point to be established is when this presumption
would arise, and how stringent it is in specific cases.
Contemporary commentators base the existence of such a presumption on
(i) the social contract, (ii) utilitarianism, (iii) the "duty of fair
play" or (iv) the "natural duty to obey the law". In what follows the
basic outlines of these different approaches will be considered.
(1) The social contract
Until at least two decades ago, the dominant tradition in respect of
political obligation has been that of the social contract theory, of
which early variations were advanced by theoreticians such as Hobbes,
Locke and Rousseau. According to this approach, legal obligation
results from the explicit or implied consent or promise of the governed
to obey, and unwarranted disobedience entails a breach of promise or of
contract. It is taken for granted that it would be wrong to break a
promise or a contract, and consequently it is also regarded as wrong
to break the law. Disobedience, however, is justified where the other
party to the contract - the state - has breached its obligations under
it.
495See Bedau The Journal of Philosophy 1972 179. 496See Ross The right and the good 8. In an influential article Smith The
Yale Law Journal 1975 950 argued that there might be a prima facie obligation on those subjected to a government to obey particular laws, but not to obey all its laws.
The social contract can be seen as actual or hypothetical. An actual
contract can in turn be seen as explicit or implicit. The obvious
problem with the explicit contract hypothesis for obedience is that few
people in fact do explicitly promise to obey the laws of their country,
and when they do so it is often not entirely voluntarily.497
Consequently, most theorists in this tradition take recourse to the
idea of an implicit promise to obey. As we have seen, theorists such as
Socrates and Plato, for example, argued that mere residence in a
country constitutes an implicit promise to obey its laws. The problem
with this approach, of course, lies in the fact that emigration is
often not a real option, which means that the alleged voluntary basis
of a decision to remain in a country is seriously undermined.
A popular argument, at least in respect of liberal democracies, is that
by participating in the political processes one incurs the duty to obey
the law.498 The argument is that by voting one accepts the legitimacy of
this mechanism as the final arbiter in respect of the issues at stake.
This consent cannot be withdrawn once it becomes clear that one’s
viewpoint did not prevail.
This argument has some force, but ultimately it is not convincing.499
The fact that an opportunity for all to participate in the political
processes does exists might say something positive about the
acceptability of the system as a whole, which in turn might give rise
to a general obligation to obey. However, such an obligation does not
result simply from one’s actual participation in the political process.
Taking part in the elective process does not justify the inference that
all participants have agreed to accept the outcome without further ado.
Should the possibility arise of the majority subjecting the minority to
outrageous measures, and the imposition of these measures is submitted
to a plebiscit, one certainly cannot expect those who will probably be
in the minority to make a final choice before exercising its options in
favour of voting between either trying to stop the majority at the
497For a discussion of the position of those who do (such as holders of political office who take an oath of office or those who have pledged an oath of allegiance), see Greenawalt Georgia Law Review 1984 727 at 733. On the position of lawyers who take an oath when admitted to practice, see supra chap four III.
498On the relationship between voting and consent, see Simons Georgia Law Review 1984 791 at 798.
499See eg Smith The Yale Law Journal 1973 950 at 960ff.
polls, or engaging in more direct resistance.
Casting a negative vote is a strategy to avoid certain consequences,
not an undertaking to "forever hold one’s peace" if that strategy does
not succeed. To hold otherwise would discourage people who strongly
oppose certain measures from voting on it if there is the chance that
they might be in the minority. The fact that one had the opportunity to
vote on a particular measure is a consideration which carries
considerable weight in favour of obedience, but it is not conclusive.
Given the problems of establishing actual consent - either explicit or
implicit - it is not surprising that many proponents of the contract
theory placed their trust in a hypothetical contract. But, as Dworkin
remarked, "[a] hypothetical contract is not simply a pale form of an
actual contract; it is no contract at all", since no consensus, either
explicit or implicit, has been established.500 Although the device of a
hypothetical contract was revived by Rawls, he ultimately based his
concept of political obligation on natural duties.501
(2) Utilitarianism
The main competitor of the social contract as a basis for political
obligation is utilitarianism, which school of thought maintained that
the morality of obedience or disobedience must be established by its
comparative consequences in terms of the happiness or utility it
procures.502 The views of Bentham were considered earlier in some
detail.503
There are two main forms of utilitarianism - "act" and "rule"
utilitarianism.504 Act utilitarianism measures each individual act
separately, in terms of the consequences of that particular act. This
variety of utilitarianism cannot give rise to a general obligation to
obey the law, because by its very nature it only focuses on individual
acts, seen in isolation.
A more likely basis for a general obligation would be rule
500R Dworkin "The original position" in Daniels Reading Rawls 16 at 18. 501See infra chap five I EE (4)(a). 502See also Mill On liberty and Mill Considerations on representative
government, who further developed Bentham's ideas. 503See supra chap five I Y. 504For a discussion, see Mackie Ethics 125ff.
utilitarianism, according to which an act is morally right if it can be
justified by a moral rule which, if followed in general, would increase
overall utility. In terms of this approach, short-term utility can
sometimes be sacrificed in favour of long-term utility. general
requirement of obedience to law can then be justified in terms of rule
utilitarianism, even if in individual cases it causes hardship, as long
as it increases the overall long-term utility of the society.
The problems of utilitarianism as a moral theory are well documented.
In essence it is charged that utilitarianism fails to take the
individual and his interests seriously, and is too willing to sacrifice
him or her on the altar of the common good.505 Our society does not
require its members to be heroes and to value the lives of other people
above their own; either do we require people to sacrifice their most
basic interests simply to improve the net welfare of others.506
Utilitarianism provides shaky grounds on which to base a general duty
of obligation, and, as demonstrated earlier, Bentham did not accept the
existence of such a duty.
The challenge to civil disobedience posed by rule utilitarianism is
called the "generalisation problem" - the question: "What would happen
if everyone did it?" However, the use of the generalisation argument is
problematic, in general and in the context of civil disobedience. It is
problematic in general, because the spectre it creates might in fact be
only that - a spectre. All Pretoria residents are free to wander around
Church Square at 10 o’clock in the morning, but if everyone in fact
were to do so on one particular day the whole city would come to a
standstill. The question, then, is whether such a hypothetical
possibility justifies outlawing this activity. Obviously, the practical
likelihood of such an event occurring, and not the fact that it is
theoretically possible, must be the decisive consideration.507
Applied to the specific issue of civil disobedience, this means that
before the hypothetical possibility of its widespread occurrence is
used as an argument against civil disobedience, the likelihood of this
happening must be considered. The mere hypothetical possibility of
505See Rawls A theory of justice 22ff. 506See S v Goliath 1972 3 SA 1 (A). 507See the discussion of this Issue in Greenawalt Michigan Law Review 1985
1 at 27ff.
universal civil disobedience cannot justify the conclusion that it
should never be practised.
(3) The "duty of fair play"
Legal obligation may also be based on a so-called "duty of fair play",
which entails that those who voluntarily choose to accept benefits
under a particular system have a duty to comply with the demands of
that system. The underlying idea is that such people must carry their
fair share of the burden to sustain the system.
There are two variations to this approach. In terms of the first
variant, the basis of the obligation is a duty to treat the state
fairly once one has accepted benefits from it. This is largely the
basis on which Socrates justified and explained his willingness to
drink the poisonous cup. Since the state as such is an impersonal
institution, it is difficult to see how one can have a moral duty
towards it, without taking into account the people that constitute its
substratum.
The more popular contemporary variant of this approach, developed by
Hart508 and initially accepted by Rawls,509 is consequently to regard the
object of the obligation as one's fellow citizens who are paying their
part of the price of the communal welfare.510 The conduct of someone who
refuses to do national service for reasons of conscience, and who then
lives in security ensured by the sacrifices of others, for example, is
regarded by many as intuitively unacceptable. As pointed out earlier,
our courts have held that the provisions for exemption from normal
military service must be interpreted strictly, because the effect of
not doing so would be "to cast an unfair burden upon the more patriotic
of the country's citizens."511
This way of establishing political obligation on the basis of fair play
to one’s fellow citizens, even in societies other than liberal
democracies, has considerable force. The argument, however, also has
its limitations.
508Hart Philosophical Review 1955 175 at 185ff. 509J Rawls "Legal obligation and the duty of fair play" in Hook Law and
philosophy 3. 510See also the argument of Ball Georgia Law Review 1984 911 that there is
no obligation to the law but only to the neighbour. 511S v Lovell 1972 3 SA 760 (A) at 766.
In the first place, many "public benefits" are not voluntarily accepted
and could indeed be resented. Someone who uses a public road might be
expected to pay a proportionate toll, but true pacifists might
genuinely be willing and even eager to do without protection.
In the second place, when benefits are voluntarily accepted it does not
necessarily give rise to an obligation to contribute to its
perpetuation in all cases. As Robert Nozick asked, why should I be
expected to give a Quid pro quo for broadcasts of classical music over
a public address system which I hear and even appreciate but did not
request in the first place?512 Moreover, someone might agree that he is
to pay his share of the price for that from which he benefits, but he
might disagree as to what the extent of that share should be. The
classical example in this regard is the disputes which arise concerning
the proper scales of taxation.
It should also be realised that, according to this approach, a general
duty of compliance does not arise when other people are not complying -
for example in a society where corruption is rife.
(4) The "natural duty to obey the law"
In recent years, a number of commentators described political
obligation as a "natural duty"; that is, a duty which is simply a
result of one’s status as a citizen, or the position one occupies in
society, irrespective of considerations such as agreements entered
into, the consequences of one’s actions, etc.513 Apart from the
traditional natural law approach,514 at least four different accounts
can be distinguished according to which the existence of an obligation
to obey the law is based upon the natural duties of citizens.
(a) The "natural duty to support just institutions"
John Rawls, in his later work, regarded the natural duty of citizens to
promote and support just institutions as the general moral basis for
obedience to law in a nearly just society.515 On the same basis citizens
512Nozick Anarchy, state, and Utopia S3. 513For an overview of these approaches, see Greenawalt Michigan Law Review
1985 1 at 3ff. 514Perhaps the most influential modern proponent of this school is John
Finnis. See Finnis Natural law and natural rights. 515See Rawls A theory of justice 333ff.
are also to assist in the establishment of just institutions when this
can be done with little cost to themselves.516 Rawls maintained that the
parties to his "original position" would not only accept certain
principles of justice, but would also accept the natural duty to create
and support just institutions. One aspect of a just institution would
be majority rule, and majority rule is bound to produce some results
which the minority will regard as unjust. Obeying even those laws (as
long as a certain threshold of injustice is not surpassed517) is the
price of effective majority rule.
As part of his non-ideal theory, Rawls developed fairly elaborate views
on civil disobedience.518 In respect of the question of justification,
there are three conditions which, according to Rawls, must be satisfied
before acts of civil disobedience can be regarded as justified:
Civil disobedience can be practised only to address "instances of
substantial and clear injustice". To Rawls this meant that civil
disobedience should be restricted to "serious infringements" of
his principle of equal liberty, and to blatant violations of the
principle of fair equality of opportunity. The resolution of
issues addressed by the difference principle (the distribution of
wealth) should be left to the normal political processes.519 In
other words, according to Rawls the denial of first generation
rights could be a sound basis for disobedience, but not the
denial of second generation rights.
- Civil disobedience should be used only as a last resort - that
is, the normal appeals to the body politic must have been made
and must have failed.520
- Civil disobedience should not be resorted to, even if the first
two conditions are met, if it is likely to lead to serious
disorder.521
516Id 334. 517Id 351. 518Rawls A theory of justice 363ff. For criticism of Rawls' approach 1n
this regard, see P Singer "Rawls on civil disobedience" in Rachels Moral problems 195.
519Rawls A theory of justice 372. 520Id 373. 521Id 374.
(b) Obedience based on necessity
Tony Honore argued that a prima facie obligation to obey the law
generally and in all societies stems from necessity.522 certain
relationships, even in the absence of voluntary acts, give rise to
moral duties. For example, a woman made pregnant by rape has a duty to
care for the child. The duty is based on the child’s need to be cared
for, and the fact that it is her child. Similarly the state has a duty
to care for its citizens who need such care, while the citizens have a
reciprocal duty to comply with the state’s demands in order to make it
possible for the state to perform its obligations to its citizens.
As pointed out by Kent Greenawalt, the state's need for compliance with
its dictates might in some cases be urgent, for example where the
bodily security of the citizens is at stake. In other cases, however,
"a failure to comply might have some extremely slight, de minimus,
overall effect."523 It is consequently difficult to see how this
consideration can give rise to a general duty of obedience which
applies to all citizens.
(c) Respect for officials exercising authority
According to Philip Soper, a prima facie duty to obey the law exists
because one ought to show respect for those who, in good faith, try to
advance the interests of the group as a whole.524 Obeying their laws is
an integral part of showing such respect.
An important point here is that a condition for the duty to arise is
the bona fides of the officials, which is a subjective criterion.
Objectively, then, unjust regimes or laws are not per se placed beyond
the confines of the duty.
The obvious problem with this approach is that, even if it is accepted
that the bona fides of officials must give rise to respect (which in
itself is a contestable statement), a feeling of respect does not
necessarily translate into a duty of obedience. Members of opposing
political parties might earn mutual respect, but do not have a duty to
vote for each other if asked to do so.
522Honoré Virginia Law Review 1981 39. 523Greenawalt Michigan Law Review 1985 1 at 19. 524See Soper A theory of law 75ff; Soper Georgia Law Review 1984 891 and
Soper Michigan Law Review 1985 63.
Perhaps Soper’s point is best stated in the negative: One does not have
a duty to obey a mala fide government. This point, however, is so weak
that its appeal is in fact trite.
(d) An underived obligation to obey the law
The above accounts of the natural duty to obey the law in each case
derives the obligation to obey from a more basic principle - be it
natural law, justice, necessity or respect for officials. According to
John Mackie, the duty to obey the law, in conventional morality, is an
"underived" or "independent" obligation.525 A general obligation to obey
the law is a reciprocal norm which fits into a coherent framework with
other norms of reciprocation, but it is not derived from anyone of
them. There is a prima facie obligation to obey unjust laws and the
rules of an unjust regime.
To conclude, it should be noted that most of these commen-tators agree
that law qua law, except under extraordinary circumstances, is worthy
of some respect. This does not imply that laws should always be obeyed,
but that disobedience requires special justification. There seems to be
a growing perception that, insofar as a citizen must respect law, he
must do so not because of some kind of consent he has given in this
regard or due to utilitarian considerations, but simply because of his
status as a citizen.
II. THE CHRISTIAN CHURCHES IN SOUTH AFRICA
Religion plays a particularly important role in politics in South
Africa - both as far as legitimising and opposing government policy are
concerned. Given the fact that, according to a 1985 Human Sciences
Research Council report, 77% of the adult population of the country
indicated that they adhere to the Christian faith,526 it is not
surprising that the Christian churches have played a crucial role in
this regard. In what follows we shall consider the views of the most
prominent members of this body of churches in respect of some of the
most important manifestations of political resistance in the country’s
history.527
525See Mackie Virginia Law Review 1981 143. 526See the Human Sciences Research Council report Investigation into
intergroup relations 36. 527Due to the apparent lack of literature available that analyses the role
of the South African churches during the Reef strikes of 1922 (see, however.
A. THE 1914 REBELLION
The first major political event since the Union of South Africa was
established in 1910 that raised the issue of illegal (and, as it turned
out, violent) political resistance, was the 1914 Rebellion.528
The Rebellion deeply divided the Afrikaner community, and predictably
also threatened to bring disunity into the Afrikaner churches,529 which
were confronted by demands to give spiritual guidance."530 All three of
the major Afrikaans churches took a non-committal position. The rebels
were not directly supported, but - more significantly - they were also
not censured. Although it was recognised that resistance can under
certain circumstances be justified, the Question whether the
circumstances of the time justified, disobedience was left open.531
Smith Kerk en krisis) and the views of the churches on resistance to the participation of the Union on the side of England in the Second World War (see, however, Strauss Die Nederduitse Gereformeerde Kerk en die Tweede Wereldoorlog; Van der Schyff Die Ossewabrandwag 365 and the polemic article of Van Rooy Koers 1948 89 on Calvinism and the Ossewabrandwaq). these topics wi11 not be dealt with. It also seems as if little or no research has been done on the direct responses of the different churches to the Defiance Campaign of 1952. See, however, supra chap three III A (3)(c)(iv).
528Some 11 000 Afrikaners rebelled by force of arms against the decision of the South African government (under the former Boer General Botha) to enter World War I on the side of Britain, hardly 12 years after the traumatic Second Anglo-Boer War. On the rebel side, ± 190 people died and on government side ± 32. For an historical overview, see C F A Borchardt "Die Afrikaanse kerke en die Rebel He 1914-1915" in Eybers et al Teologle en vernuwing 85ff.
529Article 36 of the Dutch Confession of Faith, accepted by the three principal Afrikaans churches as their articles of faith, states (in the Afrikaans translation which they use): "Verder is elkeen verplig ... om hom aan die owerhede te onderwerp, belasting te betaal, aan hulle eer en onderdanigheid te bewys, hulle te gehoorsaam in alles wat nie met die woord van God in stryd is nie." Reprinted in Handbook vir die eredlens van die Nederduitse Gerefonneerde Kerk 182. The phrase "In alles wat nie met die woord van God in stryd is nie" is commonly Interpreted to signify that the duty to obey is indeed subject to limitation. See Esterhuyse Broers buite hoorafstand 22. See also Question and answer 104 of the Heidelberg Catechism, reprinted in the Handboek vir die erediens 215.
530Some rebels described their motivation for disobeying the government in explicit religious terms. General De Wet, for example, declared that he felt himself constrained, if he had the choice, "[o]m eerder sy vinger in die oog van Lewies Botha te steek as in did van God". Quoted in Du Toil Die drie Afrikaanse kerke en die rebellie 28.
531See C F A Borchardt "Die Afrikaanse kerke en die Rebellie 1914-1915" In Eybers et a1 Teologie en vernuwing 91ff.
In 1915 the Dutch Reformed Church ("DRC") in the vaguest possible
terms, stated that there was a general duty to obey the government and
that disobedience could only be justified in accordance with
Scripture.532 The Gereformeerde Kerk at its 1916 General Synod also
avoided the central issue. They stated that, since the authority of the
state derived from God, -it could not be used for any conceivable
purpose. The government could not intervene in God’s laws or the
freedom and basic rights of a people.533 Like the other churches, the
Hervormde Kerk also refrained from applying the general notion that a
rebellion could only be justified under extreme circumstances, to the
Rebellion itself.534
B. APARTHEID
No political issue has strained the relationship between church and
532The "Raad der Kerken" of the DRC expressed the view "dat men zich tegen de wettige overheid niet verzetten mag, anders dan om zeer gewichtige en gegronde redenen die goedgekeurd worden door Gods Woord en door het door Gods Woord verlicht geweten." See Handelingen van eene bultengewone vergadering van de Raad der Ned Ger Kerken in Zuid Afrika, 27 Jan 1915 17, 18. See also Du Toit Die drie Afrikaanse kerke en die rebeTHe 60ff. The minister delivering the sermon at the funeral of De la Ray, who had been killed just before the Rebellion, urged those present to use constitutional channels of protest, and, what he regarded as the most powerful weapon, "lydelike verset". It seems, however, that in using this phrase he was sti11 referring to legal resistance. See De Vriend des Volks 21 Sept 1914.
533See De handelingen van de achtiende algemene synodale vergadering van de Gereformeerde geneenten in Zuid Afrika 9 March 1916. According to their interpretation of the Bible, "[a]ls dus blijkt ... dat net gebod der overheid Ingaat tegen de goddeUke wet of de volksvrijheden, dan is het niet a11een geoorloofd, maar ook betamelik de overheden niet te gehoorzamen." (Appendix N 1.6.) They made a distinction between "lijde1ik verzet, en b) dadetik verzet," and went on to explain: "Onder 1ijde1ik verzet wordt verstaan dat men niet doen wat geboden wordt, en indien de overheid eist dat het gedaan worde, onderwerpt men zich gewillig aan a11e straffen van gevangenschap of boete, die de overheid verblndt aan het niet nakomen van haar geboden, ja zeifs de doodstraf. Komt het tot dadetik verzet, dan zijn het 'de staten en leden van het gemenebest', dwz de mindere machthebbenden en erkende volkshoofden, die zich tegen de overheid aankanten moeten, dit overeenkomende met nun pliant en roeping oin het volk te beschennen, en dat we1 door desnoods geweld met geweld te keren." (Appendix N 1.7.) In accordance with Calvinistic tradition, the requirement that the disobedience be instigated by lesser authorities did not apply in the case of non-cooperatlonal (or defensive) resistance. See also in respect of the position taken by this church regarding the Rebellion, Du Toit Die drie Afrikaanse kerke en die Rebellie 99ff. See also Du Plessis Die Kerkblad 1987 6 and Buys Die Kerkblad 1985 5.
534Du Toit Die drie Afrikaanse kerke en die Rebellie 95ff.
state and between church and church in South Africa as much as did
apartheid. On the one hand, a group of (mainly Afrikaans) conservative
churches gave the government spiritual support for its pursuit of
racial hegemony; on the other hand, a group of (mainly English) more
progressive churches rejected apartheid535 and legitimised opposition to
the government’s policies, the defiance of some of its laws and
especially the refusal to do compulsory military service (which was
seen as propping up the apartheid system). This was done on the basis
that apartheid was contrary to the will of God, and that one should
obey God rather than people. Apparently, the predominantly black
churches remained largely a-political or at least not outspokenly
political in this regard.
While the conservative churches would agree with the progressive
churches that in principle there was a right under extreme
circumstances to disobey the state, the conservative churches would not
concede that such circumstances were in fact present in South Africa
during the years of apartheid.
One of the first instances of an open threat of defiance of the law
made by a church due to apartheid, occurred in 1957, when the Native
Laws Amendment Bill was promulgated under the direction of the then
minister of Native Affairs, Dr Verwoerd. The "church clause"536 of this
bill would have made it virtually impossible for black persons to
worship in churches in the so-called "white" areas. On behalf of the
Anglican Bishops of South Africa, Archbishop Geoffrey Clayton informed
the Prime Minister as follows:
We recognise the great gravity of disobedience to the law of the land. We believe that obedience to secular authority, even in matters about which we differ in opinion, is a command laid upon us by God. But we are commanded to render unto Caesar the things which be Caesar's, and to God the things that are God’s. There are therefore some matters which are God’s and not Caesar’s and we believe that the matters dealt with in Clause 29(c) are among them. It is because we believe this that we feel bound to state that if the Bill were to become law in its present form we should ourselves be unable to obey it or to counsel our clergy and people to do so.537
535For an early example of the view taken by the Roman Catholic Church, see Hurley Africa South 1958 13.
53629(c). 537Extract from letter, reprinted in Vi11a-Vicencio Between Christ and
The Cottesloe Consultation, called by the World Council of Churches,
followed in the wake of the Sharpeville shootings.538 Here, in 1960, the
participating churches, which at the time included the DRC, expressed
themselves against the primary cornerstones of apartheid. Under
pressure from the government, the DRC - often called the National Party
at prayer - subsequently retracted its support.
Under the leadership of, inter alia, the South African Council of
Churches ("SACC") (as the Christian Council has been called since 1968)
and the Christian Institute, the progressive churches now more and more
openly aligned themselves with opposition to the government. In 1968,
the South African Council of Churches published "A message to the
people of South Africa".539 In it apartheid was rejected as "a false
faith"; and "every Christian person in the country" was asked the
question: [T]o whom, or to what, are you giving your first loyalty,
your primary commitment? Is it to a subsection of mankind, an ethnic
group, a human tradition, a political idea: or to Christ?"540
The SACC National Conference, meeting at Hammanskraal in 1974,
supported the idea of religious refusal to do military service, on the
basis that "the Republic of South Africa is at present a fundamentally
unjust and discriminatory society" and that "the military forces of our
country are being prepared to defend this unjust and discriminatory
society." It called on Christians to obey God rather than men.541
Partly as a result of this development, and the support which the idea
of conscientious objection to military service received from other
churches,542 the Defence Act was amended in 1974 to criminalise
incitement of conscientious objection to military service.543
For their part, the leaders of the Christian Institute, such as Beyers
Naude, in 1974 refused to give evidence before the Schlebush
Parliamentary "Commission of Inquiry into Certain Organizations",
Caesar 209. 538Id 200, 211. 539Reprinted Id 214. 540Id 216. 541Resolution reprinted Id 225. 542See Esterhuyse Broers buite hoorafstand 26. 543See supra chap four IV.
charged with investigating several church and other organizations.544
Quoting extensively from biblical and other theological sources, Naude
and others issued a document entitled "The right and the duty to resist
unchristian governmental authority in the name of Christ."545 They
stated the following:
When the government deviates from the Gospel, the Christian is bound by his conscience to resist it. Even if this results in breaking the law, it has to be done because God's will must be maintained above the law of man (Acts 4). The government is God's servant and this means that it cannot arbitrarily place itself above the rule of law without impinging on the highest authority. If it does it, it becomes the evil-doer (Romans 13), which must be resisted in obedience to God.546
Also in 1974, the DRC Synod adopted the fateful Ras, volk en nasie en
volkereverhoudings in die 1ig van die skrif report. This report stated
that:
Onder bepaalde omstandighede en voorwaardes laat die [New Testament] ruimte vir die reeling van die saam-bestaan van verskillende volkere in een land 1angs die weg van afsonderlike ontwikkeling.547
It was stated that "'n staatkundige stelsel wat gebou is op eiesoortige
ontwikkeling by verskillende bevolkingsgroepe kan in die lig van die
skrif prinsipieel verantwoord word."548 It was also accepted that,
insofar as the state acts in accordance with the norms of the Bible,
"mag die staat van 'n gesagsorde, gesagsorgane en die swaardmag gebruik
maak om die deurwerking van die sonde te beteuel (Rom 13.4)."549 The
dangers inherent in a revolution, which was described as an ultima
ratio, were outlined and emphasised.550
544Naudé was convicted in the magistrate's court of contravening s 6 of the Commissions Act 8 of 1947 for his refusal to testify. He was acquitted on appeal, in a controversial decision, on a technical point. See International Commission of Jurists The trial of Beyers Naude. See also De Gruchy "A short history of the Christian Institute" in Villa-Vicencio & De Gruchy Resistance and hope 14.
545Reprinted in Villa-Vicencio Between Christ and Caesar 217. 546Id 220. 547Ras, volk en nasie en volkereverhoudlnge in die lig van die skrif 13.6. 548Id 49.6. 549Id 49.2. 550Id 45.1.
The World Alliance of Reformed Churches, largely in response to this
document, in 1982 declared that apartheid was a heresy, and suspended
the membership of the DRC.
In 1979, the SACC passed a resolution justifying the use of civil
disobedience. It stated that "the South African churches are under an
obligation to withdraw, as far as that is possible, - from co-operation
with the state in all those areas in the ordering of our society where
the law violates the justice of God."551
The Dutch Reformed Mission Church in 1982 issued a "Confession of
Faith", which declared that apartheid constituted a status
confessionis.552 In this document it was stated that "the church must
witness against ... injustice". It concluded: "We believe that, in
obedience to Jesus Christ, its only head, the Church is called to
confess and to do all these things, even though the authorities and
human laws might forbid them and punishment and suffering be the
consequence."553
Also in 1982, the General Synod of the DRC gave its blessing to the
system of compulsory military service and by implication rejected the
notion of conscientious objection.554
In 1983, the so-called "Eloff Commission", which inquired into the
activities of the SACC, described the positive approach of the SACC to
civil disobedience as "dangerous thinking", and stated (without
motivating) that "[participation in civil disobedience is a very
551The Justice and Reconciliation Committee of the SACC, in pursuance of the above-mentioned resolution, in Aug 1979 decided to implement it "by organising and preparing a confrontation with the authorities". They explicitly referred to, what was described as, the positive example of the Civil Rights struggle in the United States. In November 1979, it was also decided that the Commission on Violence and Non-Violence would prepare a leaflet on the subject: "How to practise positive non-co-operation". See Report of the Commission of Inquiry into South African Council of Churches (the "Eloff commission") RP 74/1983 114ff.
552Reprinted in Villa-Vicencio Between Christ and Caesar 241ff. 553Id 244. 554See Agenda vir die sesde vergadering van die Atgemene Sinode van die
Nederdultse Gereformeerde Kerk 1.14. This followed the policy statement Geloofsbesware teen dienspUg, Issued by the "Breê Moderatuur" of the DRC in 1980. For a discussion, see D E De Villiers "Die NG Kerk se standpunt oor gewetensbesware teen militere diensplig" in Centre for Intergroup Studies Conscientious objection 64ff.
dangerous operation which can easily lead to incalculable harm".555
The South African Catholic Bishops’ Conference consistently affirmed
the right to object to military service on conscientious grounds, and
in 1985 issued a statement calling for an end to conscription.556 In
June 1985, Or Beyers Naude, in his capacity as General Secretary of the
SACC, again called for civil disobedience. He was strongly rebuked by
the Minister of Law and Order.557
In 1985, the influential ecumenical Kairos document was published and
circulated. Signed by more than 150 theologians from a wide spectrum of
churches, it challenged Christians to action against the apartheid
government. In this document, Romans 13 was interpreted as a correction
on the Roman Christians who believed that Christians, and Christians
alone, were exonerated from obeying any state. Romans 13 proclaims that
they should accept the institution of secular authority, but "it does
not say anything at all about what they should do when the state
becomes unjust and oppressive."558
Under the heading, "Tyranny", it was stated that a tyrannical regime
was illegitimate. A tyrant was seen as one who was an enemy of the
people, and the South African government of the time was identified as
such a tyrant.559 It was observed that: "There are indeed some
differences of opinion in the Christian tradition about the means that
might be used to replace a tyrant but there has not been any doubt
about our Christian duty to refuse to co-operate with tyranny and to do
whatever we can to remove it."560
Under the heading, "Civil disobedience", the following was said:
555See Report of the Commission of Inquiry into South African Council of Churches RP 74/1983 187. Sea also "SARK se 'gevaarlike denke' word skerp gekritiseer" Die Burger 18 Feb 1984.
556Reprinted in Villa-Vicencio Between Christ and Caesar 245ff. 557See "Civil Disobedience: Naud6 gets 'friendly' message" The Citizen 29
June 1985; "Met 'n ander bril" Die Transvaler 26 July 1985 and "Die SARK wysig sy taktiek" Die Transvaler 15 Au9 1985.
558On the approach to resistance in the Kairos document, see Van Wyk Orientation 1988 73; Green Journal of Theology for Southern Africa 1986 49 and Venter Orientation 1988 104.
559Kairos document 4.4. 560Ibid. (Original emphasis.)
Once it is established that the present regime has no moral legitimacy and is in fact a tyrannical regime certain things follow for the church and its activities. In the first place the church cannot collaborate with tyranny; [s]econd1y, the church should not only pray for a change of government [and finally] the church will have to be involved at times in civil disobedience. A church that takes its responsibilities seriously in these circumstances will sometimes have to confront and to disobey the state in order to obey God.561
Also in 1985, the Western Province Council of Churches issued a
"theological rationale", stating that it was praying for a change of
government.562
The Synod of Bishops of the Anglican Church in 1986 issued a document
entitled "Christian obedience and unjust laws",563 which emphasised that
the right to engage in civil disobedience under certain circumstances
was widely recognised in the Christian tradition. It proceeded:
"Conscientious defiance of unjust laws may be the only alternative to
violence and the taking up of arms by those who are attempting to
establish a just order."564
Certain guidelines were thereupon proposed to Christians who believe
that they must disobey the law of the land, inter alia:
- "Where a particular law is disobeyed it should be with a view to
restoring just laws";
- "A decision to act in this way should normally be taken
individually only after consultation with other Christians"; and
- "The law may be disobeyed only by those who are prepared to
suffer the consequences of their actions."565
In 1986, the DRC Synod accepted as its testimony Kerk en samelewing. In
what was seen by many as a dramatic about-turn the Church now declared
that racism was a sin which could not be defended by any individual or
church.566 One of the most important sources of spiritual support for
561Id 5.5. (Original emphasis.) 562See Clarke Journal of Theology for Southern Africa 1986 42. 563Reprinted in Grace and Truth 1987 194. 564Id 195. 565Ibid. 566Kerk en samelewing 12.1. 4
the apartheid state had now been terminated. However, the DRC was far
from endorsing a right of resistance in the South African context.
Under the heading, "Die Ned Geref Kerk en die owerheid", it was stated
that "van alle lidmate word verwag om as dee1 van hulle Christelike
lewenswandel die owerheid te gehoorsaam."567 The right of the
authorities to make military service compulsory was still recognised.568
Violent revolution was rejected as contrary to the demands of the
Bible. "Die gereformeerde teologie ken wel die reg tot opstand in hoogs
uitsonderiike gevalle, maar kwalifiseer dit dan in die sin dat dit op
ordelike wyse deur verantwoordelike persone ('mindere magistrate')
gehanteer moet word en nie deur die kerk nie."569
In very guarded language it was also stated that protest can be
justified if it is non-violent and aimed at injustices:
As allerlaaste moontlikheid van verset teen onreg (dws nadat alle ander moontlikhede volhardend en by herhaling misluk het) kan geweldlose verset en burgerlike on-gehoorsaamheid uit die oogpunt van die etiek ten minste teoreties nie as onaanvaarbaar verwerp word nie. In soverre as wat dit in die praktyk dikwels tog tot geweld lei ... kan dit egter ook nie deur die Ned Geref Kerk ondersteun word nie.570
Upon his election as General Secretary of the SACC in 1987, the rev
Frank Chikane stated that those represented by his organization could
not be obedient to unjust laws. He stated that blacks did not have a
problem to understand this, but that whites still had to realise that
they were not obliged to obey the law simply because it was the law.571
In 1989, the Catholic bishops of nine southern African countries
stated, with reference to the region, that in cases of "grave and
prolonged injustice" it might be "necessary to engage in non-violent
community action and protest, civil disobedience or passive
567Id 15.3. 568Ibid. 569Ibid. 570Ibid. Esterhuyse Broers buite hoorafstand 24 stated that a careful
reading of Kerk en samelewing revealed that, while it was in principle recognised that civil disobedience might under certain circumstances be justified, the document rejected, or at least did not indorse, the use of civil disobedience under the circumstances then prevailing.
571See "Ons werk vir een tuisland" Beeld 4 July 1987.
resistance".572
In March 1989, the members of the DRC family accepted a resolution
stating that, if the church concluded that violent revolution was wrong
(which, it was added, was not altogether clear in the reformed
tradition) it must support non-violent forms of protest, and provide
leadership in this regard.573
Member churches of the SACC in 1989 also threatened to defy the
emergency regulations should the government decline to end detentions
and lift the state of emergency.574
Theologians in South Africa expressed views which to a large extent
reflected the attitude adopted by their respective denominations and
their own political affiliations. Dr Allan Boesak, former Moderator of
the Dutch Reformed Mission Church and former President of the World
Alliance of Reformed Churches, on a number of occasions expressed
himself in favour of the use of civil disobedience and in fact led such
campaigns of protest.575 Archbishop Desmond Tutu took a similar stance
and stated that "[t]o obey an immoral law is an immoral act".576 One of
the most persistent theologians sympathetic to the idea of the use of
civil disobedience against apartheid is Charles Villa-Vicencio of the
University of Cape Town.577
Within the DRC, Pretoria theologian and former moderator, Johan Heyns,
gave a guarded, general defence of civil disobedience, without directly
572See "Bishops give a nod to non-violent protest action" Weekly Mail 2 Feb 1989.
573See "Boesak en wetsuitdaging" Die Transvaler 24 April 1989. 574See "Churches challenge govt" The Natal Witness 9 March 1989 and
"Church leaders threaten to defy emergency" New Nation 21 March 1989. 575His Calvinistic defence of the right to resist the South African
government is set out in a number of essays, collected in Boesak Black and reformed. See also Villa-Vicencio Civil disobedience and beyond 59; “Dr Allan Boesak: 'Verdere geweld in SA feitlik onvermydelik'" Die Kerkbode 3 Feb 1988 and "Boesak en wetsuitdaging" Die Transvaler 24 April 1989. In 1979, Boesak stated: "The church must initiate and support programs of civil disobedience on a massive scale." See Report of the commission of inquiry into South African Council of Churches PR 74/1983 114.
576Quoted in Villa-Vicencio Civil disobedience and beyond 71. 577See eg Villa-Vicencio Between Christ and Caesar and Villa-Vicencio
Civil disobedience and beyond. See also Vi11a-Vicencio Wetenskaplike Bydraes van die PU vir CHO 1990 38.
addressing its use in the South African situation.578 More explicitly
sympathetic towards this form of protest is academic, Danie du Toit of
the University of Stellenbosch.579
Special interest, - in this subject-matter has come from the
Gereformeerde Kerk.580 Especially prolific has been Amie van
Wyk of the Hammanskraal Theological School who concentrated mainly on
the teachings of Calvin regarding political resistance.581
III. TRADITIONAL AFRICAN SOCIETIES
Since we are primarily interested in civil disobedience in South
Africa, it would be one-sided to confine this inquiry to Western
jurisprudence. Is civil disobedience compatible with the values
embodied in African jurisprudence? Without claiming to have undertaken
an original in-depth investigation in this regard, a few aspects which
are discussed in the available literature win now be addressed.
One often hears the comment that political tolerance is foreign to
African culture - both traditional582 and contemporary583 - and that one
could consequently not expect civil disobedience to be practised or
tolerated on a wide scale in African dominated political systems. If
this claim is correct, it could have far-reaching consequences for the
way in which civil disobedience will be viewed in a future South
Africa. It consequently deserves serious attention.
The contention that civil disobedience is not part of the African
culture in South Africa is largely contradicted by the history of the
578See Heyns Teologlese etiek part 2/2 162ff. 579See Du Toit Staatsgesag en burgerlike ongehoorsaamheid 70 as well as
his articles "Bybel eis ook vir tiran eerbied" Die Burger 10 June 1986; "Owerheid 'moet geweld vermy'" Die Burger 11 June 1986 and "Verset kan Christelike p1ig wees" Die Burger 12 June 1986.
