A JURISPRUDENTIAL ANALYSIS OF CIVIL DISOBEDIENCE IN SOUTH AFRICA

by CHRISTOFFEL HENDRIK HEYNS MA LLB (Pret) LLM (Yale) Thesis submitted for the degree Doctor of Philosophy Faculty of Law University of the Witwatersrand Supervisor: Professor J D van der Vyver B Com LLB BA Honns (PU for CHE) LLD (Pret) Dip1 Int'1 s Comp L Hum Rts (Int'1 Inst Hum Rts, Strasbourg) Pretoria, October 1991

ACKNOWLEDGMENTS I wish to thank the following people and institutions for their support in writing this thesis: The Human Sciences Research Council, which provided financial assistance. My philosophy and law teachers at the University of Pretoria and Yale Law School, who stirred and shaped my thoughts over the years. My colleagues in the Faculty of Law, University of Pretoria, and especially my departmental colleagues, who have contributed to the eventual product. I am particularly grateful to Johann van der Westhuizen, for stimulating discussions, and Isabeau de Meyer, who did most of the typing, as well as the assistants at the Centre for Human Rights Studies, and especially Helen Fourie, Isiah Methlape, Ellen Nicol and Villiers Terblanche, who helped with the administrative aspects. The personnel at the Merensky Library also provided a friendly and efficient service. Professor J D van der Vyver, my supervisor, who, with his

encyclopedic knowledge of law, philosophy and politics, opened up new avenues of research and saved me from more mistakes than I care to remember, while still allowing me to take my own chances. Ek wi1 ook my familie bedank: my pa, vir sy voorbeeld van kritiese betrokkenheid, asook my vrou, kinders, ma, broers en skoonma, vir die ryk en verweefde lewensomstandighede waarin iets soos die voltooiing van n proefskrif betekenis het. Aan hulle, en danksy hulle, kan ek nou se: "Dit is klaar!" Christof Heyns

CONTENTS
ACKNOWLEDGMENTS CHAPTER ONE: INTRODUCTION CHAPTER TWO: DEFINING CIVIL DISOBEDIENCE: ITS ELEMENTS AND MANIFESTATIONS I. THE ELEMENTS OF CIVIL DISOBEDIENCE A. B. C. D. E. II. III. IV. A. B. V. VI. ILLEGALITY NON-VIOLENCE OPENNESS MOTIVATED BY CONVICTION POLITICAL ACT COMBINATIONS OF THE DIFFERENT TYPES OF CIVIL DISOBEDIENCE CAN CIVIL DISOBEDIENCE HAVE REVOLUTIONARY OBJECTIVES? DIRECT AND INDIRECT CIVIL DISOBEDIENCE CONSIDERATIONS RELATING TO THE LAWS OBJECTED AGAINST CONSIDERATIONS RELATING TO THE TARGET OF THE RESISTANCE 2 12 19 22 22 31 38 40 42 45 47 49 49 50 52 54 56 56 58 59 63 64 70 75 76

THE TERM "CONSCIENTIOUS OBJECTION" SCHEMATIC SUMMARY

CHAPTER THREE: HISTORICAL SURVEY OF THE DEVELOPMENT OF CIVIL DISOBEDIENCE I. II. A. B. C. D. III. A. THE ORIGINS OF ILLEGAL RESISTANCE TO AUTHORITY THE ORIGINS OF CIVIL DISOBEDIENCE AN INTERPRETIVE FRAMEWORK FOR THE HISTORY OF CIVIL DISOBEDIENCE DEFENSIVE CIVIL DISOBEDIENCE INDIVIDUAL, RESULT-ORIENTED CIVIL DISOBEDIENCE PLICATION THE MODERN DEVELOPMENT OF MASS, RESULT-ORIENTED CIVIL DISOBEDIENCE CIVIL DISOBEDIENCE IN SOUTH AFRICA

(1) (2) (a) (b) (c)

Early forerunners of civil disobedience Gandhian civil disobedience in South Africa Indians in South Africa in the late Nineteenth Century Legal resistance 1894 - 1906 Illegal resistance 1907 - 1914 Phase one: Refusal to register (1) Phase two: Refusal to register (2) Phase three: Unsuccessful negotiations Phase four: Satyagraha on a grand scale

76 78 79 83 95 95 97 99 103 105 107 108 118 124 125 132 137 152 152 158 163 166 167 167 168 169 179

(i) (ii) (iii) (iv) (d) (3) (a) (b) (c) (i) (ii) (iii) (iv) (v) (vi) (d)

Evaluation Civil disobedience in South Africa after Gandhi Phase one: The period before World War II Phase two: The 1940's Phase three: The Defiance Campaign of the 1950's Prelude to mass civil disobedience Rationale of the Campaign The Defiance Campaign Consequences of the Campaign Reaction of the white establishment Reaction of the black community International consequences Evaluation of the Defiance Campaign Civil disobedience in the African context. Weaknesses in the way in which the Campaign was conducted Nature of the adversary Black politics in the wake of the Campaign

Phase four: The violent underground struggle starts

(e) (f) B.

Phase five: External and internal resistance Phase six: Prospects of reconciliation and new resistance

180 186 188 189 190 195 198 201 203 206 212 212 212 213 214 216 217 218 220 220 221 222 224 224 224 225 228 232 235

GANDHIAN CIVIL DISOBEDIENCE IN INDIA (1) (a) (b) (c) (2) (a) (b) Campaigns conducted by Gandhi Phase one: The Non-co-operation Campaign of the 1920s Phase two: The Salt Tax Campaign 1930 Phase three: The Quit India Campaign Gandhi's philosophy of Satyagraha The sources of Satyaqraha Central features of Gandhis political thought

C.

CIVIL DISOBEDIENCE IN THE UNITED STATES OF AMERICA (1) (2) (3) (4) (5) (6) (a) (b) (c) (d) (e) (f) (g) (h) (i) (7) Civil disobedience by native Americans Religious civil disobedience Anti-slavery resistance Henry David Thoreau The Womens Rights Movement The Civil Rights Movement The Montgomery Bus Boycott 1955-1956 Little Rock 1957 The lunch-counter sit-ins 1960 The freedom rides 1961 Birmingham 1963 The March on Washington 1963 The Mississippi Summer Project 1964 The Civil Rights Act 1964 Martin Luther King The anti-Vietnam protests of the 1960s

D.

SOME OTHER INSTANCES OF MASS, RESULT-ORIENTED CIVIL DISOBEDIENCE

CHAPTER FOUR: CIVIL DISOBEDIENCE UNDER THE SOUTH AFRICAN POSITIVE LAW

I.

IMPLICATIONS OF THE CRIMINAL LAW FOR CIVIL DISOBEDIENCE A. B. THE PRIMARY OFFENCE SECONDARY IMPLICATIONS OF THE CRIMINAL LAW (1) (a) (b) (i) (ii) (2) (3) C. Sentences imposed for crimes of protest Statutory provisions for increased penalties The sentencing policy of the courts The era of white against white conflict The era of black against white conflict

235 236 237 237 237 240 241 243 254 254 256 257 257 258 265 265 269 270 284 288 289 291 291 292 292 292 293 294 294

Attempt to commit an act of civil disobedience Civil disobedience as a substantive crime

TERTIARY IMPLICATIONS OF THE CRIMINAL LAW (1) (a) (b) (c) (2) Incitement of civil disobedience Incitement to commit any offence Incitement to commit a political offence Proclamations prohibiting the incitement of natives Assistance of those engaged in civil disobedience

D.

OTHER CRIMES (1) (2) (3) (4) (5) (6) Treason Sedition Terrorism Subversion Sabotage Defeating or obstructing the course of justice

II. A.

EXECUTIVE POWERS AND CIVIL DISOBEDIENCE EXECUTIVE POWERS RELATING TO STATE SECURITY (1) (d) (i) (ii) Non-emergency powers Detention "Banning" of organizations "Banning" of -individuals

(iii) (2) (e) (f) B. C. III. A. B.

"Banning" of meetings

294 295 295 296 297 301 305 306 310 311 311 313 315 324 327 328 331 340 343 344 346 347 347 352 352 358 362 364

Emergency powers "Macro emergencies" "Micro emergencies"

CENSORSHIP AND STATE SECURITY EXECUTIVE LENIENCY FOR POLITICAL OFFENDERS CIVIL DISOBEDIENCE OF MEMBERS OF THE LEGAL PROFESSION THE GENERAL IMPLICATIONS FOR LEGAL PRACTICE OF EARLIER CONVICTIONS CONVICTIONS FOR POLITICAL OFFENCES (1) (g) (h) (2) Political crimes in general The era of white against white conflict The era of black against white conflict Civil disobedience

IV. A. B. C. D.

CONSCIENTIOUS OBJECTION TO MILITARY SERVICE THE LEGAL SANCTION OF COMPULSORY MILITARY SERVICE ILLEGAL CONSCIENTIOUS OBJECTION LEGAL CONSCIENTIOUS OBJECTION EVALUATION

CHAPTER FIVE: CLASSICAL VIEWS ON POLITICAL AND LEGAL OBLIGATION AND RESISTANCE I. WESTERN POLITICAL THOUGHT A. THE BIBLE (1) (2) B. The Old Testament The New Testament

GREEK PHILOSOPHY (1) (2) (3) Socrates and Plato Aristotle Stoicism

C.

ROMAN JURISPRUDENCE

D. E. F. G. H. I. J. K. L.

GERMANIC JURISPRUDENCE AURELIUS AUGUSTINE JOHN OF SALISBURY THE RE-EMERGENCE OF ROMAN LAW AND THE GLOSSATORS THOMAS AQUINAS CANON LAW PHILIP OF LEYDEN BARTOLUS OF SASSOFERRATO THE PROTESTANT REFORMATION (1) (2) (3) Martin Luther Jean Calvin The Vindiciae contra tyrannos

373 374 378 381 383 387 388 388 392 393 396 401 402 404 405 410 416 420 425 426 426 427 431 433 437 438 439

M. N. O. P. Q. R. S. T. U. V. W. X. Y. Z. AA.

THE REVIVAL OF THOMISM JEAN BODIN GROTIUS THOMAS HOBBES SAMUEL PUFENDORF JOHN LOCKE ULRICH HUBER GERARD NOODT CHRISTIAN WOLFF JEAN-JACQUES ROUSSEAU WILLIAM BLACKSTONE IMMANUEL KANT JEREMY BENTHAM GEORG W F HEGEL ANARCHISM

(1) (2) (3) (4) (5) BB. CC. DD. EE. (1) (2) (3) (4) (a) (b) (c) (d) II. A. B. III. A. B. IV.

William Godwin Pierre-Joseph Proudhon Michael Bakunin Peter Kropotkin Leo Tolsty MARXISM THE AGE OF REVOLUTIONS THE NATURAL LAW - POSITIVE LAW DEBATE CONTEMPORARY POLITICAL THEORY The social contract Utilitarianism The "duty of fair play" The "natural duty to obey the law" The "natural duty to support just institutions" Obedience based on necessity Respect for officials exercising authority An underived obligation to obey the law

441 442 442 442 443 443 445 448 451 452 454 456 457 457 459 459 460 460 461 462 471 474 475 479 482 482 483 486

THE CHRISTIAN CHURCHES IN SOUTH AFRICA THE 1914 REBELLION APARTHEID TRADITIONAL AFRICAN SOCIETIES THE "RITUALS OF REBELLION" REBELLION AND REVOLUTION CONCLUSION

CHAPTER SIX: THE STATE AND CIVIL DISOBEDIENCE I. INTRODUCTION A. B. THE TERM "DEMOCRACY" THE "ORIGINAL POSITION"

II. III. A.

THE RECOGNITION IN PRINCIPLE OF A STRONG RIGHT OF RESISTANCE THE CONDITIONS OF LEGITIMATE CIVIL DISOBEDIENCE THE SUBSTANTIVE STANDARD: BASIC HUMAN RIGHTS (1) (2) (a) (b) (c) (3) B. The primary criterion: the boni mores The secondary, alternative criterion: The types of convictions involved Integrity-based civil disobedience Anti-exploitation civil disobedience Policy-based civil disobedience Application

488 502 504 504 506 507 509 511 515 517 517 518 519 520 520 524 526 526

FORMAL CONSIDERATIONS (1) (2) (3) (4) (5) (6) (7) (8) (9) 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 527 527 528 532 533 534 535 535 536 538 538

social group C. IV. A. CONCLUSION THE LAW AND LEGITIMATE CIVIL DISOBEDIENCE THE NECESSITY DEFENCE AND CIVIL DISOBEDIENCE (1) (a) (b) (c) (d) (2) (a) United States law Relative severity of harm Reasonable alternatives Imminent harm Direct causal relationship South African law Legal interest endangered

(b) (c) (d) (e) B.

