Civil Disobedience (1)

604
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

Transcript of Civil Disobedience (1)

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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

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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

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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

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(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

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(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

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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

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(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

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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

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(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

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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

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(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

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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.

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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

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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

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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

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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

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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

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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.

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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

Page 20: Civil Disobedience (1)

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.

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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

Page 22: Civil Disobedience (1)

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.

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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.

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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

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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

Page 26: Civil Disobedience (1)

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.

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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).

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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.

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“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.

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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

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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.

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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.

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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.

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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.

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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.

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"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).

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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

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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.

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- 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.

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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.

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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.

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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).

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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.

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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.

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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.

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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".

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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,

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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.

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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

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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).

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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.

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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".

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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.

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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

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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)

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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.

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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.

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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)).

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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

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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

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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

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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

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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.

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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.

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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.

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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.

Page 67: Civil Disobedience (1)

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.

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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.

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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.

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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.)

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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."

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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.

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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."

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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."

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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.

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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.

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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.

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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.

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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

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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.

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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.

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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.

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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

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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.

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- 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

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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

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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.

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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.

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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

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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

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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

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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.

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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.

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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.

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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.

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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.

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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

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- 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

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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.

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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.

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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.

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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.

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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

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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.

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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.

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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

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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

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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.

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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

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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.

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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.

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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.

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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.

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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

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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.

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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).

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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.

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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.

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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.

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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

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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.

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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.

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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.

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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.

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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

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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).

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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.

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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.

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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

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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

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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.

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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

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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.

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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

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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.

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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."

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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

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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.

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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.

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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.

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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

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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

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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“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.

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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.

Page 195: Civil Disobedience (1)

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.

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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.

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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.

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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.

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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.

Page 200: Civil Disobedience (1)

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.

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- 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?"

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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.

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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.

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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.

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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.

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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.

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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.

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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

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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.

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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.

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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.

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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.

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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).

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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.

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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.

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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).

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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.

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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.

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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).

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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.

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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.

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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.

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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

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(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).

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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

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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.)

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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.

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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.

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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).

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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).

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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.

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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.

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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.

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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.

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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.

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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

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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).

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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.

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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.

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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.

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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).

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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).

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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).

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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).

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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

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“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.

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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).

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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).

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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.

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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).

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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.

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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).

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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.

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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).

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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.

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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.

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(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.

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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.

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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).

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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.

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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.

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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).

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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).

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(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.

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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.

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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).

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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.

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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.

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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.

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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).

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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.

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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.

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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

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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".

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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).

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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

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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.

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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.

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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.

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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.

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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.

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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

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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).

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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).

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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.

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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

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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.

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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.

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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).

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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.

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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.

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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.

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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.

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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.

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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).

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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).

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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.

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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.

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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.

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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.

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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

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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.

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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.

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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.

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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.

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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).

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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.

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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).

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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.

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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.

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- 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?

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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.

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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.

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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

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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"

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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.

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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.

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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.

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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

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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.

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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.

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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

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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).

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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).

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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.

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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.

Page 335: Civil Disobedience (1)

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).

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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.)

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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.

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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.

Page 339: Civil Disobedience (1)

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.

Page 340: Civil Disobedience (1)

- 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

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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

Page 342: Civil Disobedience (1)

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.

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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.

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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.

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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

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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.

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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.

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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.

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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.

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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

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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.

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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.

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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.

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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.

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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."

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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.

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"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.

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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.

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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).

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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).

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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

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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,

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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.

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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.

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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.

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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.

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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.

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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."

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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.

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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.)

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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.)

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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.

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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.

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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.

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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.

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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.

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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

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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

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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.

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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.

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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.

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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.

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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.

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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

Page 399: Civil Disobedience (1)

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.

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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.

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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.

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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.

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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.

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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.

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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

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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.

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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.

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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.

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"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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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

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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.

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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.

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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.

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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.

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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)

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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.

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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.

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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.

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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.

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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.

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[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.

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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.

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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.

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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.

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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.

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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.

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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.

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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

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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.

Page 440: Civil Disobedience (1)

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

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- 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.

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(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.

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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).

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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

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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.

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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.

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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

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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(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.

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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.

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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.

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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.

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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

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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.

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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.

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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.

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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.)

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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

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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

-----------------------------------------------------------------------------------------------------------------------

598

599

-----------------------------------------------------------------------------------------------------------------------

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."

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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.

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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

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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

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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.

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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?

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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.

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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.

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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

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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.

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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.

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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.

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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.

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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.)

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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.

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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).

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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-

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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.

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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.

Page 496: Civil Disobedience (1)

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.

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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.

Page 498: Civil Disobedience (1)

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

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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.

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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.)

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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.

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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,

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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".

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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.

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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.

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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.

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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

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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.

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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.

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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.

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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.

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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

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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.

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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

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(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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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

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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

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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.

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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.

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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

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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.

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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.

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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.

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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

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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.

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"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).

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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.

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(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.

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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.

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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.

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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).

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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.

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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.

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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.

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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

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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

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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)

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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

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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.

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(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).

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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.

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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.

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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).

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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.

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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).

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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.

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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).

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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.

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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.

Page 557: Civil Disobedience (1)

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.

Page 558: Civil Disobedience (1)

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).

Page 559: Civil Disobedience (1)

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

Page 560: Civil Disobedience (1)

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

Page 561: Civil Disobedience (1)

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.

Page 562: Civil Disobedience (1)

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.

Page 563: Civil Disobedience (1)

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

Page 564: Civil Disobedience (1)

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.

Page 565: Civil Disobedience (1)

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

Page 566: Civil Disobedience (1)

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

Page 567: Civil Disobedience (1)

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

Page 568: Civil Disobedience (1)

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

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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

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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

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{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

Page 570: Civil Disobedience (1)

------- "'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

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Page 595: Civil Disobedience (1)

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Page 596: Civil Disobedience (1)

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Page 597: Civil Disobedience (1)

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Page 598: Civil Disobedience (1)

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REPORTS AND OTHER DOCUMENTS

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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

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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:

Page 599: Civil Disobedience (1)

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"]

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Report"]

Report of the Commission of inquiry into [the] South African Council of Churches RP

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South African Defence Force National Service Information booklet Directorate Public

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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

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law" Grace and Truth 1988 vol 8 no 4 194

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disorders New York, Bentam Books 1968

ARCHIVES USED:

University of Pretoria Africana collection

University of South Africa, United Party collection

State Archives, Pretoria

Page 600: Civil Disobedience (1)

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.

Page 601: Civil Disobedience (1)

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.

Page 602: Civil Disobedience (1)

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,

Page 603: Civil Disobedience (1)

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.

Page 604: Civil Disobedience (1)

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.