580See eg Eloff In die Skriflig 1985 23 and De Bruyn Die Kerkblad 1990 8. For lawyers who write in the Reformed, and specifically Calvinistic tradition on this topic, see Van Zyl & Van der Vyver Inleiding tot die regswetenskap 16tff; Raath Woord en Daad 1985 4 and Burger Woord en Daad 1989 13.
581In addition to his writings already mentioned, see Van Wyk's articles Woord en Daad 1985 10; Koers 1986 38; In die Skriflig 1988 48 and Wetenskaplike Bydraes van die PI) vir CHO 1990 76.
582See eg Estermann The ethnography of Southwestern Angola 124. 583For a discussion of the political history of post-colonial Africa, see
Ungar Africa 19ff.
liberation struggle, in which civil disobedience played an integral
part. It was argued that the extraordinary hold which Nelson Mandela
had on the South African government while he was in prison can best be
seen if his conduct there is understood as an example of civil
disobedience. It is true that these examples by and large do not
represent civil disobedience in its purest, non-coercive form (as is
illustrated by Tambo’s rejection of Gandhi’s methods as "hands-folding"
and Mandela’s refusal to foreswear violence while in prison), but it
nevertheless seems clear that protest with a low level of coercion,
aimed primarily at persuasion and at mobilising international support,
was part and parcel of the liberation movement.
The problem is, however, that while the above might well be true, it
does not necessarily provide an accurate reflection of a future South
African government’s willingness to tolerate civil disobedience. As
illustrated by the history of the Afrikaner, the fact that someone had
been in opposition does not necessarily make that person tolerant of
opposition when he is in power. Sceptics would be quick to point out
that at the moment in Africa there is no widespread practice of civil
disobedience, or for that matter of most other forms of non-violent
direct confrontation of the state. It is hard to escape the conclusion
that the reason for this must lie in the harsh response which this form
of protest is likely to provoke. The personal risk is high and
prospects of success are low.
The reasons why that might be the case in modern Africa are complex and
hard to establish with clarity, and will not be discussed here.584
Instead, two reasons will be advanced why it should not automatically
be accepted that illegal political resistance has no role to play in
societies where traditional African values play an important role.
The first reason relates to the fact that Africa as a continent is at
the moment particularly susceptible to pressure from the international
community, which might decide to play the role of a "benevolent
background force" in respect of governments which, due to alleged human
rights abuses, might become the targets of civil disobedience.
But more importantly, as will next be demonstrated, the available
584For a thorough overview of aspects of this issue, see Zimba The constitutional protection of fundamental rights and freedoms in Zambia 444ff. On the protection of human rights, see, Id 507ff.
evidence suggests that there has been important manifestations of
political tolerance in traditional African society, a fact which is not
always appreciated by Western observers. There appears to be a greater
traditional cultural tolerance of political opposition in Africa than
is commonly realised. This claim will now be investigated in more
detail.
As is the case with all other communities, traditional African
societies were held together through a combination of control and
authority; through physical compulsion and psychological and
sociological sanctions.585 However, most powerful in countering
disruptive internal strife was a common understanding of reality,
internalised by all members of the society - in short, a mutually
shared system of values.586
The central feature of this common frame of reference in traditional
African society was a hierarchical power structure in which each person
was assigned a place or role. Tribal Africa, as Max Gluckman observed,
was "dominated by status".587 At the apex of this hierarchy was the
institution of "kingship" or "chiefship", which was considered divine.
What is important, however, is that the people who occupied these
positions were commonly considered not to be above the law and above
the demands of custom.588 Although Western-style, direct political
participation of the governed through universal suffrage did not occur
585See the discussion of the question "why is law obeyed?" in E1ias The nature of African customary law 56ff. See also Gluckman Politics, law and ritual in tribal society 81ff. See also B Sansom "Traditional rulers and thier realms" in Hammond-Tooke The Bantu-speaking peoples of Southern Africa 246 at 247.
586According to E1ias The nature of African customary law 23, in many societies it is "mystical values [myths, rituals and beliefs] that evoke acceptance of the social order, and not the obedience exacted by the secular sanction of force".
587See Gluckman The ideas in Barotse jurisprudence 5. 588See Elias The nature of African customary law 98. See, however, also
Cuttshall Disputing for power 103. On the relationship between the kraalhead and his family in the so-called "native territories" of the Cape Province, see W M Seymour Native law and custom 65ff and, for a wider perspective, S M Seymour Bantu law in South Africa 65ff. See also Gluekman The judicial process among the Barotse of Northern Rhodesia (Zambia) 7 and B Sansom "Traditional rulers and their realms" in Hammond-Tooke The Bantu-speaking peoples of Southern Africa 246 at 247.
in Africa, there were many other devices through which absolute rule
was counter-acted. We need not detain ourselves here with the legal
procedures through which this took place at the initiative of the king,
such as consultation.589 Our concern is with "illegal" protest, or
protest which in that society would be considered taboo.590
At least two fascinating instances in traditional Africa have been
recorded where what would normally have been considered illegal
behaviour formed an integral part of the political processes of
society, and was consequently allowed.
A. THE "RITUALS OF REBELLION"
Early Western travellers into Africa, as well as later anthropologists
who conducted studies among African tribes, described an extraordinary
mechanism whereby ordinary people were sometimes allowed to
symbolically attack those in positions of authority. What Gluckman
termed the "rituals of rebellion", involved a period of a few days,
normally at the beginning or the end of a particular season, when
subordinate members of the group gave expression to their cropped-up
feelings. These ceremonies have been described as follows: "[T]hey
openly express social tensions: women have to assert licence and
domination as against their formal subordination to men, princes have
to behave to the king as if they covet the throne, and subjects openly
state their resentment of authority."591
Sacred songs were chanted of which the theme was hatred of the king and
his rejection by the people - conduct which normally would not have
been tolerated.592 These act were not understood as expressing
disrespect for the existing social order or for those in positions of
authority. Their effect was not to weaken the fabric of society.
Instead, the catharthic effect of expressing those feelings, the
reminder which it gave to those in positions of power concerning the
589For a general discussion of this topic, see Fortes & Evans-Pritchard African political systems 11ff and Elias The nature of African customary law 14ff. For an account of the delicate balance which existed between the king and his people in Nigeria, see P C Lloyd "Sacred kingship and government among the Yoruba" in Turnbull Africa and change 289 at 302ff.
590The meaning of the term "illegality" in this context is discussed supra chap two I A
591Gluckman Rituals of rebellion in South-East Africa 3. 592See Gluckman Order and rebellion in tribal Africa 18.
effect their conduct had on other people, and presumably the hidden
messages which could be conveyed under the veil of ritual, a11 served
to strengthen the group's solidarity.
In order to renew the unity of the system, institutional provision was
therefore made for expressions of protest that would normally be
considered taboo. Not all forms of resistance would, however, enjoy
such a high degree of formal acceptabi1ity.
B. REBELLION AND REVOLUTION
Whereas the actions referred to above were non-violent and non-
threatening to the political leadership, actual challenges of those in
power inevitably involved violent uprisings. As noted by a number of
commentators, in Africa such challenges invariably took the form of
rebellions as opposed to revolutions.593 The idea of a revolution, which
challenges society's power structure itself, was foreign to Africa -
only rebellions occurred, which were aimed merely at replacing the
personnel who manned those structures. Insurrections also invariably
took the form of palace rebellions, where one part of the power elite
(a prince) tried to wrest supreme power from another (the king).594 An
uprising in which the ordinary people tried to wrest power would have
amounted to a revolution, since power vested in the royal families, and
that did not occur in Africa.
The important question for our purposes is how such acts of rebellion
were traditionally treated in Africa. This question can be addressed
from two perspectives, namely (1) how did those challenged by a
rebellion respond to their opponents while still under threat, and (2)
how were those who participated in the rebellion treated by the legal
system after it became clear that they had failed.595
There was little, if any, difference between the two phases in respect
of the way in which the leaders of rebellions were treated. Either
during or after the event, the consistent approach was to kill anyone
593See Gluckman Rituals of rebellion in South-East Africa 20 and Gluckman Order and rebellion in tribal Africa 8. See also Elias The nature of African customary law 23 and Macfarlane Political Studies 1968 335 at 336ff.
594See G N Uzoigwe "The warrior and the state in precolonial Africa" in Mazrui The warrior tradition in modern Africa 20 at 47.
595Obviously, there would be no need, or at least no opportunity, for the legal system to evaluate a successful insurrection in retrospect.
who initiated a rebellion. In fact, the same fate befell anyone merely
suspected of planning to do so. In most cases no procedures resembling
a judicial process would be involved - the leaders would either be
killed in battle or immediately afterwards.596
The question whether the rebellion was still in progress did, however,
make a significant difference as far as the treatment inflicted and
those who participated as followers in a rebellion against the king was
concerned. During the rebellion, they could be killed in the fighting.
Most interesting, however, is to note how these people were treated if
they were defeated but survived the fighting. Under most modern legal
systems they would be liable on charges of treason.
Drawing on his studies, "inter alia among the Zulu and the Barotse,
Gluckman uncovered the extraordinary fact that in many traditional
African societies those who fought for their princes in a rebellion
could not afterwards be tried for treason. In fact, it was accepted
that there was a duty upon subordinates to support an immediate
superior in his quest for power. Taking part in such acts of resistance
was consequently not only sanctioned by law, but also required.597
How is this curious fact to be explained? It could be dismissed simply
as a reflection of the general authoritarian foundation of these
societies, where commands had to be obeyed at all costs. But it should
be remembered that we are here dealing with a situation where a person
was expected or required to be obedient to a lower authority at the
cost of the interests of the highest authority. Even though
authoritarian rule might still prevail, this at least meant that not
596Among the Zulu, anyone suspected of treasonable activities and his entire village were butchered. See Krige The social system of the Zulus 224. The Venda punishment for planning or conniving in the death of the chief was always execution. See Stayt The BaVenda 224. The same applied in respect of the Tswanas. See Schapera A handbook of Tswana law and custom 63, 274. See also Myburg Indigenous criminal law in Bophuthatswana 62; Myburg & Prinsloo Indigenous public law in KwaNdebela 88 and Dundas Kilimanjaro and Its people 294. In Chief Tshekedi Kama v Simon Ratshosa and another The Law Times Reports 1931 vol 145 657 the Chief, with the approval of his councilors, as retaliation for an attack on him ordered the burning of the houses of the defendants. For an account of more contemporary practices concerning treason, unlawful assembly and seditious meetings in Nigeria, see Okonkwo Criminal law in Nigeria 337ff
597See Gluckman Order and rebellion in tribal Africa 22ff and Gluckman The Ideas in Barotse jurisprudence 53ff.
a11 power was centralised; in a very important area power was
decentralised. In a word, the legal systems in these societies gave the
lower authorities the power to rebel. Why would that be?
Gluckman contended that it was recognised in these societies that
rebellion could serve a unifying or integrating role, and was not
necessarily a disruptive force. That is, it was considered to be a
necessary part of the political process that rebellion would be
possible. The fact that potential successors to the throne often had
to fight each other to secure the kingship ensured that the strongest
and most enterprising person became king; to facilitate this process,
the rules of succession were often deliberately vague and uncertain.598
Similarly, one of the best ways in which tyranny of the king could be
averted was by leaving scope for the possibility of rebellion.599
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598
599
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Rebellion (as opposed to revolution) could serve as an integrating
force, because when a prince and the king battled for the throne, they
were fighting for the kingship of that group, not against it. Their
quarrel was not with the kingship as an institution, or with the fact
that a member of the royal family should occupy that position, or with
the unity of the group - all these things were taken for granted. The
dispute simply centred upon the question which particular person should
occupy that position of power (and indeed the quarrel itself served an
important role in resolving the issue satisfactorily). By fighting for
the kingship, they consequently further legitimised it as an
institution. Rebellion in this way served to avert the alternative
possible response to a dictatorship, namely secession, and in this
sense contributed towards keeping the group together.600
598See Gluckman Rituals of rebellion in South-East Africa 25: "rarely in Africa do we find clear and simple rules indicating a single prince as the true heir."
599Ibid. 600According to E1ias The nature of African customary law 18, "if a king
abuses his powers, subordinate chiefs have the right to secede from the commonwealth or, in the alternative, depose him."
Gluckman indicated that this construction could also explain chapter 61
of the first edition of the Magna Carta. Omitted from the later
editions, it gave the Barons what could be described as a
constitutional power to rebel if the king broke the social contract.601
The proscription of rebellion was upheld by virtue of the fact that its
leader(s) faced certain death if it failed, and those who participated
could be killed in action. By not applying this same rule to his
followers, the skillful and strong prince, who was willing to risk his
life in pursuit of what he considered would be a better dispensation,
was given a position from which he could mobilise the support of his
subordinates. Power was decentralised in order to limit the power
entrusted to the supreme authorities.
It was remarked at the outset that traditionally African rulers were
not above the law. Here we have an example of a case where the
collective wisdom of the society, as reflected in its legal system,
afforded recognition to the fact that even violent rebellion might
sometimes be necessary to renew society - and and is in that sense
deserving of some leniency. Presumably a case could then also be made
out for the recognition of less dramatic forms of resistance.
Attention should be drawn to a few points before this section is
concluded. The first is the fact that African customary law followed
what was later referred to as the "constitutional" approach to the
right to resist. Like Calvinism, traditional Africa restricted the
initiative to lead a rebellion to a "lower magistrate" - to someone who
is already part of the power structure. Ordinary citizens were not
given the right to rebel.
The fact that rebellious princes, but not their followers, were
punished also corresponds with the fact that African law is primarily
aimed at "restoring the social equilibrium".602 A rebellious prince
threatened the existing elite and was dealt with primarily on the
executive or non-judicial level, He could not be reintegrated into
society as it existed at that moment, and had to be eliminated. The
conduct of his followers, however, was not at odds with the prevailing
mores. There was no need to reintegrate them into society -they were in
601See Gluckman The ideas in Barotse jurisprudence 55. 602On this directive of African law, see E1ias The nature of African
customary law 269ff.
fact doing exactly what the society was expecting of them, namely to
obey their direct leaders. Consequently, there was no need to punish
them.
To summarise: By granting indemnity to subjects who had engaged in
rebellion, African society provided a powerful check on the tyranny of
the king. African jurisprudence afforded recognition to the fact that
while the proscription of illegal resistance had to be sustained, law
at the same time had to afford recognition to the fact that self-help
was sometimes the only way in which a society could be changed while
its unity was maintained. By so drastically restricting the confines of
the crime of treason, African law provided perhaps the best example of
official recognition of a right to resist in the strong sense of the
word.
IV. CONCLUSION
Where does the above overview bring us? It is submitted that, as far as
Western philosophical views of resistance are concerned, a distinction
should be drawn between the perception of political resistance in the
pre-modern and the modern era. Generally speaking, it could be said
that during pre-modern times political obligation was seen in near
absolute terms. Only integrity-based, defensive disobedience was
recognised. Modern times allow a much more extensive right of
resistance, which could be politically motivated and result-oriented.
This distinction reflects two different world views.
During pre-modern times the world was largely perceived hierarchically,
with the ruler being the link between human society and some
metaphysical force (God or the cosmic order), which legitimised the
dominant position of the ruler from above. Natural law consequently
primarily served to legitimise state power. The only circumstances
under which disobedience to the state could be legitimised, were where
those in power expected one to act contrary to the demands of the
higher order - that is, where one's soul was placed in jeopardy.
According to Stoic-Christian values, one could and in fact had to -
refuse to co-operate in such a case. Active resistance was not
permissible. Political dissatisfaction could not legitimise resistance
of any sort, because only the state had political power, which was
derived from above.
The modern era dawned with the emergence of the idea of fundamental
human rights, as evidenced in the philosophy of people like Locke and
Kant, and the revolutions of the Eighteenth Century. Power-
relationships were now being regarded in a radically different light.
The power of the state was seen as being derived from the people, from
below, which meant that people also had the right - and responsibility
- to control the way in which it was exercised. There no longer was any
reason to accept injustice passively. Political motivations, such as
the conviction that one was being exploited, could now be a sufficient
basis for result-oriented resistance.
Although these positions differ dramatically, it is submitted that the
modern approach is best seen as a development of the same idea which
underlay the recognition of a right of resistance in earlier times. The
basic premise of the Stoic-Christian approach to resistance was the
notion that, ultimately, each person is the "captain of his own soul".
This tradition insisted on the recognition of what in Lutheran terms
could be called a "private sphere", the area of conscience, over which
the state had no jurisdiction. In accordance with the prevailing world-
view of the time, the political dispensation in which one lived was,
like so many other things, not under human control. As a result,
political repression had to be accepted like the weather. The truely
meaningful life was not the present one and only that which affected
the eternal life was important.
The essential feature of the modern era is the perception of increased
human ability. Political dispensations are no longer seen as "natural
and necessary". There is a universal perception of the possibilities of
change, and the contingency of political systems. In accordance with
the increased secularisation of the world, it is widely believed that
the present world is the one in which one's live must have meaning.
This process of politicisation was manifested most clearly in the
Marxian attempt to create Utopia on earth, but it also underlies much
of the urgency of the present worldwide quest for conditions of living
which makes a dignified existence possible.
This modern view of the world was well understood by Athol Fugard,
whose leading character in A lesson from aloes described the first
thoughts of his political awakening (pompted, as it were, by the bus
boycots in South Africa in the 1950's) as follows: "[A]n evil system
isn't a natural disaster. There is nothing you can do to stop a
draught, but bad laws and social injustice are man-made and can be
unmade by man. Its as simple as that. We can make this a better world
to live in."603
It is this crucial insight - that we are to a large extent the masters
of our own earthly existence - which underlies the modern wide
recognition of a right of resistance.
603Fugard A lesson from aloes 35.
CHAPTER SIX:
THE STATE AND CIVIL DISOBEDIENCE
I. INTRODUCTION
We now turn to the issue of how the state should respond to acts of
civil disobedience. As was indicated at the outset, the objective is to
develop a "flexible" theory of civil disobedience, which provides
guidelines on the acceptability of such acts of protest in more and
less democratic societies.
Much of the terminology to be used in this inquiry was introduced
earlier. Particularly important is the distinction between a right to
resist in the strong sense of the word, which entails a corresponding
duty of leniency on the part of the state, and a right to resist in the
weak sense of the word, which does not imply the existence of such a
duty.
It was also argued that it is not self-contradictory to assert that
civil disobedience can be morally as well as legally justified. There
is nothing logically inconsistent in the notion of a moral and a legal
duty of judicial officers to treat disobedients with leniency. It must
now be established whether, and if so when and how, the existence of
such a duty should be recognised in practice.
In this chapter an attempt will be made to answer three main questions:
- Should democratically-minded state officials (and particularly
judges) give recognition to a strong right to engage in civil
disobedience? That is, should they accept in principle that there
are circumstances in which they could have a moral and a legal
duty to treat a disobedient leniently?
- If the previous question is answered in the affirmative, it
should be established under what circumstances such a right
exists and a duty of leniency would arise.
- Where the presence of such a duty is accepted, it must be
determined how this duty could be discharged in practical, legal
terms.
Before these questions can be answered, however, clarity must be gained
on two points: what is the meaning of the term "democracy", and from
what perspective should the justification of civil disobedience be
evaluated?
A. THE TERM "DEMOCRACY"
The word, "democracy" has many different meanings.1 In this study the
term is used in a normative sense to signify the absence of repression.
It is taken to describe a political system in which there is (i) fu11
political participation and (ii) complete protection of basic human
rights. This definition implies that democracy entails the
simultaneous, maximum protection of the interests of the group and the
individual: "the greatest happiness for the greatest number"
(associated with utilitarianism), as well as the inviolability of the
individual (often associated with Kantian ethics). Both components are
essential, and a society is only democratic to the extent that both are
present.
Ultimately, however, the two values that underlie democracy are
irreconcilable. Consider the question whether one person’s interests
could be sacrificed to protect similar interests of many others.
Utilitarianism would say yes, while Kantian ethics would deny it. Since
answering either yes or no will always be wrong from one perspective
and right from the other, it follows that the two different values are
incompatible. At the same time it would be a matter of courting
disaster if one perspective were to be abandoned entirely, while the
other is being upheld. Because it entails acceptance of the
simultaneous validity of opposing values, there is an inherent
contradiction, and one could almost say instability, in the notion of
democracy.
To some extent the tension between the two values mentioned may be
resolved through the distinction between the private and the public
spheres of human life. Kantian ethics are applied to the private sphere
of human life - to those interests of the individual the protection of
which is considered the most fundamental. These entitlements are
described as inalienable or fundamental rights, signifying that in
these respects the individual may not be used as a means to advance the
1See, for an overview, G Sartori "Democracy" in International Encyclopedia of the Social Sciences vol 4 112 and S R Graubard "Democracy" in Dictionary of the History of Ideas vol 1 652. See also G A Rauche "Die konsep 'derookrasie'" in Faure et al Suld-Afrika en die demokrasie 3 at 8, who regarded the essence of democracy as being its ability to accommodate conflicting views. An up-to-date discussion of the different concepts of democracy is given 1n Held Models of democracy.
welfare of others.2 Utilitarianism is applied to the public sphere,
where the interests of one person may legitimately be sacrificed to
enhance the welfare of others, according to the decision of the
majority.
However, the above distinction between the public and the private
spheres means that each one of the principles which democracy pursues
are at best partially fulfilled. Moreover, the dividing line between
the two types of interests is by no means fixed. Neither Kantian nor
utilitarian values can ever be said to be completely satisfied.
It follows from the above that no government can be completely
democratic. As long as there is scarcity - and there win always be
scarcity - no society can simultaneously give full effect to the
interests of the individual and the group. Democracy can only be an
ideal directive which can never be fully realised in our corrupted
reality. Consequently, when we use the terms "democratic" and
"undemocratic" to describe political dispensations in particular
societies, we inevitably mean "more democratic" and "less democratic".
A person is "democratically minded" when he pursues the optimal
presence of both elements of democracy.
Democratic theory, then, recognises that even a majority is constrained
by the rights of individuals. Interests considered to be the subject of
fundamental rights are "inalienable" by any form of government -
whether elected or not. The fact that fundamental rights are described
as "inalienable" implies that there is a duty on the government not to
compel the individual to surrender the interests so protected. The
general rule that the body politic in democratic systems may
legitimately enforce the decisions of the majority is therefore subject
to an important exception: people should be allowed to pursue their
basic rights even if that does not accord with the wishes of the
majority.3 Unelected authorities have even less of a right to infringe
on the fundamental freedoms of their citizens.
2For an exposition of the philosophical basis of human rights, see J D van der Vyver "The concept of human rights: Its history, contents and meaning" in Forsyth & Schiller Hunan rights 10.
3As Jackson J put it: "One's rights to life, liberty and property, to free speech, freedom of worship and assembly and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections." West Virginia State Board of Education v Barnette 319 US 624 (1943) 639.
The question which rights should be regarded as fundamental is
controvertia1. Since no consensus could be reached in this regard, it
might be useful to ask what type of claims by the individual can
underlie fundamental rights. It can then at least be ascertained what
types of claims in principle can impose constraints on those in power
and which types of claims cannot.
At the basis of the recognition of freedom of conscience is the
protection of one’s integrity or "ultimate concerns". Clearly, not
every manifestation of integrity can be protected. However, the
protection which conscience does enjoy illustrates that it is by no
means incompatible with democratic theory to claim to have the right
against govern-mental interference in what is believed to be matters of
integrity.
Most of the other rights recognised in the human rights instruments of
the world are intended to protect the weak from different kinds of
exploitation - from being used in certain ways for the benefit of those
in positions of dominance in society,. They counteract the corruptive
effects of power. In a majoritarian system they protect the minority
from the majority. It is consequently also not incompatible with
democracy to claim to have a right against what one believes to be
governmental exploitation.
As a general rule, the same does not apply in respect of matters of
policy - that is, issues where neither integrity nor exploitation are
at stake. At least where majority rule prevails, it is accepted that
all members of society should obey the decisions of the authorities in
respect of policy issues. Policy decisions are completely in the hands
of the majority. The minority holds no veto in this regard, because
there is no danger of repression.
This is particularly evident in respect of matters of policy, where the
interests of every member of society are equally at stake. At most it
may be said in such cases that measures introduced by the government
are misguided or even recklessly stupid, but they cannot be repressive,
because the majority cannot repress itself. In such cases the minority
has no distinct interest in restraining the majority - it is accepted
that the majority will restrain itself. A minority that aspires to
restrain the majority in respect of the letter's own self-interest,
implies that it knows better what is good for the majority. For want of
a gender-neutral word, we might call their conduct "paternalistic".
Traditionally, democratic theory does not recognise paternalistic
rights. The recognition of human rights should be seen as a device
whereby is protected against other persons - not against himself.
However, modern developments seem to suggest that this general rule is
subject to exceptions. To a limited extent, the function of the
recognition of human rights can also be to protect those who rule
against themselves. To some extent paternalistic rights are now-a-days
recognised. This is revealed most clearly by the wide recognition
presently afforded to environmental rights.44 The concern that motivates
recognition of such rights is not in the first place the fear that the
rulers will compromise the integrity of other people or exploit them,
but rather that, ultimately, those in power win destroy the means of
living of the entire society, including their own. In the language used
earlier, environmental rights are consequently policy-based.
It seems clear, therefore, that under certain circumstances
considerations of policy might also form the basis of inalienable
rights. Where there is an impending global disaster, individuals can
obtain rights that could constrain the majority in the latter’s own
best interest. Also relevant in this regard is the issue of justice
between generations. We will later return to this matter when its
importance for the justification of certain types of civil disobedience
will be considered. For the moment the important point is that even the
majority in democratic systems can be constrained by the rights claims
of the minority, regarding the protection of its integrity and
exploitation, but normally not by differences of opinion over matters
of policy.
B. THE "ORIGINAL POSITION"
It is submitted that the proper perspective from which to establish
whether a right to resist should be recognised, is that of John Rawls'
original position.5 Rawls suggested that, in order to determine what the
demands of distributive justice are, one should imagine a meeting of
rational, self-interested and mutually disinterested individuals who
40n the philosophical basis of environmental rights, see Tribe The Yale Law Journal 1974 1315. G1azewsk1 SAJHR 1991 167 discussed the international recognition of environmental rights at 170ff and the position in South Africa at 180ff.
5The device of the original position is described in Rawls A theory of justice 118ff. See also Heyns A critical study of the difference principle in John Rawls's A theory of justice 39ff.
have gathered to establish the rules in terms of which the society in
which they are going to live is to be governed. Each person's
particular interest in the deliberations, however, is covered by a
"veil of ignorance". No one knows what his or her sex, race, physical
and mental abilities and basic values are going to be in the society
being designed. This means that no one can attempt to tailor the ground
rules of society to serve his own specific interests. The rules which
such a gathering would set for their future society, according to
Rawls, will inevitably be just, because the original position is fair.
The essence of this device is its emphasis on the need for impartiality
in defining the terms of human interaction. The same idea underlies the
rule of South African law, nemo iudex idoneus in propria causa est.
which is regarded as one of the basic rules of natural justice.
Rawls, furthermore, argued that, given the constraints under which they
operate, those in the original position would follow, what he called,
the "maximin rule".6 Knowing that once the veil of ignorance is lifted
they might end up in the worst possible position in society, they win
devise a society in which the worst possible position is better than in
any other conceivable society. They will consequently ensure that, even
if they should find themselves at the bottom of the social ladder, the
social arrangements will still be the best they could have hoped for.
The same thought underlies the Afrikaner folk-tale of President Paul
Kruger advising two brothers who had to divide a farm, instructing the
one to make the division while that the other would have the first
choice.
It was indicated earlier that Grotius considered what type of
resistance those establishing society would have allowed.7 Gandhi argued
that if he had been in power, he would have accommodated the type of
resistance he was advocating and practising.8 If the perspective of the
original position is applied to the question of resistance, this means
that one should ask oneself what right of resistance impartial
observers would allow, knowing that they could either be the rulers or
the subjects, the ones resisted or the resistors. They win have to ask
6See Rawls A theory of justice 152ff. 7See supra chap five I 0. 8See Gandhi Non-violent resistance 20. On Nehru's position on
civil disobedience after his own assumption of power, see Brownell American Criminal Law Quarterly 1964 27 at 29.
themselves what approach would on the one hand not undermine the
individual's conscience and most basic interests, but on the other not
make the country ungovernable. Because of the neutrality of this
perspective, it is submitted that its outcome will necessarily be just.9
It is also evident that South Africa is presently in a position which
is particularly amenable to this perspective.
How, then, would democratically-minded people, from the perspective of
the original position, see the right to resist?
II. THE RECOGNITION IN PRINCIPLE OF A STRONG RIGHT OF RESISTANCE
The first main question to be addressed in this chapter is whether the
idea of a strong right of resistance should be accepted in principle.
It is submitted that those in the original position would insist on the
recognition of a right to some kind of resistance. Not knowing what
their basic values will be once the veil of ignorance is lifted,
participants in the original position will insist on a right of
individuals to resist state interference in at least the most important
aspects of their lives. Each participant in the original position must
foresee the possibility that, once the veil of ignorance is lifted, he
might turn out to be a Christian in Nero’s Rome, a Jew in Hitler’s
Germany or in some other way be subjected to repressive political
power. Consequently, no one would be willing to completely subject the
individual to the control of the state. Thus Chomsky said: "After the
lesson of Dachau and Auschwitz, no person of conscience can believe
that authority must always be obeyed."10
The most fundamental reason why people defend a right to resist, as
evidenced by the classical views on the right to resist, is their
conviction that individual conscience in the widest possible sense -
the interest of each human being in leading a life for which he accepts
a measure of self-responsibility - must be protected. Without control
over the more basic aspects of her existence, no individual can lead an
authentic and therefore meaningful life.
9Using the device of the original position does not necessarily imply an acceptance of the theory of the social contract. After a11, it would make little difference if there was one or many participants in the original position. The crucial factors which this device entails are rationality and impartiality.
10See New York Times Magazine 26 Nov 1967. See also Lewy Western Political Quarterly 1960 581.
The most important point for our purposes is that the very idea of
fundamental human rights presupposes the existence of a right to
resist. It makes no sense to describe certain rights as "inalienable",
if, when they are in fact alienated, such alienation cannot at some
point be opposed.
What must be established, however, is whether a strong or a weak right
of resistance should be recognised. Can the resister expect only the
sympathy or also the support of state officials? It is widely
maintained that a strong right of resistance could not be justified, at
least not where the society is democratic. The case for recognition of
a strong right to resistance in general will be investigated first,
after which the question will be considered whether or not special
considerations apply to a society which could by and large be described
as democratic.
The central objection against treating civil disobedience with leniency
is. centred upon the assumption that it would undermine respect for the
law and lead to anarchy and lawlessness.11 Some commentators regard
campaigns of civil disobedience as "rehearsal[s] for revolution".12 They
argue that respect for the law demands punishment of a civil
disobedient, on the same basis as any other lawbreaker or perhaps even
more stringently.13
The fact that civil disobedience is motivated by conscience does not
provide any guarantees as to the acceptability of the objectives being
pursued. Burke Marshall observed: "If the decision to break the law
11See Schuyt Recht, orde en burgerljke ongehoorzaamheid 359ff; Cohen Civil disobedience 131ff and especially 145ff; Ernst American Criminal Law Quarterly 1964 15; Tweed et a1 New York State Bar Journal 1964 290 and Leibman American Bar Association Journal 1965 645. See also S Hook "Social protest and civil disobedience" in Kurtz Moral problems In contemporary society 161 at 171
12See Sherr Freedom of protest, public order and the law 15. 13Cohen Civil disobedience 85, for example, argued that
considerations which apply in favour of the civ11 disobedient - "the abscence of selfishness, the candor, the moral Integrity" - are outweighed by those that count against him - the fact that "he breaks the law knowingly, and perhaps with a defiant spirit." Civil disobedience should, consequently, neither be treated leniently nor harshly. It is submitted that this approach does not take into account that the acceptability of acts of civil disobedience may differ from case to case.
really turned on individual conscience, it is hard to see in law how Or
King is better off than former Governor Ross Barnett, of Mississippi,
who also believed deeply in his cause and was willing to go to jail."14
To put this point even stronger: If personal convictions were to be the
ultimate criterion of criminal liability, the murderer in the public
square, who sincerely believes that he has to exterminate members of a
certain race, will go out scott free. Convictions and even conscience
are radically subjective, whether based on one’s perceptions of demands
of the "laws of nature", a "divine code", or some privately perceived
source inspiration.15 From this perspective, tolerating civil
disobedience amounts to capitulation by the state of its duty to be the
final arbiter of acceptable conduct.
But moreover: even if the causes pursued through some acts of
disobedience were clearly laudable ones, if the people involved were to
be allowed to take the law into their own hands, others could be
encouraged to do the same, often for less noble causes.16 In 1960, when
civil disobedience was a widespread phenomenon in the United States,
Black J warned:
Experience demonstrates that it is not a far step from what to many seems the honest, patriotic, kind-spirited multitude of today to the fanatical, threatening, lawless mob of tomorrow. And the crowds that press in the streets for noble goals today can be supplanted tomorrow by street mobs pressuring the courts for precisely opposite ends.17
14Marshall Virginia Law Review 1965 785 at 800. 15See Cohen Rutgers Law Review 1966 1 at 12. Thoreau’s principle,
that "the only obligation which I have a right to assume is to do at any time what I think right," might be fine in the hands of a good-natured person, but It can hardly serve as a general guide for human conduct in the modern state. See Thoreau Walden or. Life in the Woods and On the duty of civil disobedience 252.
16 Richard Lichtmann observed that "the civil disobedient ... is not required to answer the question of what would happen if anyone pursued his own conscience, for that is not what he is proposing. He is only responsible for considering what would happen if everyone were to follow his conscience in the specific manner that the theory of civi1 disobedience requires." Quoted in HacGuigan Canadian Bar Review 1971 222 at 263. However, since so much uncertainty concerning the justification of civil disobedience often prevails, it would be hard for the disobedient to deny all responsibility if his conduct were to inspire some less commendable acts of disobedience.
17 Cox v Louisiana 397 US 559 (1965) at 584. (Black J, dissenting.)
Those who fear such eventualities - and this not only include some of
those who have to evaluate civil disobedience, but also some who
practised it, like Socrates and Gandhi - see punishment as a necessary
consequence of civil disobedience, even though they might recognise
that a particular act of disobedience may be justified. They maintain
that if someone disobeys a particular law, respect for the legal system
as such, or at least law as an institution, can be preserved only if he
is punished. The martyrdom of the person concerned in such cases
ensures that respect for the law is maintained, and this is the price
one has to pay for following the dictates of ones conscience.
If acts of civil disobedience were treated with leniency by the
authorities - it is argued - that which is supposed to be the forces of
order would undermine themselves. If law does not respect itself, as
evidenced by reluctance in punishing those who transgress its commands,
how can the subjects be expected to do so? No system can sanction its
own demise.
There can be little doubt that, if all acts of civil disobedience were
to be tolerated, it would indeed make the country ungovernable.18
Consequently, the observation of Hugo Bedau that "[t]here is no logical
reason why every law could not have a rider to the effect that anyone
who violates it on conscientious grounds shall be exempt from
prosecution and penalty,"19 is unacceptable. However, as Dworkin
observed, "[s]ociety 'cannot endure' if it tolerates all disobedience;
it does not follow, however, nor is there evidence, that it win
collapse if it tolerates some."20
In what follows, it will be argued that society could and should
tolerate some acts of civil disobedience precisely to preserve respect
18The wide range of convictions which has motivated South Africans to break the law can be illustrated with reference to two examples. In S v Mokonto 1971 2 SA 319 (A), the appellant hacked the deceased to death because he believed her to be a witch. In S v Strydom. unreported case no CC 235/89 T 25 May 1989, the accused at random shot and killed black pedestrians in a public square in Pretoria to express his right-wing political sentiments. These cases, and the relationship between the law and personal convictions, are discussed by Heyns SAU 1990 279.
19See Bedau The Journal of Philosophy 1961 653 at 655. See also Walzer Ethics 1966/67 163, who expressed the same opinion.
20Dworkin Taking rights seriously 206.
for the law. The question about the criteria in terms of which
acceptable acts of civil disobedience should be distinguished from
unacceptable acts will be addressed later. For the time being it is
merely submitted that the need to preserve the legitimacy of the law
can be an argument against and in favour of treating civil disobedience
with leniency, depending on the circumstances of each individual case.
Law can only retain its legitimacy if that which it outlaws coincides
in essential respects with the people’s perception of what is wrong,
and that which it requires is seen as right. In certain cases, harsh
treatment of civil disobedience can in the long run actually undermine
respect for the law. Some laws, according to Wyzanski C J, are so
objectionable that by treating a person who breaks them as a criminal
the law would "subvert[] its own power".21 An indiscriminate treatment
of protesters in such cases can alienate some of society's most
thoughtful and loyal citizens.22 As Alien observed, a country "whose
interest lies in lessening rather than increasing the alienation of its
dissentient minorities, harms chiefly itself by a too percipitous
identification of civil disobedience with treason and subversion."23
Civil disobedience is typically seen as a violation of a particular law
in pursuit of higher or more noble principles. J If an act of civil
disobedience is punished too harshly, the law could be seen as siding
against those principles, while if in appropriate cases resistance is
treated with leniency, law acquires legitimacy by being seen as the
protector of those higher values.
The effect it could have had in the long run for the South African
legal system if the approach of the Matthews court had been followed in
the Mandela case is self-evident.24 So, too, is the likely influence of
the approach followed by the magistrates who officiated in the cases
that resulted from the Defiance Campaign, to which reference was made
earlier.25 To a large extent the legitimacy crisis of the South African
21United States v Sisson 297 F Supp 902 (1969) at 909. 22Dworkin Taking rights seriously 207. 23Alien University of Cincinnati Law Review 1967 1 at 12. 24See the discussion of Matthews v Cape Law Society 1956 1 SA 807
(C) and Incorporated Law Society. Transvaal v Mandela 1954 3 SA 102 (T), supra chap four III B (1)(b).