Threat commenced or imminent Necessary for the accused to avert the danger Proportionality of means and ends Duty to face the danger

540 540 540 541 542 547 552 559 565 600 602

CONSTITUTIONAL PROTECTION OF FREEDOM OF SPEECH (1) (2) Civil disobedience as a form of "symbolic speech" Advocacy of civil disobedience

CHAPTER SEVEN: CONCLUSION BIBLIOGRAPHY SYNOPSIS SAMEVATTING

CHAPTER ONE: INTRODUCTION There is a certain but of also dialectical civil logic in as the an and fact that not of only mass of

apartheid, beginning

disobedience that a

instrument perverse

political mobilization, originated in South Africa. It was here, at the the century, pervasive system 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 nonmilitary 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, Gandhis 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
2

civil is

disobedience in this

in

South that

Africa

can

be aims

placed to

and a

evaluated.

It

regard

this

thesis

make

contribution. Political resistance and its concomitant, political obligation, raises fundamental and universal issues. Human life reflects the tension

J C Smuts "Gandhi's political Archives, J D Pohl Collection 3.

2

method"

University

of

Pretoria

The most notable exceptions in this regard are Du Toit Staatsgesag en burgerlike ongehoorsaamheid; Wink Jesus' third way and Villa-Vicencio Civil disobedience and beyond. The primary focus of all three works, however, is theological.

between obedience and disobedience of different demands - mundane and transcendental, personal and social, those emanating from the id and those imposed by the super-ego. All these tensions, however, find their most visible manifestation in the relationship between the citizen and the state. What are the limits of individual autonomy? Does the individual have an obligation to obey the state, and if so what are the nature and limits of that obligation? To whom or what do we owe our most basic loyalty when we are confronted by a conflict between the demands of personal conviction and those of the state? These questions bring one to the intersection of some of the main preoccupations of the human spirit: politics, philosophy, religion and law, and it is in this wider context that civil disobedience has to be seen. What is needed from the which South will African place perspective civil is a multias it

disciplined

discourse

disobedience,

manifests itself here, in this bigger context. No single study can of course hope to achieve this. This thesis will attempt to establish the outlines of the relevant wider considerations, but will do so primarily with a view to the jurisprudential perspective in the South African context. The central question is: How should the South African state and more particularly the South African law treat civil disobedience? In addressing this question, however, the ultimate aim is not only to arrive at some conclusions regarding civil disobedience in South Africa, but also to gain a better understanding of civil disobedience as such. In fact, it could be argued that in order to understand the phenomenon of civil disobedience, an understanding of its role in South Africa is indispensable. There can be little doubt that the most developed body of jurisprudence on the topic of civil disobedience can be found in American literature. The method established by Gandhi in South Africa and India was soon taken up in other countries, but nowhere can his legacy be seen more clearly than in the United States of America, where Martin Luther King modeled the Civil Rights Movement on the Gandhian example. This campaign and others prompted a deep and sustained national debate, in which lawyers and philosophers played a leading role. The question should, however, be posed as to the extent to which the circle can be completed - that is, the circle from South Africa to India; from there to the United States and then back to South Africa. Can American jurisprudence provide the necessary insights in understanding and evaluating civil disobedience in South Africa? It

will be submitted that in significant respects it can not. American thinking on the subject was developed in a largely democratic society, where the rule of law is respected, and to a significant extent American perspectives are applicable to those conditions only. If South Africa is going to be a thriving democracy where people are to be ruled by the law and by the law only, direct comparisons with the United States might be appropriate. However, realism cautions that for a long time to come our society might still be one in which an ebb and flow of freedom and oppression will prevail. A more open approach to the - issue is needed. A "flexible" theory of civil disobedience must be developed which can be applied to less democratic as well as more democratic societies. In this regard it should be noted that the conventional wisdom that a right to resist exists in an undemocratic society, but not in a democratic setting, might be correct in abstracto, but it has little practical value because it is such a gross oversimplification. It will be argued that democracy entails two elements: universal franchise and the protection of individual rights. Because these elements are often contradictory, no society can be entirely democratic. At the same time it will be very difficult to find a state which is completely undemocratic. The American situation, consequently, represents only one point in this spectrum. A flexible theory of civil disobedience should make allowance for the whole range of possibilities. Any theory of civil disobedience has to address at least two questions: in the first place, what the definition of civil disobedience is, and in the second, under what circumstance civil disobedience can be justified: When does one have "a right to resist" by means of civil disobedience? Before these questions can be considered, however, the term, a "right to resist", requires clarification. A distinction may be drawn between having a "right to resist" in the weak and the strong sense of the word. 3 One has a right to resist in the weak sense when, given one's position, a certain protest action is "the right thing to do" but there is no corresponding duty on one's adversary to recognise and give effect to that right. One might think, for example, that it is "the right thing to do" for a prisoner of war to try to escape, but there is no duty on the warders to allow him to

See Dworkin Taking rights seriously 188fff

do so. Much of the discussion of civil disobedience applies on this level only. The issue is not whether there is a duty on the authorities to treat the resistor with leniency. It is natural to ask whether someone has a right to resist in the weak sense to if one in of approaches this state form the of issue of civil Our to disobedience perspective such from will acts the be and perspective of the agent - the person who has to decide whether or not engage resistance. who have different. Civil disobedience will - instead be seen primarily from the perspective officials evaluate determine what the response of the state should be. Our concern will be to establish the circumstances in which one has a right in the strong sense of the word to engage in civil disobedience. The recognition of such a right of resistance implies that there is a corresponding duty it will be called a "duty of leniency" - of the authorities to allow that resistance or at least to tolerate it to some extent. The aim is to establish some guidelines which will enable legal decision-makers the legislature and judicial officers who shape and administer the law - to evaluate acts of civil disobedience and help them to determine how lenient or severe their response should be. The present situation in South Africa is particularly conducive to an investigation into the legitimacy of political resistance. In most instances when this issue is considered, there is a natural inclination to make one's conclusions dependent on one's own particular interests. Almost inevitably people endorse a wide right of resistance if their own views are in opposition to those of the government, while those who in general benefit from the status quo entertain a restrictive view in this regard. At the moment, however, South Africa is almost in, what might be called, a Rawlsian "original position" - no one knows who is going to rule in five years' time, and whether he or she will be in the camp of the resistors or the resisted. In considering the question of justified resistance, one is therefore forced into the (in some ways unenviable) position where one cannot hold a brief for anyone, and, as far as this is possible, cannot help but to be "objective". And indeed, that win be the central point of departure of the present analysis: It will be argued that in order to arrive at a fair and just notion of what the nature and limits of political obligation are - and by implication when resistance would be justified - one has to ask what the view of rational agents should be if they had to answer that question from behind a "veil of ignorance", shrouding from them their

own special interest in the matter. It will be argued that people in such a situation will not require blind obedience to all political sovereigns. Participants in the original position would insist on some aspects of their lives being placed beyond the reach of government - for example, they would insist on a high degree of autonomy in respect of their religious convictions. On the other hand, it should be equally obvious that not everyone should be allowed to break the law whenever he wants to, even if he passionately believes that his conduct is justified ": at least not in a society as divided as our own. Those in the] original position would not want to live in an ungovernable society. How should the balance then be struck between anarchy and state absolutism? Evidently no rules of thumb can be given for answering such a complex question. There are simply too many variables which are impossible to quantify with any degree of precision. What is the level of respect for law in the particular society? How much individual autonomy and disobedience can the social fibre accommodate without suffering serious deterioration? What is the level of injustice of the prevailing system -that is, how deserving is the legal system of respect? At most one can hope to develop some the conceptual guidelines tools of on necessary civil how those to make of useful and to civil distinctions provide between different kinds disobedience, kinds

general

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 It is a of who will be in power, much it of is the inevitable that a large percentage of the population is going to be politically frustrated. sad prospect that 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 the will proceed "civil along the following will lines: be In the second its

chapter,

term

disobedience"

defined

and

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 and relationship "conscientious between the notions will of "civil receive disobedience objection also

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 regarding of civil way in disobedience which civil with a view to bringing clarity in the disobedience manifests itself

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 only to their legal source ramifications. of Extensive on the use has been made of of newspaper clippings of the time, since such clippings are often the available information particular periods history under consideration. The lengthy historical survey might seem disproportionate in a jurisprudential inquiry, but it is considered necessary to fully canvass the "raw material" basic to the philosophical investigation into the present subject matter. In the fourth chapter the South African positive law relating to civil disobedience comes into the spotlight. The implications in respect of acts of civil disobedience of the criminal law and the powers of the executive are considered, as well as the effect of participation in acts of civil disobedience on a person's legal competence to practice law. The legal provisions relating to conscientious objection to compulsory military service are also discussed. Chapter five deals with the perceptions regarding political obligation

and resistance of some of the most important contributors toward the shaping of Western and South from the religious scientists attention. In chapter six the question how law should respond to civil African culture. The message emanating Bible, some perspectives from the Roman and Roman-Dutch law, leaders, and the the main approach South of some contemporary and political of the

the views of the great philosophers - political and otherwise - and of African churches, some

practices of traditional African society in this respect, will receive

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 the right that crucial of there resistance is such is should a then in principle under what be recognised. Assuming right certain those

circumstances,

question

asked

circumstances are. On the basis of a critical appraisal of some ideas of Ronald Dworkin, a model is proposed which, it is believed, is more flexible and intuitively more acceptable than most other approaches. Thirdly, the issue is addressed what mechanisms legal decision-makers can use to bring relief to those who have engaged in civil disobedience, in cases where it has been established that a strong right to engage in civil disobedience should be recognised. In chapter seven a summary of the most important conclusions is given and their interrelationship and wider implications are considered.

CHAPTER TWO: DEFINING CIVIL DISOBEDIENCE: ITS ELEMENTS AND MANIFESTATIONS Some of the many activities loosely referred to as civil disobedience, have been practised for many centuries. However, it is only since the last century that the term "civil disobedience has come to be used. 1 Although there might be an intuitive understanding of what the term implies, no general consensus exists amongst persons usually regarded as practitioners of civil disobedience, 2 political philosophers, 3

The 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. See 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). According 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
3 2

sociologists 4 and jurisprudes 5 who considered the issue as to what the essential necessary elements to give of civil disobedience of what is are. meant It by is the consequently term "civil definition

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 various in question. of The terminology necessary will to distinguish have to the be kinds civil disobedience consequently

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." Gene 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. Few 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.
5 4

identifying its different manifestations. A later chapter will deal with the question as to the possible justification of acts of civil disobedience. justification, decision-maker It as must is far in important as the that the be issues dealt be able of to definition separately. identify in and The as possible, first with

place

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
7

is

called,

"minimal"

definition

of

civil

disobedience;

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

Zinn 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 nonviolent. 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.
7 8

See Du Toit The Black Sash May 1973 6 at 9.

Brown The Journal of Philosophy 1961 669 at 680 remarks, with reference to some examples of protest actions which he believes will commonly be called acts of civil disobedience: "Call them what we will, there is a class of illegal acts which differ characteristically

question must be asked which elements would highlight the truly unique nature of civil disobedience, as far as without is rendering accord that with concept the too isoteric. At the same time, the technical meaning of the term civil disobedience should possible 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."
9

See Rawls A theory of justice 364 and Cohen Civil disobedience 4.

whereby the government is openly defied, attacked or ridiculed, are not acts of civil disobedience if they are not also unlawful. The mere fact that ones 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 violent of "lydelike of verset", protest, which are often used to signify from noncivil methods should be distinguished

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", ones 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

Christa 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.

10

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 to the where the executive of the has far-reaching cannot be discretionary powers. In such cases the question whether someone has subjected himself coercive powers state 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 states 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 civil interpretation the the term "i1legal" how is used to identify disobedience question arises narrowly this

criterion should interpreted. When exactly in such circumstances can certain conduct be described as "illegal in the technical sense the word? In most cases the answer to this question raises few problems, at least for those with some legal knowledge. If unambiguous and uncontroversial Act of Parliament states that it is an offence to demonstrate within the proximity of the Houses of Parliament, it is clearly illegal to do so. A problem will arise, however, in cases of so-called "doubtful

law" 11 - that is in cases where the question whether certain conduct which is prima facie illegal is in fact to regarded as illegal, can be the subject matter of a bona fide debate between reasonable lawyers. In the event uncertainty regarding the illegality of certain conduct, question will arise as to whether or not such conduct co be described as "illegal" for purposes of the definition civil disobedience. At least three situations in which the problem of doubt law" might arise, should be distinguished: In jurisdictions where a justiciable Bin of Rights in operation, legislation and administrative acts which are prima facie legal may be declared invalid if they violate any provision of the Bill of Rights; Subordinate legislation may be invalidated in terms the

directives of administrative law (for instance such legislation is found to be ultra vires unreasonable); and Acts which are prima facie illegal may be shown to be legal on the basis of one of the grounds of justification of the criminal law (for example necessity or consent). For purposes of a definition of civil disobedience, one could approach the question as to transgressions of "doubtful" laws from different perspectives. If a narrow interpretation of the term "illegal" were to be preferred, it would mean that transgressions of doubtful laws will not constitute civil disobedience, whereas a wide interpretation of that concept might lead to the opposite conclusion. According to the narrow approach, which is preferred by most American writers on the subject, civil disobedience involves an extra-legal appeal to morality, not an intra-legal appeal to a stronger rule of positive law. 12 The civil disobedient makes the claim that his conduct is legitimate, not that it is legal. Transgression of "doubtful laws" consequently does not qualify as illegal" conduct for the purpose of the definition of civil disobedience. Seen from this perspective, the idea of "legally justified civil

11 12

See Dworkin Taking rights seriously 208.

See W L Taylor "Civil disobedience: Observations on the strategies of protest" in Bosmajian Dissent 86 at 87 and Arendt Crises of the republic 53

disobedience is a contradiction in terms. Civil disobedience is by definition unlawful, and if ones 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 movement."
16

wholly

inapplicable

to

the

efforts

of

the

protest

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

See 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."
14 15

13

See Black Texas Law Review 1965 492 at 496.

One of the leaders of the Civil Rights Movement called their actions "civil obedience". See Freeman Indiana Law Journal 1965/66 228 228.
16

Marshall Virginia Law Review 1965 785 at 795.

conscience justified the acts of protest, because in the majority of cases he was in fact not breaking the law. The legality of his acts was clearly established in subsequent Supreme Court cases. In similar vein, Charles Black argued that much of the defiance of segregation ordinances in the Civil Rights Movement merely had the "flavor of disobedience". Because the illegality of the ordinances evidently appeared from the constitution, "the Movement preaching were and too "engaged and busy" to defiance of law was all that what at they all. were Black

on the other side." According to him the leaders of the Civil Rights note practising was not civil disobedience

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

17 18

Black Texas Law Review 1965 492 at 496.

See Dworkin Taking rights seriously 211. The most famous United States example in this regard is probably Brown v Board of Education 347 US 483 (1954), in which Plessy v Ferguson 163 US 537 (1896) was overruled. See also the "Flag salute" cases, discussed infra chap three III C (2).

answer

to

the

question

whether

or

not

one

is

dealing

with

civil

disobedience is relegated into infinity. This manifestation of the narrow interpretation of the term "illegal" is consequently not conducive to developing an approach to the question of civil disobedience that would allow the decision-maker to evaluate events as they occur. In fact, what would be required if this approach were to prevail, would be to wait until the conduct has beer evaluated before one could acquire the conceptual tools needed to evaluate it. The other possible way in which to apply the narrow approach is to regard the ex ante. subjective beliefs of the people involved in the protest whether as or the is decisive certain entirely factor. to bi This in would fact mean that a the as view question "civil to the not conduct qualifies with

disobedience"

determined

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 by clearly some distinguish simply might principle between be from Why it an moral legal legitimacy actions moral.
19

and are An

juridical justified additional actions

legality. problem often

They higher that highly

believe

that

their or

arise

entirely the

subjective conduct of

approach, is that peoples beliefs concerning the legality of their are unreasonable. should 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

Barkan 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.

19

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 be declared in force at or the critical In time order have to in been qualify the sense violated, as civil it irrespective of whether, subsequently, those provisions are likely to invalid one's inoperative. must be disobedience conduct "illegal" that

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 state. is
20

that

protester to the

who

runs

the of

risk

of

breaking the wrath

the of

law the

subjects

himself

possibility

provoking

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

See 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.

20

appeal is made to the highest norms of the positive law. These are the "assertion of acts of of rights"-cases, prevalent This in type the of Civil civil Rights Movement and which some American commentators now deny the status civil disobedience. 21 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 involved 22 - the distinction between, what
23

might

be

called,

positive

and

negative

civil

disobedience.

The 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. See also the distinction made by Bedau The Journal of Philosophy 1961 653 at 654. The 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
23 22

21

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. On the reasons why law is normally obeyed in society, apart from compulsion, see Sharp Power and struggle 8ff. For 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.
26 25 24

See also Cohen Rutgers Law Review 1966 1 at 3.

difference

between

the

two

cases

that

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 ones adversary; "nonviolence" entails the absence of such use or threat of force. 28 Non-violence is consequently the wider term and can encompass noncoercive as well as certain coercive acts. 29 Someone who blocks the entry to a building, slows down the traffic, sails into a nuclear testzone or stages a sit-in in someones 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

See 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. Perhaps 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.
29 30 28

27

See also MacGuigan The Canadian Bar Review 1971 222 at 271.

On non-violent coercion, see Sharp The dynamics of nonviolent action 741ff.

certainly appears to be more basic to our inquiry, since it signifies the two fundamentally different ways in which one can move an opponent to change: that is, through persuasion and compulsion. From the purists 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 present, at persuasion; would no and if there be is any element with of compulsion one longer dealing 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 noncoercive. 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 nonviolent resistance, the compulsion is more subtle - less physical and more moral. Nevertheless the coercion in such cases might in fact be

M 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". Gandhi 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.
32

31

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 opponents 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 it moral, direct or indirect it had might to be be disqualified that the as civil disobedience, this category of protest would be so small as to render insignificant. Moreover, true 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

Consider 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.
34 35

33

See Gandhi Non-violent resistance 291.

A careful study of some of the civil rights protests in the United States has suggested that the conditions for the success of such forms of "direct action" are the following: There must be a "dilemma", in the Gunnar Hyrdal sense of the word. That is, there must be some gross direct conflict between social reality and the generally professed values and goals of society. In order to activate people - to bring them to appreciate the dilemma and to make it a matter of priority - a crisis must be created. This can be done by causing disorder. Civil disobedience, without direct coercion, can serve this purpose. The elite's fear of disorder then moves them to action. See Von Eschen et al The Western Political Quarterly 1969 309 at 322ff.

would be the case with "blocking the way" and "throwing a bomb". It is submitted that the more practical approach is to regard noncoercion 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 of of is driven The is by the base-structure or by the or the more basecan material spiritual the conditions aspects living. super-structure determined that the the

living namely

entirely belief
36

structure. Civil disobedience in its purest form proceeds from exactly opposite premise, the spiritual significantly influence the material.

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 able to cause if the his after of such postponement actions the in of the test terms Nevertheless, their practical has what sense of him being for a few leave it hours. those for The still

engaged in the testing free to choose whether or not to continue with business aim protester is been removed, can
37

practical purposes be regarded as an act of civil disobedience. primary conduct Bertrand Russell

calls

36 37

See infra chap five I BB. See Bedau The Journal of Philosophy 1961 653 at 657.

"propaganda", 38

directed

at

an

acquiescent

or

uninformed

public.

In

reality, the objective is to persuade and very little coercion is used. It should also be borne in mind that during campaigns of political resistance passions often run high and spontaneous violence at the instance of the disobedient or their sympathisers can erupt, especially if demonstrations an act are of of subdued violence civil by or force. The a outbreak not violent of minor unforeseen transform although incidents coercion into does necessarily uprising,

disobedience

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 eventuality 40) also does not imply that violence is an element of the conduct of the by protesters the state. the The foreseen requirement violence of is then violence perpetrated 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 actions factor might worth not considering actual is the fact that highly coercive (non-

involve

violence.

For

example,

the

violent) blocking of a citys highways might disrupt the community more than would the (violent) sabotage of the citys electric lines. At a certain point such conduct should no longer be regarded as acts of civil disobedience, remain although sensitive no to violence the fact is that used. if the One should consequently 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

38

See Russell "Civil disobedience" in The New Statesman Feb 1961

245. In 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. See the discussion of the campaign at the salt-works in India, infra chap three III B (1)(b).
40 39

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, can in a inter By alia through way the use of force) about and the the authority protesters (or legitimacy). very acting non-violently raise themselves,

dramatic

questions

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

41 42

See infra chap three III A (3)(c)(ii).

To put this point more technically: Governments as well as their opposition usually depend for their effectiveness on a mixture of authority and control; legitimacy and coercion. (On the multiplicity of legal systems in society, see Pospisi1 The Journal of Conflict Resolution 1967 2.) The less the authority at the disposal of any one of these institutions, the more it will be compelled to depend on control in order to achieve its goals. There is, consequently, a direct inverse relationship between authority and control within each grouping. There is, however, also a direct relationship between the control exercised by one institution and the authority of the other. The more excessive the violence of the state becomes, the more the legitimacy of its opposition would increase, and vice versa. Civil disobedience by the opposition alms precisely at inciting the government to use excessive force, whereby the legitimacy of the opposition can be increased. For this reason civil disobedience is sometimes described as a form of "moral or political jiu-jitsu". See

To

conclude

this

part

of in

the

discussion, cases he

it

should

be

noted the use

that of

someone like Thoreau was often said not truly to have been a civil disobedient, violence.
43

because

certain

propagated

It is true that he did not consistently propagate nonin other cases was the method of civil disobedience. A

violence. This, however, does not detract from the fact that what he propagated 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 acts meet one the does
45

other not

requirements,

they

are the

practising idea of

civil

disobedience. Rawls noted that "by taking part in civilly disobedient foreswear indefinitely forceful resistance." 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 Nonviolent 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."
43 44 45

See Infra chap three III C (4). See Gandhi Non-violent resistance 223.

J Rawls "The justification of civil disobedience" in Beauchamp Ethics and public policy 132 at 139.

the illegal deed must be committed in the "public forum" (the streets, parks, etc 46); 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
48

-with

an

incentive

not

to

abandon

the

dictates

of

morality. The

element

of

openness

helps

to

ensure

that

civil

disobedience
49

acquires the disposition of a two-sided communication act.

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
50

act,

something

which

becomes part of the communitys public life.

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

46 47

See Alien University of Cincinnati Law Review 1967 1 at 5.

Cheating with taxes because one disagrees with its application can consequently not constitute civil disobedience. This does not imply that clandestine acts cannot be consciencebased. See the example of the illegal abortion performed for purely altruistic reasons, discussed in Wasserstrom The Journal of Philosophy 1961 641 at 645. As to the communicative aspect of civil disobedience, see HA Bailey "Confrontation as an extension of communication" in Bosmajian Dissent 181. See 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.
50 49 48

democratic character, in the sense that an appeal is made to the body politic to reconsider its position. The self-imposed to vulnerability their question of here the is civil to not disobedient the who is level forces of his the

adversary

elevate The

conflict

moral

consciousness.

physically

strongest, but instead who is morally more powerful. Hence Rawls saw civil disobedience as "a political action which addresses the sense of justice measures honored." The of the the majority and conditions in to order warn of to urge in reconsideration firm opinion are not of of the the protested
51

that social

the

dissenters

co-operation

being

element

of

openness the

makes

it

part

of not

the

definition try

of to

civil evade

disobedience

that

protester

should

actively

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 Ones convictions or lesser are, of course, often influenced, by ones or even to a

greater

extent

determined,

own

self-centred

interests. In fact, most of the participants in the classic examples of

J Raw1s "The justification of civil disobedience" in Beauchamp Ethics and public policy 132 at 132.
52 53

51

See also Dworkin A matter of principle 115. On the meaning of the term "conscience", see Burger JCRDL 1991

512.

civil disobedience that will be considered in the historical section, had a personal interest in the positive outcome of their respective campaigns. Nevertheless, convenient as or civil disobedients It
54

they

also of

maintained the civil

that their aims were objectively and morally justified, and not merely subjectively desirable. is typical disobedient to act on behalf of a group.

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 i) a view to ii) a sliding opinion scale on the of importance to the those individual in power

concerned, one could distinguish convictions which form part of ones integrity; question whether 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 ones "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
57

conscience

par

excellence

or

ones

"ultimate concerns".

As will be demonstrated hereafter. Western time professed that only religious

thinking for a very long

values could be of such importance in peoples lives. However, the modern understanding of freedom of conscience brought with it

See Weingartner Columbia University Arendt Crises of the republic 76.

55 56 57

54

Forum

1966

38

at

39

and

See infra chap six III A. See Dworkin A matter of principle 102. See infra chap four IV C.

greater recognition of the basic role which secular beliefs can play in peoples 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

58 59

See infra chap four IV. Compare the facts of S v Pretorius 1975 2 SA 85 (SWA).

because the

disobedient believes that the government leaves him no

choice but to ignore its enactments, or because he exerts himself to challenge the government. Politically motivated acts can be either defensive, in the sense that the person concerned refuses to comply with a particular legal requirement because he considers that requirement to be wrong, but he has no intention of bringing about any changes; or they can be resultoriented, 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 persons 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 ones 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 Jehovas 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

See Smith Fordham Law Review 1968 707 at 719. Gandhi used the terms "defensive" and "aggressive" civil disobedience. See Gandhi Nonviolent resistance 175. There is, so to speak, at the most dolus indirectus to confront the authorities. MacGuigan 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.
63 62 61

60

See Potgieter & Munnik Militere dienspllg en dienswelering 13.

law in order to make a statement. He, so to speak, "goes out of his way" to "seek confrontation". 64 The action is consequentialist; it is aimed at bringing about a specific social effect. Any one of the major campaigns of civil disobedience that will be discussed could serve as an example of this type of civil disobedience. Gandhi rejected the term "passive resistance" as a description for his own acts of defiance, because he regarded his approach as active and confrontational. 65 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 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 this form. To Gandhi, for example, civil disobedience was "a terrifying synonym for His civil disobedience was consequently result-

As to the meaning of the term "confrontation" in this context, see R L Scott SDK Smith "The rhetoric of confrontation" in Bosmajian Dissent 170. See Gandhi "The theory and practice of passive resistance" in Golden number of "Indian Opinion" 1914 9.
66 67 65

64

Gandhi Non-violent resistance 69.