25See supra chap three III A (3)(c)(iii).
legal system resulted through its use as an instrument for the
repression of popular dissent.
It should be noted that, in order to ensure a more responsive legal
system, a host of social causes are commonly considered as constituting
good reasons for not unleashing the full power of the state against
individuals who have transgressed its commands. Examples in this regard
include the imposition of light sentences for crimes committed for
altruistic reasons, and in cases where the offender is of a tender age.
In this way, law may be adjusted in order to accord with the moral
convictions of society.26 There seems to be no reason why the same
cannot apply in respect of certain cases of civil disobedience.
Giving recognition to civil disobedience can also serve as an important
mechanism that would promote reform in society to be initiated from
below; that is, from the grassroots level. Self-help has always been
one of the prime sources of law in its early development, and as long
as society remains in a developing stage, it is inevitable that self-
help will continue to play a role. There are good reasons why the law
should in some cases follow developments in society and not always
attempt to impose externally determined patterns of behaviour on
people.27 Self-help is often the most reliable indicator of what people
see as their most basic Interests that have to be protected in order to
secure an acceptable level of peace and tranquility in society.
Accommodating self-help in appropriate cases serves to keep the law
flexible and responsive to the needs of society.28 In this way, those
who engage in civil disobedience also become involved in shaping the
legal system, which in turn can elicit greater responsiveness to the
law's demands.29 In order to retain its legitimacy and to prevent self-
26See Dworkin Taking rights seriously 206 27Johan van der Vyver has on occasion expressed his dismay at the
authorities of the University of the Witwatersrand, for building footpaths without first establishing the natural flow of traffic on the campus. Consequently, the footpaths were left unused and dust-paths developed on the lawns. To some extent law has to be retroactive, and accomodate society's natural flow.
28As Van der Vyver SAJHR 1989 133 at 134 indicated, the present constitutional reforms in South Africa have at least in part been prompted by the unrest in the country and the liberation struggle.
29Ferreira SAPL 1987 158 argued that civil disobedience should under certain circumstances be regarded as a legitimate form of self-
help, law has to avenge violation of people’s fundamental rights on
their behalf.
There are other ways in which civil disobedience can serve to bring
ethics into politics and into law. It can help to prevent the moral and
physical destruction of society as a whole. Immoral state practices in
one era can have far-reaching consequences in those to follow. The
long-term effects of public participation in slavery in the United
States, for example, can still be seen in the need for affirmative
action.
Perhaps the clearest example of the recognition of the need to provide
the common people with some form of direct redress when they are faced
with repression, comes from traditional African societies. As indicated
earlier, the legal systems of a number of these societies, although
they were commonly perceived as authoritarian, did not regard
participation in rebellion against the king as treason. Rebellion was
seen as an important mechanism whereby the common people could counter
dictatorship.30
Civil disobedience can also play an important role in facilitating
positive social change. Many of the great heroes of history - Moses,
Jeremiah, Socrates, Jesus, Gandhi, King - directly came into conflict
with the laws of their time.31 Yet, through their defiance they founded
new moral orders. As pointed out by Hannah Arendt, it was not law but
civil disobedience that brought an end to slavery.32
As an instrument of imminent critique, civil disobedience can expose
contradictions between political ideals and reality, between what a
government preaches and its practices. This is often how social change
occurs. Those in government might not see their way clear to implement
a particular ideal in practice, but in order to soothe their
consciences, or to improve their international esteem, they may pay
lip-service to that ideal. This hypocrisy or "dilemma" would provide
the necessary leverage for the disillusioned citizens to expose the
discrepancy in government ideals and practices and move that society to
live up to its stated ideals. To a large extent, this is how Gandhi
help in public law. 30See supra chap five III. 31See Weber Civil disobedience in America 300. 32Arendt Crises of the republic 81.
influenced the British to live up to their reputation of fair play and
the Civil Rights Movement induced the American government to make true
the promises of the United States Constitution. By exposing injustice
in society and demanding more humane conditions, civil disobedience
can, in the words of Charles Black, "help the law in quest of itself".33
In this way breaches of the law can ultimately make law more credible.
In some cases, lenient treatment of civil disobedience, then, can
enhance instead of undermine respect for the law. Through a sensitive
treatment of protest, law can come out on the right side of history,
namely if it accommodates rather than annihilates an idea for the
realization of which the time has come. Allowing too little tolerance
of civil disobedience can undermine respect for the law, just as much
as would be the case if too much tolerance is shown.
In a society where civil disobedience is a viable option it can also
serve a variety of other social causes. For example, civil disobedience
can jolt the national debate on a particular subject into action. Often
a dramatic catalyst is needed to set in motion a process of social
change which is long overdue. An input from outside the established
structures is needed to "jumpstart" the process of reform, where the
social system is incapable of regenerating itself. In such cases
illegal action serves a vital social function. If it is treated too
harshly, this might not occur.
It is not typical of those who on behalf of the state prosecute
offences to defend illegal behaviour. Nevertheless, Archibald Cox, a
former Solicitor-General of the United States, stated that
[s]ocial protest and even civil disobedience serve the law's need
for growth. Ideally, reform would come according to reason and
justice without self-help and disturbing, almost violent, forms
of protest ... Still, candor compels one here again to
acknowledge the gap between the ideal and the reality. Short of
the millennium, sharp changes in the law depend partly upon the
stimulus of protest.34
33Black Texas Law Review 1965 492 at 494. 34A Cox "Direct action, civil disobedience, and the constitution"
in Cox et a1 Civil rights, the constitution, and the courts 3 at 22. His sympathy, however, was confined to acts of legality-based civil disobedience.
In many instances, toleration of a certain measure of civil
disobedience could also prevent more serious disorders. As pointed out
by John F Kennedy: "Those who make peaceful revolution impossible will
make violent revolution inevitable."35 The feasibility of lesser forms
of protest makes more forceful acts of dissent unacceptable.36 King
turned to civil disobedience to "transmute the deep rage of the ghetto
into a constructive and creative force."37 Clearly, then, the
authorities should, through the sanctions they attach to different
types of resistance, provide incentives that will channel aggression to
the less disruptive forms of protest.
It bears emphasis that the constitutive elements of civil disobedience
serve to identify a mild form of resistance, which is dramatically
different from other forms of lawlessness. Acts of civil disobedience
are based on conviction and are open and non-coercive. Although this
provides no guarantees as to the acceptability of the conduct in
question, it does ensure that direct harm to anyone remains unlikely.
Civil disobedients almost inevitably commit only minor crimes, which
they believe will not outrage the public, because their aim is to win
the support of the public.
Moreover, mere expression of the causes of deep social concern often
already provides a form of healthy relief. It was noted earlier that
traditional African societies institutionalised mechanisms for the
expression of social dissent, which was otherwise regarded as taboo. In
this sense, giving some recognition to civil disobedience can serve to
defuse potentially explosive situations.38 At the same time, it should
be noted that if civil disobedience is a realistic option to protesters
it can serve as a timely warning signal to those in power of important
35Quoted in HacGuigan The Canadian Bar Review 1971 222 at 222. For other observations by Kennedy on civil disobedience, see 260 of the same article, as well as MacGulgan Kentucky Law Journal 1964 346 at 347.
36See Fortas Concerning dissent and civi1 disobedience 40. 37See Weber Civil disobedience in America 211. 38Studies have also indicated that, apart from the alleviation of
the direct causes of protest, there have been substantial reductions in general crimes of violence in communities engaged in civil disobedience. See HacGuigan The Canadian Bar Review 1971 222 at 265.
social tensions which need to be addressed.39 In many cases, civil
disobedience does not create but rather reflects the underlying
conflicts in society.40 Civil disobedience can, consequently, be both a
political safety-valve and an alarm-signal.
It should also be noted that, apart from anything else, acts of non-
conformity serve the essential function of challenging and testing
existing structures. Concepts only have meaning with reference to their
opposites. It is revealing to note in this context that "resistance" is
probably the oldest political concept to be identified as such - it is
even older than "obedience" and "government".41 While political
authority remains unchallenged, it is experienced as natural and
necessary, and the fact that it can be improved becomes obscured.
Order is recognised for what it is, only if it is sometimes
interrupted. Deconstruction and "thrashing", however inconvenient it
might be at times, are vital components of human progress. In the words
of N P Van Wyk Louw: "Opstand is net so noodsaaklik in 'n volk as
getrouheid. Dit is nie eens gevaarlik dat 'n rebel lie misluk nie; wat
gevaarlik is, is dat 'n hole geslag sender protes sal verbygaan."42
Albert Camus argued that resistance serves the essential function of
affirming that injustice will not go unchallenged. Protest, even if
unsuccessful, ensures that the human personality does not become
desensitised and lose its sense of outrage over inhuman behaviour.
Dissatisfaction with the status quo and an inclination to defy its
commands so as to secure a better future, are essential attributes of
the human person who "really exists", as opposed to the living dead.43
There is also a legal basis for a certain degree of official toleration
of civil disobedience, at least by analogy. While most legal systems
39See Sier The National Lawyers Guild Practitioner 1985 18 at 19. See also Whitney v California 274 US 357 (1927) at 376 (Brandeis J, concurring), where the same sentiment was expressed.
40See Heyns Teologiese etiek part 2/2 166. 41See Calvert Revolution 16. 42N P v W Louw "Lojale verset", reprinted in Louw Versamelde prosa
part 1 65 at 66. 43For Camus, rebellion was one of the essential dimensions of human
existence. He saw it as the only meaningful response to the absurdity of life. "I rebel - therefore we exist." See Camus The rebel 28. (Original emphasis.) For a discussion, see Bakker Albert Camus 15ff.
recognise the defence of superior orders both in public and private
law, they also limit its reach.44
It is not an absolute defence, which means that the obligation to obey
superior orders is also not absolute.45
Under South African law, the defence does not apply in respect of
"manifestly illegal" orders.46 However, because the criterion remains
the positive law and not the justice or injustice of the order, little
more than legality-based civil disobedience can be justified in
accordance with this analogy.
Support for legitimacy-based civil disobedience, on the other hand,
could be derived from the rejection of the defence of superior orders
by the Nuremberg tribunal after the Second World War,47 in accordance
with the charter of the tribunal and with the rules of international
law.48 The accused were convicted of crimes against humanity in spite of
440n this defence in Roman law, see Daube The Law Quarterly Review 1956 494. On the South African criminal law, see Snyman Criminal law 104.
45This defence finds its most natural application in cases involving the armed forces, where disobeying orders of a superior officer may constitute a crime. It does, however, also have non-military applications. See R v Albert 1895 SC 272.
46See the remarks in R v Smith (1900) 17 SC 561. See also R v Van Vuuren 1944 OPD 35 and R v Werner & another 1947 2 SA 828 (A). Although this principle is widely recognised, there are no reported cases in South Africa in which it was actually held that orders were "manifestly illegal". In an unreported case in the Cape Provincial Division, the presiding judge expressed the view that orders to policemen to shoot troublemakers in an unrest situation were manifestly illegal. He was overruled, however, by his assessors, and the accused were acquitted. Villa-Vicencio Civil disobedience and beyond 65, in his discussion of this case, overlooked the important fact that the accused were eventually acquitted, and erroneously described the case as the first instance under South African law where where the defence was held not to apply, because the orders were "manifestly illegal". See "World courts do not absolve those who are ordered to kill" Cape Times 16 Oct 1987.
47On the relationship between the justification of civil disobedience and the Nuremberg trials, see Cohen Civil disobedience 197 and Lippman Houston Journal of International Law 1989 277 at 283. See also D Lumb "Legality and legitimacy: The limits of obedience to the state" in Alexandrowicz Grotian society papers 52 at 67.
48The Nuremberg approach was more lenient than was required by the law of war, in the sense that the possibility was recognised that
the fact that they were implementing the policy of their government of
the time. In essence, the tribunal's finding was that individuals have
duties which transcend national obligations of obedience. There may
consequently be a "higher" legal duty to disobey the law of one’s
country.49 Of particular significance in respect of the South African
situation is the fact that apartheid was declared a crime against
humanity by the international community.50
There is a dark argument which could be used to support the imposition
of punishment for civil disobedience. It could be maintained that
history would reveal that it was precisely through the absence of
leniency - through the imposition of martyrdom - that civil
disobedience had its most spectacular successes. Consider, for example,
the cases of Socrates, Christ, Gandhi and King. Was it not precisely
because they were punished that their message came to be so compelling?
Their martyrdom served not only to retain respect for the law, but also
to establish or legitimise a new order. In order to ensure real change
- it could be concluded - disobedients should be wining, and be made,
to suffer.
The connection between martyrdom and change might serve a useful
purpose as a tool of historical explanation, and it is understandable
that disobedients seek to establish their bona fides by insisting on
punishment, but it cannot set standards for adjudication. It should be
remembered that in cases where martyrdom brings about change and a new
order is legitimised, the old order - to which the decision-maker
Inevitably belongs - is being discredited. Seen from the perspective of
democratically-minded decision-makers in a particular system, as long
as they remain in that system their duty is to improve it and to
enhance its legitimacy, rather than to create forces which could
undermine it from the outside. Whenever confronted with a campaign for
change which they deem necessary, their task is, as far as is possible,
to make the system yield to or accommodate those values. They must, so
superior orders could serve as mitigation. See Schwarzenberger International law as applied by International courts and tribunals vol 2 516ff. The Nuremberg principles have been ratified by the United Nations as rules of international law. See G A Res 95 (1) of 11 Dec 1946.
49See also Fedorenko v United States 449 US 490 (1981). 50International Convention on the Crime of Apartheid G A Res 3068
(XXVIII) of 30 Nov 1973.
to speak, "nationalise the revolution", if they think the revolution is
justified.
As indicated earlier, all civil disobedience need not involve
martyrdom. By tolerating the conduct of those who pursue what appears
to be deviant causes, a legal system can in appropriate cases, to some
extent accommodate and internalise those values.
In view of the above, it is submitted that a strong right to resist
should in some cases be recognised.
However, even if it is agreed that in some cases a strong right of
resistance should be recognised, some might feel that this does not
apply in democratic systems. Several commentators maintained that the
right to disobey the law "is not obtainable at all in a parliamentary
democracy, although different considerations arise under a totalitarian
régime."51 Examples of obedience to and disobedience of the law taken
from the Third Reich and other totalitarian regimes are simply not
applicable to democratic societies. Sternberger called the use of civil
disobedience in a democracy "untimely resistance". In Nazi times, he
maintained, "there was one tyrant and little resistance; today, there
is much resistance and no tyrant."52 The practice of civil disobedience
by a minority in a democracy was criticised by Lippman on the basis
that the minority defines the "presence or absence of the democratic
process by whether or not they get their political way, and not by the
presence or absence of democratic political processes ... [I]f they
lose that's sufficient proof that the game is rigged or dishonest."53
51Francome v Mirror Group Newspapers ltd [1984] 1 WLR 892 at 897. See the discussion of this case by Samuel Oxford Journal of Legal Studies 1985 300. This sentiment is shared by Trichardt & Trichardt CILSA 1986 357 at 409. See also Schuyt Recht, orde en burgerlijke ongehoorzaaoheid 366ff; Cohen Civil disobedience 167ff and Spitz The American Political Science Review 1954 386, for a discussion of this point.
52See Kaufmann New England Law Review 1985/86 571 at 572. Kaufmann (at 576 of the same article) advocated, what he called, a "right to resist on a small scale", which amounts to a critical disposition of a11 citizens. This, he claimed, will make civil disobedience in a democracy unnecessary. The obvious reply to this argument is that drastic action is often necessary to create such a critical disposition.
53Lipproan Washburn Law Journal 1987 233 at 238. (Original emphasis.)
The exact meaning of such bland statements can only be ascertained once
it is clear what definition of democracy one prefers. According to
Lippman, democracy means that "in general the convictions and the
interests of the majority must prevail and those of the minority must
give way."54 The only essential feature of democracy is consequently
seen as majority rule. The minority must accept the decisions of the
majority as binding, and unfit a law has been changed by legal methods
it must be obeyed by anyone who wants to be called "a good democrat".55
Because they have access to the vote, every citizen is deemed to have
consented to all the laws.56 At the most, legality-based civil
disobedience can be justified in such cases.
According to this view, the justification of civil disobedience is made
to turn on the question of political participation. Where there is
political participation, there is an absolute duty of obedience; where
there is not universal franchise, there is no such duty.
The above approach is acceptable only if one takes a simplistic view
according to which democracy means that the majority has complete
control over the lives of all citizens. However, as stated earlier, it
belongs to the essence of the recognition of human rights that certain
aspects of human life are not subjected to control by any outside
agency - not even the majority. It was also argued that democratic
theory accepts this limitation of the powers of the majority.
To be sure, civil disobedience would have no place in a fully
democratic state, but the point is that there are no such states.
Nowhere would one find full popular participation in every decision or
a complete protection of human rights. In all societies there are
instances of repression which could potentially justify civil
disobedience.57
Most important, however, is the fact that no fixed index will be found
of what exactly is to be considered basic human rights. In the dynamic
process of regulating the relationship between state and citizen in a
54Id 239. 55Martin Ethics 1969/70 123 at 129. 56This argument was discussed - and rejected - supra chap five I EE
(1). 57See also Sibley Journal of tha Minnesota Academy of Science 1965
67 at 72.
particular time and place, there is bound to be some infringements of
basic rights. Fundamental rights are inalienable - also by the majority
- and when they are abridged that can form the basis of a right to
resist.
Consequently, it is submitted that even in a system where majority rule
prevails there can be room for civil disobedience as a means of
pursuing basic human rights. As observed by Harold Lasky, it would be
absurd to claim that "the duty of a minority whose values are denied is
a simple one of becoming a majority."58 According to Martin: "To say
that civil disobedience should not be allowed in a democracy suggests
that the democrats have solved the problem of human finitude."59 At
best, the general proposition would be valid that there will be less
room for civil disobedience in a more democratic state than would be
the case in a less democratic one.
Taking into account the above considerations, an approach must be
devised that win minimise the negative effects of civil disobedience
but which at the same time leaves scope for its positive aspects.
Although it is accepted that absolute obedience to the law need and
should not be enforced, it must be realised that the ability of a
society to tolerate deliberate transgressions of its laws is limited.
III. THE CONDITIONS OF LEGITIMATE CIVIL DISOBEDIENCE
If one accepts that in some - and only some - cases a strong right of
resistance should be permitted, one must obviously consider on what
basis a distinction may be drawn between acceptable and unacceptable
acts of civil disobedience. We now turn to the second main question
that will be addressed in this chapter, namely which criteria can be
used, in more and in less democratic societies, to determine when a
strong right to resist should be recognised.
Instead of making the question when a right of resistance should be
recognised dependant in the first place on the question of political
participation, as is done in terms of the approach discussed earlier,
it is submitted that it should be made dependent on the justice of the
law involved.60
58See Weingartner Columbia University Forum 1966 38 at 44. 59Martin Ethics 1969/70 123 at 135. 60Weingartner Columbia University Forum 1966 38 at 42, for example,
The idea that the injustice of a law can dissolve the obligation to
obey that law, is in line with the often-quoted maxim of Augustine,
referred to earlier, that an unjust law is no law at all. The injustice
of a law, in modern terms, is defined with relation to compliance with
the norms of human rights.
It is submitted that the recognition of a right of resistance is
inextricably linked to the idea of basic human rights, because human
rights define the limits of the legitimate powers of governments. The
point is best put in the form of an apparent contradiction: someone has
a right to resist if his inalienable rights are being alienated - that
is, if his fundamental rights are being violated. No government has a
right to do this and majoritarian as well as non-majoritarian
governments may consequently legitimately be resisted if they attempt
to do so. The more serious the violation of fundamental freedoms, the
stronger the right to resist.61
The substantive criterion for the recognition of a right to resist is
consequently the acceptability or justice of the law involved, in terms
of the standards of human rights.62 However, citizens are expected, in
the name of public order, to put up with some injustice. Consequently,
in addition to the substantive criterion some formal criteria should
also be posed in certain cases, such as the requirement that other
alternatives must have been exhausted, before one can engage in civil
disobedience. These conditions are "formal" in the sense that the
merits of the protest - the justice of the law objected against - is
not taken into account. Where applicable, they serve to ensure that
civil disobedience is engaged in only in exceptional cases.
In contrast to the approach outlined earlier, the question of political
participation is consequently not taken as the touchstone of a right to
maintained that "civil disobedience is justified to the degree to which the object of the protest [that is, the law or measure protested against] is thought to be wrong."
61See eg Rawls A theory of justice 372. Black Texas Law Review 1965 492 at 500 required a "special moral urgency". Van Zyl & Van der Vyver Inleiding tot die regswetenskap 165 maintained that active resistance against the state "behoort beperk te bly tot gevalle van betreklik algemene en relatief ernstige ongeregtighede."
62Oosthuizen The ethics of illegal action 12 saw the criterion for legitimate resistance as "the dignity of man" and "his universal rights".
resist - the right of political participation is considered to be
merely one of a wide array of basic rights, the violation of which
could justify resistance.
Since the substantive standard concerns the merits of the law involved,
we may call this part of the inquiry content-specific, in contrast to
the formal conditions which are content-neutral. Since the formal
conditions present relatively few problems, they will be dealt with
later on.
A. THE SUBSTANTIVE STANDARD: BASIC HUMAN RIGHTS
The nature of the substantive standard will now be considered: which
rights should be considered as basic human rights?
(1) The primary criterion: the boni mores
The primary criterion in terms of which the scope and nature of the
term "basic human rights" has to be determined is the boni mores or
legal convictions of the local and international community. The boni
mores is a flexible concept that lives in the hearts and minds of the
people, and as such it defies definition. What could be said, however,
is that in interpreting its dictates, the decision-maker "must become
'the living voice of the people'", and "know us better than we know
ourselves."63 She must, to bring in some Dworkinian hermeneutics, read
the text of society and humanity "in the best possible light".
The first question to be asked is what the boni mores of the particular
society are, as interpreted by its judicial officers. What does that
community regard as basic rights? In establishing what the boni mores
are in this respect, the legal instruments for the protection of human
rights in the particular society, as well as the wider legal and moral
convictions of the community, should be considered.
The second important source would be the international consensus as to
which rights should be considered fundamental, as reflected in the
bills of rights contained in national constitutions worldwide, as well
as the instruments of international law accepted by institutions such
as the United Nations. Since the latter documents reflect the
collective wisdom of the human race after centuries of struggle - a
process in which the roles of oppressor and resister often changed -
their provisions should be particularly attractive from the perspective
63See Corbett SALJ 1987 52 at 67.
of the original position. Internationally accepted definitions of
inalienable rights provide perhaps as close an approximation of those
values which could legitimate disobedience and that people would accept
from behind a "veil of ignorance", as one might expect to find. The
bills of rights of the world are in a sense simply an index of those
interests, the violation of which would be regarded, according to the
boni mores of the world community, as a legitimate basis for
resistance.
The substantive criterion of the boni mores operates well where there
is national and international consensus as to the demands of justice.
The problem, however, is that civil disobedience mostly occurs where
there is no agreement about the boni mores in this regard. Even if
everybody were to agree that one should be able to transgress wicked
laws with impunity, the point is that agreement seldom exists as to the
question whether or not a specific law is sufficiently wicked to
warrant such transgression.64 Is a basic right violated in the
circumstances of the particular case, and if so, is the violation
serious enough to warrant resistance? To make legitimate disobedience
of a controversial law depended upon the merits of the provision in
question, is in most cases simply to rephrase in an unuseful way the
dispute concerning its merits. Such an approach would in many cases
have little or no value as a guide to action.
In a considerable number of areas our convictions regarding the
dictates of justice are in a state of flux. In the interaction between
independent and free-spirited people, one can expect to find legitimate
disagreement on questions such as whether particular restrictions on
speech are warranted, the propriety of protecting second and third
generation rights, the moral quality of conduct in the area of foreign
affairs, the issue of national service, etc.
Where the criterion of the boni mores provides no guidance and the
substantive criterion consequently collapses, it is to be expected that
more emphasis will be placed on the formal .criteria. However, by
themselves these criteria provide a wholly insufficient basis for
making the necessary distinctions. To both sides in a dispute civil
disobedience might, for example, be the last alternative, but the level
of public order might not be such that disobedience by both sides could
64See Dworkin A matter of principle 106.
be tolerated. On what basis should the distinction then be made?
One possibility is that judges and other decision-makers could simply
rely on their intuition. This would inevitably mean that in order to be
able to make the necessary distinctions they will fall back on their
own subjective concept of values. In such cases the scope of the right
to resist would depend entirely on their own biases, resulting in
arbitrary judgments.
This should not be taken as minimising the importance of intuition.
However, the scope for discretion is so wide, and the consequences so
immense, that it seems imperative to find some guidelines that could be
applied in this regard. In cases of legitimate uncertainty about the
merits of a particular law, an alternative substantive criterion will
have to be found.
Moreover, it win be argued that some of the formal criteria posed by
traditional theories of civil disobedience are inappropriate in respect
of certain types of resistance whether or not certainty exists about
the merits of the particular law in question.65
(2) The secondary, alternative criterion: The types of convictions
involved
Inasmuch as the boni mores do not serve as a dear, substantive
criterion, an alternative inquiry should be undertaken for establishing
which acts of disobedience are acceptable and which are not. Developing
an idea of Dworkin, it is submitted that the determining question in
such cases ought to be to what extent the type of claim made by the
protester can underlie basic rights.66 If it should be found that the
type of claim (irrespective of what is being claimed) can in principle
underlie basic human rights, this would point toward leniency. If not,
leniency would be inappropriate. The above is subject to the condition
that the formal criteria have been satisfied.
Since posing such an alternative, substantive standard does not involve
an investigation, into the merits of the particular law or governmental
act in question, but the type of convictions involved are nevertheless
taken into account, this approach could be described as semi-content-
65For example, the requirement that all other alternatives must be exhausted should not be applied in respect of certain kinds of disobedience. See infra chap six III C (1).
66See Dworkin A matter of principle 106ff.
neutral.
Three types of disobedience were identified earlier with a view to the
type of conviction involved, or, to put it differently, the type of
claim which was being made:
- Integrity-based civil disobedience, which is motivated by the
belief that a particular law compromises one's "ultimate
concerns" (either religious or secular).
- Anti-exploitation civil disobedience, which is motivated by a
conviction that certain groups or individuals in the community
are being exploited by the rulers; that is, the rulers are
benefiting themselves at the expense of their subjects, or one
group at the expense of others.
- Policy-based civil disobedience, which involves neither claims of
integrity nor exploitation, but the charge is made that the
rulers are nevertheless following the wrong approach.
A distinction was also drawn between defensive and result-oriented
civil disobedience. In the case of defensive civil disobedience, the
intention is primarily to save oneself from personal involvement in
that which one believes to be wrong. When the objective is to bring
about social change, one is dealing with result-oriented civil
disobedience.
The relative propriety of these different types of resistance will now
be discussed.
(a) Integrity-based civil disobedience
In the case of integrity-based, defensive civil disobedience, the
protester refuses to obey a particular law because it requires him
personally to act in a way which conflicts with his most basic beliefs.
He is expected either to become an instrument of what he considers to
be evil (for example, the government requires him to pray to a foreign
god) or to refrain from what he regards as imperative (for example, the
law might require him to stop praying to his own god). He does not
expect society to share his convictions but wants to be left at liberty
to practise his most fundamental religious or secular beliefs. Such
acts of civil disobedience are inevitably direct, in the sense that
only the law which -is considered offensive is violated.
The following are also examples of this type of disobedience: Refusing
to participate in mandatory racially discriminatory practices; refusing
to salute a flag if one believes it to be prohibited by one's religion;
refusing to fight in a war which one considers to be unjust; altogether
refusing to participate in military activity if one is a pacifist, etc.
As indicated in the chapter on classical views regarding political
resistance, this type of disobedience has the longest history of
recognition in Western political culture. It is exactly this type of
resistance which was defended, and indeed propagated, in the Stoic-
Christian tradition and which constituted the basis on which Western
notions of justified resistance developed. Majoritarian and non-
majoritarian governments are generally expected not to force their
subjects to betray their ultimate concerns.
Although absolute protection of every kind of belief is not possible,
it should be clear that, in as much as this is compatible with the
reasonable expectations of others, there will be the highest degree of
sympathy for this type of disobedience in the original position. As
indicated earlier, no one in the original position knows what her
"ultimate concerns" are going to be. No one would want to find herself
in a situation where she is expected to betray her ultimate concerns.
Following the "maximin" approach, those in the original position would
want to give as much protection as is possible to matters of integrity
- although, as indicated earlier, they would not pursue this objective
to the point of making the country ungovernable. Consequently, the
greatest measure of leniency should be shown for this type of
disobedience.
It will be illustrated shortly that, because of the categorical nature
of integrity-based disobedience, almost all the formal conditions of
justified civil disobedience that apply in other cases should not be
required in respect of this form of disobedience.
In spite of the way in which it is often perceived, most of the actions
of protest in the Defiance Campaign in South Africa and the Civil
Rights Movement in the United States cannot properly be depicted as
integrity-based. Specific laws were disobeyed in artificially created
circumstances. The protesters "went out of their way" to break the law.
No one has a general moral duty to seek out and disobey laws considered
to be unjust.67 This is not to deny the legitimacy of these actions - it
is merely being claimed that they do not belong to the category of
67 See Dworkin A matter of principle 107.
resistance with the highest grade of legitimacy.
Those who refuse to pay taxes as a means of registering their protest
against the application of state funds, also often represent their
actions as integrity-based. In principle, this representation is valid,
insofar as its protagonists are expected to fund activities which they
regard as reprehensible, but it should be noted that the connection
between the act of disobedience and the eventual use of the money is
rather remote. Consequently, the latitude which integrity-based civil
disobedience solicits could only be applicable in scaled-down form to
the refusal to pay taxes.
The fact that one is here dealing with defensive integrity-based
protest is important. Very little latitude -it is submitted - will
apply to cases of result-oriented integrity-based disobedience, where
one endeavours to change the world according to one's own beliefs.
Other persons might have equally strong views on the same subjectmatter
which should also be respected.68
(b) Anti-exploitation civil disobedience
Anti-exploitation resistance,69 which is normally result-oriented,
involves an attempt to persuade the government to refrain from what -
is believed to be practices which exploit groups or individuals not in
power. It finds application in cases where a minority suppresses the
majority, or vice versa: the point here is that the rulers are being
accused of acting to their own benefit and to the detriment of (some
of) their subjects. The charge is being made that the government is
abusing its power.
68An example of result-oriented, integrity-based civil disobedience would be picketing a movie-theater which operates on Sundays, because Sunday recreation is regarded as a sin. Dworkin wrongly assumed that all acts of integrity-based civil disobedience will be defensive. See id 109.
69Dworkin's term "justice-based civil disobedience" is misleading, because it implies that the other types of civi1 disobedience do not involve claims of justice. The confusion is increased when he describes this type of resistance as based on the claim that fundamental rights are being violated. The point is that, in order to be legitimate, any form of resistance has to proceed from such a claim. By ascribing this feature to a particular form of resistance, the impression is created that such resistance is almost by definition legitimate and other forms of resistance are illegitimate. See Dworkin A matter of principle 101.
Examples of this kind of disobedience include Gandhi's campaigns in
India, the campaigns conducted as part of the ANC's liberation struggle
in South Africa, the Civil Rights Movement in the United States and
the Tiananmen Square demonstrations in China.
As illustrated earlier, recognition of such acts of resistance as
legitimate also has deep roots in the history of Western spiritual
life, although it only found general acceptance since the time of Locke
and Kant and the emergence of modern democracies. It seems -fair to
assume that, in view of the corruptive nature of power, those -in the
original position will insist on special protection of the interests of
those without power against the repositories of power -not only in
respect of the former's "ultimate concerns" but also as far as other
aspects of their lives are concerned.
This form of resistance clearly finds application where those who are
in power are unelected, but it is also not incompatible with
representative systems. Since democracy recognises the need to protect
the governed against exploitation, civil disobedience under this banner
does not challenge democracy in a fundamental way.70
However, because the interests protected by anti-exploitation civil
disobedience are not "ultimate concerns", the same accommodatory
attitude that attends integrity-based disobedience will not apply in
this instance. One is expected to tolerate some injustice for the sake
of public order, although one is not expected to compromise one's
"ultimate concerns". As will be illustrated, a wide range of formal
conditions are usually required to ensure that the present strategy
would only be followed in sufficiently serious cases.
A high priority would be placed on acts of protest aimed at those
forms of alleged exploitation that are also believed to underlie other
forms of exploitation. An example would be protest aimed at securing
political participation, because absence of such participation normally
substantiates many other discriminatory practices.
It should again be emphasised that, at this stage of our inquiry, we
are not evaluating the particular convictions of the person involved.
We are merely trying to determine what type of conviction is involved,
not its merits. What is to be established is not whether the
70On exploitation, democracy and civil disobedience, see Ackerman Social justice in the liberal state 299.
protester's convictions fit into traditional perceptions of the scope
of basic rights we are merely required to establish whether or not he
bona fide maintains that he himself or other persons are being
exploited.
An important part of establishing such a person's bona fides - that is,
of determining whether he realty regards the conduct of the state as
exptoitive - would be to ascertain whether he is willing to accept that
the rights he insists upon are to be granted to everyone. If not, he is
pursuing self-interest and not convictions regarding exploitation. For
example, someone whose protest is aimed at securing exclusive control
over a disproportionate part of the country by a number of citizens
cannot be bona fide if he claims to be fighting exploitation in the
name of non-exploitation.
It would also be dishonest to see the particular "right" that one is
claiming in isolation from other rights which that right presupposes.
If someone protests against the low prices of farming products, his
action would lack credibility if he should claim to be willing to grant
a right to high prices to everyone in the country but at the same time
denies some people the right to own land in the first place.
There is no reason why this type of resistance could not be acceptable
in principle in political systems where there is universal franchise as
well as in systems where political participation is a prerogative of
sections of the community only. In both cases exploitation is possible,
although it occurs more often in the latter.
(c) Policy-based civil disobedience
The objective of this type of resistance, which is also normally
result-oriented, is to persuade those in power to change an aspect of
the communal life that cannot be regarded as destructive of integrity,
or exploitive, but which nevertheless is to the disadvantage of either
a section of the community or the community as a whole. The
presupposition is that the government is acting in an unwise or perhaps
even recklessly stupid manner.
Examples in this regard would be protests against a government decision
to import maize because it believes that the locally grown crops would
be insufficient to provide in the country's demand, or against a law
requiring motorists to drive on the right hand side of the road instead
of on the left.
In general, of all the instances of civil disobedience this variety can
be expected to provoke the least tolerance. The urgency which attends
the other cases and make self-help mandatory, is not present in this
instance.
Especially in a system of majority rule, this form of civil
disobedience is problematic. As a general rule, the majority in a
democracy can act without restraint in its pursuit of matters of
policy. In most cases, the minority is then expected to comply with
decisions of the majority. As it was put earlier: the minority does not
have the right to act in a paternalistic way and attempt to constrain
the majority in the latter's own interest. While concerns about
integrity and exploitation can in principle underlie basic human
rights, issues of policy cannot. Policy-based civil disobedience,
therefore, challenges the principles of democracy in a fundamental way,
and as a general rule it should be considered unacceptable. The
exception to this general rule, to which reference was made earlier,
win shortly be considered in more detail.
Policy-based civil disobedience in a system where universal franchise
does not exist, raises special problems. The absence of wide-spread
political participation is perhaps the single most fundamental ground
for condemnation which the legitimacy of a political and legal system
could possibly suffer, even though the protection of certain basic
rights could mean that a measure of legitimacy is still preserved. The
general principle of majoritarianism, namely that those subjected to
political power must obey the law because they had the opportunity of
participating in the making thereof, does not apply here - the point
being, that if universal franchise existed, the resistors would then
have been able to participate in the enactment of different laws. Laws
which in other societies would be regarded as affecting matters of
policy only, might in non-majoritarian systems be seen as exploitive.
Nevertheless, it is submitted that close attention should be paid to
the basis upon which the protest is being presented. If it is defended
on the basis of exploitation, it should be treated as an act of anti-
exploitation civil disobedience. If the protester accepts the general
legitimacy of the system but objects to what he perceives to be a
counter-productive public policy, it should be treated as a policy-
based act of civil disobedience. Since the protester himself, in the
latter case, does not raise the issue of the legitimacy of the system,
but merely object to what he regards as an issue of policy, it could be
expected that considerations of public order override the right to
resist. Even in non-majoritarian systems certain types of claims should
be regarded as less legitimate bases for resistance than others. It is
important to note, however, that insofar as there is consensus that a
particular regime is unjust or even wicked, the primary criterion
suggests a general right to resist and the alternative criterion is
irrelevant.
Perhaps the most controversial contemporary examples of what on the
face of it appears to be policy-based civil disobedience in
majoritarian systems are illegal anti-nuclear and pro-environment
protests. Dworkin argued that protest against the deployment of nuclear
weapons in Europe was aimed at policy-decisions and should consequently
be seen as instances of policy-based disobedience. The interests of
everyone were affected in the same way and there could be no question
of exploitation. Because the minority cannot constrain the majority in
respect of issues of policy, this form of resistance, in his view,
could not be justified.71
This argument loses much of its force if the position if respect of
pro-environment protest is considered. It was pointed out earlier that
a growing perception would have it that the right to a clean
environment should be regarded as a basic and inalienable right.72 The
primary rationale behind the recognition of such a right is the belief
that those in power are acting to the detriment of the entire
community. The government is making an error of judgement which might
"km the world" in which we all have to live. Because a perceived global
catastrophe is looming, "paternalistic rights" are consequently
recognised. However, as was argued earlier, it only makes sense to
describe a right as "inalienable" if it is accepted that its violation
can at a certain point justify resistance. Consequently, from a
consideration of the recognition given to environmental rights, it -
appears that paternalistic rights, affecting matters of policy, could
serve as a basis for disobedience where - it is believed that a global
disaster is threatening. Since anti-nuclear protest is also premised on
the belief that a global disaster is looming, Dworkin's argument
against accepting that such protest could be legitimate cannot be
71Dworkin A matter of principle 111. See also Norman Radical Philosophy 1986 24
72See supra chap six I A.
accepted.
The principle that necessity justifies self-help, which is almost
unversally accepted in the legal systems of the world, suggests that if
the ultimate threat - the destruction of the world as we know it - is
in fact present, not even the majority can constrain the minority. At
some point, the minority should be allowed to free itself from a self-
destructive majority.
There are two more reasons why it could be argued that pro-environment
and anti-nuclear disobedience could be legitimate. The threat posed by
the envisaged calamities in both cases affect not only the present
generation of human beings. Some would feel that the rights of future
human generations, as well as the rights of other creatures, such as
animals and plants, are also affected. Rawls, for example, has argued
that those in the original position would be concerned with justice
between the generations, because they do not know to which generation
they will belong.73 Others have argued that animals and plants also have
rights.74 If these arguments are accepted, it follows that protest on
behalf of later generations and other species should be seen as
instances of anti-exploitation civil disobedience. One need not accept
these arguments dogmatically, however, to perceive that vital interests
do come into play in the case of impending global disasters, which do
not arise in the case of ordinary policy-based acts of civil
disobedience.
Anti-nuclear and pro-environment protesters could consequently claim
that, as far as the interests of future generations and other species
are concerned, their protests could be seen as manifestations of anti-
exploitation civil disobedience. As far as the interests of the present
generation is concerned, it falls under the "global disaster" exception
to the general rule that policy-based civil disobedience is
unacceptable.75
73See Rawls A theory of justice 128. 74See the discussion of the literature on this topic by Labuschagne
JCRDL 1984 334 at 337ff and Labuschagne S Bekker Obiter 1986 33 at 48. 75Without going into this proposition in any detail, it may be
asserted that the following considerations point toward less leniency in respect of anti-nuclear disobedience than is the case with pro-environment disobedience: In cases of policy-based civil disobedience, one has to take into account the concerns which those in power seek to
(3) Application
The following examples will illustrate the way in which the primary and
additional substantive criteria interact to provide a conceptual -
framework within which acts of civil disobedience could be evaluated.
- A protester pickets the office of the State President to protest
against the fact that sexual molesting of the youth is illegal.
In such a case, the boni mores would clearly dictate a stringent
response, thereby rendering the alternative inquiry into the type
of convictions involved unnecessary.
- A conscript refuses to participate in military activity on the
grounds that he is a secular pacifist. Insofar as uncertainty
concerning the boni mores might in this instance exist, one
should establish what type of conviction is involved. If the
conscript's convictions in this regard are truly his "ultimate
concerns", one is dealing with defensive, integrity-based civil
disobedience, which suggests leniency.
- A white person trespasses on the land of his new black neighbour,
to protest against the scrapping of the Group Areas Act.
Presumably the boni mores are dear in rejecting such conduct.
Insofar as public morality might leave one in doubt, however, the
protest seems prima facie to be based on sentiments opposing
exploitation. It would be hard, however, to accept the bona fides
of the protester. How could he protest against exploitation if he
refuses to grant others the same rights as he himself enjoys? It
seems more likely that his conduct is motivated by narrow self-
interest and not by conviction. If that is indeed the case, it
should not be regarded as a form of civil disobedience at all.
Civil disobedience is per definition based on conviction.
- Someone breaks the law to demand the right of a group of people
balance. In the case of pro-environment disobedience, conservation and progress must be weighed and balanced. An imminent disaster is weighed up against a reduction in development. In such a case, a measure of paternalism might be justified to highlight the danger. In the case of nuclear deployment, the governments concerned are balancing the dangers of unilateral disarmament against the dangers of taking part in the arms-race. In other words, they were balancing two global disasters. In that circumstance, the positive contribution of civil disobedience is not all that clear, and paternalism seems less acceptable.
who share his convictions to secede, and to form their own state
- in a small and desolate part of the country. His claims could
possibly find support in the current secessionist movements in
many parts of the world. However, insofar as there is uncertainty
in the legal convictions of the community with regard to his
demands, it should be treated as an example of anti-exploitation
civil disobedience, which suggests leniency. Insofar as
subjective considerations should be considered, his bona fides
could also not be challenged.76
- A number of farmers block the roads of Pretoria to protest
against the low prices paid for their products. It was stated
at the outset that civil disobedience per definition involves
a low level of coercion. The high level of coercion involved
in disrupting an entire city might suggest that one is here
not dealing with civil disobedience at all, but with a more
serious form of aggression. However, if one accepts that their
conduct should be regarded as a form of civil disobedience,
there might be uncertainty concerning the merits of their
claims, which in turn would necessitate the implementation of
the alternative substantive criterion. Such an inquiry would
reveal that their conduct is policy-based and not aimed at
averting an imminent national disaster. There seems to be no
basis for leniency in this case.
This concludes our analysis of the substantive criteria. The question
will now be addressed which formal requirements for civil disobedience
to be justified should be posed in respect of the different types of
disobedience. As will be indicated, because of the categorical nature
of integrity-based civil disobedience, virtually no formal requirements
apply to this type of resistance. In respect of anti-exploitation civil
disobedience and policy-based civil disobedience regarding an imminent
national disaster, a number of formal requirements should be posited.
As indicated earlier, these formal conditions would apply where the
primary substantive criterion of the boni mores is being used, as well
as in those cases where the criterion is the type of conviction
involved. In both cases it is useful to distinguish between integrity-,
76See, however, on secession along racial lines under international law, Van der Vyver Emory International Law Review 1991 9, especially at 90.
anti-exploitation and policy-based civil disobedience.
B. FORMAL CONSIDERATIONS
Most theories of civil disobedience take formal considerations such as
the following into account in assessing the possible justification of
acts of civil disobedience.
- The question whether other reasonable alternatives have been
exhausted.
- The extent of political participation.
- Proportionality of means and ends.
- The chances that civil disobedience might worsen the situation.
- State security.
- Approach of the protesters regarding punishment.
- The level of coercion involved.
- Repetition of acts of civil disobedience.
- The question whether or not the protesters are members of a well-
established social group.
In what follows, the extent to which each consideration, seen in
isolation (that is, assuming all else to be equal), affects the
justification of acts of civil disobedience will be considered.
(1) The question whether other reasonable alternatives have been
exhausted
A frequently stated formal condition for justified civil disobedience
is the requirement that other avenues which can reasonably be expected
to yield relief must have been exhausted.77 Given the fact that society
has a limited tolerance for acts of deliberate illegality, insistance
on this requirement should not be surprising. While legal means are
still available to bring about change, resort should not be taken to
illegal ones, even if one is subjected to a certain measure of
77See eg Weingartner Columbia University Forum 1966 38 at 43. The approach of S Gendin "Governmental toleration of civil disobedience" in Held et a1 Philosophy and political action 160 at 171 is too rigid. He maintained that civil disobedience was justified only if, ab initio. no legal means were available to address the problem. The fact that legal means are available does not dispose of the question whether it is reasonable to expect one to abide by its outcome.
injustice.
It is not required that no other alternative means of resistance than
civil disobedience should exist. That would in most cases have the
effect of altogether ruling out civil disobedience, because there is
always at least a far-fetched possibility of the government being
miraculously persuaded to mend its ways. The requirement is merely that
the available avenues cannot be reasonably expected to yield relief.
This requirement does not affect integrity-based civil disobedience in
the same way as it does anti-exploitation civil disobedience. Where
integrity is at stake, the person concerned suffers a "final loss"
through compliance. There is no sense in expecting someone to pray to
what he beliefs to be a false god, while he waits to be given the
opportunity to convince the authorities not to compel him to do so. By
that time the damage win have been done.78
The fact that resistors are expected to exhaust other reasonable
alternatives has direct implications for the tenability of civil
disobedience in a system where universal franchise obtains. It is often
argued that in such societies, there is a permanent legal alternative
to bring about change, namely the vote, which automatically rules out
civil disobedience.79 As pointed out earlier, the existence of universal
franchise does not automatically guarantee democracy, and in some cases
(as with permanent minorities) the exercise of voting rights does not
necessarily provide a realistic prospect of relief. Although civil
disobedience can more readily be justified where universal franchise
does not exist, it cannot be excluded completely simply because
everyone does have the vote.
(2) The extent of political participation
Everything else being equal, the more directly one participates in the
formation of a particular law, the stronger one's duty to obey that law
would become. In general, then, there should be less scope for civil
disobedience in a majoritarian than in a non-majoritarian system.
Theorists like Rousseau claimed that only direct government can be
legitimate. In the modern era, practical circumstances dictate that
representative government is the best one can hope for. The fact that
78See Dworkin A matter of principle 108. 79See eg Singer Democracy and disobedience 1.
mechanisms such as referenda may be resorted to when contentions issues
are to be resolved, however, indicates that where legitimacy is really
at stake direct participation is still the most appropriate form of
decision-taking. The less frequent elections are, the more restricted
are the channels by which citizens may express their grievances; and
the less responsive the political system turns out to be, the more
restricted is one's duty to obey the dictates of the powers that be.
As stated earlier, the fact that one has not participated in the
enactment of a particular law does not necessarily rule out a duty of
obedience, while, on the other hand, participation in the law-making
process does not dictate an absolute duty of obedience. It would be
more correct to assert that participation does add to legitimacy, while
absence of participation derogates from the system's entitlement to
moral support.
It seems clear, however, that this issue should not affect integrity-
based civil disobedience. Integrity is not subject to popular
consensus.
(3) Proportionality of means and ends
The principle requiring that when civil disobedience is practised the
means employed must not be out of proportion to the objectives
pursued, was articulated as follows by a United States federal court in
a case resulting from the Selma march: "[The] extent of the right to
assemble, demonstrate and march peaceably along the highways and
streets in an orderly manner should be commensurate with the enormity
of the wrongs that are being protested and petitioned against."80
The objectives pursued must be compared with the degree of coercion and
disruption involved and the likely effects of disobedience on society.
What is important here, is not whether the protester is justified in
pursuing those objectives, but how vital or trivial those objectives
would be if they were justified.
In this context, the question as to the legitimacy of indirect acts of
civil disobedience comes to the fore.81 In cases of indirect civil
80Williams v Wallace 240 F Supp 100 (MB ALA 1965) at 106 81Fortas Concerning dissent and civil disobedience 63 maintained
that indirect civil disobedience could never be justified. See, however, Walker v City of Birmingham 388 US 307 (1966), where he held the opposite.
disobedience, the absence of a natural link between the law
transgressed and the objectives pursued could detract from the
justifiability of disobedience. In some cases, for example where the
absence of governmental action is the focus of one's protest,
protesters cannot engage in direct civil disobedience. However,
everything else being equal, direct civil disobedience is more
acceptable than indirect civil disobedience, because indirect civil
disobedience involves an element of randomness.82
In the case of integrity-based, defensive civil disobedience, this
consideration is irrelevant, to the extent that there are no means
involved.
(4) The chances that civil disobedience might worsen the situation
Commentators have argued that civil disobedience can be self-defeating,
in the sense that it might incite resentment and anger in the
government and public and provoke a backlash.83 It has therefore been
said that civil disobedience cannot be justified if it is likely to
worsen the situation substantially, or, at least, if it has no
reasonable chance of success. Civil disobedience should not be
practised to protest against the treatment of prisoners by the
authorities if that is likely to result in even greater abuse or
retaliation.
From the perspective of decision-makers, however, this consideration is
largely irrelevant. It would hardly make sense to suggest that
disobedience should be treated harshly because it is likely to provoke
the authorities into increasing the repression. The only possible
exception would be the case where civil disobedience is likely to
encourage a non-governmental, vigilante backlash.
This consideration is also irrelevant as far as integrity-based civil
disobedience is concerned. People are not expected to be "heroes" and
sacrifice the pursuit of their ultimate concerns in the interest of
others.
(5) State security
Result-oriented civil disobedience cannot be justified if it seriously
82See also MacGuigan The Canadian Bar Review 1971 222 at 264. 83See eg Cohen Civil disobedience 155 and Dean The Western
Political Quarterly 1955 601 at 605.
threatens state security.84 This open-ended statement needs closer
definition.
Reference was made earlier to the fact that civil dis-obedience,
although it might be intended to bring about positive changes, can
degenerate into anarchy, or at least increase the level of lawlessness
in society to an unaccep-table level. Charles Black argued that "[i]f
every man and every group used all the room the federal law gave it to
clash with local custom and local authority, the resulting dislocation
would jar our states and our towns to the point of virtual
fragmentation."85 That is even more so where discrepancies between the
ideal law and positive law exist.
The primary area in which civil disobedience can threaten the state is
by chipping away at respect for the law. Every society has a certain
threshold of deliberate illegality, whatever its motive, which can be
absorbed in the system before the legal order breaks down and
widespread lawlessness sets in.86
The detrimental effect of individual acts of civil disobedience on
state security can be aggravated by the prevailing circumstances.
Disobedience could, for example, bring about serious disorders where
different .interest groups, each with legitimate reasons, at the same
time disobey the law. Consequently, Rawls required a political
understanding amongst such groups and a need to co-ordinate their
efforts.87 Civil disobedience can also coincide with an external
(unrelated) threat, in which case its justification would also be
diminished if those joint forces endanger the safety of the state.
One's evaluation of the threshold of the society's endurance will
depend on one's views regarding the confines of state security. "State
security" could be seen as synonymous with peace and the absence of
strife and turmoil. In S v Cooper88 "law and order" was defined as "the
law-abiding state of society, that is to say, the absence of riot,
turbulence and violent crime and the prevalence of constituted
84See Ackermann Die reg insake openbare orde en staatsveiligheid 3. 85Black Texas Law Review 1965 492 at 500. 86See Schuyt Recht, orde en burgerlijke ongehoorzaamheid 353. 87Rawls A theory of justice 375. 881976 2 SA 875 (T) at 878.
authority." According to this approach, state security would be
threatened by the kind of turbulence often associated with civil
disobedience.
This is the "peace at all costs"-approach, which accepts the status
quo as neutral and grants the ultimate right of determining social
change to the state. State lawlessness is not taken into account when
the level of "law and order" prevailing in society is to be assessed.
The preservation of immediate state control is more important than
possible long-term enhancements of the legitimacy of the law. The true
basis of state security is effective physical control and access of the
state to superior force.89 This view is more or less in line with the
position taken by Thrasymachus in his debate with Socrates.90
Certain other interpretations of society's need for security give more
recognition to a need to pursue not only order, but legitimate order -
an aspect which was emphasised by Socrates in the aforementioned
debate.91 One such approach gives explicit recognition to the role of
strife, conflict and even a degree of "unrest" and self-help in
society.92
These are the sentiments which underlaid Heraclitus' description of law
and order in terms of polemos - dispute or strife.93 In terms of this
89See eg Venter JCRDL 1977 233 at 233, who defined state security as "(the] prevention of the lapse of the existing constitutional disposition".
90See supra chap five I B (1). 91Johan van der Vyver, for example, argued that the instruments of
state security should comply with "die eties-gefundeerde else van die regsidee". See Van der Vyver JCROL 1982 294 at 294. See also Van der Vyver SAJHR 1988 55. According to Mathews Freedom, state security and the rule of law 218, state security measures have to be evaluated in terms of their adherence to the principle of the rule of law. The primary objective of state security measures ought to be to defend a democratic system. See also De Villiers JSAL 1979 83.
92See Du Plessis JSAL 1985 233. See also Chapman Ethics 1969/70 38, who argued that a certain degree of stress is essential for the proper functioning of a political community. Ackermann Die reg insake openbare orde en staatsveiligheid 1 seemed to appreciate the fact that absolute order is not required. While arguing that state security entails "die staat se vermoe en vasberadenheid om buitelandse druk te weerstaan en binnelandse wanorde te beheer, onaangetas b1y", he also recognised that the state can survive "op onveilige wyse". (At 2.)
93See Du Plessis JSAL 1985 233 at 234. 94.
approach, rioting and acts of civil disobedience are seen as largely
symptomatic of underlying threats to public security; namely the lack
of authority of the basic institutions of the state. It is accepted
that the long-term interests of the legal system could sometimes best
be served by not insisting on enforcing the letter of the law.
The polemos - approach fits in with the plurality of values recognised
in the earlier descriptions of the original position and in the
definition of democracy, and which suggests that strife is inherent in
the human condition. To wish away conflict, reflects a wrong
understanding of the dynamics of social life, where aggression can
sometimes be channeled but never completely suppressed.
The polemos - approach. it is submitted, reflects a proper
understanding of the long-term basis of state security, namely justice.
However, justice itself is not a self-evident attribute of society,
written somewhere in stone. It is often the outcome of strife. Justice,
according to Dahrendorf, is "not an unchanging state of affairs,
whether real or imagined, but the permanently changing outcome of the
dialectic of power and resistance."94 The central role of conflict in
society is also recognised by David Held:
[P]olitical order today ... is not achieved through common value systems, or general respect for the authority of the state, or legitimacy, or, by contrast, through simple brute force; rather, it is the outcome of a complex web of interdependencies between political, economic and social institutions and activities which divide power centres.95
If justice is seen as the ultimate foundation of state security, it
would become clear that in a fundamentally unjust state even
revolutionary civil disobedience can be compatible with state security.
That cannot be the case, however, in a highly democratic state. As
pointed out earlier, it is in this context that American authors
require civil disobedients to accept the "existing system", which in
their case is a highly democratic system.96 What they oppose is not
94Dahrendorf Essays in the theory of society 150. 95See Held Models of democracy 298. 96See supra chap two III. See also Fortas Concerning dissent and
civil disobedience 30, who maintained that the civilly disobedient "seeks changes within the established order". Keeton Texas Law Review 1965 507 at 508 argued that he must "act within the framework of the
fundamental change per se: at least not if such change can lead to
greater democracy. They are against fundamental change in a society
which is already democratic, because that could only entail a move away
from liberal values.97 However, in highly unjust societies it is
conceivable that revolutionary civil disobedience is legitimate, and
even though it could cause temporary turmoil in society, those in
decision-making positions (who have not yet felt compelled to resign)
might have a duty to tolerate such civil disobedience. Obviously the
long-term prospects of stability under a new dispensation then becomes
highly relevant.
A last issue warrants attention in this context, especially in view of
the changing situation in South Africa. It is often argued that in
times of great social dislocation and transition social systems cannot
afford tolerance towards defiance. It is argued that temporary
restraints are needed to get the "ship of the state" on the right
course before luxuries such as tolerance of the expression of
fundamental dissent can be accommodated. The same idea underlies the
notion of "revolutionary intolerance", and it is certainly not devoid
of all validity. However, there is a great danger inherent in too
readily resorting to this rationalization for the suppression of
political dissent. It is very difficult to get rid of restrictive
measures once they have been imposed - they become fixed positions and
tend to gain permanence, because they protect the vested interests of
those in power. The eventual level of freedom in a society depends to a
considerable extent on its preservation during the process of
transition.
(6) Approach of the protesters regarding punishment
Some commentators maintain that a positive disposition towards the
imposition of punishment for one's unlawful protest .is part of the
definition of civil disobedience; others see it as essential to its
justification, while yet another group maintain that it is neither of
the two.98
prevailing form of government." According to Martin Ethics 1969 123 at 125, civil disobedience can only be directed against an "accepted political superior".
97See Bedau The Journal of Philosophy 1961 653 at 659 and Martin Ethics 1969/70 123 at 125, 131.
98For a discussion of these views, see G J Schochet "The morality
It is submitted that a distinction should be drawn between accepting
the penalty in a passive way, in the sense of not resisting punishment
through illegal means (for example by covering up evidence or fleeing),
and actively insisting on punishment (for example by pleading guilty,
supplying evidence and asking for the maximum sentence to be imposed).
It was argued earlier that accepting the penalty is part of the
definition of civil disobedience, in the sense that it is required by
the element of openness.99 Insisting on punishment, however, is not to
be regarded as part of the definition of civil disobedience as such.
The question must now be asked whether it is essential for the
justification of civil disobedience.
It is hard to see why that should be the case. The only reason for this
could be if it was necessary for the preservation of respect for the
law. It was argued earlier that there is no reason to believe that
legal systems cannot tolerate non-sacrificial civil disobedience and
that there are indeed good reasons to insist that they should.
Martyrdom is not in all instances of illegal conduct required to
restore respect for the law. To claim that it does, seems to imply that
legal obligation is similar to religious obligation, and that the
slightest deviation from the accepted norm would entail a burden for
which one should do penitence. If it is accepted that decision-makers
need not punish all acts of civil disobedience (as argued earlier) it
follows that disobedients need not always insist on punishment.
Nevertheless, even though it is not a condition for justified civil
disobedience, the fact that a protester does assume this position could
affect the way in which his actions are perceived. Someone who
repeatedly and dramatically states his complete submission to the law
and insists that his followers do the same, might portray a primitive
understanding ( political obligation, but he does pose a lesser threat
to state security than someone who does not do so. In borderline cases,
that could be a decisive consideration.
of res1stin9 the penalty" in Held et a1 Philosophy and political action 175. According to Hannah Arendt, Crisis of the republic 52, "[t]here are few who would not agree with senator Philip A Hart's position: 'Any tolerance that I might feel toward the disobeyer is dependent on his willingness to accept whatever punishment the law might impose'."
99See supra chap two I C.
It should also be noted that because this element affects conduct after
the event, it is the only purely formal consideration that can possibly
apply to both integrity-based and anti-exploitation disobedience.
(7) The level of coercion involved
It was stated earlier that civil disobedience is per definition non-
violent, but it can involve a measure of coercion. If the level of
coercion constitutes the only difference between two acts of anti-
exploitation civil disobedience, it would be easier to justify the less
coercive one. This is not to say that coercion cannot be justified the
claim is merely that it is something which requires explanation.
Coercion of disinterested parties will also be more difficult to
justify than coercion of the direct adversary.
It is hard to conceive cases of integrity-based, defensive civil
disobedience in which coercion could at all be involved.
(8) Repetition of acts of civil disobedience
This issue is closely related to the previous one. The function of
civil disobedience is to "address the sense of justice" of the
government or those who control the government.100 It purports to call
upon the body politic to reconsider its position. The aim is to
persuade those in power to change their ways. It is a mechanism, so to
speak, whereby citizens who have been wronged can appeal for a redress
of grievances.
In a majoritarian system, when it becomes clear that the majority is
not willing to make concessions after having been exposed to acts of
resistance, it is reasonable to assume that repeated acts of civil
disobedience win increasingly become coercive in nature. The aim would
then be to increase the penalty of not complying with the wishes of the
minority. Everything else being equal, acts of civil disobedience that
have been practised over a period of time would become more difficult
to justify than those of a more sporadic nature.
The same does not necessarily apply in non-majoritarian systems. Here,
the appeal to the body politic might go unheeded because of recurring
repression. However, if it becomes clear that the majority is not moved
by acts of civil disobedience, such disobedience would also
100 CJ Rawls "The Justification of civil disobedience" in Beauchamp Ethics and public policy 132 at 138.
progressively be seen as less legitimate.
Clearly integrity-based civil disobedience should not be subjected to
this constraint, or at least not to the same extent as anti-
exploitation civil disobedience.
(9) The question whether or not the protesters are members of a well-
established social group
It is submitted that, everything else being equal, anti-exploitation
civil disobedience is more acceptable if initiated by protesters who
form part of a group, than would be the case if protesters act on their
own. The shock with which John of Salisbury's idea of resistance by
private individuals was met, to which reference was made earlier,
supports this claim. Especially writers in the Christian tradition,
such as Calvin, have insisted on the protest being initiated from
within established structures. As a general rule, those who accept the
discipline of a well-established social or religious group would more
readily integrate into society than the ones ho are not part of any
such structures.
It was noted earlier that the legal system of South Africa grants
exemption from military service to those who regard activities of the
defence force to be unacceptable on basis of their non-theist, Buddhist
religious persuasions, but not to persons who subscribe to the just-war
doctrine. In both cases, one is dealing with integrity-based
disobedience. Presumably the state's attitude was influenced by an
assumption that the numbers of the first group would be less than those
of the second group, as well as the fact that Buddhism is an ancient
religion with its own discipline. Those who, for secular reasons,
regard a particular war as unjust are more individualistic and
subjectivistic - and consequently more difficult to govern. Although it
is submitted that this consideration should not be decisive in respect
of military service, its general validity cannot be denied.
C. CONCLUSION
To summarise the above: As a basic point of departure, the question
whether a strong right to resist should be recognised in a particular
case, should be made to depend on the substantive criterion of the
national and international consensus on the merits of the laws objected
against, and in particular on the question whether fundamental rights
are violated, as well as compliance with certain formal conditions.
Insofar as the boni mores provides no clear answers, the alternative
substantive criterion should be applied. It should be asked what type
of conviction is involved, and whether that type of conviction can in
principle underlie basic human rights. In addition to the above,
certain formal conditions should be posed in appropriate cases. By
applying the two substantive tests and comparing different acts of
civil disobedience, one should eventually be able to find the
appropriate equilibrium and establish which acts of civil disobedience
are more deserving of leniency.
Does the absence of a basis for leniency imply that the protesters
concerned should necessarily be treated harshly? As indicated by
Dworkin, a necessary, although not sufficient, condition for the
imposition of punishment is the utilitarian requirement that
retributive action should serve a certain goal.101 Punishment should not
be imposed if it is more likely to hurt society than to benefit it. In
some cases where the application of the approach suggested above points
away from leniency, ongoing political processes might dictate leniency
and overrule the case for harsh treatment.
IV. THE LAW AND LEGITIMATE CIVIL DISOBEDIENCE
The third, and final, main question to be addressed in this chapter is:
How should the duty of leniency be discharged in practical, legal
terms, where the existence of a strong right to resist is recognised?
Up to now the discussion proceeded largely on the assumption that the
state is a monolithic unit, in the sense that the appropriate response
of all its components to civil disobedience would more or less be the
same. The impression was also perhaps created that acts of civil
disobedience are either completely legitimate or not justified at all.
In other words, there is either a moral duty of absolute leniency, or
no such duty whatsoever.
A more nuanced approach is now called for. It should be recognised that
the executive, legislative and judicial branches of government all
function in different ways, which means that their responses to acts of
civil disobedience should differ. There are also many different degrees
of justification of civil disobedience, or absence of justification.
Greater or lesser compliance with the standards set out above requires
greater or lesser leniency.
101 Dworkin A matter of principle 114.
The differences between the various branches of government will first
be considered. The legislature, in the nature of things, has to
establish rules which for the greater part affect the future conduct of
the public at large. This means that it can only pose the most general
criteria. As demonstrated earlier, however, the proper treatment of
civil disobedience requires a highly individualised consideration of
the facts of each particular case. The tool of legislation is simply
too blunt for this delicate challenge. Consequently, neither
legislative requirements of the imposition of minimum sentences for
acts of civil disobedience, nor the proposal that all statutes make
provision for legitimate conscientious objection to their requirements,
would make.sense.102
Courts, on the other hand, evaluate facts after the event. Although
their treatment of past cases also create precedents for the future and
a certain degree of generality is consequently required, they have
access to the facts and circumstances of individual, concrete cases,
and safe therefore in a much better position than the legislature to
evaluate acts of civil disobedience. Given the general standards of
illegality in the particular system, which defines the "primary
offence", it is submitted that the courts are the most appropriate
institution to determine whether a particular protester should be
treated with leniency or not. We will presently return to consider in
some more detail the alternatives open to a court in this regard.
The position of the executive is similar to that of the judiciary, in
the sense that the executive for the greater part also considers
particular cases. However, the executive only to a very limited extent
creates precedent, and in that respect its treatment of protest can be
expected to be largely ad hoc. It is bound to be deeply influenced by
pragmatic, short-term considerations, such as the desire or absence of
the desire to create a climate for negotiations and to form political
alliances. Executive leniency can manifest itself in the granting of
indemnity and pardons to those who have participated in acts of
disobedience and in the decision of prosecutors not to prosecute in
102 Reference was made earlier to minimum sentences for political offences under South African law. At the other extreme was Hugo Bedau's proposal, that all statutes contain riders which excuse those who break the law on conscientious grounds, discussed supra chap six II.
particular cases.103 Executive intolerance, as mentioned earlier, can
manifest itself in the exercise of arbitrary powers of arrest, the
breaking up of meetings, etc. Inevitably, however, the executive will
be a party to the dispute emerging from civil disobedience and cannot
be expected to be as neutral as courts of law in determining whether
the accused has a right to be treated leniently. Their perspective,
that is, will seldom be that of the "original position".
Proceeding from the position that the courts are generally in the best
position to evaluate acts of civil disobedience, some observations will
now be made regarding the options open to judicial officers when
evaluating such actions.104 Depending on the degree of justification in
a particular case, a variety of approaches present themselves.105
On the one extreme, where there is no or little justification for the
disobedience, it might be appropriate to apply the full force of the
law to a resistor who deliberately violated a salutary law or
disregarded the formal conditions for justified resistance, posed
earlier. On the other extreme are cases where a strong moral duty of
the decision-maker may be present to treat the protester with leniency.
This moral duty will not always be easy to translate into legal
reality: in fact, that might sometimes be impossible. Where opposition
to a particularly repressive law is at stake and the judge has no
viable option but to apply that law, he might, in sufficiently serious
cases, feel compelled to consider either resignation or lying about the
law.
The option of judicial resignation was seriously debated during the
heyday of apartheid laws.106 Judicial lying, on the other hand, amounts
to a kind of judicial integrity-based civil disobedience: a judge who
103See Dworkin Taking rights seriously 207 and Alien University of Cincinnati Law Review 1967 1 at 16.
104For discussions of judges and unjust laws in South Africa, see in general Corder Democracy and the Judiciary and Dyzenhaus Hard cases in wicked legal systems.
105For a discussion of the approach followed by American courts in periods of civil disorder, see Skolnick The politics of protest 293 ff; Alien University of Cincinnati Law Review 1967 1 & 175; Greenberg The Yale Law Journal 1968 1520 and Pye & Lowell Duke Law Journal 1975 581 & 1021.
106The classic exposition of this debate is contained in Wacks SALJ 1984 266 and Dugard SALJ 1984 286.
regards enforcing a particular law to be incompatible with his
conscience because that would make him an instrument of injustice,
might see lying about the true legal position as the only honourable
way out. As Dworkin put it:
If the judge decides that the reasons supplied by the background moral rights are so strong that he has a moral duty to do what he can to support these rights, then it may be that he must lie, because he cannot be of any help unless he is understood as saying, in his official role, that the legal rights are different from what he believes they are.107
Bordering on judicial lying is the practice of judicial activism, which
involves reading notions of fairness into the law even where there is
no, or virtually no, basis in the positive law for doing so.108
Another option would be for a judge to explain to the accused his
regret at having to apply the particular law. A response along these
lines to the application of odious laws is not unknown in South African
law.109 The effect of of such judicial support on civil disobedients
should not be underestimated. As noted in the historical section, the
British magistrate's expression of respect for Gandhi during the "Great
Trial" in India provided the Satyagraha movement with an important
moral victory, and moral victories are after all the primary objective
of acts of civil disobedience.110
In certain cases, however, it might be possible for a court to assist a
civil disobedient within the parameters of judicial discretion. Such
lenient treatment can include the imposition of a light sentence 111 and
107See Dworkin Taking rights seriously 326. Etienne Mureinik "Dworkin and apartheid" in Corder Essays on law and social practice in South Africa 181 at 211 argued, however, hat "lawyers who are morally conscientious are apt to be professionally conscientious too." They would not be keen to come across as enthusiastic supporters of the system, but would need to do so in order to be effective as liars.
108See Tribe The Yale Law Journal 1974 1315. 109See eg S v Adams 1979 4 SA 793 (T) at 801. 110See supra chap three III B (1)(a). 111The fact that (part of) the motive of the accused was his
convictions and not simply his own self-interest should in many cases serve as a mitigating factor. See Freeman Indiana Law Journal 1965/66 228 at 246 and Hall Ethics 1970/71 128 at 133. On the United States history in this respect - often not a happy one - see Lippman Washburn
even a finding that the accused's conduct did not constitute an
offence,112 or, where that is relevant, a finding that the person
concerned is a "fit and proper person" to practise law.113
The most important type of response within this category is called
"revisionism", which involves that legal provisions which are open to
interpretation be implemented in at least a restrictive manner as is
possible. There are elaborate and complicated general theories about
how judges can and should pursue justice when confronted with what they
consider to be unjust laws. It will serve no purpose here to labour
this topic in any detail, save to say that through "constructive
interpretation" or similar measures laws which might seem highly
inequitable can be interpreted to be more supportive of individual
freedom.114 At the same time, it should be remembered that, especially
in the case of political protest in a situation of flux, a concession
to one protester might result in benefiting other less deserving
subjects as well.
However, it should be mentioned that there are at least two ways in
which courts of law can come to the assistance of protesters that are
of special significance in the context of civil disobedience. Those
strategies have come to the fore in the United States and might in some
cases serve as noteworthy examples to South African courts. One is the
possible application of the necessity defence to acts of civil
disobedience; the other is the possibility of treating acts of civil
disobedience as constitutionally protected free speech. These two
possibilities will now be discussed.
A. THE NECESSITY DEFENCE AND CIVIL DISOBEDIENCE
The defence of necessity serves as legal justification for taking the
law into one’s own hands in order to protect a higher interest. Where
the defence of necessity applies, the law that has been broken is not
nullified - its operation is merely suspended in respect of that
particular case. That particular breach of the law in question is
Law Journal 1987 233 at 251. 112It was argued earlier that a legal right to engage in civil
disobedience is not a contradiction in terms. See supra chap two I A. 113See supra chap four III. 114For an overview of Dworkin’s views in this regard, see E
Murefnik "Dworkin and apartheid" in Corder Essays on law and social practice in South Africa 181.
"excused". The defence therefore acknowledges that the law itself can
sometimes justify non-compliance with the law.
The similarity of the necessity defence and the circumstances that
inspire civil disobedience is obvious, and an argument that acts of
civil disobedience may be legally justified on this basis clearly
commends itself. As will be demonstrated, many of the requirements to
justify civil disobedience posed earlier also apply in the case of
successful appeals to the defence of necessity.
Advancing the necessity defence particularly appeals to the new
generation of civil disobedients, who do not share the Gandhian
conviction that civil disobedience must be attended by suffering and
that protesters must seek punishment. This defence allows protesters to
avoid liability without having to renounce their cause. In fact, it
might precisely provide the resister with the opportunity to state his
case. Even when he has little or no chance of success, the protester
can emphasise the severity of the harm he experiences, the absence of
alternative means of addressing the problem, the imminence of the
threatening harm and the fact that he regards a resolution of the
problem to be unlikely. Because these arguments are being advanced in
the course of a legitimate legal defence, the protester can raise them
before the court without having his plea dismissed as purely political
demagogy - as, for example, happened repeatedly during the Defiance
Campaign.115
The viability of invoking this defence in United States and South
African law respectively, will now be considered.
(1) United States law
During the past few decades, protesters in the United States have
invoked the necessity defence, in either its common law or its
statutory form, to escape liability for acts of civil disobedience.
This was first done by anti-Vietnam protesters116 and later by members
115See supra chap three III A (3)(c)(111). See also Bauer & Eckerstrom Stanford Law Review 1987 1173 at 1176.
116See eg United States v Malinowski 472 F 2d 850 (3d Cir), cert denied. 411 US 970 (1973); United States v Simpson 460 F 2d 515 (9th Cir 1972); United States v Kroncke 459 F 2d 697 (8th Cir 1972) and United States v Moylan 417 F 2d 1002 (4th C1r 1969), cert denied. 397 US 910 (1970).
of the anti-nuclear movement.117 More recently, protesters charged with
trespass at South African diplomatic missions in the United States have
also raised the defence.118 In the vast majority of these cases, courts
excluded the defence on the basis that the accused had failed to bring
adequate evidence to enable a jury to find in their favour. However,
the courts have accepted in principle that the defence is available to
political protesters.119
The necessity or "choice of evils" defence in American law gives
expression to the idea that "the law ought to promote the achievement
of higher values at the expense of lesser values."120 The elements for
successfully relying on necessity under the United States common law
may be discussed under the following four headings:
(a) Relative severity of harm
The harm to be avoided must be greater than the harm caused by the
defendant's illegal activities.121 This "balancing of evils" requirement
normally does not pose substantial difficulties to the civil
disobedient, especially where the possible harm which can flow from a
single, non-coercive transgression of the law is weighed against
commonly perceived evils, such as a nuclear war, nuclear accidents or
being "contaminated" by one's involvement in practices of apartheid.122
117See United States v Montgomery 772 F 2d 733 (11th Cir 1985); United States v Dorrell 758 F 2d 427 (9th Cir 1985); United States v Quilty 741 F 2d 1031 (7th C1r 1984); United States v Seward 687 F 2d 1000 (10th C1r 1982), cert denied. 459 US 1147 (1983) and United States v Cassidy 616 F 2d 101 (4th Cir 1979).
118See infra chap six IV A (i)(d). 119The connection between civil disobedience and necessity in terms
of United States law was discussed by Neely Illinois Bar Journal 1986 596; Bauer & Eckerstrom Stanford Law Review 1987 1173; DiSalvo University of Miami Law Review 1987 911; Lambek Yale Law and Policy Review 1987 472; Levitin The Wayne Law Review 1987 1221; Lippman Washburn Law Journal 1987 233; Wride The University of Chicago Law Review 1987 1070; Tierney University of Colorado Law Review 1988 961; Lipproan Houston Journal of International Law 1989 277; Lippman Criminal Law Bulletin 1990 317 and Lippman Dickinson Journal of International Law 1990 349.