See R A Ball "A theory of punishment: restricted reprobation and the reparation of reality" in Brantingham & Kress Structure, law, and power 135 at 143. The same can be said of war. See Reisman Folded lies 24.

fence, either we are not as good as we thought, or there must be something wrong with the fence. Even if the actual punishment is negligible, civil disobedience can consequently be deeply disturbing and may provide those in power with a strong incentive to change the system. Resistance which provokes, or attempts to provoke, this type of reaction will be called non-sacrificial civil disobedience. II. COMBINATIONS OF THE DIFFERENT TYPES OF CIVIL DISOBEDIENCE

Both defensive and result-oriented civil disobedience can in principle be either integrity-, justice- or policy-based, and in each case it could manifest itself as positive or as negative civil disobedience. In practice, as should be evident from the historical overview, positive civil disobedience is typically result-oriented (as is the case for example with participation in illegal demonstrations), but it can also be defensive (for example someone like Daniel in the Old Testament who prays to his God even though it is prohibited). Negative civil was disobedience, on the other hand, will mostly be defensive (as

the case with Daniel's friends who refused to bow to strange gods when ordered to do so), but it can also 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, termed neither what we have called, civil positive civil It is of disobedience submitted the term as that "civil disobedience proper, while others (ii) confine its meaning to what was result-oriented of these disobedience. 68 of the limitations meaning be result-oriented (as in the Defiance Campaign of 1952, when black South Africans refused to carry

disobedience" should be applied. Limiting the definition of civil disobedience to those cases where one positively does and something which It is is prohibited by law is both as is impracticable unwarranted. impracticable because,

generally accepted in criminal law and the law of delict, a watertight distinction between a positive and a negative act cannot always be

See 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.

68

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
70

acts

of

disobedience can qualify as civil disobedience?

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 present the disobedience with to justify the such same a distinction. namely They open state essentially problem,

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 types regarded or as the basis of of differentiation disobedience. between different manifestations civil

See Snyman Criminal law 42. See also, in respect of delict. Van der Merwe & 01ivier Die onregmatige daad in die Suid-Afrikaanse reg 29. See eg Raz The authority of law 264, who claimed that civil disobedience must be "designed to have a public effect".
70

69

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
73

as

the

term

"revolution" is used to signify qualitative change.

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

See 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."
72 73

71

See infra chap three III C (4).

The distinction between revolution, which is aimed at replacing the existing system, and rebellion, which is aimed at replacing the personnel of the system, was first drawn by Aristotle The politics 8.1. For other definitions of this term, see Calvert Revolution 16 and Friedrich Revolution 5.
74

It will later be demonstrated that while he was in South Africa,

were to be circumscribed in such a way as to exclude some of its most well-known examples. 75 Alternatively, it could be said that application of the American approach to these circumstances would have required those who used civil disobedience first to accept the legitimacy of their opponents rule. That is clearly absurd. It is submitted system" that as such a conclusions American would reflect a confusion cannot be

regarding the meaning attached by the American writers to the term "the existing whole. to jurisprudence where transferred uncritically other jurisdictions 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 resultoriented civil disobedience can be distinguished with a view to the range of the laws objected against: 77 Reformatory Civil Rights civil disobedience, is an which of is aimed type against of a

particular law or laws or an aspect of the social system. The Movement example this 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.
75 76

See Arendt Crises of the republic 77.

See A Cox "Direct action, civil disobedience, and the constitution" in Cox et al Civil rights, the constitution and the courts 2 at 12. See Sharp The methods of nonviolent action 316. See also Martin Ethics 1969/70 123 at 125 and Macfarlane Political Studies 1968 335 at 335.
77

disobedience, as well as Gandhis 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. Gandhis 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 disobedience in the first sense of the word occurs when

Direct civil

the agent violates a law because he believes that particular law to be unjust. Such civil disobedience can either be positive or negative, defensive or result-oriented. Indirect civil disobedience, on the contrary, takes place when the

agent breaks a law, not because he believes that particular law to be unjust, but because by doing so he objects against another aspect of political life, such as another law or laws, certain governmental

policies, the entire governmental structure, etc. Indirect civil disobedience requires "going out of ones 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 will or her should be be explained. the "civil In either the at, (i) The person of we practising or will civil the her or disobedience "disobedient" disobedience "target". The called is be disobedient" case what the simply call,

"protester". conduct can

result-oriented adversary

directed

target

direct

"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

See 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).
79

78

See infra chap six III B (2).

aim of civil disobedience is primarily to bring about a change of heart in the opponent without any outside interference. Indirectly addressing the opponent occurs when civil disobedience is primarily aimed at mobilising supporters or persuading a "benevolent background force" to in a positive way exercise its leverage with the adversary. 80 Protesters often make use of indirect civil disobedience aimed at a benevolent operate success, as on background a form of exposing force, the because civil it between disobedience is dependent, and pretense can for only its imminent critique:

difference

reality,

between the values the target professes to adhere to and his actual deeds. Civil disobedience works like Platos 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 mobilise (in the the case of India); against it his can be Thoreau opponent, who the wishes to electorate direct 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 protesters actions essentially remain persuasive in the sense that the third party is persuaded and not coerced into

80 81

See Sharp The dynamics of nonviolent action 659.

Ndabaningi Sithole observed in 1966: "Nonviolence is an appeal to the moral conscience. If the 'powers that be' have no moral conscience, nonviolence is left without any power whatsoever." See his observations contained in Davis & Baker Southern Africa in transition 240.

acting against the opponent. V. To THE TERM "CONSCIENTIOUS OBJECTION" 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
83

conscription,

those

who

qualify

for

alternative service.

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

On 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. Cohen Civil disobedience 41 regarded the term "conscientious objection" as a special expression, generally observed for "acts entirely within the protection of the law".
83

82

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 is civil always disobedience and

conscientious objection on the basis that, while both involve illegal action, civil disobedience 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 "conscientious civil disobedience" would
85

only, cover,

and what

the was

term

objection"

then

called,

"defensive civil disobedience".

It is submitted that all three approaches are too narrow properly reflect In the common usage of we the term as objection". ordinary discussions regard

and do

not

"conscientious conscientious qualify for

objectors those who qualify for alternative military service (who are excluded by the first view) as well as those who do not 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.

84 85

See Bedau The Journal of Philosophy 1972 179 at 181 n 3. This approach was considered supra chap one II.

VI.

SCHEMATIC SUMMARY

CIVIL DISOBEDIENCE ("cd") Elements of cd Mainfestations Legalimacy-based cd Legality-based cd Illegality Positive cd Negative cd

Coersive cd Non-violence Non-coersive cd Openness Religious Integrity-based cd Secular Motivated by conviction anti-exploitation cd Policy-based cd Defence cd Political act Result-oriented cd Non-sacrificial sacrificial

Other manifestations of cd Reformatory cd Anarchic cd Revolutionary cd Non-anarchic cd Direct and indirect cd: Direct cd, which involves a direct breach of the laws objected against Consinderations regarding the laws objected against Indirect objection cd, through is which

expressed

against certain laws by means of breach of unrelated laws

Cd

which

directly

addresses

the adversary Considerations regarding the target Cd which address indirectly, ones or a by the by own working

adversary mobilizing constituency through

benevolent

background force CONSCIENTIOUS OBJECTION (co) Illegal co (a form of cd) Legal co (not a form of cd)

CHAPTER THREE: HISTORICAL SURVEY OF THE DEVELOPMENT OF CIVIL DISOBEDIENCE In this chapter the historical development of against this the background the of the will origins be on of the civil disobedience, seen illegal resistance of to

authority, will be considered. In accordance with the general focus of study, emphasis development 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 represents myths our the entangled of web of fact and fiction of which the understanding our origin. Irrespective

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.

See 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.
2 3

Smith & Weisstub The Western idea of law 120.

H Frankfort & H A Frankfort "Myth and reality" in Fankfort et_al Before philosophy 11 at 15.

Few other subjects have generated so much interest through the ages as authority and humankinds 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 .humanitys earliest ancestors broke Gods 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 Zeus, stole fire, the basic For
6

requirement done

for

civilization,

from

the

supreme

god.

having

this,

Prometheus was subjected to the most severe pain.

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 Bibles 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.
5 6

Genesis 2 & 3. Aeschylus Prometheus bound. See the introduction by G Murray at

9ff.

variety of appeals to our obedience. Where the demands of the state, the church, our peer group and our conscience conflict, one often does not have the choice whether to disobey, but simply whom to disobey. Obedience to one order often entails disobedience to the others. In this sense disobedience is an inevitable and central feature of the human condition. Perhaps the most important message emerging from these myths is the fact that, although Adam and Eve and Prometheus tempted divine authority, their actions did make considerable human progress possible. Adam and Eve gained the knowledge of good and evil, which lies at the basis of an ethical society; while Prometheus gave his society the gift of fire, one of the preconditions of civilization. For this progress they did, however, pay dearly. The the "moral" price". seems In to be that it is possible which to make progress by

deviating from the established norm, but only if one is willing to "pay the dialectical process 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, will namely be sacrificial, discussed in result-oriented more detail. civil the disobedience, moment it is presently For

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. Resultoriented civil disobedience has a much shorter history and was practised initially only by a small number of extraordinary individuals. It was

See eg Gandhi's observation that civil disobedience is a "terrible synonym for suffering" (infra chap three III B (2)(b)) and Lutuli's comment: "No cross, no crown" (infra chap three III A (3)(c)(ii)).

only

at

the to

beginning engage the in

of

this

century

that civil of

the

masses

could

be

mobilised differences

result-oriented patterns

disobedience. and

These result-

historical developments will now be traced. It will be argued that the in developmental defensive 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 peoples 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 ones goals, associated with a particular form of protest, the less attractive such protest becomes. The fact that defensive civil disobedience has been practised throughout history by groups and individuals, but mass result-oriented civil disobedience was practised in this century for the first time, can be explained in terms of this truism. It was noted earlier that civil disobedience is a form of immanent critique which can only be effective against a morally sensitive target. Insofar as the objective is to change the behaviour of the adversary, it follows that practising this form of protest only makes

sense in a situation where the target is susceptible to moral pressure. Defensive civil disobedience is mostly encountered where the objective is to preserve ones 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 resistors 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, basic convictions to be by any number of people who consider their 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 resultoriented 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, resultoriented resistance becomes attractive, because the chances of "success" in bringing about the envisaged change might then become big enough to offset the personal cost, namely the punishment likely to be imposed. Conversely, if the prospective target is considered ruthless, result-oriented civil disobedience becomes unattractive. This form of resistance is consequently historically determined. The term "success" in the above exposition should be given a wide

meaning. Since we are dealing with political resistance, which often takes the form of attempts to have one set of values prevail over another, it is submitted that not only immediate positive results should count as success, but also the setting into motion of a process that will probably eventually bring about change, even if that change is not witnessed by the agent himself. In this context, even martyrdom might be regarded as "rational" if the person concerned considers change as sufficiently crucial and martyrdom is a likely way in which it can be effected. How, then, does the historical outline of the development of resultoriented 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 the of time the disobedient ruthless was and also unlikely to to exercise outside a positive influence on the opponent, either immediately or later. The rulers of were insensitive moderating influences. Because of their likely reaction, they were either resisted by the use of force or disobeyed in secret, or both. Only when visionary individuals at the beginning of our year count perceived the emergence of a new, kinder order, would they engage in result-oriented civil disobedience. The isolated instances of disobedience, exemplified by the actions of a Socrates or the heroes of Christianity, indicates that such conduct must have been rare indeed. Such persons often had to pay the highest toll without witnessing the eventual success of their ideals. Not surprisingly, the masses could not be persuaded to do the same. Given the strength of their convictions, it was rational" for these individuals to engage in civil disobedience, even if they were to pay the highest price. To the less idealistic masses the chances of success, measured against the likely punishment to be imposed, were still too remote. Result-oriented civil disobedience became a realistic option to the proverbial person in the street in the Twentieth Century. It is submitted that only in this century people like Gandhi and King could mobilise ordinary people with family and other commitments to engage in non-violent protest, because, due to the new emphasis on human rights and the development of enforcement mechanisms, the prospects of success

of civil disobedience became significantly higher, and the probable punishment less extreme. At least in two respects there was a dramatic increase in the global human rights culture and the level of moral activism in the Twentieth Century. universal ones In the first place, and this century saw the introduction protection They of of of were franchise meaningful institutional

individual rights. Inevitably, the more liberal governments were the confronted with civil disobedience to render campaigns. the practice sufficiently morally sensitive result-

oriented civil disobedience feasible. At the same time, important events also occurred on the international front. In this or century, for the first time was in history, a "global was village" international community established. This

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 at to exists would least make probably in civil be naive cases, and on a totally fairly be misplaced. widespread Nevertheless, goodwill some sufficiently

disobedience

widespread level feasible and likely to obtain results. As win

illustrated, it was only when the opportunities offered by these new developments were pointed out to the masses by people like Gandhi, that

mass civil disobedience was practised. With this interpretative of the framework of in the mind, a general types historical of civil

overview

development

different

disobedience will next follow. B. DEFENSIVE CIVIL DISOBEDIENCE illegal it is political interesting resistance to note in that antiquity the (and in fact of

Although interest,

throughout history) was often violent and motivated by narrow selfoldest example 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, Sophocles Antigone -considered by many to be the archetype of civil disobedience
11

- defied King Creons 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 Creon: I didnt 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 before Creon. She showed few signs of repentance and told

For an account of the origins of political revolution in Egypt, see Calvert Revolution 16ff.
9

Exodus 1.17. Exodus 1.19. See eg Cover Justice accused 1. Sophocles Antigone lines 555-561.

10 11 12

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 normally entails regarded the as sacrifice an for a certain cause such of as something liberty,

unqualified

human

good,

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

In Greek "martyr" means "witness". For a discussion of the proper translation, see Vivian St Peter of Alexandria 216. See Reisman Emory Law Journal Weisstub The Western idea of law 129.
14

13

1983

499

at

519

and

Smith

&

discard

cause

for

which

someone

died,

for

to
15

do

so

could

be

tantamount to discarding the value of life itself.

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 JudeoChristian 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 established. Throughout bring the sacrifice. The point had been history, Abraham served as an made - the supreme position of the God that would unify Israel had been Jewish inspiration and a reminder that ones ultimate loyalty should be to

15 16

See Heyns Die Suid-Afrikaan April 1989 43 at 43. Jop1e Fourie and

In the South African context people like Steve Biko were victims rather than martyrs.
17

See Genesis 22.

that which unifies the group and not to ones 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 Christs 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 Platos 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

18 19

See Reisman Emory Law Journal 1983 499 at 517.

For interpretations of the meaning of the martyrdom of Christ, see Horbury & McNeil Suffering and martyrdom in the New Testament 9, 70, 118. For 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.
20

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 been to have a similar fate had done 21); the second possibility had 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, obedience whatever to the the state provocation and all is." 24 its He argued since that one owes on laws, "any Athenian,

Aristotle 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. See Plato's Socrates 44 B.
23 22

21

"Crito",

reprinted

in

Plato

The

last

days days

of of

See Plato's "Apology", Socrates 71 at 72.

24

reprinted

in

Plato

The

last

Id 48 E.

attaining to manhood and seeing for himself the political organization of the state and ... its laws, is permitted, if he is not satisfied with [it] to take his property and go away wherever he likes." 25 To escape would have involved the breach of a covenant with the state to obey all its laws, even when occasionally they work to ones 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
26

no

force

but

are

nullified and destroyed by private persons?"

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

25 26 27

Id 51 D. Id 89.

This 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. See also, however, Du Plessis SALJ 1980 423 and Olsen Georgia Law Review 1984 929 for more critical views.
28

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, Platos 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 ones 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 obedience to government is just the ship and after he is at a distance being in the ship he had contracted is hardly likely to bring about the a man agrees to a contract of same as carrying a man into a from land to tell him that by to obey the master. 30 of the entire legal

Moreover, a single instance in which the legal system is circumvented downfall 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
31

anger

the

gods

who

will

let

loose

the

gravest

consequences."

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

29 30 31

See Reisman Emory Law Journal 1983 499 at 509. Quoted id 514 n 18. Id 515.

community should be the object of ones highest and ultimate earthly loyalty. Socrates lived was and Plato in wrote strong at a time when for the the state as an

institution

still

competition,

individual's

highest loyalty, with smaller social units to which the individual belonged, such as the family and the tribe. Platos 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

32

Id 516. (Original emphasis.)

Hebrew midwives and Antigone which cannot be accidental, since both occurred in completely distinct civilizations. 33 At a time when men were by far the dominant actors, the agents committing these first acts of political disobedience were women, and the opponents, in fact, were men. Consequently, he regarded non-violent, conscience-based resistance to threats to ones conscience as essentially female. They are anticonfrontational, 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 is confrontation Socrates civil of and Christ were can male is be males, seen and as a to of confrontation and martyrdom is seen as typically male pursuits. If this correct, of result-oriented The element disobedience female and synthesis characteristically responses that

suppression.

non-coercion

female,

confrontation is male. The idea of there being an essentially female element at the heart of civil disobedience like a
35

does who

find more

some than in

support two his own

in

the

observations years later

of

someone

Gandhi, female

thousand

also

perceived resistance.

component

non-violent

political

At the same time, Gandhian civil disobedience was largely

rejected in the male dominated African society, in favour of a more

33 34 35

Daube Civil disobedience in antiquity 5. Id 18.

Fischer 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 Gandhis desire to find a way to express motherly love, see Chatterjee Gandhi's religious thought 89. See also Gandhi Non-violent resistance 325. Martin Luther King's father told him: "Well you didn't get this non-violence from me, you must have got it from your mama." See "The Martin Luther King no one knows" The Washington Monthly October 1988. As win be Indicated later, the Civil Rights Movement in the United States was introduced by a woman and the first Instance of African mass civil disobedience in South Africa occurred when women protested against the pass laws in 1913.

militant approach. 36 Although there is a certain intuitive plausibility in this view, the stereotype of female passivity versus male aggression and inclination towards martyrdom seems too crude, without further unpacking, to carry the full weight of what it tries to explain. Why, as rational actors, would the women concerned have preferred not to act confrontational, while the men were willing to do so and engage in martyrdom? Perhaps some cue can be gained by asking whether this difference of approach can be identified only by comparing the conduct of men and women, or can it also be accounted for in other contexts? It should be noted that a marked difference of approach in this regard also exists between the people of the Old and the New Testament; between Judaism and Christianity. As a general rule, open, non-violent confrontation and consequently martyrdom is much more prominent and acceptable in the New Testament than is the case in the Old Testament. 37 Judaism is a martyr-religion only in the limited sense of the word of its inspiring its adherents to engage, where necessary, in bearing witness to their faith in what we have described as defensive civil disobedience. To Christianity, martyrdom, however, is also a way to do missionary adherents.
38

work

and

to

evangelize

that

is,

to

win

over

new

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

36 37

See Infra chap three III A (3)(c)(ii).

Perhaps 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. See 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.
39 38

See Daube Civil disobedience In antiquity 79.

Abraham, who eventually found a ram to slaughter in the place of Izak. 40 Daniel, who came closest to direct confrontation and to sacrificing his life for his religious convictions, eventually survived. This, however, was not because Christ or his the at willingness martyr. least not to die changed the heart as of far his as opponent, but occurred only through a deus ex machina. Judaism also rejected suffering Judaism to the avoided same martyrdom as possible, and was not premised on the idea of the creative force of extent 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
41

case

not

only

with

Christ,

but

also

with

the

first

Christians.

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 to or the earlier prospects that of the can use of It result-oriented be understood that in is submitted lies civil with the the

disobedience reference oriented moved by

throughout

history

largely

success. civil

explanation of why women and Jews in antiquity largely eschewed resultconfrontational disobedience, ruthlessness of their traditional enemies, who were unlikely to be 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

40 41

Genesis 22.

See B Lindars "The persecution of Christians in John 15.18-16.4a" in Horbury & McNeil Suffering and martyrdom In the New Testament 48 and T Baumeister "Martyrdom and persecution in early Christianity" in Metz & Schillebeeckx Martyrdom today 3.

sense, where mercy played little or no role. 42 In contrast, Socrates actions were informed by a world-view in which the good ultimately won, in which no person was intentionally evil. He spent his life on the streets of Athens, where he experienced through the force of his massive intellect the continued susceptibility of people to persuasion. Christianity for its part has as its most basic assumption the brotherhood and sisterhood of all people through a common father. Clearly, such a world-view would be congenial to the prospects of moral persuasion, and consequently to civil disobedience. In short, traditionally the prospects of success of women and Jews, were they to engage in result-oriented and consequently confrontational civil disobedience, were too small to make it a feasible option, even to the most outstanding individuals. Defensive civil disobedience, which, as stated earlier, is independent of political determination, would be practised in essentially unchanged form throughout history. Result-oriented civil disobedience, once established, would be practised on the basis of the persuasive power of martyrdom by individuals with strong convictions. Initially the values pursued through such actions would predominantly be religious, with the most visible example of open defiance emanating from the early Christians who resisted the pagan government in Rome. The early Christians
43

represented

the

first

mass

civil

disobedience

movement in the West.

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 dominated Church, the after Christianity and, became to a the state

religion,

Western

spiritual

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.

See, for a sympathetic discussion of the violent history of the Old Testament, E J Crowley "The Old Testament" in Culliton Nonviolence 11. The basis of political power in Biblical Israel is discussed in Weber Power 47ff See C Bay "Civil disobedience" in International Encyclopedia of the Social Sciences vol 2 473 at 473.
43

42

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. Thoreaus 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, Thoreaus 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

On 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.
45

44

Weber Civil disobedience in America 26.

such

circumstances

it

was

being

out

of

prison

which

required

explanation. Clearly, if it was possible at least in some societies to engage in civil disobedience without necessarily being martyred, civil disobedience in those societies was becoming a more widely acceptable option. In a word, result-oriented civil disobedience was becoming a more feasible instrument to be used by the masses, because the likely sacrifice was becoming smaller and the prospects of success more real. It has been pointed out that mass result-oriented civil disobedience was first developed in South Africa, after which Gandhi introduced it in India. It has since then been employed in a number of societies, most notably in the United States. The history of civil disobedience in these countries will next be considered in some detail, while a number of other cases the will role be of considered the more superficial1y. community and Particular of morally emphasis will be placed on the conditions which made this development possible international 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

46 47 48

See Davenport South Africa 3ff. Id 57. Id 22ff.

traditionally taken the form of violent beginning of the Twentieth Century,

uprisings and war. 49 Since the 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 traditional voluntary underlies to political of authority
50

is

to

some about

extent the

accepted that

in the

African

society.

But of

what ensures

idea

acceptance the

suffering category

ultimate

salvation,

which

important

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

On 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".
50

49

See infra chap five III.

died while trying to escape. The border wars continued unabatedly. 51 The history of the Xhosa diviner, Nongqause (or Nongqawuse), is even more intriguing. In 1856, as a young girl, Nongqause convinced her uncle and eventually the paramount chief, Kreli, that in order to drive the English from the land all the cattle were to be killed and no one was to cultivate the land. On a certain day food would appear in abundance, the sky would fall and the white people would be crushed. Two camps developed - those who believed her and did as she directed them to do, and those who did not. According to reports of the time, 300 000 to 400 000 cattle were killed. Nothing out of the ordinary happened on the specified date. In the ensuing famine between 25 000 and 50 000 out of 150 000 Xhosas died. 52 As indicated above, these instances of non-violent, sacrificial

resistance were, however, very rare, and for the greater part Africans exercised a choice between submission and violent resistance. However, for more than two centuries the dominant feature of black resistance to white rule in South Africa, where it occurred, was that it was unsuccessful and in most cases led to even greater misery. Force failed to secure freedom, and led to greater repression. Perhaps used with so much success against Smuts in the later this fact liberation more than any other explains the popularity of the method which Gandhi 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

51 52 53

See Roux Time longer than rope 16ff. Id 47ff.

On Gandhi's earlier history, see Gandhi An autobiography 3ff and Kytle Gandhi 18.
54 55

See Hancock Smuts 323. Fischer Gandhi 20.

Africa, Gandhi became involved in local politics and would eventually spend most of the next 21 years in the country. 56 Here, personally at the receiving end of what to became known as
57

apartheid Gandhi

and

often a

personally

subjected

racial

humiliation,

developed

powerful new way of confronting the countrys 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 Swans 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 Gandhis 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) When Indians in South Africa in the late Nineteenth Century Gandhi arrived in Durban, immigrants from India -indentured

labourers and later merchants - had settled and were settling mainly in

The 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. The 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.
58 57

56

Swan Gandhi 270.

the colony of Natal, with a smaller Indian community deve1oping in the Zuid-Afrikaansche Republiek ("ZAR") or Transvaal. 59 Indians were not allowed to settle or trade in the Orange Free
61

State 60

and

were

prohibited from owning land in that republic.