120See Wride The University of Chicago Law Review 1987 1070 at 1072.
121See Bauer & Eckerstrom Stanford Law Review 1987 1173 at 1182 122Lambek Yale Law and Policy Review 1987 472 at 477.
(b) Reasonable alternatives
There must be no reasonable alternative to breaking the law.123 Given
the largely democratic nature of the American system of government, it
is not surprising that courts often find that reasonable alternatives
have not been exhausted.
In United States v Quilty,124 protesters entered a nuclear arsenal in
violation of a barment letter. The Court rejected the necessity defence
on basis of the alternatives available: "There are thousands of
opportunities for the propagation of the anti-nuclear message: in the
nation's electoral process; by speech on public streets, in parks, in
auditoriums, in churches and lecture halls; and by release of
information to the media, to name only a few."125
Commentators have argued that this decision suggests that
unreasonableness may be deduced from the mere fact of an alternative
being available.126 Instead, they argued, the question should be whether
the available alternatives are likely to be effective.127
(c) Imminent harm
The harm to be prevented must be imminent.128 Courts, in civil
disobedience trials, have required the perceived harm to be "clear and
imminent, not debatable and speculative".129
123See United States v Bailey 444 US 394 (1979). See also Bauer & Eckerstrom Stanford Law Review 1987 1173 at 1179 and Levitin The Wayne Law Review 1987 1221 at 1231ff.
124741 F 2d 1031 (7th Cir 1984). 125At 1033. See also Commonwealth v Brugmann 13 Mas App 373 433 NE
2d 457 (1982) and In re Weller 164 Cal App 3d 44, 210 Cal Rptr 130 (1985).
126See Bauer & Eckerstrom Stanford Law Review 1987 1173 at 1180. 127See supra chap six III B (2)(b), where this formal requirement
for justified civil disobedience was discussed. This was the approach followed in Commonwealth v Berrigan 501 A 2d (1968) at 299.
128See Lambek Yale Law and Policy Review 1987 472 at 483. 129In Commonwealth v Berrigan 501 A 2d (1968) at 229. In S v Dorsey
118 NH 844, 395 A 2d 855 (1978), the Court held that the necessity defence applies only to those damages easily recognised by the average person.
In S v Warshow,130 the Court held the danger of an accident at a
nuclear plant to be too "speculative and uncertain" to constitute
imminent danger. The defendants had time to exercise options other than
breaking the law.
Commentators have argued that the nuclear threat should be treated in a
class of its own.131 The threat is always imminent, because when the
danger it poses materialises it is already too late. There is either an
imminent threat or no threat at all - a middle position does not exist.
(d) Direct causal relationship
It must be reasonable to believe that a direct causal relationship will
manifest itself between the defendant's actions and aversion of the
threatened harm. This is also called the requirement of "effect".132
Although courts have ruled that the necessity defence is in general
available where a reasonable causal relationship exists between the
defendant's acts and the harm which he sought to avert, they have set
very strict standards in this regard in cases of civil disobedience.
In United States v Seward,133 anti-nuclear protesters were arrested for
blocking a roadway. The defendants were required to establish that "a
reasonable man would think that blocking the entry to [a particular
nuclear weapons facility] for one day would terminate the official
policy of the United States government as to nuclear weapons or nuclear
power."134
In Commonwealth v Berrigan,135 a group of pacifists who called
themselves the "Ploughshare Eight" were convicted for hammering nuclear
warhead nose-cones and spilling blood on builders' blueprints at a
plant of General Electric. Their defence of necessity was rejected by
130410 A 2d 1000 (Vt 1979) at 1002. 131See eg Lambek Yale Law and Policy Review 1987 472 at 484. 132For discussions of this point, see Bauer & Eckerstrom Stanford
Law Review 1987 1173 at 1181ff; Lambek Yale Law and Policy Review 1987 472 at 480 and Levitin The Wayne Law Review 1987 1221 at 1234.
133687 F 2d 1270 (10th Cir 1982), cert denied. 459 US 1147 (1983). 134At 1273. See also United States v Simpson 460 F 2d 515 (9th Cir
1972). See also People v Marley 54 Hawaii 450, 509 P 2d 1095 (1973). 135501 A 2d (1968). The case is discussed at some length by DiSalvo
University of Miami Law Review 1987 911 at 915ff and Lippman Washburn Law Journal 1987 233 at 241ff.
the Pennsylvania Supreme Court, because "the actions chosen by the
appellants could not under any hypothesis reasonably be expected to be
effect-tive in avoiding the perceived public disaster of a nuclear
holocaust."136
In Commonwealth v Averill,137 a Massachusetts Superior Court held that
the only impression that demonstrators at a nuclear power plant "could
hope to make on the general public was through the news of their
arrest. However that might assist their cause in the long run,
publicity designed to marshal public opinion could not extinguish an
immediate peril, if there was one."138
Sometimes the additional requirement of absence of pre-emption is
insisted upon. Some courts have ruled that, if legislation expressing
the opinion of the legislature on a particular point does exist, that
policy cannot on the basis of necessity be contradicted through
defiance of the law in question.139
The above deals with the situation under the common law. More than 20
states in the United States, however, have now enacted laws regulating
the defence of necessity as part of their penal codes.140 The Illinois
defence of necessity is particularly liberal in the extent to which it
allows protesters to decide when to act in ways that would otherwise
constitute offences. While the common law mainly dealt with the matter
from an objective perspective, the main issue under Illinois law is the
subjective question whether or not the defendant "reasonably believes
such conduct was necessary".141 Under this statute, political protesters
who refused to leave the South African consulate in Chicago as an act
of resistance against apartheid have been acquitted by a jury.142
Another possible ground on which civil disobedience could be excused
136At 230. 13712 Mass App Ct 260, 423 NE 2d 6 (1981). 138At 7. 139See eg S v Warshow 410 A 2d 1000 (Vt 1979). For a discussion,
see Levitin The Wayne Law Review 1987 1221 at 1237. 140See Lambek Yale Law and Policy Review 1987 472 at 476. 141Criminal Code of 1961, Ill Ann Stat chap 38 para 7. 142See eg City of Chicago v Streeter no 85-108644 Cook Cty, I11,
May 1985. For comments on the cases, see Neely Illinois Bar Journal 1986 596 and Wride The University of Chicago Law Review 1987 1070.
has been advanced under the heading of "justification".143 It has also
been suggested that "conscientious disobedience" be recognised as a
"special defense" which would "find its proper place beside such
defenses as insanity or self-defense."144
(2) South African law
Can civil disobedience be excused on the basis of the -necessity
defence in South African law? The following elements of necessity that
have crystallised in South African law are relevant to this inquiry.
(a) Legal interest endangered
Traditionally, danger of death or serious injury was required for the
defence of necessity.145 In R v Canestra,146 the Appellate Division held
that necessity cannot be justified by a purely economic need, and in S
v Adams: S v Werner,147 the Court held the same in respect of the need
to find housing.
In S v Adams,148 the appellant, an Indian, was convicted of contravening
section 26(1) of the Group Areas Act 36 of 1966, in that he had
unlawfully occupied flats in a "white" area. The Appellate Division
held that the evidence presented established that the only alternative
accommodation available to the appellant was highly inconvenient and
unhygienic, but that an absolute absence of alternative housing was
not established. The defence was consequently not allowed. In an obiter
143A defence on this basis was rejected where the defendant illegally gained access to the file room of a selective service office and set one of the file cabinets ablaze. According to the Appellate Court, the justification defence is based upon the theory that society benefits when an individual act prevents another person from committing injury to persons or property. The defendant, however, did not act reasonably in the sense that he could not assume that his actions might have "any significant effect upon the supposed ills that he hoped to remedy". United States v Simpson 460 F 2d 515 (9th Cir 1972) at 518. See also Lippman Washburn Law Journal 1987 233 at 245.
144Hall Ethics 1970/71 128 at 139. 145See, for example R v Vennaak (1900) 21 NLR 204 at 211; R v
Garnsworthv & others 1923 WLD 17 at 21; R v Werner & another 1947 2 SA 828 (A) and R v Samuel & others 1960 4 SA 702 (SR) at 703.
1461951 2 SA 317 (A) at 324. 1471951 1 SA 187 (A) at 221. For a full discussion, see Van der
Vyver SALJ 1981 135. 148Reported in the court a quo as S v Adams 1979 4 SA 793 (T).
dictum, the Court added that complete absence of alternative housing
("absolute woningnood") would in any case not have entitled the
appellant to the defence of necessity, because, due to the economical
basis that prompted the appellant to break the law, his conduct did not
fall squarely within the confines of legal necessity. The Court seemed
to have followed an approach which was even more stringent than that of
Hobbes, according to whom all direct physical threats can give rise to
a right to take the law into one's own hands.149
Thus limiting the protection of physical interests through necessity
stands in sharp contrast to the fact that certain non-physical
interests may be protected on this basis. One such possibility is the
preservation of a woman's mental health through procuring a miscarriage
if that constituted a crime.150
Labuschagne identified honour as an interest which can be protected in
this way, and argued that where a naked woman (or for that matter,
presumably, also a naked man) can escape from an immediately
threatening danger either by breaking a window or by running into a
public place, breaking the window will be justified on the basis of
necessity.151 Nevertheless, he maintained that "[s]uiwer psigiese of
morele oorweginge bied me "n grondslag vir 'n beroep op noodtoestand
me."152 Consequently, according to him, euthanasia or refusal to do
military service for reasons of conviction cannot be justified on
grounds of necessity.153 He argued that "[d]ie gevare verbonde aan die
beskikbaarstelling van die verweer in sutke omstandighede is enorm. Dit
sou maklik tot ongekende misbruik kan lei aangesien die getdigheid van
so 'n verweer, al sou 'n mens die bewyslas op die beskuldigde plaas,
149See supra chap five I P. 150See Burchell et a1 South African criminal law and procedure vol
1 339 n 57. 151Labuschagne Acta Juridica 1974 73 at 97. See also S v Van Vuuren
& another 1961 3 SA 305 (0) and Labuschagne De Jure 1974 108 at 116. 152Labuschagne Acta Juridica 1974 73 at 97. 153See, however, Burchell et a1 South African criminal law and
procedure vol 1 339 n 157, where reference is made to the killing of a dog to save it from extreme suffering. It is difficult to see what the protected interest in this case is other than "suiwer psiglese of morele oorweginge" - that is, unless it is accepted that animals have rights.
bykans nie betwis sou kon word nie."154
The often artificial distinctions between those interests that can be
protected on the basis of necessity and those that cannot, have
prompted a number of writers to propose that no restrictions should be
placed on the nature of the interests protected. Johann van der
Westhuizen, for example, stated that "alle soorte belange kan ... in
beginsel ... beskerm word."155
(b) Threat commenced or imminent
The threat of harm must have commenced or be imminent.156 Presumably the
same considerations which apply in respect of American law are relevant
with regard to South African law.
(c) Necessary for the accused to avert the danger
It is often required, for the defence of necessity to be successful,
that it must be established that without the defendant's unlawful
conduct, the harm envisaged would most probably have materialised.157
Presumably, where the harm nevertheless materialised the actions taken
must have stood a reasonable chance of averting it. The importance of
this element, as far as civil disobedience is concerned, lies in the
fact that effectiveness of the instrument employed to avert the harm is
a requirement for successfully relying on necessity. Clearly,
integrity-based civil disobedience is the form of civil disobedience
which is likely to be effective in this sense.
(d) Proportionality of means and ends
The means used must be reasonable to avert the danger. The accused must
do no more than is required to avoid it. In most of the standard cases
where the defence of necessity was raised, where civil disobedience was
154Labuschagne Acta Juridica 1974 73 at 98. 155See Van der Westhuizen Noodtoestand as regverdigingsgrond in die
strafreg 612 n 4. See also Burche11 et a1 South African criminal law and procedure vol 1 339. who suggested that "necessity should avail irrespective of the nature of the legal interest threatened provided the other requirements of the defence are satisfied."
156See Burche11 et a1 South African criminal law and procedure vol 1 340.
157Id 341.
not involved, this factual question was the crucial issue.158 However,
as has been pointed out, this element is not seen as particularly
problematic for the justification of civil disobedience in American
law.
(e) Duty to face the danger
The defence of necessity is not available to those who are specifically
required by law to suffer a certain danger or hardship. One may not,
for example, escape from a prison following one's lawful incarceration
and then invoke the defence of necessity.159
The same does not apply in cases where a general duty of obedience is
imposed. To some extent, this corresponds with the position in respect
of pre-emption in United States law. This requirement might be
interpreted to exclude the availability of the necessity defence in at
least that limited range of cases where the act of civil disobedience
is constituted by transgression of a statute which directly prohibits a
certain kind of protest; for example, as is the case with
demonstrations near a court building or parliament.
Given the above overview, could this defence succeed in respect of acts
of civil disobedience in South Africa? The Appellate Division has
cautioned that the exemptions from liability on the ground of necessity
"must be confined within the strictest and narrowest limits because of
the danger attendant upon allowing a plea of necessity to excuse
criminal acts."160 Nevertheless, the exact scope of the defence remains
vague and consequently open for extensive interpretation.161 Some years
ago, for example, in S v Goliath,162 the defence in, effect underwent
158See R v Garnsworthy & others 1923 WLD 17 at 21; R v Hahomed & another 1938 AD 30 at 34; R v Sibanyoni 1947 2 PH H206 (N) and S v Goliath 1972 3 SA 1 (A) .at 22. See also Van der Westhuizen Noodtoestand as regverdigingsgrond in die strafreg 613.
159Van der Westhuizen Noodtoestand as regverdigingsgrond in die strafreg 603.
160R v Mahomed & another 1938 AD 30 at 36. 161As Watermeyer C J remarked: "I have been unable to find among
Roman-Dutch writers on criminal law any clear statement of the limits of the immunity [based on the defence of necessity]." R v Werner & another 1947 2 SA 828 (A) at 836.
1621972 3 SA 1 (A). In this case the Appellate Division held that the killing of an innocent person can be justified by necessity.
considerable expansion with regard to the interests of third parties
which may legitimately be violated. In principle, there seems to be no
reason why this could not also happen in respect of acts of civil
disobedience.
The approach of Van der Westhuizen, outlined earlier that necessity can
in principle involve the balancing of any interests, went a long way in
advocating a less restrictive approach. Nevertheless, the ultimate
criterion proposed by Van der Westhuizen for balancing the interests at
stake - namely the "worth" of individuals for society - raised the
spectre of a new tyranny.163 It is, after all, the very essence of
individual rights that they cannot be "balanced away" by the calculus
of the utilitarian interests of society. As Dworkin aptly put it: "The
majority cannot travel as fast or as far as it would like if it
recognizes the rights of individuals.164
Consequently, it seems fair to say that, at least in theory, in South
African law the defence of necessity does not seem less applicable than
in the United States as justification for civil disobedience. In both
systems at least integrity-based, defensive civil disobedience, if
justified in terms of the standards posed earlier, should be viewed
favourably. The imminent harm of compliance with the law is
considerable and non-compliance is likely to be effective. The same
could also be true in respect of anti-exploitation and, in exceptional
cases, policy-based acts of disobedience.
B. CONSTITUTIONAL PROTECTION OF FREEDOM OF SPEECH
Reference was made earlier to the crucial role which the Bill of Rights
played in the evaluation of civil disobedience by the United States
Supreme Court. During the Civil Rights Movement, for example, laws were
challenged on the basis that they violated provisions of the Bill of
Rights, such as the Fourteenth Amendment’s guarantee of the "equal
protection of the laws". The claim here was that, because the
particular practices violated the constitution, their transgression was
not unlawful.165
163Van der Westhuizen Noodtoestand as regverdigingsgrond In die strafreg 690.
164Dworkin Taking rights seriously 204. 165In Brown v Louisiana 383 US 131 (1966), for example, the
appellants held a brief sit-in in a library which was racially
However, there is also a more direct way in which those who practise
and preach civil disobedience can claim that their actions are
constitutionally protected. In some cases, their conduct can be
constitutionally protected as a form of free speech.
In view of the impending introduction of a justiciable Bill of Rights
in South Africa which will in all likelihood also protect free speech,
a consideration of the main issues which have surfaced in this context
in American constitutional law seems expedient. Since the exact
contents and wording of the future South African Bill of Rights has not
yet been settled, no attempt will be made to apply the principles
underlying the American cases to the South African situation. There can
be little doubt, however, that similar issues win soon be relevant in
South African courts.
The First Amendment to the United States Constitution provides as
follows: "Congress shall make no law ... abridging the freedom of
speech, or of the press; or the right of the people peaceably to
assemble, and to petition the government for a redress of grievances."
One of the stated objectives of the South African Freedom Charter is
to "secure to all their birthright without distinction of ... belief".
It is also stated that "[a]n laws which discriminate on grounds of ...
belief shall be repealed." Under the heading "All shall enjoy equal
human rights" it is provided that "the law shall guarantee to all the
right to speak, to organise, to meet together, to publish, to preach,
to worship and to educate their children."166
In the ANC's 1989 "Constitutional guidelines for a democratic South
Africa", it is stated that "the democratic state shall guarantee the
basic rights of freedom, such as freedom of association, expression,
thought, worship and the press.167 Their 1990 working document, "A Bill
segregated. They were convicted in the court a quo of a breach of the peace. In a 5-4 decision it was held that, because the segregation was unconstitutional, the appellants had a "right to protest" against it, and their convictions had to be reversed. In Adderly v Florida 385 US 39 (1966), another 5-4 decision, a less lenient approach was taken in respect of picketing on the premises of a penitentiary.
166One way in which the freedom of speech is limited is by the provision under the heading "All people shall be equal before the law", stating that "the preaching and practice of national, race or colour discrimination and contempt shall be a punishable crime."
167Clause 1. This provision is specifically made subject, inter
of Rights for a new South Africa", included the following provisions:
"There shall be freedom of thought, speech, expression of opinion,
including a free press which shall respect the right to reply;168 and
"All men and women shall have the right to assemble peacefully and
without arms, and to submit petitions for the redress of grievances and
injustices.169
In 1989 the South African Law Commission170 provisionally proposed a
Bill of Rights that would guarantee "[t]he right to freedom of speech
and to obtain and disseminate information."171
The emphasis placed on the need to protect free expression of ideas in
modern democracies may be justified on several grounds. Uninhibited
expression is seen as essential for individual self-realisation, for
enlightenment, as a vital part of representative democracy and self-
government, as a part of "checking and balancing" governmental power,
as a means of maintaining a balance between stability and change; and
as a "safety-valve" which allows social frustrations to be aired in the
alia. to clause k, which provides that "the advocacy or practice of racism, fascism, Nazism or the incitement of ethnic or regional exclusiveness or hatred shall be outlawed." If a similar provision is indeed to be incorporated into the new constitution, whatever protection is given to acts of civil disobedience in the name of free speech will not apply in those cases where the objective is to advocate racist ideas, etc. These provisions are classical examples of, what in American jurisprudence are called, "content-based" restrictions on free speech. This will be discussed shortly.
168Article 4(1). According to a 2(4) military service by a conscientious objector is not to be regarded as "forced labour", which is prohibited by the same article.
169Article 4(2). 170South African Law Commission Group and human rights. 171Article 8. It is also provided that "there shall be no
discrimination on the ground of ... religion ... political or other views" (art 2); the "right to spiritual ... integrity" 1s guaranteed (art 4); as well as the "right of every person to be safeguarded from discrimination against his ... religion" (art 22). Other provisions also demonstrate a strong commitment to the protection of spiritual Integrity (art 23) and religious convictions (arts 21 & 29). Provision is made, however, that the rights granted by the proposed Bill of Rights "may by legislation be limited to the extent that is reasonable necessary in the interests of the security of the state" (art 30). It is explicitly recognised that the state can provide for "such compulsory military service as may reasonably be acceptable 1n a democratic state" (art 7)
open. Perhaps the most often quoted rationale of free expression is its
utility in promoting the search for knowledge and "truth" in the
"market-place of ideas".172
It has also been suggested that the ultimate basis of the state's
interest in the protection of free speech of the individual is the need
to preserve a system of freedom of expression.
When people have to take account of restrictions they begin to think carefully about what they say, where they say it, and to whom. They tend to self-censor and over-censor in order to steer clear of real and imagined prohibitions. Therefore, to survive, speech must be given a wide berth.173
It is submitted that freedom of expression is of the essence of
democracy as defined earlier. A government which does not recognise
freedom of speech, imposes its own perception of values on its
citizens; a government which does permit freedom of speech, recognises
that there is a plurality of values and leaves it up to every citizen
to pursue her own conception of the good.
However, it has also been widely recognised that the Bill of Rights is
not a "suicide pact".174 Although it has been widely recognised that the
more conventional use of words should be protected as "speech", it has
also come to be accepted that not all forms of "speech" can be
protected or enjoy the same degree of protection.175 "Speech" can be
subjected to reasonable restrictions. Most commentators maintain that a
balance must be struck between the advantages of allowing speech and
those of disallowing it.176 In general, a distinction is made between
172For a discussion of the various approaches, see Gunther Constitutional law 976ff; Stone et a1 Constitutional law 931ff; Katz UCLA Law Review 1985 904 at 913ff and Greenawalt Columbia Law Review 1989 119. See also N P van Wyk Louw "Geestelike bloedsomloop" in Louw Versamelde prosa part 1 415.
173See Cheh SAJHR 1986 29 at 34. 174Terminello v Chicago 337 US 1 (1948) at 37. (Jackson J,
dissenting.) 175See Stone et a1 Constitutional law 935ff. 176However, the concept of "balancing" has in recent years become
controversial. Some, like Dworkin, argued that by using this concept one already goes a long way toward resolving the issue in favour of the state. See Dworkin Taking rights seriously chaps 7 & 8. On this
content-based restrictions, which limit communication because of the
ideas which are being conveyed, and content-neutral restrictions, which
limit communications without regard to the message involved. The
prohibition of disclosures of state secrets would be an example of
content-based restrictions; regulations affecting the time, place and
manner of expression are content-neutral.177
In respect of content-based restrictions (or "content control"), a
distinction is drawn between "low value" and "high value" speech. Low
value speech, like obscenity, commercial advertising and false
statements of fact receive little or no protection. With regard to
other restrictions pertaining to the message portrayed, a strict
balancing test is applied, which entails that only a substantial
governmental interest can justify such restrictions. The expression of
dangerous ideas might, for example, be curtailed under certain
circumstances. This is often done in terms of a formula such as the
"clear and present danger" standard. In respect of content-neutral
restrictions (or "indirect burdens" on speech), which limit expression
without regard to the idea being communicated, a less demanding
balancing test is employed.178 In general, then, restrictions on the
substance of speech is considered less acceptable than restrictions on
its form.
Civil disobedience raises First Amendment questions on different
fronts.179 One such question is to what extent the acts of civil
disobedience are protected as manifestations of "symbolic speech".
Another question is whether the advocacy of civil disobedience is
protected under this clause.180
debate, see Aleinikoff The Yale Law Journal 1987 943. 177See Stone et a1 Constitutional law 925ff. 178Id 1175ff. 179For general discussions of civil disobedience and the First
Amendment, see Orloff Duke Law Journal 1983 1076; Katz UCLA Law Review 1985 904, especially 909ff; Friedman Hastings Constitutional Law Quarterly 1988 587; Ernst American Criminal Law Quarterly 1964 15; Freeman Rutgers Law Review 1966 17 at 23ff; Hall Ethics 1970/71 128 at 131 and Sier The National Lawyers Guild Practitioner 1985 18.
180Other issues not discussed here include statements that provoke a hostile audience reaction (Stone et a1 Constitutional law 997) and speech in public and private places (id 1177). On political boycotts as an unprivileged form of expression, see id 1215 and Orloff Duke Law Journal 1983 1076.
(1) Civil disobedience as a form of "symbolic speech"
The First Amendment not only protects speech in the verbal sense of the
word, but also many other forms of expression.181 Communication through
conduct or actions can also, under certain circumstances, be regarded
as "speech". Civil disobedience, as established earlier, is primarily a
form of communication, aimed at persuasion. While acts of civil
disobedience (burning of draft cards, sit-ins etc) do not constitute
speech in the traditional (literal) sense, the question must be asked
whether such "symbolic expressions" are not also protected under the
First Amendment.
The locus classicus on civil disobedience as a possible form of
"symbolic expression". United States v 0’Brien.182 dealt with the
burning by the appellant of his selective service registration
certificate in public. He did this in protest against the war in
Vietnam, and, according to him, "to influence others to adopt [similar]
anti-war beliefs". He was convicted of having violated the Universal
Military Training and Service Act of 1948, amended by Congress in 1965
(when the words italicized below were inserted), to provide that any
person "who forges, alters, knowingly destroys, knowingly mutilates, or
in any manner changes any such certificate" committed a crime.183
The appellant argued that his act of burning the registration
certificate constituted "symbolic speech", protected by the First
Amendment. The Supreme Court confirmed his conviction. Chief Justice
Warren made a distinction between "pure speech" and "conduct". He held
that "[w]e cannot accept the view that an apparently limitless variety
of conduct can be labelled speech" whenever the person engaging in the
181See eg Stormberg v California 283 US 359 (1931), where a state prohibition on displaying a red flag as a symbol of opposition to organised government was held to be unconstitutional. in the "flag salute cases" it was held that a refusal to salute a flag in violations of one’s religious beliefs was protected "speech". See supra chap three III C (2).
182391 US 367 (1968). For a discussion of this case, see Stone et a1 Constitutional law 1207. The Issue of the First Amendment and acts of civi1 disobedience was addressed earlier by the Supreme Court in Cox v Louisiana 379 US 536 (1965) and Cox v Louisiana 379 US 559 (1965), discussed supra chap three III C (6)(c).
183Section 462(b)(3).
conduct intends thereby to express an idea."184
However, even on the assumption that the appellant's action, because of
its "alleged communicative element", brought the First Amendment into
play, the Court held that it does not necessarily follow that
destruction of a registration certificate is a constitutionally
protected activity. In an often-quoted passage, the Court stated as
follows:
[We] think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.185
The Court held that the 1965 Amendment complied with these criteria.
The Court's so-called "two track" approach would have it that the
distinction between content-neutral and content-based restrictions,
alluded to above, was made applicable to cases dealing with
restrictions pertaining to symbolic speech.186 The Court accepted that
the law in question was content-neutral, which meant that a less
demanding means-ends analysis was employed. Because the law served the
important objective of promoting the effective operation of the
Selective Services System, it was held not to restrict freedom of
speech excessively.
O’Brien provoked a storm of protest. Especially two aspects of the
decision were criticised. Firstly, the Court accepted, without probing
the congressional motive in proscribing draft-card burning, that the
restriction was content-neutral. An inquiry into the congressional
intent might have revealed that the law was based on the content of the
speech, which would have meant that they had to apply the more
stringent standard of review. But secondly, even assuming that the
objective of the law was to promote efficient administration and not to
stifle the expression of opposition to the draft, it has been argued
that this objective was already adequately served by other laws. The
184At 376. 185At 377. 186See Gunther Constitutional law 1174.
incremental advantages gained by the 1965 amendment was not worth the
added burden on First Amendment rights. O’Brien has reduced the
balancing test in respect of content-neutral restrictions to an almost
meaningless ritual.187
Barbara Katz summed up as follows the implications for civil
disobedience of the O'Brien decision:
Under this analysis, most kinds of civil disobedience would have difficulty passing constitutional muster. Most abridgments of civil disobedience ‘furthers’ an important or substantial governmental interest; the government can easily argue that any lesser restriction would reduce that ‘furtherance’. In a case of trespass at a nuclear power plant, for example, the government can easily argue that its interest in preserving order and security warrants a restriction preventing persons from walking freely through the area.188
In Tinker v Desmoines Community School District,189 the Supreme Court
ruled that students' rights to wear black armbands to school to
publicise their objection to the Vietnam War were protected by the
First Amendment. Although the wearing of armbands was "conduct".
Justice Fortas, for the majority, held that it "was closely akin to
‘pure speech’". Such conduct could cause a disturbance, but "our
constitution says we must take this risk ... and our history says that
it is this sort of hazardous freedom - this kind of openness - that is
the basis of our national strength."190
In Street v New York,191 the appellant was convicted in the court a quo
of violating a New York provision which made it a misdemeanour to
publicly "mutilate ... or cast contempt upon" an American flag. Upon
hearing of the assassination of a civil rights leader, James Meredith,
the appellant had taken his own American flag which he had displayed on
national holidays, and burnt it in public as a sign of protest against
187For a discussion of these points of critique, see Gunther Constitutional law 1175ff and Stone et a1 Constitutional law l207ff.
188Katz UCLA Law Review 1985 904 at 909. 189393 US 503 (1969). 190At 508. 191394 US 576 (1969). See also Smith v Goguen 415 US 566 (1974). As
to a more recent flag-burning case, see Levin Maryland Bar Journal 1989 6 at 6.
the fact that Meredith was not properly protected. He told bystanders:
"We don't need no damn flag", and used other words to the same effect.
It appeared from the record that a reasonable possibility existed that
the appellant was convicted because of his words and not because of
his conduct. That was held to be a violation of his freedom of speech.
In Spence v Washington,192 the appellant had displayed a flag on which a
peace symbol was fashioned upside down, in protest, inter alia, against
the invasion of Cambodia by American troops. The Court held that it was
a form of communication which was protected under the First Amendment.
Hence, a conviction for, what a Washington statute described as
"improper use" of the flag, was reversed. In this case, the Court
regarded the conduct in question as "speech", because "[a]n intent to
convey a particularized message was present, and in the surrounding
circumstances the likelihood was great that the message would be
understood by those who viewed it."193
The issue of symbolic conduct again came up for decision in dark v
Community for Creative Non-violence.194 A National Park Service
regulation, prohibiting camping in certain parks, was applied to
prohibit demonstrators from sleeping in a park as part of a
demonstration intended to call attention to the plight of the homeless.
With reference to O’Brien, the Court held that the governmental
interest in the regulation was unrelated to the suppression of free
speech and the regulation did not violate the First Amendment. But,
even if sleep was speech, the Court held, the regulation reasonably
promoted a substantial governmental interest, namely protection of the
environment.
The case of Texas v Johnson195 can be seen as a major breakthrough for
the protection of civil disobedience under the First Amendment. It
dealt with the following facts: Respondent Johnson participated in a
political demonstration, aimed against the policies of the Reagan
192418 US 405 (1974). 193At 410. 194468 US 288 (1984). For a discussion of this case, see Van Mark
Land and Water Law Review 1987 567. See also Orloff Columbia Law Review 1984 467 and Friedman Hastings Constitutional Law Quarterly 1988 587 at 589.
195491 US 397 (1989).
administration and of certain Dallas-based corporations. As an act of
protest, he burned an American flag. He was subsequently convicted of
desecrating an American flag, in terms of the Texas Penal Code. The
Court had to decide whether the Texas law, and Johnson’s conviction,
was consistent with the First Amendment. In a 5-4 decision, it held
that it was not.
Brennan J, writing for the majority, held that Johnson’s conduct was
expressive, since it was the culmination of a political demonstration.
This brought the First Amendment into play. Consequently, it had to be
decided whether the state’s regulation related to free expression. If
it was not so related, the less stringent O’Brien standard for non-
communicative conduct control could be used. If it was so related, the
state’s interests had to be subjected to a more stringent balancing
test.196
Texas argued that the regulation served its interests in keeping the
peace and in preserving the flag as a symbol of nationhood. The Court
held that it was not necessary to punish flag-burning in order to
maintain order - the state already had a statute specifically
prohibiting breaches of the peace. Since the interest in preserving the
flag as a symbol of nationhood related to expression, and was
consequently content-based, the stringent balancing test had to be
applied. Did this interest justify the conviction?197
The Court stated: "If there is a bedrock principle underlying the First
Amendment, it is that the government may not prohibit the expression of
an idea simply because society finds the idea itself offensive or
disagreeable."198 The mode of expressing the idea is of no consequence:
If we were to hold that a state may forbid flag burning wherever it is likely to endanger the flag's symbolic role, but allow it wherever burning a flag promotes that role - as where, for example, a person ceremoniously burns a dirty flag - we would be saying that when it comes to impairing the flag’s physical integrity, the flag itself may be used as a symbol ... only in one direction ... We never before held that the government may ensure that a symbol may be used to express only one view of that symbol ... 199
196 At 403. 197 See 410. 198 At 414. 199 At 416.
In the view of the court, the decision could even strengthen the
reverence in which the flag is held:
Our decision is a reaffirmation of the principles of freedom and inclusiveness that the flag best reflects, and of the conviction that our toleration of criticism such as Johnson's is a sign and source of our strength ... It is the nation’s resilience, not its rigidity, that Texas sees reflected in the flag.200
To summarise: Although the matter is controversial, it may be assumed
that more protection is generally afforded to words than to conduct.
Courts seem to accept more readily that restrictions on conduct are
content-neutral, and, consequently, they do not subject such
restrictions to a stringent balancing test.
(2) Advocacy of civil disobedience
When people are encouraged to engage in civil disobedience they are per
definition incited to act illegally. The question is whether such
"subversive advocacy" is protected by the First Amendment. Restrictions
- on this type of speech are content-based, and since such restrictions
do not fall in one of the excluded categories, the speech in question
would generally be regarded as "high value" speech. Such speech can
legally be prohibited, but the prohibition will generally be subjected
to a stringent balancing test, such as the clear and present danger
doctrine.
Some of the earliest freedom of expression cases dealt with
restrictions of speech founded on the supposition that it encouraged
people to break the law.201 One approach in those cases was to sanction
the prohibition of speech that manifested a "bad tendency", however
remote, and which was intended to instigate violations of the law.202
Another approach was to focus on whether words of incitement were
involved, irrespective of the perpetrator's intention.203
The "clear and present danger" test was introduced into American
jurisprudence by Mr Justice Holmes during the First World War in the
200At 419. 201For a discussion of the early history, see Bloustein Rutgers Law
Review 1988 283 at 292. 202Schaffer v United States 255 US 886 (9th Cir 1919). 203Masses Publishing Co v Patten 244 F 535 (SDNY 1917).
case of Schenck v United States.204 This controversial test has
undergone many different interpretations and has been adapted in
material respects, but it has never been entirely abandoned.205
Schenck arose from the circulation by the appellants of a document
among men conscripted for military service during the time when the
United States was at war with Germany, encouraging them not to join the
armed forces. The appellants were convicted in the court a quo on
various counts relating to attempts to cause insubordination in the
armed forces of the United States, and obstruction of its recruitment
services in contravention of the Espionage Act of 1917.
The document constituted a textbook example of advocacy of, what was
referred to above as, legality-based civil disobedience. Conscripts
were advised that their conscription violated the Thirteenth Amendment,
and they were told: "Assert your rights." The Court found that the
document was "intended to have some effect", which brought it within
the confines of, what was called, result-oriented civil disobedience.
The opinion of Holmes J, speaking for a unanimous court, is worth
quoting at some length, in view of its influence in later cases.
We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic ... The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that congress has a right to prevent. It is a question of proximity and degree.206
Although the term, "clear and present danger", had been coined, the
204249 us 47 (1919). For a discussion of this case, see Bloustein Rutgers Law Review 1988 283 at 293. See also Frohwerk v United States 249 US 204 (1919) and Debs v United States 249 US 211 (1919). Both of these cases concerned attempts to dissuade conscripts from participation in armed services during the war. The convictions were confirmed. In none of these cases did Holmes J make reference to a clear and present danger.
205For a fuller discussion, see Sier The National Lawyers Guild Practitioner 1985 18 at 22ff.
206At 115.
Court was in fact still applying the "bad tendency" model, and the
convictions were confirmed.
It was only in his opinion in Abrams v United States207 that Holmes J
began developing the "clear and present danger" doctrine in its modern
form. In this case, the appellants were convicted of writing and
publishing language "intended to incite, provoke and encourage
resistance to the United States" during World War I in contravention of
a 1918 amendment to the Espionage Act. The Supreme Court sustained the
convictions, with a majority of the Court rejecting a constitutional
attack on the Act on the basis of Schenck. It accepted that presumed
intent would suffice to justify a conviction.
This provoked Holmes to write a famous dissenting opinion, in which he
strongly defended the virtues of freedom of speech and introduced the
idea of a "market-place of ideas" as the basic rationale for a
permissive approach in respect to speech. He stated "that the best test
of truth is the power of thought to get itself accepted in the
competition of the market."208 By requiring actual intent and
emphasising the need for immediacy of a danger before speech could be
banned, he rendered the clear and present danger doctrine more
protective of speech.209
In the 1920’s and 30’s, Justices Holmes and Brandeis further developed
their First Amendment jurisprudence. In Gitlow v New York,210 the
appellant was convicted of the statutory crime of criminal anarchy, in
that he advocated the overthrow of the government through violence. The
appellant was a member of a far left-wing section of the Socialist
Party. In a newspaper article, he urged the overthrow of the democratic
parliamentary state through "revolutionary mass action", and proposed
to substitute it with a "revolutionary dictatorship of the
proletariat". The article concluded with a call to action, in words
reminiscent of those used by Marx and Engels in the concluding
paragraphs of the Communist Party Manifesto.
Justice Stafford, speaking for a majority of the Supreme Court,
207250 US 616 (1919). He was joined by Brandeis J. 208At 630. 209For a discussion, see Bloustein Rutgers Law Review 1988 283 at
297. 210268 US 652 (1925).
regarded this as "the language of direct incitement" and affirmed the
conviction. He held that when speech is so inimical to the general
welfare, "every presumption is to be indulged in favor of the validity
of the statute."211 It is only where the statute is an "arbitrary and
unreasonable use of state power" that it would violate freedom of
expression.212
In another famous dissent, Mr Justice Holmes (in whose judgment
Brandeis J concurred) expressed the opinion that the judgment should
have been reversed. He also down-played the scope of the clear and
present danger test:
Every idea is an incitement. It offers itself for belief and if believed it is acted on unless some other belief outweighs it or some failure of energy stifles the movement at its birth. The only difference between the expression of an opinion and an incitement in the narrower sense is the speaker’s enthusiasm for the result.213
He also stated that "whatever may be thought of the redundant discourse
before us it had no chance of starting a present conflagration."214
In Whitney v California,215 the appellant was convicted under a
Californian law which outlawed membership of an organization that
propagated, what was called, "criminal syndicalism", defined as a
doctrine "advocating ... the commission of crime, sabotage [or]
unlawful acts of force ... as a means of ... accomplishing political
change." She was a member of the Communist Labour Party, which - It was
conceded - propagated "criminal syndicalism" as defined. It was argued
on her behalf, however, that the statute was unconstitutional because
it deprived her of her liberty without due process of law.