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 Gandhis 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 to at the time de of Gandhis arrival
63

found The

themselves

subjected

extensive

facto

discrimination.

indentured labourers lived in conditions which can only be described as slavery, while, at the same time, some merchants had vast economic interests. Indians There was little legislation government, tide started dealing and specifically as with before responsible the Indians, against British when

citizens, in theory qualified for the franchise if they met the wealth requirement. 64 However, turning them responsible government was granted in 1893 - thirty-three years after the first indentured Indians had arrived in South Africa.

In 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. Art 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. Section 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. In 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.
63 64 62 61 60

59

For an overview, see Gandhi Satyagraha In South Africa 26ff.

Section 11 of the Natal Charter of 1856 provided that every man over the age of 21 who owned Immovable property to the value of 50 was entitled to a parliamentary vote. See also Pachai The International aspects of the South African Indian question 2.

Shortly Franchise Indians

after to
65 66

responsible Bill,

government aimed at

was was

granted

to of

Natal, right the in

the of new

Amendment the

the

abolition

the

parliamentary

franchise,

introduced

Parliament. symbolic,

Although the significance of the proposed act was largely

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 Gandhis arrival in the country, the acceptance of the Franchise Amendment Act was still pending. In the ZAR, of Law 3 of der
69

1885 68

provided, the

inter van

alia. Azie"

that were the

"personen, denied right the to

behoorende rights

tot

een

inboorlingrassen (including

citizenship

franchise)

and

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

The 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. Less than 300 Indians exercised the right to vote in 1894. Swan Gandhi 45. Quoted in Pachai The International aspects of the South African Indian question 11. "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.
69 70 71 68 67 66

65

Section 2(a). Section 2(b).

Section 2(c). Initially the amount was fixed at 25. This was changed to 3 by the 1886 amendment.

in locations which could, in terms of a 1886 amendment, be allocated for reasons of health. 72 The Transvaal authorities used this provision to also restrict Indian trade to these areas. A dispute arose as to whether the Transvaal government had the right to subject the Indians to such discriminatory legislation, and especially whether Law 3 could be used to restrict Indian trade to the locations. 73 The British government had, through the Pretoria Convention of 1881, conceded the Transvaal "complete self-government subject to the suzerainty of Her Majesty". Hereafter the London Convention of 1884 was promulgated in order to increase the Transvaals 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 Republic 74 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

Section 2(d): "De regering zal het regt hebben straten, wijken en locaties ter bewoning aan te wijzen."
73

72

hun

bepaalde

Swan Gandhi 39. See also Huttenback Gandhi 102 and Pi11ay British Indians in the Transvaal 2ff. Article 14(a) of Pretoria Convention. Article 14(c) of Pretoria Convention.
76 75 74

the the

London London

Convention Convention

and and

a a

22(a) 22(c)

of of

the the

Article 9 provided that "[h]et volk wil geene ge1ijkstelling van gekleurden met blanke ingezeten toestaan, noch in kerk noch in staat." Also, according to art 31, "[g]een gekleurden, nocht bastaarden zullen toegelaten worden in onze vergaderingen."

Office,

however,

meant

Indian

"workers",

but

the

Transvaal

State

Secretary took it to mean all Asians, and consequently Law 3 was framed in such wide terms. 77 Law 3 was assented to by the British government only after an 1886 amendment, which provided that locations could be allocated for sanitary reasons, was accepted. The question then arose whether this acceptance implied that the British government agreed to the allocation of locations not only for the purposes of residence, but also for the purposes of trade. The dispute intensified when an 1888 Transvaal High Court judgment interpreted Law 3 to mean that the Transvaal authorities could also restrict Indian trade to these "locations". 78 Although the measures in Natal. Gandhis political career can be divided into two distinct phases. From 1894 the to 1906 in he participated Africa. in and eventually the period became 1907 to the most he prominent leader of legal protest against measures adversely affecting Indians South During 1914 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 were in practice not always enforced, the situation for Indians in the Transvaal was increasingly uncertain when Gandhi arrived

The phase of legal resistance can be subdivided into the period 1894 to 1897, when Gandhis 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 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 made

77 78

See Swan Gandhi 39.

Ismail Suleiman & Co v Landdrost of Middelburg (1888) 2 SAR 244. The question at stake was whether the town of Middelburg could refuse a trading licence to an Indian outside a "location". The Court held that it could.

measures aimed at preventing more Indians from entering the (immigration laws).

territory

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

79 80

Swan Gandhi 61.

See Id 49ff, where the romanticised picture often painted of Gandhi at this early stage of his career is placed into perspective. See Gandhi Satyagraha autobiography 148ff.
82 83 84 81

in

South

Africa

46

and

Gandhi

An

See Swan Gandhi 50. Id 63. "To amend the law relating to the franchise."

which they did not enjoy the franchise, were disqualified from voting in Natal. 85 Although Indians were not named specifically in this Act, in practice they were the ones to be disenfranchised. This came in addition to the Indian Immigration Amendment Act 17 of 1895, which imposed an annual 3 tax on all ex-indentured workers 86 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 Act",
87

Restriction Act 1 of 1897, or the "Natal

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

85 86

Section 2.

Section 6. This Act was approved of, however, by the Indian government of the time. See Huttenback Gandhi 45.
87 88

To place certain restrictions on immigration."

Section 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. Indians were also required to carry passes by Act 28 of 1897, "To protect uncovenanted Indians from arrest in mistake for absconding indentured Indian servants."
90 89

Section 8.

the implementation of the aforementioned laws in specific cases, such as the refusals to renew licences and denials of permission to transfer licensed businesses to new premises. 91 Although Gandhi only moved his base to the Transvaal in 1902, he had often visited the Transvaal before that. Here, as mentioned earlier, Indians also faced considerable official hostility. The main source of resentment was the fact that the government claimed the right to use Law 3 of 1885, as amended and approved by Britain, to confine Indian merchants to designated locations for the purpose of residence and of trade. Early in 1895 the dispute between Britain and the ZAR on the question whether the imposition of such restrictions was legal, was referred for arbitration to the Chief Justice of the Orange Free State - a state, as was suggested earlier, not known for its positive disposition towards Indians. Chief Justice Melius de Villiers held that the ZAR had the right to interpret the law as it saw fit, and effectively endorsed the ZARs 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

91 92

See Swan Gandhi 68. British Indians in the

For a full discussion, see Pillay Transvaal 25. See also Swan Gandhi 81.
93

Quoted in Swan Gandhi 112, 113.

of white domination in so many words in a remark made in 1903: "We believe also that the
94

white

race

in

South

Africa

should

be

the

predominating race." 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

Id 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. Tayob 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.) Pachai The International aspects of the South African Indian question 18. He did the same during the "Zulu uprising" in 1906. See Gandhi An autobiography 214ff, 313ff. See also Marks Reluctant rebellion 214, 239.
97 96 95

94

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 instances quoted to have to sacrifice so that the community may and: "Nor is there any heroic
101

gain a great deal, and the much that had to be sacrificed in the us"; sacrifice required by the communities living under the British rule."

98 99

See Gandhi Satyagraha in South Africa 81. Swan Gandhi 94.

Government 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

100

Self-sacrifice" The Indian Opinion 21 Jan 1904.

Gandhi was promoting the idea that civil disobedience had become a viable option to the ordinary person or, in the terms used earlier, that mass
102

result-oriented

civil

disobedience

had

become

rational

option.

In Britain the Colonial Office found miners 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 Milners 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 communitys 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 colonys 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

102 103

See supra chap three II D.

Habib Hotan v Transvaal Government 1904 TS 404. The earlier decisions in Suleiman and Tayob were disapproved.
104 105

At 412. See Huttenback Gandhi 152ff.

to increase it. After the War, entry into and residence in the Transvaal in general was regulated under the Peace Preservation Ordinance 5 of 1903, 106 which required everyone who wanted to enter the colony to have a special permit. In practice, very few Indians were granted permits. Although they were not legally required to do so, the Indians already resident in the Transvaal the agreed to was and did re-register inadequate voluntarily. 107 by many white Nevertheless, unauthorized entry into the Colony took place on a large scale and Ordinance considered Transvalers, who believed that the concession that ex-residents could return after the War was being abused. In 1905 the "Lyttelton Soon the would the allow Constitution", Transvaal of the It would which be at provided awarded least to for the

establishment in Transvaal of an elective legislative assembly, was promulgated. 108 government. solution two of which responsible a ride temporary out the (rebe With intention providing

British provided

government for into the the

remainder of Crown rule, Lord Selbourne, Milners successor, introduced draft ordinances. 109 Further compulsory )registration of all Indians lawfully resident in the colony by means fingerprinting. immigration Transvaal would 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 to rest these of the Indian leadership which reacted to to strongly the and

unfavourably task of

developments, Transvaal

amounted not

proposed these

introduction of a "pass" system for Indians. They set themselves the persuading and the the legislature to accept Royal measures British Government withhold assent.

To 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.
107

106

See Gandhi Satyagraha in South Africa 94 and Huttenback Gandhi

158. Letters patent providing for the constitution of a legislative assembly in the Transvaal, and the Transvaal Constitution Order in Council, 1905."
109 108

Huttenback Gandhi 162 and Swan Gandhi 100.

Especially the fact that all Indians were forced to register by means of fingerprinting was seen as humiliating, because it meant that Indians were treated like criminals. The Selbourne Ordinances would reduce Indians, Gandhi said in a letter to The Times, "to a level lower than the Kaffirs". 110 On 11 September 1906, 3 000 people, gathered at a meeting in

Johannesburg, pledged to resort to passive resistance and go to jail if the ordinances gained the force of law. 111 Since this date might well be described as the birth date of civil disobedience as an instrument of mass-mobilisation, 112 it seems fitting to quote at some length Gandhis 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

110 111

Oct 1906.

See Swan Gandhi 102 and Pachai The international aspects of the South African Indian question 33. See Anonymous The Round Table 1952 130 and Meer Africa South 1959 21.
112

experience of solemn pledges, having profited by them, I was taken aback by Sheth Haji Habibs 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 In the authority, second which is often seen to support was governmental authority, was invoked on the side of those who resisted government. place, the disobedience, which 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 UnBritish". 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 registration 115 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
117

provided

the

first

opportunity to mobilise mass support.

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

113 114 115 116 117

Gandhi Satyagraha in South Africa 102-107. Quoted in Huttenback Gandhi 166. (Emphasis added.) Section 3(1). Section 3(2). See Swan Gandhi 117.

to gain royal assent, and Indian efforts were directed at preventing this. British public opinion was aroused against the measures. The British government of the withheld their acceptance of of the proposals in in the anticipation introduction responsible government

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. Indian community. In terms of the Letters reservation Patent clause the contained British in the Transvaal after the
119

Act 2 was called the Black Act" by the

Constitution

1907,

Governor,

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 Britains 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

118 119

The Transvaal Constitution Letters Patent 1906.

In 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.
120 121

Section 39(a). See Swan Gandhi 141.

the Transvaal government. Act 2, however, eventually acquired Royal assent. Gandhis appeals for Indians not to register were carried in the pages of his newspaper, the protest. The Indian Opinion. Indian resistance, under the Ordinances provided a catalyst for an leadership of Gandhi, would now turn from legal to illegal forms of Selbourne 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

Britains 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 community the most important illegal reason for a the shift or in the Indian in

towards

action

was

change

development

Gandhis 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

See infra chap three III B 2(a). On Gandhi's transformation during this time, see Kytle Gandhi 64ff.

122

spiritual

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
125

resistance

resolution,

aimed

against

Act

2,

was

reaffirmed. Although operated

Mass meetings at which the decision not to register was dissuading wide scale, would-be there applicants virtually from no registering reports of

confirmed, were held all over the Transvaal under auspices of the BIA. pickets on a were

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

123 124 125

See Hancock Smuts 332 ff. Id 322.

See Pachai The international aspects of the South African Indian question 38. Swan Gandhi 142, 154, 155. Hancock Smuts 331 put the last figure at approximately 9 000.
126

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 citizens duty to pay blind obedience to the laws imposed upon him. 128 In Britain public opinion was turning against the British governments allowing the Transvaal government to treat the Indians in this way especially in the light of the likely effect which this would have on Britains position in India. 129 The first person to be arrested for not registering was Pandit Ram Sunder of Germiston. He was sentenced to a months imprisonment. 130 By the end of January magistrate a two 1908 for month almost the 2 000 Indians sentence To use who of the had six terms refused months to but register, had been jailed. This included Gandhi. At his trial Gandhi asked the maximum
131

received was

only

sentence.

introduced

earlier, this first campaign of mass result-oriented civil disobedience 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 welldeveloped 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

127 128 129 130

"Indian trouble" The Star 30 Dec 1907. Ibid. See eg The Times of London 7 Jan 1908.

See Pachai The international aspects of the South African Indian question 39. The trial is recounted in Gandhi Satyagraha in South Africa 148ff. See also Huttenback Gandhi 184.
131

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
133

to

enter

the

colony,

would

be

deemed

"prohibited

immigrant".

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 British Indians way of liable to deportation, against immigration Indians and registration were effectively conflated into a single issue. The by now familiar discriminating 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,

132 133 134

See Swan Gandhi 161. Section 2(1) "prohibited imigrant". Section 2(4) "prohibited imigrant". See also Huttenback Gandhi

186. The 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."
135

but

in

fact

would

on

pain

of

criminal

sanction,
136

by

means

of

the

Asiatics Registration Amendment Act 36 of 1908,

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
139

Transvaal. 138

Various

abortive

attempts

at

negotiation

followed. On 16

August time a

1908, number

300

registration from

certificates Natal entered

and the

500
140

trade At the

licences were burnt in front of a crowd of 3 000 at Fordsburg. same of Indians

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

The voluntary registration which resulted from the compromise, illegal in terms of Act 2 of 1907, was legalised, but Act 2 Itself was not repealed. A 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.
138 139 137

136

See Huttenback Gandhi 197.

Some test cases were also being brought. See "The struggle and what it has meant" Golden Number of "Indian Opinion" 1914 13 at 15.
140

See Swan Gandhi 171.

stating that they did not have registration certificates. 141 By the beginning of 1909 it became clear that pursuance of the

movements 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, was which at this its stage was largely to confined to the

Transvaal,

showing

vulnerability

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

See 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.
142 143

141

See Swan Gandhi 174. it has meant" Golden Number of

See "The struggle and what "Indian Opinion" 1914 13 at 16.

prime centre of action would, however, for the time being remain in the Transvaal. Hopes were raised again that the new administration would be more tolerant. Dominating this phase would be the approach of the new South African government to Indian immigration. 144 Gandhis 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 2 an and Immigrants Restriction and Bill, 146 which the aimed at

repealing

Act

consolidating

replacing

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. abroad.
147

It

established into

an

educational province,

test

for
148

immigrants could

from be

Immigration

any

however,

still

regulated by decrees of that particular province.

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.

In 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. See Huttenback Gandhi 27ff and "The struggle and what it has meant" Golden Number of "Indian Opinion" 1914 13 at 16. Entitled "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. Section 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.
148 147 146 145

144

Section 7.

After negotiations between Gandhi and Smuts - the latter being under heavy pressure from Free State members of parliament who refused to abandon the old republican discriminatory measures - it became clear that an agreement could not be reached during the 1911 parliamentary session. They agreed on a provisional settlement". Smuts stated his intention The first to fulfil the demands was of not the protesters although during the the 1912 session of parliament; Gandhi to bring passive resistance to a halt. Immigration Bi11 passed 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
150

became

one

of

the

leading

causes

of

dissatisfaction. another year. 151 In October

A second Immigration Bill was rejected in 1912 for a

variety of reasons and the provisional settlement was extended for

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. Gokhales visit
152

also

highlighted

the

British link with both South Africa and India.

At this time a shift in Gandhis 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. Gandhis traditional

149 150 151

See Huttenback Gandhi 284 and Swan Gandhi 230. See Swan Gandhi 213, 226.

Huttenback 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. See Gandhi Satyagraha in South Africa 259ff. See also Hancock Smuts 341.
152

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 His happen so to often the in his career, of the Gandhi, elite the deontological way to a moralist, had to make room for Gandhi, the consequentialist politician. commitment interests now gave 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
154

in

South

Africa

would

consequently lose their right to live there.

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 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 with Indian immigration was passed in 1913, and became law in the form of the Immigrants Regulation Act 22 of

153 154 155

Esop v Union Government (Minister of the Interior) 1913 CPD 133. Gandhi Satyagraha in South Africa 276. Later renamed the Admission of Persons to the Union Regulation Schedule 2

Act.
156

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. Gandhis 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 Gokhales 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

Section 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.
158 159

157

Swan Gandhi 247.

For Gandhi's own account of these events, see Gandhi Satyagraha in South Africa 297. See also That wonderful march" Golden Number of "Indian Opinion" 1914 21.

crossed into the Transvaal. As Smutss 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 Gandhis moral victory was complete when he called the campaign off in 1914 when white railway workers also began striking. He stated that
163

one

should

not

take

advantage

of

ones

opponents misfortunes.

Gandhi rejected the composition of a government-appointed commission of

160 161 162

Hancock Smuts 340. Swan Gandhi 251.

According 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. Woodcock 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.
163

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 valid 164 and
165

the

tax

on

the

ex-indentured

workers

in

Natal

was

abolished.

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 Indias 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 Gandhis 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

164 165 166

Sections 1 and 2. Section 8.

For a discussion of the later history of Indian immigration, see Corder Judges at work 169ff. See "The struggle and what "Indian Opinion" 1914 13 at 17.
168 169 167

it

has

meant"

Golden

Number

of

See Hancock Smuts 345. at 2, J D Pohl

See J C Smuts "Gandhis political method" Collection, University of Pretoria Archives.

least through civil disobedience. Some important characteristics of Gandhis 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 the "benevolent background force", would that Britain, as 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. The idea of martyrdom, The of suffering, of inviting was the already playing an injustices, to which a large section of the community could relate - even if these were not the greatest

important role in Gandhis understanding of the working of civil disobedience. pattern harshest possible penalty was set. Gandhis focus gradually shifted away from the more exclusive interests of a particular grouping to become more inclusive, more universalist. The genius of Gandhi lay -in the fact that he perceived and used the opportunity posed in early Twentieth Century South Africa to develop

non-violent resistance as a powerful form of resistance with appeal to the masses. (3) Civil disobedience in South Africa after Gandhi

The precedent which Gandhi set of a "non-white" person standing up for his rights against the white rulers left a deep impression on the world at large and on the people of the country where this first happened. Gandhi had in the first place challenged the white rulers in a fundamental way and managed not to get crushed in the process, which was in itself a novel feat. Moreover, he managed to bring about actual social change; something which was previously unheard of for a person who was not white, dearly, here was something new and promising. It would, however, be several years before the country once again saw crowds reminiscent of those inspired by Gandhi, pursuing political change through non-violent, illegal action. Political resistance against white domination in South Africa after Gandhi would mainly be initiated by the African section of the population, with one dominant strand of this group widening to include members of all races who opposed the racially exclusive basis of the government, these two and the other the strand being more preoccupied Congress with ("ANC" the or African cause. The dominant organizations representing the interests of formations, African National "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 1940s, 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.

A 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.

170

In the 1950s, during the third phase, the developing political disquiet campaigns boiled of over into action, which took in the the form form of of passive resistance, particularly

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 1960s. There was a shift in strategy from nonviolent 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 1950s. During the whole period under consideration, civil disobedience would never be practised with the same commitment to non-coercion as under Gandhi and it would have much less success. As will be demonstrated, however, even if the method of civil disobedience was new to many of those who participated in the liberation struggle and was practised mostly for reasons of strategy, it did have a considerable influence on the struggle itself and on the system of apartheid. (a) Phase one: The period before World War II

With the formation of the Union in 1910, black expectations of greater political participation were not accommodated. The issue of the right of Africans to vote for parliament was simply sidestepped when each province was allowed to retain the franchise system that existed before Union. Consequently, blacks and coloureds voted together with whites in

the qualified franchise dispensation of the Cape, but in the other provinces only whites were enfranchised. 171 Black protest against white domination throughout this phase of

resistance was characterised by its mild and guarded nature. It mostly took the form of public comments, critical of measures introduced by the government, opposition which were made by a small at number best not of politicised as the blacks. Because the initiative remained in the hands of the government, black during at this this period stage can be at described replacing reactive. Resistance was aimed

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
173

African The

National

Congress of the

in

1923, took

was

founded against

in the

Bloemfontein.

formation

ANC

place

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

171 172 173

See Davenport South Africa 247ff. Felt South Africa 1.

On 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.
174

Quoted from R V S Thema "Towards national unity" Bantu World 26

The most direct and visible legacy of Gandhi and his movement to the broader liberation movement in South Africa is to be found in the first constitution of the ANC. 175 Under the heading, "Methods or Modus Operandi", the constitution provided that "the work of the Association [that is, the ANC] shall be affected or advanced ... by passive action or continued movement." 176 In practice the organization at this stage would mainly use "constitutional" - and futile methods, such as sending deputations to the Prime Minister and to London to voice its protests. In essence the ANC at this stage constituted an exclusively black elite which pursued its own narrow self-interest strictly within the confines of what was acceptable to the white rulers. 177 To a large extent the political vision it represented was confined to a plea for a return to the qualified vote system of Cape liberalism. John Dube, the first President of the ANC, expressed his "hopeful reliance in the sense of common justice and love of freedom so innate in the British character" to bring relief to the position of blacks where needed. 178 The ANC in fact remained a small and largely ineffectual organization until the Defiance Campaign of 1952. Before that date civil disobedience - and any other form of political resistance - would only be practised on a limited scale by individuals or small groups. Some of the more widely published incidents will now be discussed. The pass laws, which were an integral part of white rule in South

Sept 1953. The 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-cooperation'." Karis & Carter From protest to challenge vol 1 296. Id 78. It is not clear what the words "continued movement" signify. The 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.
178 177 176 175

Quoted in Walshe The rise of African nationalism in South Africa

38.

Africa for a very long time, provided a constant source of friction between black and white, and were a natural focusing point for acts of civil disobedience. 179 In 1913 black women of the Orange Free State engaged in civil disobedience on a large scale in protest against the extension of these laws by municipalities to also cover women in that province. Women on a large scale refused to carry passes and hundreds went to prison. In Winburg the prison became so full that the authorities were powerless to deal with the resistors. Eventually the authorities were forced to withdraw the pass laws for women. 180 This is the first recorded example of mass civil disobedience by Africans in South Africa and one of the few instances where immediate success was achieved. 181 Again women took the lead. Both the harshness of the conditions of third class travel, which

Africans were compelled to use, and the desire to get away from what he called "uncivilised" and "uneducated" people, prompted S M Makgatho, President of the Transvaal branch of the ANC, to break convention by travelling to Pretoria in a second class rail coach, which was reserved for white passengers. As an "educated African" he in fact had a letter of exemption from the operation of certain laws and regulations which discriminated against Africans, 182 but he wanted to test its applicability. After serious arguments with railway officials regarding the question whether he could use second class facilities, and after having presented his letter of exemption, he was assaulted by a white passenger. In a subsequent court case the assailant was convicted and sentenced to pay a fine of one shilling or to be detained until the

For 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.
180 181

179

See Roux Time longer than rope 125.

The 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.

Such 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.

182

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

See 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.
184

183

See R V S Thema "Towards national unity" Bantu World 19 Dec

1953. See 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.) The 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."
187 186 185

See R V S Thema "Towards national unity" The Bantu World 28 Dec

time. 188 In 1919, Africans in the

189

Transvaal of

engaged

in

an

anti-pass to the

civil pass

disobedience

campaign.

Thousands

Africans

marched

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. "Rule, All weapons in was the hands and of the those present King, were the collected, Britannia" sung, British

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
190

workers to leave their employment. Eventually violence erupted. A a subsequent commission of the of inquiry recognised were to not some

extent by terms by

the the of the

legitimacy of the protests, but its recommendations (which amounted to simplification The pass system) very accepted both of in government. masses moved. Two incidents thereupon to called occurred the which underscored In the assembled the on governments members the
191

campaign With

achieved the

little,

changing the behaviour of the government and in terms of mobilising the politically. colonial occupation Africa European powers still firmly in place, the outside world could not be

ruthless religious

attitude group near

non-violent to

opposition. celebrate

1920

of

"Israelites"

Bulhoek When

commonage,

Queenstown,

passover.

See De Villiers Die "African National aktiwiteite aan die Witwatersrand part 2 255.
189

188

Congress"

en

sy

See "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 freedomloving of a11 governments." Quoted in Karis & Carter From protest to challenge vol 1 107.
190 191

See Walshe Black nationalism in South Africa 15. They believed the New Testament was a fiction of the white man's

instructed to do so, they refused to leave, claiming that they had been ordered there by Jehovah to await the end of the world. In May 1921, after protracted attempts to have them leave, soldiers opened fire, killing 163 people. 192 In the following year the Bordelswarts in the then South West Africa refused to pay certain dog taxes levied by the South African government, which controlled the territory under a League of Nations mandate. Jan Smuts subdued this revolt by sending in soldiers with machine guns and bomber planes, killing more than 100 people. 193
194

number of strikes by especially white workers were also suppressed.

In October 1920, 23 Africans were killed in Port Elizabeth when panicstricken white civilians fired into a crowd of blacks
195

who

were

demonstrating against refusals to raise minimum wages. 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.
192 193

See Roux Time longer than rope 143ff.

Id 149ff. The treason case R v Christian 1924 AD 101 arose out of these events. For a discussion, see Corder Judges at work 74ff.
194 195 196

Id 151. Walshe The rise of African nationalism in South Africa 72.