The Court ruled that this statute, and the way in which it was applied
in respect of the appellant, did not violate the First Amendment. In a
separate, concurring judgment, Mr Justice Brandeis, with whom Holmes J
211At 668. 212At 670. 213At 673. 214Ibid. 215274 US 357 (1927). For detailed discussion of this case, see
B1asi William and Mary Law Review 1988 653.
agreed, stated that "assembling with a political party, formed to
advocate the desirability of a proletarian revolution by mass action at
some dates necessarily far in the future" is protected speech, which
could not be prohibited without due process of law.216 For the
government to suppress speech, "[t]here must be reasonable ground to
believe the danger apprehended is imminent. ... There must be a
probability of serious danger to the state."217 However, because there
was in the present case evidence of a conspiracy to commit serious
crimes in the near future, Brandeis J agreed that the judgment of the
state court could not be disturbed.218
The Smith Act of 1940219 made it a crime to "advocate ... the
desirability .. of overthrowing ... any government in the United States
by force or violence" or to be a member of a group with such
purposes.220 In a number of cases, members of the United States
Communist Party were convicted of transgressions of this statute, on
the basis that the Communist Party advocated the violent overthrow of
the government of the United States.
In a famous case brought under this Act, Dennis v United States,221
Vinson C J, for the majority, stated that "[although] no case
subsequent to Whitney and Gitlow has expressly overruled the majority
opinions in those cases, there is little doubt that subsequent opinions
have inclined toward the Holmes-Brandeis rationale."222
The formulation of the test which the Court accepted was that of Mr
Justice Learned Hand in the court a quo, namely that courts were
required to ask whether "the gravity of the 'evil', discounted by its
improbability, justifies such invasion of free speech as is necessary
to avoid danger."223 However, the application of this test in Dennis
216At 379. 217At 376. 218See also Fiske v Kansas 274 US 380 (1927); De Jonge v Oregon 299
US 353 (1937) and Herndon v Lowry 301 US 242 (1937). 21954 Stat 670 (see presently, 18 USC para 2385). 220Section 2(a)(1) 221341 US 494 (1951). 222At 507. 223At 510. For a discussion of an economic, cost-benefit analysis
of this formula, see Hammer Michigan Law Review 1988 499 at 501.
differed substantially from the approach proposed by Holmes and
Brandeis. Vinson C J held that the validity of governmental action is
not determined by the success or probability of success. A conspiracy
to advocate the overthrow already constituted the necessary danger,
even in the absence of actual advocacy. It was held that the doctrine
of the Communist Party constituted such a danger.
According to this approach, the greater the danger, the more remote it
could be to justify suppression of free speech. On this basis, radical
doctrines would receive little or no protection.224
In another case brought under the Smith Act, this broad balancing
approach was sharply criticised and to some extent avoided. In Yeats v
United States,225 decided at a time when McCarthyism was losing its
support, it was held that mere advocacy of a forcible overthrow of the
government as an abstract doctrine must be distinguished from advocacy
of some immediate action. Only speech in the latter category could be
prohibited. Nevertheless, the Holmes-Brandeis approach was still not
followed, in the sense that imminence and probability of success was
not taken into account.
The current formulation of the limits of free speech, which would come
closer to this initial ideal, was set out by the Warren Court in
Brandenburg v Ohio.226 The appellant, a leader of the Ku Klux Clan, was
convicted under an Ohio statute for "advocat[ing] the duty, necessity,
or propriety of crime, sabotage [or] violence ... as a means of
accomplishing industrial or political reform." At a rally where some
members carried fire-arms, which the Clan had arranged to be televised,
the appellant sounded a warning of possible revenge, because of
suppression of white interests by the United States government, and
announced a march on Congress. The appellant argued that the law under
which he was convicted violated of First Amendment.
The Court required the co-existence of three elements before the speech
could be banned: the speech must be (i) intended and (ii) likely to
224See Cheh SAJHR 1986 29 at 30 n 3. This argument reminds one of the argument of anti-nuclear protesters regarding the threat posed by nuclear deterrence.
225354 US 298 (1957). 226395 US 444 (1969). For a discussion of this case, see Stone et
a1 Constitutional law 989ff.
produce (iii) imminent unlawful activity. To this could be added,
having regard to the context of the case, that the envisaged unlawful
activity must be of a serious nature.227 Because the Ohio statute made
mere advocacy punishable, the Court held that it fell within the
condemnation of the First and Fourteenth Amendments. The conviction was
accordingly set aside.
The Supreme Court reiterated the Brandenburg approach in Hess v
Indiana.228 In the latter case, the appellant was convicted of
disorderly conduct after participation in a demonstration against the
Vietnam War. While the police were arresting demonstrators in the
streets, the appellant said loudly to the demonstrators: "Well take the
fucking street [either 'again' or 'later']." The Illinois Supreme Court
affirmed his conviction on the basis that it had a "tendency to lead to
violence".229 The Supreme Court set the conviction aside, stating that
"at worst, it amounted to nothing more than advocacy of illegal action
at some indefinite future time."230 The "tendency to lead to violence"
test was rejected in favour of the Brandenburg approach, with emphasis
on the requirement of imminence of the envisaged disorder.
In a Court of Appeals judgment, United States v Spock,231 the
appellant's conviction for conspiring to counsel violation of the draft
law was reversed. He signed a document calling for draft-law duties to
be resisted The Court stated that his words were limited to
condemnation of the War and the draft and lacked any words or content
of counselling.
In general, it can be said that the Supreme Court's approach amounts to
a recognition that incitement to civil dis-obedience can be protected
speech, namely if the disobedience is not about to occur immediately.
227The approach of the Court amounted to a requirement that the words must be a "specific trigger" to illegal action. See Cheh SAJHR 1986 29 at 32.
228414 US 105 (1973). 229At 109. 230At 108. 231416 F 2d 165 (1st Cir 1969).
CHAPTER SEVEN:
CONCLUSION
It was stated at the outset that the aim of this study was to establish
how state officials should evaluate acts of civil disobedience in
societies where the level of democracy fluctuate. For this purpose
civil disobedience was defined and considered in its historical
perspective. The implications of South African positive law in respect
of civil disobedience were outlined and classical views on the right to
resist were considered. Against this background a conceptual framework,
suggesting the considerations which democratically-minded state
officials should take into account when they evaluate acts of
disobedience, was developed. Certain legal mechanisms whereby official
leniency could - be shown to resistors were also discussed.
That concluded our inquiry. It remains to give an overview of the most
important findings, to relate them to one another and to place them in
a wider context.
As far as the definition of civil disobedience is concerned, it was
argued that acts of civil disobedience are illegal, in the sense that
the perpetrator thereof risks the wrath of the state. Secondly, it
involves a low level of coercion; an element which in most (but not
a11) cases is adequately captured by the requirement of non-violence.
Civil disobedience was also described as an open act of defiance. It is
furthermore motivated by conviction. On the basis of the type of
conviction involved, different types of civil disobedience were
distinguished. Integrity-based civil disobedience is motivated by the
conviction that it is necessary to protect one's "ultimate concerns".
Anti-exploitation civil disobedience is premised on the belief that one
part of the population is benefitted to the detriment of others. In the
case of policy-based civil disobedience, the above does not apply, but
the resister is nevertheless of the opinion that those in power are
misguided in important respects.
Finally, as far as the definition is concerned, acts of civil
disobedience are political in that they challenge the authority of the
government in a way which is likely to provoke retaliation. Such acts
are result-oriented if they are aimed at bringing about social change,
or defensive if the intention of the person involved is simply to avoid
personal participation in that which she considers to be wrong. Insofar
as an act of civil disobedience depends for its effectiveness on
martyrdom, it was called sacrificial; to the extent that the intention
is merely to show to the opponent that one no longer considers oneself
bound by his rules, it was called non-sacrificial civil disobedience.
Distinctions were also drawn between individual and mass civil
disobedience and indirect and direct civil disobedience. One
manifestation of indirect civil disobedience occurs where the
disobedience is aimed at a congenial third party (called a "benevolent
background force") which in turn exercises pressure on the direct
adversary.
The historical survey revealed that civil disobedience has ancient
roots. It often played a vital role in human development, in
relativising older, more exclusive, orders and legitimising new, more
inclusive, orders. In most of the earlier cases civil disobedience was
individual and sacrificial. The chances of success were low and the
personal risk high, because rulers inevitably viewed any resistance as
tantamount to treason. Indirect disobedience aimed at a "benevolent
background force" was also not feasible, because nations took little
interest in each other's domestic affairs. Not surprisingly, only a
small number of exceptional individuals practiced this form of
resistance.
New possibilities arose in the Twentieth Century. Domestic issues now
became international concerns. The emergence of the international
community, willing to concern itself with the human rights practices of
individual countries, would encourage the practice of indirect civil
disobedience. The same applied to the major colonising power, Britain,
with its commitment to "fair play". The possibility of the imposition
of a wide variety of sanctions on governments offending internationally
accepted human rights norms, gave the assurance to protesters in a
number of countries that their chances of success were relatively high
and the personal risk low. Civil disobedience now became a viable
option to ordinary people.
The increasing rejection of racism during this century, and the
vulnerability of South Africa to outside pressure - first from Britain
and later from the organised international community - enabled Gandhi
to launch the first campaign in history of mass civil disobedience in
that country. Gandhi's unique contribution was that he was the first to
perceive and to use the newly emerging opportunity to rally people
under the banner of non-violent resistance. A realistic, new option for
those opposed to the state, between legal protest and violent
resistance, came into being.
The survey of civil disobedience under South African positive law
covered four main areas. The effect of the criminal law as well as
executive prerogatives for the practice of civil disobedience was
considered. The implications of a conviction for a political offence on
one's capacity for legal practice were also canvassed, as well as
conscientious objection to military service. In general it was argued
that a consideration of the statutory law reveals over-regulation in
this regard, while dicta of the courts suggest the absence of a
coherent jurisprudential framework for the evaluation of acts of
political resistance in general and civil disobedience in particular.
An investigation of the most influential philosophical and religious
views regarding resistance in general revealed that the Stoic-Christian
approach to political obligation provided the foundation for the
principle that certain aspects of human life are beyond governmental
control and that governmental intrusion in those "personal spheres"
warrants disobedience. Through insisting that every individual is the
master of his own soul, the foundation was laid for the idea of
inalienable human rights. During the pre-modern era, however, only the
notion of integrity-based, defensive resistance was accepted. A
stringent duty of obedience was posed in respect of other issues, in
those cases where the state wished to regulate the lives of its
citizens.
During the modern era, the influence of the state on the lives of
citizens would become much more pervasive, but, at the same time, under
the influence of philosophers like Locke and Kant, a much larger
personal sphere would be claimed. The notion of inalienable human
rights was developed, which covered not only the right to freedom of
spiritual integrity, but also a variety of political and other rights,
on the basis of which at least anti-exploitation, result-oriented civil
disobedience could be justified.
The question how democratically-minded state officials, in more and
less democratic systems, should regard acts of civil disobedience was
thereupon addressed. Reasons were advanced why at least some acts of
civil disobedience should be tolerated - the most important being
that it might be necessary in order to retain the legitimacy of the
legal system to demonstrate its commitment to justice. The notion of
inalienable rights also make sense only if it is accepted that the
violation of basic rights could in some cases justify disobedience.
Some commentators make the recognition of a right to resist entirely
dependent on the question of franchise. Where one has participated in
the political processes, there is an absolute duty of obedience; where
there was no such participation, no duty of obedience arises. It is
submitted that both conclusions are wrong. Even a majority is
constrained by the rights of individuals, while public order demands
obedience to at least some of the policy-decisions of an
unrepresentative government.
Instead, the recognition of a right to resist should turn on the
question whether basic human rights are being violated by the laws
objected against and on the question whether certain formal conditions
are being met. The touchstone of the right to resist is the recognition
of inalienable human rights, because this concept suggests that certain
interests of the individual may not be violated by the state. This
approach can underline a “flexible” theory of civil disobedience,
applicable in more and less democratic societies.
In order to determine whether a particular law violates basic human
rights, it should first be established what the broad national and
international consensus is in this regard. Where there is no such
consensus, the question should be asked whether the conviction that
motivates the resistance can underlie fundamental human rights. It was
submitted that the protection of integrity underlies the most basic
human rights, while the need to protect people against exploitation can
also form the basis of fundamental rights. However, the same does not
apply to issues of policy. Consequently, integrity-based civil
disobedience deserves the most tolerance and some leniency is due to
anti-exploitation civil disobedience. As a general rule, policy-based
civil disobedience cannot be justified.
The question was posed whether the wide recognition which environmental
rights receive at the moment constitutes an exception to the above
rule. On the face of it, pro-environment resistance deals with matters
of policy. It was submitted that pro-environment resistance should in
fact be seen as anti-exploitation. The parties exploited are future
generations and, if it is accepted that they have rights, animals and
plants.
By going to and fro between the boni mores and an inquiry into the type
of conviction involved, some idea could be formed of how a particular
act of disobedience compares with other other acts of disobedience in
terms of its acceptability.
Where leniency on the part of decision-makers is due it could manifest
itself in a variety of ways: for example in an interpretation of the
relevant laws in a way which favours the accused, the expression of
support for the disobedient, the imposition of a light sentence,
judicial lying and resignation. It was concluded that the application
of the necessity defence and the constitutional protection of freedom
of speech could, in appropriate cases, result in the discharge of a
protester.
Having completed the study, where does it leave us? The proposed
approach greatly reduces the need for decision-makers to rely on
personal constructions of the boni mores in evaluating acts of civil
disobedience. Ultimately, however, the prevailing convictions of the
local and the world community retain a position of dominance. It is
only to the extent that the boni mores are not clear, that the question
which type of conviction is involved in a particular instance of civil
disobedience becomes relevant.
The fact that the boni mores are the final criterion of the right to
resist might be regarded as troubling. It is probable that those who
sentenced Socrates and Christ to death interpreted the boni mores of
their time correctly. Even if they followed the approach suggested
above, it is unlikely that history would have been much different. But
does this mean that the suggested approach is invalid?
The first observation that should be made in this regard is that in
important respects human society and public morality have grown over
the years. In few societies around the world would a Socrates and a
Christ in this day and age be executed. Especially important in this
respect is the formation of an international community. To a large
extent, the emerging, although by no means precise, international
consensus on what should be regarded as basic human rights provides the
most reliable indication of the view which those in the original
position would have taken of the matter. The values adhered to by the
United Nations, for example, reflect the outcome of many years of
deliberation and struggle in which the powerless and the powerful have
participated and in which they have often also changed roles. In the
creative process of interpreting the moral and legal convictions of
their communities, decision-makers would do well to keep in mind the
question of what would be internationally acceptable.
However, unless one accepts that we have indeed arrived at the end of
history, and that the present boni mores represent the pinnacle of
human achievement, it is clear that even the broad international
consensus which now prevails will still undergo significant changes and
be transformed in ways not yet conceivable. This means that certain
acts of resistance may now be condemned by nearly universal agreement,
which in future, with the benefit of hindsight, could be regarded as
the forerunners of a new and more enlightened, less repressive era. The
approach proposed in this thesis, based as it is on the prevailing boni
mores, provides no safeguards against such an occurrence.
The truth is that no theory of civil disobedience can provide an
Archemedian point, outside of history and factuality, as a point of
departure for the evaluation of acts of disobedience. To some extent
human progress depends on the willingness and determination of those
who see the need for change before the rest of us, to persevere and to
defy, even though they know that it might cost them dearly. Only
through their willingness to be crucified can a new synthesis be
found.
As the history of Gandhi and the liberation movement in South Africa so
vividly illustrates, some measure of human suffering appears to be
unavoidable in the quest for a new and better world - and a new and
better South Africa. Often, that is part of the dialectical process of
human development. However, as the history of South Africa also shows,
in so many cases the suffering is unnecessary. The loss of human lives
on the political altar is not something like the weather, which we
simply have to accept. It is the task of the decision-makers - our task
- to make this necessary in as few cases as is possible.
BIBLIOGRAPHY
This bibliography contains full references to a11 articles (other than those which
appeared in newspapers) and books referred to in the study. The titles of all non-South
African and some South African periodicals are given in full. In the case of those South
African periodicals of which the titles are not given in full, the following
abbreviations are used:
CILSA The Comparative and International Law Journal of South Africa
JCRDL Journal of Contemporary Roman-Dutch Law("Tydskrif vir
Hedendaagse Romeins-Hollandse Reg")
JJS Journal for Juridical Science ("Tydskrif vir Regswetenskap")
JSAL Journal of South African Law ("Tydskrif vir die Suid-Afrikaanse
Reg")
SAJHR South African Journal on Human Rights
SALJ The South African Law Journal SAPLSA Public Law ("SA
Publiekreg")
References to reports of commissions of inquiry etc are listed below under a separate
heading.
Much of the literature available on civil disobedience is contained in books of which
the titles do not give any indication of the fact that its contents includes essays on
civil disobedience. In order for this bibliography to be a useful guide on the literature
available on the subject of civil disobedience, references to such essays are supplied in
square brackets immediately following the details of the books in which they are
contained.
*
Abrams F, HM Holzer, D Oberdorfer & RK Willard "The First Amendment and national
security" University of Miami Law Review 1988 vol 43 61
Ackerman BA Social just-ice in the liberal state New Haven, Connecticut, Yale
University Press 1980
Ackermann MF "Die begrip wet en orde" JSAL 1978 124
----- Die reg insake openbare orde en staatsvei1ig-heid Durban, Butterworth 1984
Adam H (ed) South Africa: Sociological perspectives Cape Town, Oxford University Press
1971 [F Meer "African nationalism - some inhibiting factors" 121]
Aeschylus Prometheus bound (transi G Murray) London, George Alien 1931
Aleimkoff TA "Constitutional law in the age of balancing" The Yale Law Journal 1987 vol
96 943
Alexandrowicz CH (ed) Grotian society papers 1968 The Hague, Martinus Nijhoff 1970
[D Lumb "Legality and legitimacy : The limits of obedience to the state"
52]
Allan TRS "Disclosure of journalistic sources, civil disobedience and the rule of
law" Cambridge Law Journal 1991 vol 50 131
Alien FA "Civil disobedience and the legal order" parts 1, 2 University of
Cincinnati Law Review 1967 vol 36 1, 175
Alien JW A history of political thought in the Sixteenth Century London, Methuen
1951
Annual Survey of South African Law 1956 Johannesburg, Juta 1957
[Anonymous] "Cape treason trials" SALJ 1901 vol 18 164
------- "Crimen laesae maiestatis" SALJ 1938 vol 55 14
------- "High treason" Cape Law Journal 1900 vol 17 15
------- "Lawyers in prison" Cape Law Journal 1896 vol 13 129
------- "Satyagraha in South Africa" The Round Table 1952/53 vol 43 130
------- "South Africa : The civil disobedience campaign" The Round Table 1952/53
vol 43 88
------- "The advocate's oath" SALJ 1945 vol 62 414
------- "Toward a constitutional definition of religion" Harvard Law Review 1978
vol 91 1056
Apter DE & J Joll (eds) Anarchism today Garden City, New York, Doubleday 1972
Aquinas, Thomas Selected political writings (ed AP D'Entreves, transi from Latin by JG
Dawson) Oxford, Basil Blackwell 1981
------- Summa theologiae ["Summary of theo1o9y"J London, Blackfriars 1972
vo1 35 (transi from Latin and introduced by TR Heath)
vol 41 (transi from Latin and introduced by TC O'Brien)
Arendt H Crises of the republic New York, Harcourt 1972 ["Civil disobedience" 51]
------- The origins of total itananiam London, Alien 1967
Aristotle Nicomachean ethics (transi from Greek by R Williams) London, Longmans 1869
------- The politics (transi from Greek by JEC Well don) London, Macmillan 1888
Augustine A Confessions New York, Penguin 1979
------- Letters vol 1 (1-82) (transi from Latin by W Parsons) in The fathers of
our church vol 12 (ed H Dressier) Washington DC, Catholic University
Press, 1951
------- Opera omnia vo1 5/1 Patrologia Latina Paris, no publisher given 1841
------- The city of God against the pagans in seven volumes (original & transi
from Latin) London, Wi11iam Heinemann
vo1 2 Books 4-7 (transi WM Green) 1963
vol 3 Books 8-11 (transi DS Wiesen) 1968
vo1 4 Books 12-15 (transi P Levine) 1966
vo1 6 Books 18-20 (transi WC Green) 1960
------- The free choice of the will (transi from Latin by RP Russell) in The
fathers of our church vo1 59 (ed RJ Deferrari) Washington DC, Catholic
University Press, 1967
Axelrod R SRThe evolution of cooperation New York, Basic Books 1984
Bakker R Albert Camus Baarn, Wereldvenster 1966
Bakshi SR Gandhi and [the] civil disobedience movement New Delhi, Gitanjali 1985
Bakunin M Bakunin on anarchy: Selected works by the activist-founder of world
anarchism (ed S Dolgoff) London, George Alien 1971
------- God and the state New York, Dover 1970
Ball MS "Obligation : Not to the law but to the neighbor" Georgia Law Review 1984
vol 18 911
Barkan SE Protesters on trial: Criminal Justice in the southern civil rights and
Vietnam antiwar movements New Brunswick, New Jersey, Rutgers University
Press 1985
Barker E Principles of social and political theory London, Oxford University Press
1963
Barrio GN "The shifting sands of allegiance and treason in Rhodes!a" CILSA 1968 vo1
1 289
Bates S "The motivation to be just" Ethics 1974/75 vo1 85 1
Bauer SM & PJ Eckerstrom "The state made me do it: The applicability of the necessity
defense to civil disobedience" Stanford Law Review 1987 vo1 39 1173
Bauman RA The crimen maiestatis in the Roman Republic and Augustan Principate
Johannesburg, Witwatersrand University Press 1967
Baxter LG "'The state' and other basic terms in public law" SALJ 1982 vo1 99 212
Bay C & CC Walker Civil disobedience; theory and practice Montreal, Black Rose 1975
Bayley DH "The pedagogy of democracy: Coercive public protest in India" The American
Political Science Review 1962 vo1 54 663
Beauchamp TL (ed) Ethics and public policy Englewood Cliffs, New Jersey, Prentice Ha11
1975 [J Rawls "The justification of civil disobedience 132
M Cohen "Civil disobedience in a constitutional democracy" 145 G Hughes
"Response to professor Marshall Cohen" 157
K Nielsen "Remarks on violence and paying the penalty" 162]
Beck LW "Kant and the right of revolution" Journal of the History of Ideas 1971
vo1 32 411
Bedau HA "Civil disobedience: Conscience, tactics, and the law. Carl Cohen" (book
review) The Journal of Philosophy 1972 vol 69 179
------- "On civil disobedience" The Journal of Philosophy 1961 vol 58 653
Benson M South Africa: The struggle for a birthright London, Penguin 1966
------- The African patriots : The story of the African National Congress of South
Africa London, Faber 1963
Bentham J An introduction to the principles of morals and legislation (eds JH Burns
& HLA Hart) London, Athlone 1970
------- A fragment on government (ed FC Montague) London, Oxford University Press
1891
------- Deontology together with A table of the springs of action and The article
on utilitarianism (ed A Goldworth) in The collected works of Jeremy
Bentham (ed JR Dinwiddy) Oxford, Clarendon 1983
Berat L "Conscientious objection in South Africa: Governmental paranoia and the
law of conscription" Vanderbilt Journal of Transnational Law 1989 vol 22
127
Berger FR Obligation and disobedience: A study of the justification of civil
disobedience in the democratic state unpublished PhD thesis, University of
California, Berkeley 1969
Bergman G "Nonviolent resistance wins in Bolivia" The Christian Century May 1978 567
Berman HJ Law and revolution : The formation of the Western legal tradition
Cambridge, Massachusetts, Harvard University Press 1983
Bernstein H The world that was ours: The story of the Rivonia trial London, SAW 1989
Beukes P The holistic Smuts: A study in personality Cape Town, Human & Rousseau
1989
Beza T Concerning the rights of rulers over their subjects and the duty of
subjects towards their rulers (transi from Latin by HL Gonin) Cape Town,
HAUM c 1956
Bickel AM The Supreme Court and the idea of progress New Haven, Yale University
Press 1978
Bila JJ, V Maleka, M Mnisi, P Molatedi & I Mukhari "A rare example of sociological
jurisprudence and judicial realism in South Africa" SALJ 1989 vol 106
595
Bisbee GA Pre-Decian acts of martyrs and commentarii Philadelphia, Fortress 1988
Bishop PD A technique for loving: Non-violence in Indian and Christian traditions
London, SCM 1981
Bickel AM The Supreme Court and the idea of progress New Haven, Yale University
Press 1978
Bizos G "Political trials and human rights" Oe Jure 1988 vol 21 136
Black CL (jr) "The problem of the compatibility of civil disobedience with American
institutions of government" Texas Law Review 1965 vol 43 492
Blackstone W Commentaries on the laws of England vols 1-4 London, Garland 1978
Blackstone WT "Civil disobedience: Is it justified?" Georgia Law Review 1969 vol 3 679
B1ad JR Naar een legitimatiepiicht: De criminalisering der onverdacten" Nederlands
Juristenblad 1985 vol 60 680
Biasi V "The First Amendment and the ideal of civic courage: The Brandeis opinion
in Whitney v California" William and Mary Law Review 1988 vol 29 653
Blocker HG & EH Smith (eds) John Raw1s' theory of social justice: An introduction Athens,
Ohio, Ohio University Press 1980
Blom-Cooper LJ "The South African Treason Trial: R v Adams and others" International and
Comparative Law Quarterly 1959 vol 8 59
Bloustein EJ "Holmes: His First Amendment theory and his pragmatist bent" Rutgers Law
Review 1988 vol 40 283
Bodin J Six books of the commonwealth (transi from French by MJ Tooley) Oxford,
Basil Blackwell undated
Boesak AA Black and reformed: Apatheid, liberation and the Calvinist tradition
Johannesburg, Skotaville 1984
------- Farewell to innocence: A social-ethical study of black theology and black
power Johannesburg, Ravan 1977
Bondurant JV Conquest of violence: The Gandhian philosophy of conflict Berkeley,
California, University of California Press 1965
Bose A A history of anarchism Calcutta, World 1967
Bosmajian HA (ed) Dissent: Symbolic behavior and rhetorical strategies Westport,
Connecticut, Greenwood 1980 [WL Taylor "Civil disobedience: Observations
on the strategies of protest" 86]
Boulting W Giordano Bruno: His life, thought, and martyrdom London, Kegan Paul 1914
Bowie NE & RL Simon The individual and the political order Englewood
Cliffs, Prentice Hall 1977
Boyle FA Defending civil resistance under intentional !aw iVe<v rork, Oo66s Ferry
{987
------- "International law, citizen resistance, and crimes by the state - the
defense speaks" Houston Journal of International Law 1986 vol 11 345
Branson R "Taming the apocalypse" Journal of Theology for Southern Africa 1987/88 no
61/62 27
Brantingham PJ & JM Kress (eds) Structure, law, and power Beverley Hills, Sage 1979
Brookes EH & JB Macaulay Civil liberty in South Africa Cape Town, Oxford University Press
1958
Brooks PEJ "Die Jehovasgetuie en dienspligweiering : S v Lewis 1985 4 SA 26(T)" JCRDL
1987 vol 50 219
Brown SM (jr) "Civil disobedience" The Journal of Philosophy 1961 vol 58 669
Brownell H "Civn disobedience - the lawyer's challenge" American Criminal Law
Quarterly 1964 vol 3 27
[Brutus J] A defence of liberty against tyrants (1689 translation of the Vindiciae
contra tyrannos) New York, Franklin 1972
Burchell EM, JRL Milton & JM Burchen South African criminal law and procedure vo1 1
General principles of criminal law Cape Town, Juta 1983
Burger JC "Gesagsuitdaging en ondermyning" Woord en Daad 1989 vol 29 13
------- "'n Kursoriese besinning oor die gewete" JCRD 1991 vol 54 512
Burnet J Early Greek Philosophy London, Adam & Charles Black 1958
Burns YM "Freedom of the press in South Africa" Woord en Daad 1988 vo1 28 7
Buys PW "Heilige ongehoorsaamheid?" Die Kerkblad 1988 vo1 88 5
Cain M & A Hunt Marx and Engets on law London, Academic 1979
Calabresi G & P Bobbitt Tragic choices New York, Norton 1978 Calvert P Revolution London,
Pall Mail 1970
Calvin J Commentaries on the epistles to Timothy, Titus and Phi lemon (transi from
Latin by W Pringle) Grand Rapids, Michigan, Eerdmans 1948
------- Institutes of the Christian religion vols 20, 21 (transi from Latin by FL
Battles) in The library of Christian classics (ed JT McNeill)
Philadelphia, Westminster 1960
Cameron T (ed) An illustrated history of South Africa Johannesburg, Jonathan Ball 1986
Camus A The rebel (transi from French by A Bower) Middlesex, England, Penguin 1965
Capps D, WH Capps & MG Bradford (eds) Encounter with Erikson: Historical interpretation
and religious biography Santa Barbara, California, Scholars 1977
Carlyle RW & AJ A history of medieval political theory in the West vo1 3 London, William
Blackwood 1950
Carter A The political theory of anarchism London, Routledge 1971
Cary M & HH Scullard A history of Rome: Down to the reign of Constantine London, MacmiHan
1975
[Catholic Institute for International Relations] Out of step: War resistance in South
Africa London, Third World, 1989
[Centre for Intergroup Studies] Conscientious objection Occasional paper no 8 Cape Town,
University of Cape Town Printing Department 1989
Chambliss WJ & RB Seidman Law, order, and power Reading, Massachusetts, Addison-Wesley
1971
Chapman PC "Stress in political theory" Ethics 1969/70 vol 79 38 Chatterjee M
Gandhi’s religious thought London, Macmillan 1985
Cheh MM "Systems and slogans: The American dear and present danger doctrine and
South African publications control" SAJHR 1986 vol 2 29
Childress JF Civil disobedience and political obligation New Haven, Connecticut, Yale
University Press 1971
Chomsky N American power and the Mandarins London, Penguin 1969
Christie GC Law, norms and authority London, Duckworth 1982
Cicero De offidis (transi from Latin by W Miller) London, Heinemann 1951
------- De re publica ft De legibus (transi from Latin by CW Keyes) London,
Heinemann 1943
------- Philippics (transi from Latin by WCA Ker) London, Heinemann 1951
------- The speeches (transi from Latin by HG Hodge) London, Heinemann 1951
Clarke R "Sermon: Praying for a change of government" Journal of Theology for
Southern Africa 1986 no 54 42
Cockburn A & R Blackburn (eds) Student power: Problems, diagnosis, action London, Penguin
1969
Coertze LI "Hoogverraad of oerduellio as species van die crimen ma.iestatis
imminutae" JCRDL 1937 vol 1 274
------- "Watter regsisteem beheers die verhouding tussen owerheid en onderdaan in
die Unie, Romeins-Hollandse reg of Engelse reg?" JCRDL 1937 vol 1 34
Coetzee JA "Sekere spanningsmomente tussen owerheid en onderdaan in die Suid-
Afrikaanse strafproses-reg - 'n poging tot 'n realistiese siening" JCRDL
1974 vol 37 389
Cohen C Civil disobedience: Conscience, tactics, and the law New York, Columbia
University Press 1971
------- "Civil disobedience and the law" Rutgers Law Review 1966 vol 21 1
Coleman GD "Civil disobedience : A moral critique" Theological Studies 1985 vol 46 21
Copleston F A history of philosophy vol 1 Greece and Rome part 1 New York, Image 1962
Copleston FC A history of medieval philosophy London, Methuen 1977
Copley A Gandhi : Against the tide Oxford, Basil Blackwell 1987
Corbett MM "Aspects of the role of policy in the evolution of our common law" SALJ
1987 vol 104 52
Corder H Judges at work : The role and attitudes of the South African judiciary,
1910-1950 Cape Town, Juta 1984
Corder H (ed) Democracy and the judiciary Cape Town, ODASA 1989
------- Essays on law and social practice in South Africa Cape Town, Juta 1988 [E
Cameron "Civil disobedience and passive resistance" 219]
Cover RM Justice accused: Antislavery and the judicial process New Haven,
Connecticut, Yale University Press 1975
Cox A, MD Howe & JR Wiggins Civil rights, the constitution, and the courts Cambridge,
Massachusetts, Harvard University Press 1967 [A Cox "Direct action, civil
disobedience, and the constitution" 2]
Crick B & MA Robson (eds) Protest and discontent Middlesex, England, Penguin 1970
Culliton JT (ed) Non-violence - central to Christian spirituality: Perspectives from
scripture to the present New York, Edwin Mellen 1982
Cutshall CR Disputing for power - Elites and the law among the Ila of Zambia
unpublished PhD thesis, Boston University 1980
Dadoo YM South Africa's freedom struggle: Statements, speeches and articles -
including correspondence with Mahatma Gandhi (ed ES Reddy) London,
Kliptown 1990
Dahrendorf R Essays in the theory of society London, Routledge 1970
Daniel AJC Radical resistance to minority rule in South Africa: 1906-1965 unpublished
PhD thesis, State University of New York at Buffalo, New York 1975
Daniels N (ed) Reading Rawls: Critical studies on Pawls' A theory of justice Oxford,
Basil Blackwell 1983
Oas S "Violence and non-violence: Re-apprising Gandhi's understanding of the
sermon on the mount" Bangalore Theological Forum 1985 vol 17 41
Daube D Civil disobedience in antiquity Edinburgh, University Press 1972
------- Defence of superior orders in Roman law" The Law Quarterly Review 1956 vol
72 494
Dauenhauer BP "On strengthening the law's obligatory character" Georgia Law Review 1984
vol 18 821
Davenport TRH South Africa: A modern history Bergvlei, Southern 1989
Davis D & R Fine "Political strategies and the law: Some historical observations" Journal
of Southern African Studies 1985 vol 12 25
Davis JA & JK Baker (eds) Southern Africa in transition London, Pall Mail 1966 [O Tambo
"Passive resistance in South Africa" 217]
Dean HE "Democracy, loyalty, disobedience : A query" The Western Political
Quarterly 1955 vol 8 601
Deane HA The political and social ideas of St Augustine New York, Columbia
University Press 1963
De Bruyn PJ "Burgerlike ongehoorsaamheid" Die Kerkblad May 1990 vol 92 8
Degenaar J "Die kwessie van diensplig" Insig Sept 1988 18
De Gruchy JW "Bonhoeffer, Calvinism and Christian civil disobedience in South Africa"
Scottish Journal of Theology 1981 vol 34 245
Deist FE & JH Ie Roux Rewolusie en reTnterpretasie: Hoofstukke uit die geskiedenis van
Israel Cape Town, Tafelberg 1987
Dercksen V Lydelike verset as metode van swart politieke deelname in Suid-Afrika
unpublished MA thesis, University of South Africa 1985
Derrida J & M Tlili (eds) For Nelson Mandela New York, Seaver 1987
De Santinana G The crime of Galileo Chicago, University of Chicago 1967
De Villiers CM Die 'African National Congress" en sy aktiwiteite aan die Witwatersrand
(1912 -1950) parts 1, 2, unpublished MA thesis, University of Pretoria
1965
De Villiers DP "Regsoppergesag en openbare veiligheid in hedendaagse Suid-Afrika" JSAL
1979 83
Devine DJ "Bands's case 1989: The implications for the municipal law of
Bophuthatswana" SALJ 1990 vol 107 184
De Wet JC & HL Swanepoel Die Suid-Afrikaanse Strafreg Durban, Butterworth 1960
Dias RWM Jurisprudence London. Butterworths 1976
Dictionary of the History of Ideas : Studies of Selected Pivotal Ideas vols 1, 3 (ed PP
Wiener) New York, Charles Schribner 1973
DiSalvo CR "Necessity's child: The judiciary, disobedience, and the bomb" University
of Miami Law Review 1987 vol 41 911
Douma J "Burgeriijke ongehoorzaamheid en politieke verantwoordelijkheid" In die
Skriflig 1986 vol 20 no 77 35
------- "Burgerlike ongehoorsaamheid en politieke verantwoordelikheid"
Wetenskaplike Bydraes van die PU vir CHO Feb 1986 no 218 1 [Afrikaans
version of In die Skriflig article]
------- Politieke verantwoordelijkheid Kampen, Van den Berg 1984
Dreyer PS Die wysbegeerte van die Grieke Cape Town, HAUM 1976
Dugard J "Giotius, the jurist and international lawyer: Four hundred years on" SALJ
1983 vol 100 213
------- Human rights and the South African legal orderPrinceton, New Jersey,
Princeton University Press 1978
------- "Should judges resign? - A reply to professor Wacks" SALJ 1984 vol 101 286
------- "Swapo: The ius ad bel 1um and the .ius in betio" SALJ 1976 vol 93 144
------- "The political trial : Some special considerations" SALJ 1974 vol 91 59
Duignan J Prophetic resistance and hope : A primer on the history of non-violence
Chicago, Illinois, Sunburst 1975
Duncan P "Passive resistance" Africa South 1956 vol 1 no 1 78
Dundas C Kilimanjaro and its people London, Frank Cass 1968
Du Plessis A "Just war doctrine: Developments, ramifications and its relevancy in the
South African context" Strategic Review for Southern Africa 1990 vol 12 14
Du Plessis AJ, JH van Wyk, J Botha, JJ Venter & TC Rabali "'n Reformatoriese kommentaar
op die Kairos-dokument" Wetenskaplike Bydraes van die PU vir CHO 1987
series F1 no 231
Du Plessis LM Die professionele gedrag van die juris Durban, Butterworth 1982
------- "Socrates and his juridical environment" SALJ 1980 VOl 97 423
------- "Thoughts on law, order and state security" JSAL 1985 233
------- Westerse regsdenke tot en met die middeleeue Potchefstroom, Pro Rege 1981
Du Plessis W & N Olivier "9 Januarie 1987 – Verdere beperkende noodmaatreels" SAPL 1987
vol 2 84
------- "11 Junie 1987 - Tweede algemene noodtoestand: SAPL 1987 vol 2 197
------- "Nuwe verwikkelinge: Noodtoestand 1987-88" SAPL 1988 vol 3 111
------- "10 Junie 1988 - Derde algemene noodtoestand" SAPL 1988 vol 3 267
------- "Nuwe verwikkelinge: Noodtoestand 1988-89" SAPL 1989 vol 4 95
------- "9 Junie 1989 - Vierde algemene noodtoestand" SAPL 1989 vol 4 290
------- "Noodtoestand en onrusgebiede" SAPL 1991 vol 6 126
------- "Junie 1990 - Gedeeltelike noodtoestand" SAPL 1990 260
Du Plessis WP "Die 1914 rebellie en vandag" Die Kerkblad 1987 vol 90 6
Du Toit A Justice and truth in South Africa? Inaugural lecture, University of Cape
Town Sept 1968
------- "Civil obedience and disobedience" Pro Veritate July 1973 vol 12 15
[abbreviated version of Black Sash article]
------- "The morality of disobedience" The Black Sash May 1973 6
Du Toit DA (ed) Menseregte Cape Town, Tafelberg 1984
------- Staatsgesag en burgerlike ongehoorsaamheid Cape Town, Lux Verbi 1987
Du Toit DC "Reg, mag en orde: 'n Besinning oor die noodtoestand in Suid-Afrika"
Wetenskaplike Bydraes van die PU vir CHO 1985 series F1 no 216 A 1
Du Toit PR Die drie Afrikaanse kerke en die rebellie unpublished PhD thesis.
University of Pretoria 1982
Du Toit S Teen die revolusie die evangelie: Die betekenis van Groen van Pinsterer
vir ons tyd Bloemfontein, Sacum, undated
Dworkin R A matter of principle Cambridge, Massachusetts, Harvard University Press
1985 ["Civil disobedience and nuclear protest" 104]
------- Law's empire Cambridge, Massachusetts, Harvard University Press 1986
------- Taking rights seriously London, Duckworth 1984 ["Civil disobedience" 206]
Dworkin RM (ed) The philosophy of law Oxford, Oxford University Press 1977
Dyzenhaus D Hard cases in wicked legal systems: South African law in the perspective
of legal philosophy Oxford, Clarendon 1991
Ebenstein W Great political thinkers: Plato to the present Hinsdale, Illinois, Oryden
1969
Einstein A Einstein on peace (eds 0 Nathan & H Norden) New York, Schocken 1968
Ellas TO The nature of African customary law Manchester, Manchester University
Press 1956
E1off T Die subordineringsopdrag aan die owerhede: 'n Eties-dogmatiese studie
unpublished TM thesis, University of Potchefstroom 1982
------- "Submitting to the civil authorities today" In die Skriflig 1985 vol 19 no
73 23
Emerson TI "National security and civil liberties" The Yale Journal of World Public
Order 1982 vo1 9 78
Encyclopaedia of Religion and Ethics vo1 10 (ed J Hastings) Edinburgh, dark 1918
Encyclopedia of Religion, The vols 8,12 (ed M Eliade) New York, Macmillan 1987
Encyclopedia of the American Constitution (ed LW Levy) New York, Macmillan 1986
Erikson EH Gandhi's truth: On the origins of militant non-violence New York, Norton
1969
Ernst ML "Free speech and civil disobedience" American Criminal Law Quarterly 1964
vo1 3 15
Esterhuyse VI & P Nel (eds) Die ANC Cape Town, Tafelberg 1990
Esterhuyse WP Karl Marx : Filosoof van die revolusie Cape Town, Tafelberg 1984
------- Broers buite hoorafstand - Skeiding van die kerklike wee Cape Town,
Tafelberg 1989
Estermann C The ethnography of Southwestern Angola (ed GO Gibson) New York, Africana
1976
Ewing AC The individual, the state and world government New York, Macmillan 1947
Eybers IH, A König & CFA Borchardt (eds) Teologie en vernuwing Pretoria, UNISA 1975
Fairclough A To redeem the soul of America: The Southern Christian Leadership
Conference and Martin Luther King Jr Athens, University of Georgia Press
1987
Faure AM, DJ Kriek, GS Labuschagne, A du P Louw & AJ Venter (eds) Suid-Afrika en die
demokrasie Pinetown, Owen Burgess 1988
Feenstra R Philip of Leyden and his treatise De cura reipublicae et sorte
principantis Glasgow, MacLehose 1970
Feinberg J "Duty and obligation in the non-ideal world" The Journal of Philosophy
1973 vol 70 263
Feit E African opposition in South Africa: The failure of passive resistance
Stanford, California, Hoover Institution Publications 1967
------- South Africa: The dynamics of the African National Congress London, Oxford
University Press 1962
Ferreira GM "Burgerlike ongehoorsaamheid: 'n Publiek-regtelike vorm van eierigting?"
SAPL 1987 vol 2 158
Finnis J Natural law and natural rights Oxford, Clarendon 1980
First R "The bus boycott" Africa South 1957 vol 1 no 4 55
Fischer L Gandhi: His life and message for the world New York, Mentor 1964
Flexner E Century of struggle: The woman's rights movement in the United States
Cambridge, Massachusetts, Belknap 1982
Foot MRD Resistance: An analysis of European resistance to Nazism 1940-1945 London,
Eyre Methuen 1976
Forkosch MD "Attacks on the constitution, violence, and the necessity for
disobedience" Fordham Law Review 1966 vol 35 71
Forsyth CF In danger for their talents: A study of the Appellate Division of the
Supreme Court of South Africa from 1950-80 Cape Town, Juta 1985
Forsyth CF & JE Schiller (eds) Human rights: The Cape Town conference Cape Town, Juta
1979
Fortas A Concerning dissent and civil disobedience New York, Signet 1968
Fortes M & EE Evans-Pritchard (eds) African political systems London, Oxford University
Press 1963
Portuin H De natuurrechtelijke grondslagen van De Groot's volkenrecht The Hague,
Martinus Nijhoff 1946
[Foundation for Peace and Justice] Facing prison: A handbook for conscientious objectors
Betlville, S & S 1988
Fox PF "Conscientious objection to war: The background and a current appraisal"
Cleveland State Law Review 1982 vo1 31 77
Frankfort H, HA Frankfort, JA Wilson & T Jacobsen Before philosophy: The intellectual
adventure of ancient man Harmondsworth, Penguin 1971
Freeman HA "Civil disobedience and the law" Rutgers Law Review 1966 vol 21 17
------- "Moral preemption part I : The case for the disobedient" The Hastings Law
Journal 1966 vo1 17 425
------- "The right of protest and civil disobedience" Indiana Law Journal 1965/66
vo1 41 228
Freyer T The Little Rock crisis: A constitutional interpretation Westport,
Connecticut, Green-wood 1984
Fried C "Moral causation" Harvard Law Review 1964 vo1 77 1258
Friedman HM "Why do you speak that way? – Symbolic expression reconsidered" Hastings
Constitutional Law Quarterly 1988 vo1 15 587
Friedman W Law in a changing society London, Stevens 1959
Friedrich CJ (ed) Revolution: Nomos 8 New York, Atherton 1966
Fugard A A lesson from aloes New York, Oxford University Press 1981
Fuller LL "Positivism and fidelity to the law - a reply to Professor Hart" Harvard
Law Review 1958 vo1 71 630
Gandhi MK An autobiography: The story of my experiments with truth Boston,
Massachusetts, Beacon Hill 1957
------- Non-violence in peace and war vol 1 Ahmedabad, Navajivan 1948
------- Non-violent resistance (Satyagraha) New York, Schocken 1974
------- Satyagraha in South Africa (transi from Gujarati by VG Desai) Ahmedabad,
Navajivan 1950
Gardiner G "The South African Treason Trial" Journal of the International Commission
of Jurists 1957 vol 1 43
Gavison R (ed) Issues in contemporary legal philosophy Oxford, Clarendon 1987
Gerhart GM Black power in South Africa: The evolution of an ideology Los Angeles,
California, University of California Press 1978
Gierke O Political theories of the middle age (transl from German by FW Maitland)
Cambridge, Cambridge University Press 1913
Glazewski J "The environment, human rights and a new South African constitution" SAJHR
1991 vol 7 167
Gluckman M Custom and conflict in Africa Oxford, Basil Blackwetl 1963
------- Order and rebellion in tribal Africa: Collected essays with an
autobiographical introduction London, Cohen 1963
------- Politics, law and ritual in tribal society Chicago, Aldine 1965
------- Rituals of rebellion in South-East Africa: The Frazer lecture, 1952
Manchester, Manchester University Press 1954
------- The ideas in Barotse jurisprudence New Haven, Connecticut, Yale University
Press 1965
------- The judicial process among the Barotse of Northern Rhodesia (Zambia)
Manchester, Manchester University Press 1955
Godwin W An inquiry concerning political justice and its influence on general
virtue and happiness vols 1,2 (ed RA Preston) New York, Knopf 1926
Goldberger D "A reconsideration of Cox v New Hampshire: Can demonstrators be required
to pay the costs of using America's public forums?" Texas Law Review 1983
vol 62 403
Gonin HL Perduellio" JCROL 1951 vol 13 1
Graham HD The civil rights era : Origins and development of national policy 1960-
1972 New York, Oxford University Press 1990
Graham K (ed) Contemporary political philosophy: Radical studies Cambridge, Cambridge
University Press 1982
Green C "Christology and tyranny" Journal of Theology for Southern Africa 1986 no
55 49
Green TH Lectures on the principles of political obligation London, Longmans 1895
Greenawalt K "Free speech justifications" Columbia Law Review 1989 vo1 89 119
------- "Promise, benefit, and need: Ties that bind us to the law" Georgia Law
Review 1984 vo1 18 727
------- "The natural duty to obey the law" Michigan Law Review 1985 vo1 84 1
Greenberg J “The Supreme Court, civil rights, and civil dissonance" The Yale Law
Journal 1968 vo1 77 1520
Gregg RB The power of nonviolence New York, Schocken 1971
Griffin MT Seneca: A philosopher in politics Oxford, Clarendon 1976
Grotius H De jure belli ac pads libri tres vo1 2 (transi from Latin by FW Kelsey et
a1) in JB Scott (ed) The Classics of International Law Oxford,
Clarendon 1925
Gunther G Constitutional law USA (no city of publication indicated). Foundation 1985
Hahio HR & E Kahn The South African legal system and its background Cape Town, Wetton
1968
Haksar V Civil disobedience, threats and offers: Gandhi and Pawl Delhi, Oxford
University Press 1986
Hall RT "Legal toleration of civil disobedience" Ethics 1970/71 vo1 81 128
------- The morality of civil disobedience New York, Harper 1971
Hammer PJ "Free speech and the 'Acid bath': An evaluation and critique of Judge
Richard Posner's economic interpretation of the First Amendment" Michigan
Law Review 1988 vo1 87 499
Hammond HE (ed) "We hold these truths...": A documentary history of the United States New
York, Campbridge 1964
Hammond-Tooke WD (ed) The Bantu-speaking peoples of Southern Africa London, Routtedge
1974
Hancock WK Smuts: The sanguine years 1870-1919 Cambridge, Cambridge University Press
1962
Harpaz L "Justice Jackson's flag salute legacy: The Supreme Court struggles to
protect intellectual individualism" Texas Law Review 1986 vo1 64 817
Harris B "'Religious convictions' and conscientious objection" SAJHR 1987 vo1 3 240
Hart HLA "Are there any natural rights?" Philosophical Review 1955 vo1 64 175
------- Essays on Bentham: Studies in jurisprudence and political theory Oxford,
Clarendon 1982
------- "Positivism and the separation of law and morals" Harvard Law Review 1958
vo1 71 593
Hatto A "'Revolution': An enquiry into the usefulness of an historical term" Mind
1949 vo1 58 495 historical term" Mind 1949 vo1 58 495
Hatch J "Civil disobedience in South Africa" Jewish Frontier Oct 1953 19
Heck EV "Justice Brennan and freedom of expression doctrine in the Burger Court"
San Diego Law Review 1987 vo1 24 1153
Hegel GWF Philosophy of right (transl from German by TM Knox) Oxford, Clarendon 1942
------- Political writings (transi from German by TM Knox) Oxford, Clarendon 1964
Held D Models of democracy Cambridge, Polity 1987
Held V, K Nielsen & C Parsons (eds) Philosophy and Political Action New York, Oxford
University Press 1972 [S Gendin "Governmental toleration of civil
disobedience" 160 GJ Schochet "The morality of resisting the penalty" 175]
Helle S "The various Illinois solicitation statutes: The First Amendment defense"
Illinois Bar Journal 1988 vol 76 674
Hellmann E & H Lever Conflict and progress: Fifty years of race relations In South Africa
Johannesburg, MacMillan 1979
Hendricks JP From moderation to militancy: A study of African leadership and political
reactions in South Africa, 1936-1960 unpublished PhD thesis. University of
Michigan 1983
Heyns CH A critical study of the difference principle in John Rawts's A theory of
justice unpublished MA thesis. University of Pretoria 1985
------- "Mandela as martelaar" Die Suid-Afrikaan April 1989 43
------- "Reasonableness in a divided society" SALJ 1990 vol 107 279
------- "United States economic pressure against South Africa: Constitutional
implications" CILSA 1989 vol 22 269
Heyns JA Teologiese etiek part 2/2 Pretoria, NG Kerkboekhandel 1988
Hick J & LC Hempel (eds) Gandhi's significance for today London, Macminan 1989
Hiemstra VG Suid-Afrikaanse Strafproses Durban, Butterworth 1983
Higgins H Vietnam London, Heinemann 1975
Higginson SA "A short history of the right to petition government for the redress of
grievances" The Yale Law Journal 1986 vol 96 142
Hobbes T Leviathan (ed CB Macpherson) Harmondsworth, Middlesex, Penguin 1978
------- The English works of Thomas Hobbes of Malmesbury vol 2 (ed W Molesworth)
Aalen, Scientia 1962
Hoffding H -------A history of modern philosophy vols 1, 2 (transi from German by BE
Meyer) New York, Dover 1955
Hoffman R (ed) Anarchism New York, Atherton 1970
Holland H The struggle: A history of the African National Congress London, Grafton
1989
Holmes OW "The path of the law" Harvard Law Review 1897 vol 10 457
Honoré T "Must we obey? Necessity as a ground for obligation" Virginia Law Review
1981 vol 67 39
Horbury W & B McNeil (eds) Suffering and martyrdom in the New Testament : Studies
presented to GM Styler by the Cambridge New Testament Seminar Cambridge,
Cambridge University Press 1981
Horrell M Action, reaction and counteraction: A review of non-white opposition to
the apartheid policy, countermeasures by the government, and the eruption
of new wavea of protest Johannesburg, SAIRR 1963
------- Legislation and race relations: A summary of the main South African laws
which affect race relationships Johannesburg, SAIRR 1963
Horsburgh HJN Non-violence and aggression: a study of Gandhi's moral equivalent of war
London, Oxford University Press 1968
Houser GM Nonviolent revolution in South Africa New York, Fellowship 1953
Hughes G "Civil disobedience and the political question doctrine" New York
University Law Review 1968 vol 43 1
Hund J (ed) Law and justice in South Africa Johannesburg, Institute for Public
Interest Law and Research 1988
Hunt JD Gandhi and the nonconformists : Encounters in South Africa New Delhi,
Promilla 1986
Hurd HM "Challenging authority" The Yale Law Journal 1991 vol 100 1611
Hurley DE "Roman Catholic bishops on the blasphemy of apartheid" Africa South 1958
vol 2 no 2 13
Hutchins RM St Thomas and the world state Milwaukee, Marquette University Press 1949
Huttenback RA Gandhi in South Africa: British imperialism and the Indian question, 1860-
1914 Ithaca, New York, Cornel 1 University Press 1971
[IDO-C] When all else fails: Christian arguments on violent revolution
Philadelphia, Pennsylvania, Pilgrim 1970
(Institute of Commonwealth Studies] Collected seminar papers on the societies of southern
Africa in the 19th and 20th centuries vol 2 University of London 1971 [N
Carter "The Defiance Campaign - A comparative analysis of the
organization, leadership, and participation in the Eastern Cape and the
Transvaal" 76]
[International Commission of Jurists, Geneva] The trial of Beyers Naude: Christian
witness and the rule of law London, Search 1975
International Encyclopedia of the Social Sciences (ed DC Sills) USA (city of publication
not indicated) Macmillan 1968 vol 2 [C Bay "Civil disobedience" 473] vols
4, 12
Jain P Gandhian ideas, social movements and creativity Jaipur, Rawat 1985
Jaspan MA "South Africa 1960-1961: The transition from passive resistance to
rebellion" Science and Society 1961 97
Jeeves A "African protest in southern Africa" International Journal 1973 vol 28 no
3 511
John of Salisbury Policraticus: The Statesman's book of John of Salisbury (transi J
Dickinson) New York, Knopf 1928
Johns S & RH Davis (eds) Mandela, Tambo, and the African National Congress: The struggle
against apartheid, 1948-1990: A documentary survey New York, Oxford
University Press 1991
Joll J The anarchists London, Eyre 1964
Joseph H "Women and passes (II)" Africa South 1959 vol 3 no 3 20
Joubert WA (ed) The Law of South Africa ["LAWSA"] Durban, Butterworths 1984
Jung CG (ed) Man and his symbols New York, Dell 1978
[Justinian] Corpus Juris Civilis: The civil law in seventeen volumes (ed & transl SP
Scott) New York, AMS 1973
------- The Digest of Justinian vol 1 (ed T Mommsen & P Krueger, transl from Latin
by A Watson) Philadelphia, Pennsylvania, Pennsylvania University Press
1985
Kadish M & SH Kadish Discretion to disobey: A study of lawful departures from legal rules
Stanford, California, Stanford University Press 1973
Kahn E "Hugo Grotius 10 April 1583 - 29 August 1645; A sketch of his life and his
writings on Roman-Dutch law" SALJ 1983 vo1 100 192
------- "Only yesterday: Piquant legal portraits from the past" SALJ 1989 vo1 106
192
------- The life and works of Hugo Grotius (1583-1645) in the South African Law
Commission Research Series no 2 1983
Kant I Critique of practical reason and other writings in moral philosophy
(transl from German by LW Beck) Chicago, Illinois, University of Chicago
University Press 1976
------- Critique of pure reason (transl from German by JMD Meiklejohn) New York,
Dutton 1978
------- Sâmmntliche Werke Leibzig, Voss 1867
------- The philosophy of law: An exposition of the fundamental principles of
jurisprudence as the source of right (transi from German by W Hastie)
Edinburg, dark 1887
Karis T The Treason Trial in South Africa: A guide to the microfilm record of the
trial Hoover Institution Bibliographical Series: 23
Karis T & GM Carter (eds) From protest to challenge: A documentary history of African
politics in South Africa 1882-1964 Stanford. California. Hoover
Institution
vol 1 Protest and hope, 1882-1934 (ed S Johns III) (1973)
vol 2 Hope and challenge, 1935-1952 (ed T Karis) (1973)
vo1 3 Challenge and violence, 1953-1964 (eds T Karis & GM Gerhart) (1977)
vo1 4 Political profiles, 1882-1964 (eds GM Gerhart & T Karis) (1977)
Karis TG "The South African Treason Trial" Political Science Quarterly 1961 vo1 76
217
Katz BJ "Civil disobedience and the First Amendment" UCLA Law Review 1985 vo1 32
904
Kaufmann A "Small scale right to resist" New England Law Review 1985/86 vol 21 571
Kaunda KD Kaunda on violence (ed CM Morris) London, Collins 1980
Keeton M "The morality of civil disobedience" Texas Law Review 1965 vol 43 507
Kennedy D "Primitive legal scholarship" Harvard International Law Journal 1986 vol
27 1
Kennedy R "Martin Luther King's constitution: A legal history of the Montgomery bus
boycott" The Yale Law Journal 1989 vo1 98 999
Kern F Kingship and law In the middle ages (transl from German by SB Chrimes)
Oxford, Basil BlackweU 1939
Kiefer HE & MK Munitz (eds) Ethics and social justice Albany, New York, State University
of New York Press 1968 [R Dworkin "A theory of civil disobedience" 225,
earlier version of Taking rights seriously essay]
King DP "The political offence exception in international extradition" CILSA 1980
vo1 13 247
------- The words of Martin Luther King (selected by CS King) London, William Coil
ins 1984
King ML (jr) A testament of hope: The essential writings of Martin Luther King, Jr (ed
JM Washington) San Francisco, Harper & Row .1986
------- Why we can't wait New York, Mentor 1964
King PD Law and society in the Visigothic Kingdom Cambridge, Cambridge University
Press 1972
Koskenniemi M From apology to Utopia: The structure of international legal argument
Helsinki Kustannus 1989
Kossmann EH Politieke theorie in het Zeventiende-eeuwse Nederland Amsterdam, NV Noord-
Hollandse Uitgewers 1960
Kotzé DA African politics in South Africa 1964 - 1974: Parties and Issues Pretoria,
Van Schaik 1975
------- Pleeg ons politieke geweld? Cape Town, Human & Rousseau 1984
Krige EJ The social system of the Zulus Pietermaritzburg, Shuter & Shooter 1965
Kropotkin P Fields, factories and workshops or industry combined with agriculture and
brain work with manual work London, Swan Sonnenschein 1901
------- The conquest of bread New York, Vanguard 1927
Krüger DW The making of a nation: A history of the Union of South Africa, 1910-1961
Johannesburg, Macmillan 1969
Kunkel W An introduction to Roman legal and constitutional history (transl from
German by JM Kelly) Oxford, Clarendon 1973
Kuper L Passive resistance in South Africa New Haven, Connecticut, Yale University
Press 1971
------- "The background to passive resistance (South Africa, 1952)" The British
Journal of Sociology 1953 vol 4 243
Kurtz P (ed) Moral problems in contemporary society: Essays in humanistic ethics
Englewood Cliffs, New Jersey, Prentice-Hall 1969 [S Hook "Social protest
and civil disobedience" 161]
Kytle C Gandhi, soldier of nonviolence: An introduction Washington DC, Seven Locks
1982
Labuschagne JUT & AC Bekker "Dieremishandeling" Obiter 1986 33
------- "Noodtoestand" Ada Juridica 1974 73
------- "Noodweer teen regmatige aanval?" De Jure 1974 vol 7 108
------- "Regsubjektiwiteit van die dier" JCRDL 1984 vol 47 334
Lambek BO "Necessity and international law: Arguments for the legality of civil
disobedience" Yale Law and Policy Review 1987 vol 5 472
Lang G "Oppression and revolt in ancient Palestine: The evidence in Jewish
literature from the prophets to Josephus" Sociological Analysis: A Journal
in the Sociology of Religion 1989 vol 45 325
Lawlor L "From the trace to the law: Derridean politics" Philosophy and Social
Criticism 1989 vol 15 no 1 1
Leibman MI "Civil disobedience: A threat to our law society" American Bar Association
Journal 1965 vo1 51 645
Leiyveld J Move your shadow: South Africa, black and white New York, Penguin 1985
Lemarchand R (ed) African kingships 1n perspective: Political change and modernization in
monarchical settings London, Frank Cass 1977
Levin L (ed) "Human rights index" SAJHR 1989 vol 5 518
Levin RB "Freedom of speech vs symbols: Protection at what cost?" Maryland Bar
Journal Hoy/Dec 1989 vol 22 no 6 6
Levitin JH "Putting the government on trial: The necessity defense and social change"
The Wayne Law Review 1987 vol 33 1221
Lewin J "The rise of Congress in South Africa" The Political Quarterly 1953 vol 24
292
Lewis EAL Legal ethics: A guide to professional conduct for South African attorneys
Cape Town, Juta 1982
Lewis HD "Obedience to conscience" Mind 1945 vol 54 227
Lewsen P (ed) Voices of protest: From segregation to apartheid, 1938-1948 Cape Town,
Donker 1988
Lewy G "Resistance to tyranny: Treason, right or duty?" Western Political
Quarterly 1960 vol 13 581
Link AS, S Coben, RV Remini, D Greenberg & R McMath The American people: A history vol 2
Arlington Heights, Illinois, AHM 1981
Lippman M "Civil disobedience: The dictates of conscience versus the rule of law"
Washburn Law Journal 1987 vol 26 233
------- "Reflections on non-violent resistance and the necessity defense" Houston
Journal of International Law 1989 vol 11 277
------- "The necessity defense and political protest" Criminal Law Bulletin 1990
vo1 22 317
------- "The right of civil resistance under international law and the domestic
necessity defense" Dickinson Journal of International Law 1990 vo1 8 349
Lloyd Lord & MDA Freeman Introduction to jurisprudence London, Stevens 1985
Locke J Two treatises of government (ed P Las left) London, Mentor 1960
Lodge T Black politics in South Africa since 1945 Johannesburg, Ravan 1983
Lodge T (ed) Resistance and ideology in settler societies in Southern African Studies
vol 4 Johannesburg, Ravan 1987
Lomax LE The Negro revolt New York, Harper 1962
Louw NP v W Versamelde prosa part 1 Cape Town, Tafelberg 1986
Lucas JR The principles of politics London, Clarendon 1967
Lukes S & A Scull (eds) Durkheim and the law Oxford, Robertson 1983
Luther M Selected political writings (ed JM Porter) Philadelphia, Fortress 1974
Luthuli A Let my people go: An autobiography London, Pontana 1982
Lyons D "On formal justice" Cornell Law Review 1973 vol 58 833
MacCormick N & Z Bankowsk-i (eds) Enlightenment, rights and revolution: Essays in legal
and social philosophy Aberdeen, Aberdeen University Press 1989
Macfarlane LJ "Disobedience and the bomb" The Political Quarterly 1966 vol 37 366
------- "Justifying political disobedience" Ethics 1968 vol 79 24
------- Modern political theory London, Nelson 1970
------- Political disobedience London, Macmillan 1971
------- "Political obligation and the political system" Political Studies 1968 vol
16 335
------- Violence and the state London, Nelson 1974
MacGuigan MR "Civil disobedience and natural law" Kentucky Law Journal 1964 vol 52 346
------- "Democracy and civil disobedience" The Canadian Bar Review 1971 vol 49 222
Machiavelli N The Prince (transi from Italian by RM Adams) New York Norton 1977
Mackie J "Obligations to obey the law" Virginia Law Review 1981 vol 67 143
Mackie JL Ethics: Inventing right and wrong New York, Penguin 1983
Macridis RC Contemporary political ideologies: Movements and regimes Boston, Brown
1986
Magid L "First Amendment protection of ambiguous conduct" Columbia Law Review 1984
vol 84 467
Mandela N The struggle is my life London, International Defence and Aid Fund for
Southern Africa 1986
Manenschijn G Burgerlijke ongehoorzaamheid: Over grenzen aan politieke gehoorzaamheid in
een democratische rechts- en verzorgingsstaat Baarn, Ten Have 1984
Manwaring JA "Bringing the common law to the bar of justice: A comment on the decision
in the case of Dolphin Delivery Ltd" Ottawa Law Review 1987 vol 19 413
Marable M Race, reform and rebellion: The second reconstruction in black America,
1945-1982 London, Macmnian 1984
Marks S Reluctant rebellion: The 1906-8 disturbances in Natal Oxford, Clarendon
1970
Marshall B "The protest movement and the law" Virginia Law Review 1965 vol 51 785
Marti-Ibáňez (ed) Tales of philosophy New York, Dell 1967
Martin M "Ecosabotage and civil disobedience" Environmental ethics 1990 vol 12 291
Martin R "Civil disobedience" Ethics 1969/70 vol 80 123
Marx K & F Engels Basic writings on politics and philosophy (ed LS Feuer) Douglas,
Fontana 1978
------- Karl Marx and Frederick Engels: Selected works in two volumes vol 1
Moscow, Foreign Languages Publishing House 1951
Masani RP Britain in India London, Oxford University Press 1962
Masters RD The political philosophy of Rousseau Princeton, New Jersey, Princeton
University Press 1968
Mathews AS Freedom, state security and the rule of law: Dilemmas of the apartheid
society Cape Town, Juta 1986
------- Law, order and liberty in South Africa Cape Town, Juta 1971
Mathur DB Gandhi[,] Congress and apartheid Jaipur, Aalekh 1986
Mayer P The pacifist conscience Chicago, Regnery 1967
Mazrui AA (ed) The warrior tradition in modern Africa Leiden, Brill 1977
McBride W "The fetishism of illegality and the mystifications of 'authority' and
'legitimacy'" Georgia Law Review 1984 vol 18 863
McCleod F & F Kaganas "Statement on sentencing" SAJHR 1985 vol 1 106
McDougal MS & WM Reisman International law in contemporary perspective: The public order
of the world community: Cases and materials Mineola, New York, Foundation
1981
Meer F Higher than hope: Mandela Durban, Madiba 1988
------- Robert McBride and Greta Apelgren: The Hagoos Bombing Johannesburg,
Skotaville undated
------- "Satyagraha in South Africa" Africa South 1959 vol 3 no 2 21
Meli F A history of the ANC: South Africa belongs to us Harare, Zimbabwe
Publishing House 1988
Menon KN Passive resistance in South Africa New Delhi, Roxy 1952
Mermelstein D (ed) The anti-apartheid reader: The struggle against white racist rule in
South Africa New York, Grove 1987
Metz JB & Schillebeeckx, E Martyrdom today Edinburgh, dark 1983
Meyer DH The instructed conscience: The shaping of the American national ethic
Philadelphia, University of Pennsylvania Press 1974
Mihalik J "Political offences by legal practitioners: Changing judicial attitudes?"
SALJ 1990 vol 107 304
Mil gram S Obedience to authority London, Tavistock 1974
Mill JS Considerations on representative government Chicago, Great Books Undated
------- On liberty (ed A Castell) New York, Appleton 1947
Miliner MA "The dilemma of courts of justice" SALJ 1957 vol 74 342
Milton JRL South African criminal law and procedure vol 2 Common law crimes Cape
Town, Juta 1982
Milton JRL & NM Fuller South African criminal law and procedure: Statutory offences vol 3
Cape Town, Juta 1971
Misra KP & SC Gangal (eds) Gandhi and the contemporary world: Studies in peace and war
Delhi, Chanakya 1981
Mitscherlich A Society without the father : A contribution to social psychology (transl
from German by E Mosbacher) London, Tavistock 1963
Mokoena S "How painful are these restrictions" The South African Outlook 1952 vol 82
180
Moore RJ Liberalism and Indian politics 1872-1922 London, Edward Arnold 1966
Moorman J Verhandelingen over de misdaden en der zeiver straffen ["Misdaden"]
Leiden, Jacob Meerburg 1779
Morawetz T The philosophy of law: An introduction New York, Macmillan 1980
Motlhabi MBG The theory and practice of black resistance to apartheid: A social-
ethical analysis of the internal struggle for political and social change
in South Africa 1948-1978 unpublished PhD dissertation, Boston University
Graduate School 1980
Murphy CF (jr) Modern legal philosophy: The tension between experiential and abstract
thought Pittsburgh, Ouquesne University Press 1978
Murray AH "The vindiciae contra tvrannos" Acta Juridica 1958 no vol number 275
Muzumdar HT Hahatma Gandhi: Peaceful revolutionary London, Charles Scribner's 1952
Myburg AC (ed) Indigenous criminal law in Bophuthatswana Pretoria, Van Schaik 1960
Myburg AC & MW Prinsloo Indigenous public law in KwaNdebele Pretoria, Van Schaik 1985
Nagel RF "Teaching tolerance" California Law Review 1987 vol 75 1571
Nanda BR Gandhi and his critics Delhi, Oxford University Press 1985
Neely DE "Legal necessity and civil disobedience: Preventing the greater harms of
war and apartheid" Illinois Bar Journal 1986 vol 74 596
Neumann F The democratic and the authoritarian state: Essays in political and legal
theory (ed H Marcuse) London, Free Press 1957
Nicholson P "Kant and the duty never to resist the sovereign" Ethics 1976 vol 86 214
Nolan A "South Africa: Social analysis: Part II: Resistance to the dominant
ideology" Grace and Truth 1982 vol 3 no 2 84
Norman R "Civil disobedience and nuclear protest: A reply to Dworkin" Radical
Philosophy 1986 vol 44 24
Nozick R Anarchy, state, and Utopia New York, Basic 1974
NŰrnberger K, J Tooke & W Domeris (eds) Conflict and the quest for justice
Pietermaritzburg, Encounter 1989 [R Robertson "The path of non-violence"
254 R Robertson "Three case studies of nonviolent action" 319]
O'Connell RJ "Is civil disobedience to be regarded as a paralegal right?" American
Trial Lawyers 1965 11
Okonkwo CO Criminal law in Nigeria London, Sweet & Maxwell 1980
0livier NJJ "Die staat en staatsbeveiliging" Koers 1987 vol 52 512
Olivier WH "Keeley v Minister of Defence 1980 4 SA 695 (T)" JSAL 1981 168
Olsen F "Socrates on legal obligation: Legitimation theory and civil disobedience"
Georgia Law Review 1984 vol 18 929
Oosthuizen DCS The ethics of illegal action and other essays (ed IA Bunting)
Johannesburg, Ravan 1973 ["The ethics of illegal action" 12 "Moral
scruples about illegal action and violence" 22]
Oosthuizen M "Dienspligweiering op grond van geloof" JJS 1985 vol 10 199
Orloff GM "First Amendment protection of ambiguous conduct" Columbia Law Review 1984
vol 84 467
------- "The political boycott: An unprivileged form of expression" Duke Law
Journal 1983 vol 1983 1076
Owen H Gandhi St Lucia, Queensland, University of Queensland Press 1984
Pachai B The international aspects of the South African Indian question 1860 - 1971
Cape Town, Struik 1971
Paden JN & EW Soja (eds) The African experience vol 1 Essays London, Heinemann 1970
Paehike R Environmentalism and the future of progressive politics New Haven, Yale
University Press 1989
Paine T Rights of man Secaucus, New Jersey, Citadel 1974
Papadakis E The green movement in West Germany London, Croom 1984
Parekh B Gandhi's political philosophy: A critical examination Notre Dame, Indiana,
University of Notre Dame Press 1989
Paust JJ "The human right to participate in armed revolution and related forms of
social violence: Testing the limits of permissibility" Emory Law Journal
1983 vol 32 545
Perrucci R & M Pilisuk The triple revolution emerging: Social problems in depth Boston,
Little 8. Brown 1971
Pillay B British Indians in the Transvaal: Trade, politics and imperial relations,
1885 – 1906 London, Longman 1976
Pillay GJ "Christian dissent - A historical perspective" Wetenskaplike Bydraes van
die PU vir CHO 1990 series F3 no 37 Reflections on power and violence 113
Plato Gorgias (transi from Greek by WC Helmbold) New York, Bobbs-Merrin 1952
------- The last days of Socrates: Euthyphro; The apology; Crito and Phaedo
(transi from Greek by H Tredennick) Harmondsworth, Middlesex, Penguin 1979
------- The laws (transi from Greek by TJ Saunders) Harmondsworth, Middlesex,
Penguin 1976
------- The martyrdom of Socrates: Apology and Crito with selections from Phaedo
(transi from Greek by FC Doherty) Bristol, Bristol Classical Press 1981
------- The Platonic epistles (transi from Greek by J Harward) Cambridge,
University Press 1932
------- The republic (transi from Greek by D Lee) Harmondsworth, Middlesex Penguin
1955
Pogrund B Sobukwe and apartheid Johannesburg, Jonathan Ball 1990
Pol ley JA (ed) The Freedom Charter and the future Cape Town, IDASA 1988
Pospisil L "Legal levels and multiplicity of legal systems in human societies" The
Journal of Conflict Resolution 1967 vol 11 2
Post G Studies in medieval legal thought: Public law and the state, 1100-1322
Princeton, New Jersey, Princeton University Press 1964
Potgieter JF & JP Munnik Militere diensplig en diensweiering (Jeh Getuies) "Potchefstroom
Instituut vir Bevordering van Calvinisme", "Studiestuk" no 78 1974
Powel .. "A lawyer looks at civil disobedience" Washington Law Review 1966 vol 42
205
Pretorius JL Die begrip openbare belang en burgervryheids-beperking unpublished LLD
thesis. University of the Orange Free State 1986
------- "Die piek en funksie van die openbare belang in die regshandhawingstaak
van die staat" JJS 1989 vol 14 no 2 88
Price RM & CG Rosberg (eds) The apartheid regime: Political power and racial domination
Cape Town, David Philip 1980
Prior A Revolution and philosophy: The significance of the French revolution for
Hegel and Marx Cape Town, David Philip 1972
Prosch H "Limits to the moral claim in civil disobedience" Ethics 1964/65 vol 75
103
Proudhon PJ What is property: An inquiry into the principle of right and of government
(transi from French by BR Tucker) London, William Reeves undated
Pufendorf S On the law of nature and nations (transi by CH & WA Oldfather) Oxford,
Clarendon 1934
------- The elements of universal jurisprudence (transl from Latin by WA
Oldfather) Oxford, Clarendon 1931
Pye AK & CH Lowel1 "The criminal process during civil disorders" parts 1, 2 Duke Law
Journal 1975 vol 1975 581, 702
Raath AWG "Die Calvinis en burgerlike ongehoorsaamheid" Woord en Daad 1985 vol 279 4
Rachels J (ed) Moral problems: A collection of philosophical essays New York, Harper &
Row 1971 [J Rawls "The justification of civil disobedience" 181 P Singer
"Rawls on civil disobedience" 195 RM Dworkin "Law and civil disobedience"
201]
Raphael DD Problems of political philosophy London, MacMillan 1982
Raskin MG & BB Fall The Viet-nam reader: Articles and documents on American foreign
policy and the Viet-nam crisis New York, Vintage 1967
Rathke R "NAACP v Clairborne Hardware 102 S Ct 3409 (1982)" Journal of Urban Law
1983 vol 61 165
Rautenbach I "Aspekte van die beskerming van staatsvei1ig-heid in Israel en die
Republiek van Suid-Afrika" JCRDL 1973 vol 36 211
Rawls J A theory of justice Oxford, Oxford University Press 1971
Raz J The authority of law: Essays on law and morality Oxford, Clarendon 1979
Reese GC The promise of protest Minneapolis, Minnesota, Augsburg 1971
Regamey P Non-violence and the Christian conscience London, Darton 1966
Reisman WM Folded lies: Bribery, crusades, and reforms New York, The Free Press 1979
------- "The tormented conscience: Applying and appraising unauthorized coercion"
Emory Law Journal 1983 vol 32 499
Reiss HS "Kant and the right of rebellion" Journal of the History of Ideas 1956 vol
17 179
Richards DAJ "Conscience, human rights, and the anarchist challenge to the obligation
to obey the law" Georgia Law Review 1984 vol 18 771
Roberts AA "The late FET Krause" SALJ 1959 vol 76 364
Robertson J Liberalism in South Africa 1948-1963 Oxford, Clarendon 1971
Robertson M (ed) South African Human Rights and Labour Law Yearbook 1990 vol 1 Cape Town,
Oxford University Press 1990
Robinson JA "Die Jehowasgetuie en dienspligweiering: S v Lewis 1985 4 SA 26 (T)" JCRDL
1987 vol 50 219
------- "Die subjektiewe regsposisie van die geloofsbeswaarde militere
dienspligtige" SAPL 1987 vol 2 35
------- Die subjektiewe regsposisie van die geloofsbeswaarde militêre
dienspligtige unpublished LLD thesis, PU for CHE 1986
------- "Die verpligting tot die verrigting van militêre diensplig: 'n
Regsteoretiese verklaring" Obiter 1987 100
------- "Hoe verpligtend moet militere diensplig vir die Christen wees?"
Wetenskaplike Bydraes van die PU vir CHO 1990 series F3 no 37 Reflections
on power and violence 235
------- "Hartman v Chairman Board for Religious Objection 1987 1 SA 922 (O)" De
Jure 1987 vol 20 374
------- "Menseregte, militere diensplig en geloofsbe-swaardes" JCRDL 1984 vol 47
210
Roland Hoist-van der Schalk H Gandhi Amsterdam, Ploegsma 1948
Romein J & A Romein Erflaters van onze beschaving: Neder-landse gestalten uit zes eeuwen
Amsterdam, Querido's 1979 Romein J, BW Schaper, ACJ de Vrankrijker, REJ
Weber & JW Wijn De Tagtigjar-ige Oorlog Amsterdam, Elsevier 1942
Romoser GK "The politics of uncertainty: The German resistance movement" Social
Research 1964 vol 31 73
Ross WD The right and the good Oxford, Clarendon 1930 Rossouw HW "Jeug en gesag"
Standpunte 1978 vol 31 6
Rotberg RI & AA Mazrui (eds) Protest and power in black Africa New York, Oxford
University Press 1970 [L Kuper "Nonviolence revisited" 788]
Rousseau JJ The social contract & discourses (transl from French by GDH Cole) London,
Dent 1932
Roux E Time longer than rope: A history of the black man's struggle for freedom
in South Africa London, Victor Gollancz 1948
Rucker D "The moral grounds of civil disobedience" Ethics 1965/66 vol 76 142
Ruskin J Unto this last and other essays on art and political economy London, Dent
1909
Russel B "Civil disobedience" The New Statesman February 1961 vol 61 245
------- Unarmed victory Harmondsworth, Middlesex, Penguin 1963
Sachs A Justice in South Africa Chatto, Heinemann 1973
Sampson DH Randell and Bax: The South African attorneys handbook Durban, Butterworths
1983
Samuel G "Civil disobedience and press freedom" Oxford Journal of Legal Studies
1985 vol 5 300
Schadeberg J (ed) Nelson Mandela and the rise of the ANC Parklands, Ad Donker 1990
Schapera I A handbook of Tswana law and custom London, Frank Cass 1970 Schapera I
(ed) The Bantu-speaking tribes of South Africa: An ethnographical survey
London, Routledge 1962
Schechter AH Contemporary constitutional issues New York, McGraw 1972
Schlesinger SR "Civil Disobedience: The problem of selective obedience to law" Hastings
Constitutional Law Quarterly 1976 vol 3 947
Schuyt CJM Recht, orde en burgerlijke ongehoorzaamheid Rotterdam, Universitaire Pers
1973
Schwartz ML Lawyers and the legal profession: Cases and materials New York, Bobbs-
Merril 1979
Schwartz W "The right of resistance" Ethics 1963 vol 74 126
Schwarzenberger G International law as applied by international courts and tribunals vol
2 The law of armed conflict London, Stevens 1968
Scott JB The Spanish conception of international law and of sanctions Washington,
Carnegie Endowment 1934
Seneca Seneca's tragedies vol 1 (transl FJ Miller) London, Harvard University
Press 1953
Seymour SM Bantu law in South Africa Cape Town, Juta 1970 Seymour WM Native law and
custom Cape Town, Juta 1911
Sharp G "Ethics and responsibility in politics: A critique of the present adequacy
of Max Weber's classification of ethical systems" Inquiry 1964 vol 7 304
------- "The meanings of non-violence: A typology (revised)" The Journal of
Conflict Resolution 1959 vol 3 no 1 41
------- The politics of nonviolent action Boston, Massachusetts, Extending
Horizons 1973
part 1 Power and struggle
part 2 The methods of nonviolent action
part 3 The dynamics of nonviolent action
Sherr A Freedom of protest, public order and the law Oxford, Basil Blackwell 1989
Sibley MQ "On political obligation and civil disobedience" Journal of the Minnesota
Academy of Science 1965 vol 33 67
Sier JM "Civil disobedience and the First Amendment" The National Lawyers Guild
Practitioner 1985 vol 42 no 1 18
Simmons AJ "Consent, free choice, and democratic government" Georgia Law Review 1984
vo1 18 791
Simons HJ "Passes and police" Africa South 1956 vo1 1 no 1 51
Simons HJ & RE Simons Class and colour in South Africa 1850-1950 Middlesex, Penguin 1969
Singer P Democracy and disobedience Oxford, Clarendon 1973
Sitkoff H The struggle for black equality 1954-1980 Toronto, Col 1 ins 1987
Skinner Q The foundations of modern political thought Cambridge, Cambridge
University Press 1978
vo1 1 The Renaissance
vo1 2 The age of reformation
Skolnick JH The politics of protest New York, Ballantine 1970
Smith DO "The legitimacy of civil disobedience as a legal concept" Fordham Law
Review 1968 vo1 36 707
Smith DJ "Die verhouding tussen kerk en staat: Enkele model Ie met verwysing na die
reg van opstand teen die staat" Hervormde Teologiese Studies 1988 vo1 44
no 2 434
Smith JC & DN Weisstub The Western idea of law Durban, Butterworths 1983
Smith MBE "Is there a prima facie obligation to obey the law?" The Yale Law Journal
1973 vo1 82 950
Smith NJ, FEO'B Geldenhuys & P Meiring (eds) Storm-kompas: Opstelle op soek na 'n suiwer
koers in die Suid-Afrikaanse konteks van die jare tagtig Cape Town,
Tafelberg 1981
Smith PES Kerk en krisis: 'n Verkenning van die Ned Herv of Geref Kerk aan die
Witwatersrand en die werkstaking van 1922 unpublished BD thesis,
University of Pretoria, undated
Smuts D & S Westcott (eds) The purple shall govern: A South African A to Z of nonviolent
action Cape Town, Oxford University Press 1991
Smuts JC "Gandhi's political method", essay dated 27 March 1939, contained in the
JO Pohl Collection, University of Pretoria archives
Snyman CR Criminal law Durban, Butterworths 1984
------- "Sedition revived" SALJ 1980 vol 97 14
Solum LB "Freedom of communicative action: A theory of the First Amendment freedom
of speech" Northwestern University Law Review 1989 vol 83 54
Song celestial, The (transl from Sanskrit by E Arnold) London, Kegan Paul 1917
Sontag F "Liberation theology and the interpretation of political violence"
Theologia Evangelica 1988 vol 21 15
Soper P A theory of law Cambridge, Harvard University Press 1984
------- "Legal theory and the obligation to obey" Georgia Law Review 1984 vol 18
891
------- "The moral value of law" Michigan Law Review 1985 vol 84 63
Sophocles Antigone (transl from Greek by RE Braun) London, Oxford University Press
1974
Spence JE "The origins of extra-parliamentary opposition in South Africa"
Governmental Opposition 1965 55
Spiller PR "MK Gandhi: Advocate of the Natal Supreme Court" De Rebus Get 1985 517
Spitz D "Democracy and the problem of civil dis¬obedience" The American Political
Science Review 1954 vol 48 386
Stake RP "A phenomenology of justice and the case for civil disobedience" De Paul
Law Review 1975 vol 24 705
Stayt HA The BaVenda London, Frank Cass i968 Steyn LC Die uitleg van wette Cape
Town, Juta 1974
[Steyn MT] Compendium juris religionis unpublished commentary by the Chairman of the
Board for Religious Objection 1985
Stoker HG Die stryd om die ordes Pretoria, Caxton c 1941
Stone GR, LM Seidman, CR Sunstein & MV Tushnet Constitutional law Boston, Little 1986
Stone IF The trial of Socrates Boston, Brown 1988
Störig HJ Geschiedenis van de filosofie vol 2 Utrecht, Spectrum 1974
Strachan-Davidson JL Problems of the Roman criminal law
vol 1 Amsterdam, Rodopi 1969
vol 2 Oxford, Clarendon 1912
Strauss L 4 J Cropsey (eds) History of political philosophy Chicago, University of
Chicago Press 1981
Strauss PJ Die Nederduitse Gereformeerde Kerk en die Tweede Wereldoorlog unpublished
80 thesis, University of Pretoria 1977
Strydom MJ "S v Beyleveld and others 1964 1 SA 269 (T)" JCRDL 1964 vol 27 314
Suarez F Selections from three works vol 2 (transl from Latin by GL Williams et a1)
Oxford, Clarendon 1944
Summers RS (ed) Essays on legal philosophy Oxford, Blackwell 1968
------- More essays in legal philosophy: General assessment of legal philosophies
Berkeley, California, University of California Press 1971
Swan M Gandhi: The South African experience Johannesburg, Ravan 1985
Swift LJ The early fathers on war and military service Wilmington, Michael Glazier
1983
Switzer L "Gandhi in South Africa: The ambiguities of Satyagraha" Journal of Ethnic
Studies 1986 vol 14 no 1 122
Syme R Ten studies in Tacitus Oxford, Clarendon 1970
Tacitus Tacitus in five volumes London, Heinemann
vol 3 The histories books 4, 5 (transi CH Moore) & The anals books 1-3
(transl J Jackson) 1956
vol 4 The anals books 4-6, 11, 12 (transi J Jackson) 1970
Taitz J "Conscription, religious objectors and the 'Board for Religious
Objection'" De Jure 1988 vol 21 239
Taylor C Hegel Cambridge, Cambridge University Press 1975
Thalberg I "Philosophical problems of civil disobedience" Scientia 1966 vol 101 436
Thompson L A history of South Africa Sandton, Radix 1990
Thompson L (ed) African societies in southern Africa: Historical studies London,
Heinemann 1972
Thompson L & J Butler (eds) Change in contemporary South Africa Berkeley, University of
California Press 1975
Thompson L & A Prior South African politics New Haven Connecticut, Yale University Press
1982
Thoreau HD Walden or. Life in the woods and On the duty of civil disobedience New
York, Harper 1965
Tierney TA "Civil disobedience as the lesser evil" University of Colorado Law Review
1988 vol 59 961
Tillay C, L & R The rebellious century: 1830-1930 London, Dent 1975
To1stéy LN The kingdom of God and peace essays (transl from Russian by A Maude)
London, Oxford University Press 1946
------- Writings on civil disobedience and non-violence (transl from Russian by A
Maude) London, Peter Owen 1968
Treurnicht AP Die verhouding van die staat tot die kerk by Abraham Kuyper 1837-1920
unpublished PhD thesis. University of Cape Town 1956
Tribe LH "Ways not to think about plastic trees: New foundations for environmental
law" The Yale Law Journal 1974 vol 83 1315
Trichardt AP & HC Trichardt "Civil disobedience and jurisprudence" CILSA 1986 vol 19 357
Turk AT Political criminality : The defiance and defense of authority London, Sage
1982
Turnbull CM (ed) Africa and change New York, Knopf 1973
Tweed H, BG Segal & HL Packer "Civil rights and disobedience to law: A lawyer's view" New
York State Bar Journal 1964 vol 36 290
Uh1ig MA (ed) Apartheid in crisis New York, Vintage 1986
Ungar SJ Africa: The people and politics of an emerging continent New York, Simon &
Schuster 1986
University of Chicago readings in Western civilization (eds JW Boyer & J Kirshner) vol 5
The Renaissance (eds E Cochrane & J Kirshner) Chicago, University of
Chicago Press 1986
Van Blerk AE Judge and be judged Cape Town, Juta 1988
Van den Bergh GCJJ The life and work of Gerard Noodt (1647-1725): Dutch legal scholarship
between humanism and enlightenment Oxford, Clarendon 1988
Van den Haag E "Civil disobedience and the law" Rutgers Law Review 1966 vol 21 27
Van de Kamp JLJ Bartolus de Saxoferrato 1313-1357 Amsterdam, Paris 1936
Van der Heijden EJJ Aantekeningen bij de geschiedenis van het oude vaderlandse recht
Utrecht, Dekker 1958
Van der Linden J Regtsgeleerd, practicaal, en Koopmans handbook ["Koopmans handbook"]
Amsterdam, Johannes Allart 1806
Van der Merwe MA "Civil resistance with specific reference to South Africa" ISSUP
Strategic Review March 1987 1
Van der Merwe NJ & PJJ Olivier Die onregmatige daad in die Suid-Afrikaanse reg Pretoria,
Van der Walt 1989
Van der Schyff PF (ed) Die ossewabrandwag: Vuurtjie in droe gras Potchefstroom,
Department of History, 1991
Van der Vyver JD "Censorship in South Africa" (bookreview) De Jure 1988 vol 21 182
------- "Comments on the Constitutional Guidelines of the African National
Congress" SAJHR 1989 vol 5 133
------- "Conscientious objection against warfare: A juridical perspective from the
Calvinistic point of view" Philosophical Papers May 1979 vol 8 56
------- Die beskerming van menseregte -in Suid-Afrika Cape Town, Juta 1975
------- Die juridiese funksie van staat en kerk: 'n Kritiese analise van die beg-
insel van soewereiniteit in eie kring Durban, Butterworths 1972
------- Die juridiese sin van die leerstuk van menseregte vols 1, 2 LLD thesis in
its unpublished form, University of Pretoria 1973
------- "Kantaantekeninge by die Wet op Binnelandse Veiligheid 74 van 1982" JCRDL
1982 vol 45 294
------- "Law, order and society" JCRDL 1980 vol 43 278
------- Seven lectures on human rights Cape Town, Juta 1976
------- "Statehood in international law" Emory International Law Review 1991 vol 5
9
------- "State sponsored terror violence" SAJHR 1988 vol 4 55
------- "The right of revolt" Contours of the kingdom May, June 1979 6
------- "The state, the individual and society" SALJ 1977 vol 94 291
------- "Qu'ils mangent de la brioche!" SALJ 1981 vol 98 135
Van der Walt BJ "Die Staat in die lig van die Bybel" Wetenskaptike Bydraes van die PU vir
CHO 1983 series F2 no 23 1
Van der Watt L Die reg van verset ("n Staatsfilosofiese studie) unpublished MA thesis.
University of the Orange Free State 1963
Van der Westhuizen JV "Do we have to be Calvinist puritans to enter the new South
Africa?" SAJHR 1990 vol 6 425
------- Noodtoestand as regverdigingsgrond in die strafreg unpublished LLD
thesis. University of Pretoria 1979
Van Eikema Hommes HJ Major trends in the history of legal philosophy Amsterdam, North-
Holland 1979
Van Home WA "St Augustine: Death and political resistance" The Journal of Religious
Thought 1981/82 vol 38 34
Van Jaarsveld F "Die studie van protes" De Kat Feb 1989 66
Van Mark DJ "Camping on First Amendment rights: Clark v Community for Creative Non-
violence 468 US 288 (1984)" Land and Water Law Review 1987 vol 22 567
Van Niekerk BvD "Calling a king a monkey - sedition?" SALJ 1970 vol 87 299
Van Riebeeck JA Daghregister part 3 1659-1662 (eds OB Bosman & HB Thorn) Cape Town,
Balkema 1957
Van Rooy DJ "Die Calvinis in die Ossewabrandwag" Koers 1948 vol 16 89
Van Rooyen JCW Censorship in South Africa: Being a commentary on the application of the
Publications Act Johannesburg, Juta 1987
Van Wyk CW "Burgerlike ongehoorsaamheid" De Jure 1985 vol 18 283
------- "Burgerlike ongehoorsaamheid of gewelddadige verset?" Wetenskaplike
Bydraes van die PU vir CHO 1990 series F3 no 37 Reflections on power and
violence 97
Van Wyk JA Vernuwing of revolusie: Het die Kerk daar lets oor te se? Pretoria, NG
Kerkboekhandel 1973
Van Wyk JH "Burgerlike ongehoorsaamheid" Woord en Daad 1985 vol 25 10
------- "Deo Magis: Oor gehoorsaamheid aan God en (on)gehoorsaamheid aan die
owerheid" In die Skriflig 1988 vol 22 48
------- "Die politieke dimensie in die romankuns van André P Brink: 'n Etiese
evaluering" Koers 1986 vol 51 no 1 38
------- "Kerk, teotogie en geweld" Wetenskaplike Bydraes van die PU vir CHO 1990
series F3 no 3 Reflections on power and violence 76
------- "The problem of resistance" Orientation 1988 no 48 73
Van Zyl DH Cicero's legal philosophy Roodepoort, Digma 1986
------- Geskiedenis van die Romeins-Holtandse reg Durban, Butterworth 1979
Van Zyl FJ & JD van der Vyver Inleiding tot die regswetenskap Durban, Butterworth 1982
Vattel The law of nations or the principles of natural law vo1 3 (transl from
Latin by C Fenwick) New York, Oceana 1964
Venter F "Salus reipublicae suprema lex" JCRDL 1977 vo1 40 233
Venter JJ "Transformation of society in the Kairos document" Orientation 1988 no 48
104
Venter TD "Die begrip 'staat': 'n Staatkundige en staatsregtelike beskouing" De Jure
1974 vo1 7 128
Versveld M St' Augustine's Confessions and City of God Cape Town, Carrefour 1990
Verwoerd HF Verwoerd aan die woord (ed AN Pelser) Pretoria, Afrikaanse Pers 1966
Villa-Vicencio C Between Christ and Caesar: Classic and contemporary texts on church and
state Cape Town, David Philip 1986
------- Civil disobedience and beyond: Law, resistance and religion in South
Africa Cape Town, David Philip 1990
------- "Revolutionary violence: Toward a theological explanation" Wetenskaplike
Bydraes van die PL) vir CHO 1990 series F3 no 37 Reflections on power and
violence 38
------- "Theology, law and state illegitimacy" Journal of Theology for Southern
Africa 1988 no 63 3
Villa-Vicencio C & JW Oe Gruchy (eds) Resistance and hope: South African essays in honour
of Beyers Naude Cape Town, David Philip 1985
Villarruel KL "The underground railroad and the sanctuary movement: A comparison of
history, litigation, and values" Southern California Law Review 1987 vo1
60 1429
Viorst M Fire in the streets: America in the 1960's New York, Simon & Schuster 1979
Visser C (ed) Essays in honour of Ellison Kahn Johannesburg, Juta 1989
Vivian T St peter of Alexandria: Bishop and martyr Philadelphia, Fortress 1988
Vlastos G (ed) Socrates Garden City, New York, Doubleday 1971
------- The philosophy of Socrates: A collection of critical essays Garden City,
New York, Anchor 1971
Voet J The selective Voet being the commentary on the Pandects vo1 7 (transl from
Latin by P Gane) Durban, Butterworth 1957
Von Eschen D, J Kirk & M Pinard "The conditions of direct action in a democratic society"
The Western Political Quarterly 1969 vo1 22 309
[Von Repgow E] Sachsenspiegel Landrecht (ed K A Eckhardt) Berlin, Musterschmidt 1955
Vorlander K Geschiedenis van de wijsbegeerte Utrecht, Spectrum 1971
vo1 1 Oudheid
vo1 2 Middeleeuwen en Renaissance
vo1 3 Nieuwe tyd tot Kant
Vorster WS (ed) Views on violence Pretoria, Guthenberg 1985 Wacks R "Judges and
injustice" SALJ 1984 vo1 101 266 Waldron J "A right to do wrong" Ethics
1981 vo1 92 21
Walker C Women and resistance in South Africa London, Onyx 1982
Waishe AP "The origins of African political conscious¬ness in South Africa" The
Journal of Modern African Studies 1969 vo1 7 no 4 583
Walshe P The rise of African nationalism in South Africa: The Africa National
Congress 1912-1952 London, Hurst 1970
------- Black nationalism in South Africa: A short history Johannesburg, Ravan
1973
Walzer M "The obligation to disobey" Ethics 1966/67 vo1 77 163
------- Obligations: essays on disobedience, war and citizenship Cambridge,
Massachusetts, Harvard University Press 1970
Wanke MC Political justice: The African experience: Studies in Nigeria, Uganda, and
Zambia parts 1, 2 unpublished PhD thesis, University of Wisconsin 1973
Waskow AI From race riot to sit-in, 1919 and the 1960's New York, Anchor 1967
Wasserstrom R "Disobeying the law" The Journal of Philosophy 1961 vol 58 641
Wasserstrom RA "The obligation to obey the law" UCLA Law Review 1963 vol 10 780
Watley WD Roots of resistance: The non-violent ethic of Martin Luther King, Jr
Valley Forge, Judson 1985
Watts MR The dissenters Oxford, Clarendon 1978
Weber DR (ed) Civil disobedience in America: A documentary history Ithaca, New York,
Cornell University Press 1978
Weber H-R Power: Focus for a Biblical theology Geneva, WCC 1989
Weckstein DT Professional responsibility in a nutshell St Paul, Minnesota, West 1983
Weingartner RH “Justifying civil disobedience" Columbia University Forum 1966 vol 9 38
Welch DD (ed) Law and morality Philadelphia, Pennsylvania, Fortress 1987
Wellman C Morals and ethics Glenview, Illinois, Scott & Foresman 1975
Wenley RM Stoicism and its influence New York, Cooper Square 1963
Wharam A "Treason in Rhodesia" Cambridge Law Journal 1967 vol 25 189
Williams H Kant's political philosophy Oxford, Basil Blackwell 1983
Wink W Jesus' third way Philadelphia, New Society 1987
Wirszubski C Libertas as a political idea at Rome during the late Republic and early
Principate Cambridge, Cambridge University Press 1968
Wolfenstein EV The revolutionary personality: Lenin, Trotsky, Gandhi Princeton, New
Jersey, Princeton University Press 1967
Wolff C The law of nations (transl by JH Drake) Oxford, Clarendon 1934
Wood N Cicero's social and political thought London, University of California
Press 1988
Woodcock G Gandhi London, Fontana 1972
Woolf CNS Bartolus of Sassoferrato: His position in the history of medieval
political thought Cambridge, Cambridge University Press 1913
Woozley AD Law and obedience: The arguments of Plato's Crito London, Duckworth 1979
Workman HB Persecution in the early church Oxford, Oxford University Press 1980
Wride BO "Political protest and the Illinois defense of necessity" The University
of Chicago Law Review 1987 vol 54 1070
Zimba LS The constitutional protection of fundamental rights and freedoms in
Zambia: An historical and comparative study unpublished PhD thesis,
University of London 1979
Zinn H Disobedience and democracy: Nine fallacies on law and order New York,
Vintage 1968 Cambridge
Zwiebach B Civility and disobedience London, University Press 1975
REPORTS AND OTHER DOCUMENTS
African National Congress A Bill of Rights for a new South Africa: A working document by
the ANC Constitutional Committee Belville CDS 1990
------- Constitutional guidelines for a democratic South Africa published in SAJHR
1989 vol 5 129
Agenda vir die sesde vergadering van die Algemene Sinode van die Nederduitse
Gereformeerde Kerk Pretoria vanaf Dinsdag 12 Oktober 1982
Amnesty International Death in Beijing London, Ace 1989
Catholic Institute for Race Relations Out of step – War resistance in South Africa
London, CIIR 1989
Dutch Reformed Church "Bree Moderatuur" Geloofsbesware teen diensplig en verbandhoudende
sake Pretoria, NGKB 1980
Golden number of "Indian opinion" 1914: Souvenir of the Passive Resistance Movement in
South Africa 1906-1914 (facsimile edition) Pietermantz-burg, Africana Book
Collectors 1990
Handelingen van eene buitengewone vergadering van den Raad der Ned Ger Kerken in Zuid
Afrika: Gehouden te Bloenrfontein in konferentie met daartoe uitgenodigde
predikanten, op Woensdag, 27 Jan, 1915, en volgende dagen. Paarl, Paarl
Drukpers 1915
Human Rights: A compilation of international instruments New
York, United Nations 1988 Human Sciences Research Council: Report of the HSRC
investigation into intergroup relations The South African society:
Realities and future prospects Pretoria, Government Printer 1985
Kairos document, The: Challenge to the church (revised 2 ed) Johannesburg, Skotaville
1986
Kerk en sametewing: 'n Getuienis van die Ned Geref Kerk soos aanvaar deur die Algemene
Sinode van die Ned Geref Kerk. Oktober 1986 Bloemfontein, NG Sendingpers
1986
National Commission on the Causes and Prevention of Violence, final report To establish
justice, and to insure domestic tranquility New York, Award 1969
Ras, volk en nasie en volkereverhoudinge in die lig van die skrif: Goedgekeur en aanvaar
deur die Algemene Sinode van die Nederduitse Gereformeerde Kerk Oktober
1974 Cape Town, NG Kerk Uitgewers 1977 Official translation: "Human
relations and the South African scene in the light of scripture" Cape
Town, NG Kerk Uitgewers 1976
Report of the commission of inquiry into matters relating to the security of the state
(Abridged) ["Potgieter Report"]
Report of the Commission of inquiry into security legislation. The RP 90/1981 ["Rabie
Report"]
Report of the Commission of inquiry into [the] South African Council of Churches RP
74/1983 ["Eloff Report"]
South African Defence Force National Service Information booklet Directorate Public
Relations 1990
South .African Institute of Race Relations A Survey of Race Relations in South Africa (ed
M Horrell) 1956/57, 1958/59, 1959/60 & 1961
------- Security and related trials in South Africa, July 1976-May 1977 1977
South African Law Commission Group and human rights working paper 25, project 58
Suid-Afrikaanse Regskommissie Verslag betreffende die kodifikasie van die gemene reg met
betrekking tot die misdade teen die staat 1976
Synod of Bishops, Church of the Province of South Africa "Christian obedience and unjust
law" Grace and Truth 1988 vol 8 no 4 194
United States Riot Commission Report Report of the national advisory commission of civil
disorders New York, Bentam Books 1968
ARCHIVES USED:
University of Pretoria Africana collection
University of South Africa, United Party collection
State Archives, Pretoria
SYNOPSIS
of the thesis entitled
A JURISPRUOENTIAL ANALYSIS OF CIVIL DISOBEDIENCE IN SOUTH AFRICA
By
CHRISTOFFEL HENDRIK HEYNS
for the degree
DOCTOR OF PHILOSOPHY
in the
FACULTY OF LAW
of the
UNIVERSITY OF THE WITWATERSRAND
the supervisor being
PROP J D VAN DER VYVER
Civil disobedience, in its modern form, originated in South Africa at the
beginning of the century. Today it is a global phenomenon which presents
difficult problems to decision-makers, who have to determine the proper
response of the state to this form of protest. There is every reason to believe
that civil disobedience will continue to present such problems in the new South
Africa, as well as in the transitionary phase thereto. At the same time, the
future of the country depends, to a large extent, on the proper management of
dissent.
This thesis aims at providing a conceptual framework within which acts of civil
disobedience can be evaluated. The focus is primarily on South Africa, but
ultimately the perspective is also more universal. The objective is to develop
a "flexible" theory of civil disobedience, which is applicable in more, as well
as in less democratic societies.
The following aspects are covered: The proper definition of civil disobedience
is considered and its various elements as well as the different manifestations
of such disobedience are analysed. A comprehensive account is given of the
legal history of non-violent resistance in its country of origin. Original
research is done into the use made of this form of protest, in its country of
origin, first by Gandhi and later by the liberation movements such as the
African National Congress. Attention is also drawn to the present civil
disobedience practices of right-wing organizations.
The far-reaching implications for civil disobedience of various aspects of the
South African positive law, both past and present, are considered. An
investigation is done into aspects of the criminal law, executive prerogatives,
political offences by legal practitioners and conscientious objection to
military service.
An overview is given of classical views on political and legal obligation and
its concomitant, the right to resist. The most Important ideas emanating from
the following sources are considered: the Bible and the wider Judeo-Christian
tradition, including the major South African churches. Western political
philosophy and traditional African jurisprudence. The development of the Stoic-
Christian idea that certain aspects of human life are beyond the control of the
state, is traced.
Certain guidelines regarding the evaluation, by state officials, of acts of
civil disobedience are then proposed. The issue of the justification of civil
disobedience is viewed from the perspective of John Rawls' "original position".
It is argued that the recognition of a right to resist should be tied to the
notion of fundamental human rights. It should not be made to depend, as is done
by some commentators, merely on the question of political participation.
Governments, both majoritarian and non-majoritarian, are constrained by
fundamental rights. A right to resist arises when any government attempts to
alienate inalienable rights.
People are, however, expected to accept a certain measure of injustice. To
ensure that disobedience is resorted to only in serious cases, certain formal
conditions for legitimate resistance are also posed. Where a basic right is
violated, and these conditions are met, a "strong right" to resist and to defy
the law could be said to prevail, placing a duty of leniency on decision-
makers.
The content and scope of basic human rights should be ascertained with
reference to the national and international boni mores, with particular
reference to the international human rights instruments. The latter probably
represent the most reliable indication of the basis of legitimate resistance
which those in the "original position" would accept.
Insofar as there is no consensus on the question whether a particular law
violates basic human rights and that is the position in most cases - an
alternative criterion should be used. It should be asked whether the type of
conviction which motivates the resistance can underlie basic human rights.
Adapting certain ideas of Ronald Dworkin, a distinction is drawn between
integrity-based, anti-exploitation and policy-based civil disobedience and
their relative propriety is discussed.
With reference to the wide recognition environmental rights currently receive,
Dworkin's approach to policy-based civil disobedience is criticised. A basis is
suggested on which some manifestations of anti-nuclear weapons and pro-
environment disobedience can be justified.
Where a strong right to resist is recognised, it might be appropriate for a
judge to impose a light sentence, or to acquit the resister altogether, on the
basis inter alia of the defence of necessity or constitutional protection of
free speech.
SAMEVATTING
van die proefskrif getitel
‘N REGSFILOSOFIESE STUDIE VAN BURGERLIKE ONGEHOORSAAMHEID IN SUID-AFRIKA
deur
CHRISTOFFEL HENDRIK HEYNS
vir die graad
DOKTOR IN DIE REGTE
in die
FAKULTEIT REGSGELEERDHEID
van die
UNIVERSITEIT VAN DIE WITWATERSRAND
met as promoter
PROF J D VAN DER VYVER
Burgerlike ongehoorsaamheid, in sy moderne vorm, het in Suid-Afrika ontstaan
aan die begin van die eeu. Dit is vandag 'n wereldwye verskynsel wat
besluitnemers met moeilike vrae konfronteer. Volgens alle aanduidings gaan
burgerlike ongehoorsaamheid steeds 'n probleem in die nuwe Suid-Afrika, en in
die oorgangsproses daarna, wees. Terselfdertyd hang die toekoms van die land
grootliks daarvan af of aanvaarbare maniere gevind sal word om politieke verset
te hanteer.
Die doel van hierdie tesis is om 'n konseptuele raamwerk daar te stel waarbinne
dade van burgerlike ongehoorsaamheid geevalueer kan word, vanuit die
perspaktief van hulle wat die staat se houding in hierdie verband meet fcepaal.
Die fokus is primer op Suid-Afrika, maar die visier is uiteindelik ook breer
gestel. Daar word getrag om 'n "buigsame" teorie van burgerlike
ongehoorsaamheid te ontwerp, wat aanwending kan vind in meer, maar eweneens in
minder demokratiese stelsels.
Die volgende aspekte word gedek: Die vraag na die korrekte definisie van
burgerlike ongehoorsaamheid word ondersoek asook die elemente en verski1lende
verskyningsvorme van hierdie vorm van verset. 'n Gedetai "lleerde oorsig oor
die geskiedenis van burgerlike ongehoorsaamheid, in die land van die oorsprong
daarvan, word geggee. Die klem val op die regsgeskiedenis van die nie-
gewelddadige verset van Gandhi en van die bevrydingsbewegings soos die "African
National Congress". Die verreikende implikasies van verskeie aspekte van die
Suid-Afrikaanse positiewe reg, tans en in die verlede, word ondersoek. So word
gekyk na die relevante fasette van die strafreg, die bevoegdhede van die
uitvoerende gesag, die pleeg van politieke misdade deur regspraktisyns en
gewetensbesware teen diensplig.
'n Oorsig word ook gegee oor 'n aantal belangrike klassieke beskouings oor die
verpligting om die reg en die staat te gehoorsaam, asook die teenkant hiervan,
naamlik die reg van verset. Die belangrikste idees oor hierdie onderwerp wat
uit die volgende bronne gespruit het, word bespreek: die Bybel en die breer
Joods-Christelike tradisie, insluitende die Suid-Afrikaanse kerke, Westerse
politieke filosofie en tradisionele regstelsels in Afrika. Die ontwikkeling van
die Stoi'syns-Christelikeidee dat sekere aspekte van die menslike bestaan buite
die beheer van die staat is, word ondersoek.
Sekere riglyne rakende die eva1uering, deur staatsamptenare, van dade van
burgerlike ongehoorsaamheid word dan aan die hand gedoen. Die kwessie van die
regverdiging van burgerlike ongehoorsaamheid word beskou vanuit die perspektief
van John Rawls se "original position". Dit word aan die hand gedoen dat die
erkenning van 'n reg van verset onlosmaakiik verbonde is aan die idee van
basiese menseregte in die algemeen. Die toetssteen van die verpligting oni te
gehoorsaam is nie, soos sommige skrywers beweer, bloot die vraag of daar
politieke deelname is nie. Regerings wat deur die meerderheid verkies word,
sowel as regerings wat nie so vekies word nie, word aan bande gele deur die
fundamentele regte van die burgers, "n Reg van verset ontstaan wanneer 'n
regering poog om onvervreembare regte te vervreem.
Daar word egter van el keen verwag om 'n sekere mate van ongeregtigheid te
verduur. Ten einde te verseker dat die weg van verset gekies word s1egs in
gevalle wat ernstig genoeg is, word sekere formele vereistes ook vir
geregverdigde burgerlike ongehoorsaamheid gestel. Waar 'n basiese mensereg
geskend word, en daar word aan hierdie vereistes voldoen, kan aangevoer word
dat 'n "sterk reg" van verset ontstaan, wat 'n verpligting op die owerheid
plaas om 'n tolerante benadering ten opsigte van die burgerlik ongehoorsame te
volg.
Die kwessie van wat presies gesien moet word as basiese regte, moet bepaal word
aan die hand van die nasionale en internasionale boni mores, met spesifieke
verwysing na bepalings van die internasionale dokunnente in hierdie verband.
Laasgenoemde gee waarskynlik die mees akkurate beskrywing van die basis van
geregverdigde verset wat beskikbaar is.
In soverre daar geen eenstemmi gheid is oor die vraag of 'n bepaalde wet
basiese menseregte skend me - en meestal is dit die geval - moet 'n
alternatiewe kriterium gebruik word. Daar moet gevra word of die tipe
oortuiging wat die gehoorsaamheid motiveer wel basiese menseregte kan onderle.
Na aanleiding van sekere idees van Ronald Dworkin word 'n onderskeid getref
tussen integriteits-gefundeerde, anti-uitbuiting, en beleidsgerigte burgerlike
ongehoorsaamheid. Die relatiewe aanvaarbaarheid van hierdie verski1lende vorme
van verset word bespreek.
Met vewysing na die wye erkenning wat omgewingsregte tans geniet, word Dworkin
se benadering tot beleidsgerigte burgerlike ongehoorsaamheid gekritiseer. 'n
Basis word voorgestel waarop sommige manifestasies van anti-kernwapen en pro-
omgewing verset wel geregverdig kan word.
Waar 'n sterk reg van verset erken word, en daar 'n verpligting op die regter
is om tolerant te wees, kan dit aanleiding gee tot die opiegging van 'n 1igte
vonnis, of selfs die vryspraak van die beskuldigde, onder meer op sterkte van
die verweer van noodtoestand of die grondwetlike beskerming van vryheid van
spraak.