See Transvaal Provincial Administration v letanka 1923 AD 102. The case is discussed by De Villiers Die "African National Congress" en sy aktiwiteite aan die Witwatersrand part 1 48.

In 1921, members of Congress were under the impression that they had gained a sympathetic ear from the mayor of Johannesburg regarding the inadequacy of transport boarded a facilities tram for blacks. for When He a year later nothing had been done, a member of Congress (apparently acting on its instructions) reserved whites. 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 1920s 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 shortlived, but immensely popular. Industrial and Commercial Workers Union ("ICU"), Party of which South was founded
198

in

1922

with at

the the

charismatic time, was

Clements the only

Kadalie as its secretary. Africa

Some Africans also joined the Communist which,

("CPSA"),

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 Gandhis use of civil disobedience in India, rejected Kadalies 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"

See De Vi11iers Die "African National aktiwiteite aan die Witwatersrand part 2 265.
198

197

Congress"

en

sy

The ICU was the first modern mass movement of black people in South Africa. See Meli A history of the ANC 63ff.
199 200 201

Renamed the South African Communist Party in 1953. See Roux Time longer than rope 167ff. Id 179.

in contravention of the "Location Regulations", which rendered such conduct an offence. His aim was to create a test case to establish whether such conduct was not ultra vires. He was convicted and his appeal was dismissed in the Supreme Court. 202 A subsequent attempt by members of the ICU to incite a general boycott of the rates and charges was flouted when the ANC leadership encouraged people to "render unto Caesar that which is Caesars" 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

202 203

See R v Mogorosi 1927 OPD 293. Congress" en sy

See De Vi11iers Die "African National aktiwiteite aan die Witwatersrand part 1 75.
204 205 206

Id part 2 267. See R v Hodos & Jaghbay 1927 TPD 101 and R v Zock 1927 TPD 582.

See De Villiers Die "African National Congress" en sy aktiwiteite aan die Witwatersrand part 1 81. In 1925 the ANC sponsored an appeal of a black woman who was arrested for not carrying a night pass in contravention of s 3 of the Transvaal Ordinance 43 of 1902, which required all "natives" to carry night passes. In a split decision the Appellate Division ruled that the provisions were not applicable to women. See R v Detody 1926 AD 198. For a discussion of the circumstances leading up to this case, see De Vi11iers Die "African National Congress" en sy akt1w1te1te aan die Witwatersrand part 1 63 and for a discussion of the case itself, see Corder Judges at work 141. On the ANC's failed campaign of civil disobedience that would have been aimed against night pass laws which were made applicable to black women in 1931, see the account of De Villiers at 270.

procession and collecting passes in bags, the police arrived and broke up the meeting with assegais, pick handles and revolvers. Four men were killed; twenty were seriously wounded. Nevertheless the campaign continued until virtually all the leaders were arrested. Thirty-two were subsequently charged and convicted of incitement to violence. Black communists were charged with being idle,
207

dissolute

or

disorderly persons and deported to their country homes.

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 existence. In 1936, commonly regarded as a watershed year, Hertzog and Smuts organizations the country has ever known faded from

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

In 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.
208 209

207

Walshe Black nationalism in South Africa 12. See Me1i A history of the ANC 84.

could set apart any car or portion of a car for the exclusive use of members of a particular race group. 210 The prosecutor did not press for a conviction and the accused was acquitted on the basis that there were no trams for blacks in service at the time on the same line, and the conductor had a wide discretion as to whom to allow travelling on the tram. 211 In 1936 a case reached the Appellate Division in which a coloured man was convicted of contravention of a railway regulation, 212 which had reserved certain benches on
213

Kimberley

station

for

"Europeans"

and

others for "non-Europeans". so. According to the

The appellant had been sitting on a bench he belonged to an association of

marked "Europeans only" when he was asked to move, and he refused to do appellant, 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 illfated 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

210 211

Section 33. Congress" en sy

See De Villiers Die "African National aktiwiteite aan die Witwatersrand part 2 275.
212

Regulation 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.
213 214 215 216

See R v Herman 1937 AD 168. At 169. For a discussion, see Corder Judges at work 148.

0n African and Indian opposition to, as well as participation in, the War, see Roux Time longer than rope 3l0ff.
217

See Lodge Black politics in South Africa since 1945 11.

the majority of Africans, found expression in two early campaigns of non-violent resistance: The Alexandra Bus Boycott and the Johannesburg Squatters Movement. Between 1940 and 1945 increases in bus fares from the freehold suburb, Alexandra, to the centre of Johannesburg were
218

met

with

sporadic

boycotts that lasted for various lengths of time. and arrived at home only after 21:00 in the

At times up to 20 The boycott

000 people walked to work, which meant that some had to get up at 03:00 evening. 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 1940s 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

218 219 220 221

Id 13. See also Roux Time longer than rope 325ff. Id 15. Id 16. Walshe Black nationalism in South Africa 26.

in the next decade. The approach followed in the forties was more assertive than before, and the initiative was no longer left entirely in the hands of the government. Inspired in part by the Atlantic Charter of 1941, a major policy

statement called African Claims in South Africa was issued by the ANC in 1945 after long consultation. A "Bill of Rights" was outlined, which now for the first time provided for a "one person one vote" system of franchise and direct representation of Africans in parliament. 222 The "meritocratic" ideals of earlier were abandoned. In 1946, Dr Xuma would ask the Native Representative Council to disband. As Oliver Tambo later put it: "[T]he Africans, heartened by the Allies promise of a postwar world in which the fundamental rights of all men would be respected, became increasingly impatient with their lot." 223 The fact that their objectives and aims were spelled out provided a basis for a more assertive approach. In 1943, Smuts, by now a prestigious international figure, was returned to parliament with an increased majority. Black hopes for a better deal were reinforced by black participation in the War, and by the description by Smutss 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 ANCs 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

222 223

See Karis & Carter From protest to challenge vol 2 209.

See O Tambo "Passive resistance in South Africa" in Davis & Baker Southern Africa in transition 217 at 219.
224

See Walshe Black nationalism in South Africa 28.

J H Hofmeyr, an unlawful demonstration was held outside the Houses of Parliament. The leaders of the demonstration, including Dr Dadoo and R V S Thema,
225

were

arrested

and

fined

for

leading

an

unlawful

procession.

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 politics African from a opposition mind into of the streets, into and one transform of active African frame protest

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 Africas young leaders like Kwame Nkrumah and Jomo Kenyatta,

225 226 227

Roux Time longer than rope 328ff. See Meli A history of the ANC 108.

See the "Congress Youth League Manifesto", reprinted in Karis & Carter From protest to challenge vo1 2 300 at 306.
228

See Lodge Black politics in South Africa since 1945 25.

endorsed Gandhian civil disobedience as persuade alien rulers races.

229

the

only effective

way

to

to respect the

rights of unarmed

and subjected

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
232

IndianThis was

initiated campaign in the country since the days of Gandhi.

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

229 230

See Benson The African patriots 117. Congress" en sy

See De Villiers Die "African National aktiwiteite aan die Witwatersrand part 1 154.
231

This term is usually used to distinguish this Campaign from the 1952 Campaign. ln 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. Lodge 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. The 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
234 233 232

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 type of in a more in forceful way. Especially Z K younger African would nationalists, such as Nelson Mandela, were impressed by witnessing this protest action. 236 Later, Professor Matthews describe the Passive Resistance Campaign as the immediate inspiration for the ANCs 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
238

openness

of

the

government

to

liberalising outside influences.

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.
235 236

Meli A history of the ANC 99.

Mandela 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.
237 238

See Karis & Carter From protest to challenge vol 2 103.

What can be called the "dosing of the South African government's mind" would be epitomised by the declaration of a Republic in 1961 and the South African departure from the Commonwealth in the same year.

the means which can be used to pursue ones goats was one of no holes barred - also in respect of obedience to the law. Reacting to the Smuts governments declaration of war on behalf of the Union on the side of Britain, Or Malan stated at the NP 239 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

Or, more correctly, the Reunited National Party, as the party was called until 1951. Quoted from "Or Malan vertolk wi1 van nuwe Afrikanerdom" Die Burger 31 Oct 1940. Ibid. 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. For a discussion of this history, see Forsyth In danger for their talents 61ff.
242 241 240

239

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 the December Youth 1949, at in civil would, its which annual the conference. of, were inter some Congress a1ia, as time adopted a

statement of policy, entitled the "Programme of Action", 246 backed by League, [and]
247

use

boycott[s], acceptable civil before

strike[s], strategies.

disobedience however,

endorsed

It

take

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,

243

This was done by means of the Immorality Amendment Act 21 of

1950. When 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.
245 246 247 248 244

See Lodge Black politics 1n South Africa since 1945 27. Reprinted in Karis & Carter From protest to challenge vol 2 337. Id 338. See Kuper Passive resistance in South Africa 98.

especially on the Reef. It is difficult to establish who was to blame, but there were clashes between the protesters and the nearly 2 000 members of the police who were placed on duty. Violence erupted, and a number of people were killed when the police opened fire. 249 The third demonstration, held on 26 June, was a Day of Protest struggle

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 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 economic doubly change through first Party. 252 This Act also made it an independent unlawful in the acts. sense Civil that disobedience was now per crime to attempt to bring about any political, industrial, social or outlawed: civil disobedience

249 250

Lodge Black politics 1n South Africa since 1945 34.

The 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.
251 252

See Karis & Carter From protest to challenge vol 2 406.

The CPSA officially dissolved itself in anticipation of the implementation of these provisions on 20 July 1950 and went underground. However, the Act was made applicable retrospectively in 1951 to everyone who had previously subscribed to communism.

definition involved the breaking of some law, and, secondly, because its motive In 1951, also placed such action within the ambit of the Red Act. 253 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 Bill 255 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 194648 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-cooperation. 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

253

For a discussion of these provisions, see infra chap four I B See Lodge Black politics 1n South Africa since 1945 40. Later enacted as the Separate Representation of Voters Act 46 of

(3).
254 255

1951. See Kuper Passive resistance In South Africa 99. See also Karis & Carter From protest to challenge vol 2 412. See 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.
257 256

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 countrywide 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

258 259

Id para 8. (Original emphasis.)

The law? and regulations of which the repeal was demanded were the Pass laws (.restricting the movement of blacks); the stock limitation regulations (limiting the size of the herds of cattle which could be kept in relation to the size of the land on which they are kept); the Internal Security Act 44 of 1950 (giving the government draconian powers In the name of state security); the Group Areas Act 41 of 1950 (providing for racially segregated living areas); the Black Authorities Act 68 of 1951 (granting official approval to traditional tribal authorities, which prepared the ground for the establishment of "homelands") and the Separate Representation of Voters Act 46 of 1951 (used to remove the coloureds from the common voters role). It was also stated in the report that the government was "preparing the

- the end of white political hegemony. 260 It was suggested by the Joint Planning Council that because of the different effects which apartheid had on the various sections of the community, each racial group should concentrate on transgressing a different aspect of apartheid legislation, except in the Cape where a strong possibility was perceived of mixed units. The ANC was primarily to transgress the pass laws; the SAIC was to concentrate on breaking the ban on crossing inter-provincial borders, segregation in public facilities and the Group Areas Act, and the FAC had last two. What was envisaged, therefore, was to focus on indirect the 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. The 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. For a discussion of this type of indirect civil disobedience, see supra chap two IV A. See 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. Lodge 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
263 262 261 260

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 was laws before notice 29 of February the 1952, failing campaign which of the government given intended 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 states 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. See 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.
265 266 264

See Benson South Africa 134.

Drum interview, reprinted in Schadeberg Nelson Mandela and the rise of the ANC 30. See 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. The letter is reprinted In Kuper Passive resistance In South Africa App B at 233. Reprinted id 235. For the ANC's response, see "Dr Moroka answers Malan" Spark 29 Feb 1952.
269 268 267

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
270

but

to

engage

in

civil

disobedience, was not answered.

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 around 1952 the (coinciding country, with the climax of of the Van Riebeeck the At

tercentenary festival), public meetings were held in the major urban areas with thousands people attending
272

meetings in Johannesburg, Cape Town, Port Elizabeth and Kimberley. followers. 273 to engage In any May a number in of the leaders of the of intended the

these meetings Congress made its plans for the Campaign known to its Defiance Campaign were served with notices by the government, ordering them not further activities
274

organizations

participating in the envisaged Campaign.

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

270

Reprinted in Kuper Passive resistance in South Africa App B at Reprinted Id 242.

239.
271 272

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. See "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. See "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. J 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.
276 275 274 273

See Schadeberg Nelson Mandela 34.

was held. 277 On the following day the Campaign started. (ii) Rationale of the Campaign

A variety of interpretations of why and how the Campaign of civil disobedience was to be conducted was given by those in decision-making positions and by those who explained the Campaign to the masses. While the immediate objective of the Campaign was stated as being the elimination of the laws listed, it was generally accepted that the ultimate objective was equal political status for whites and blacks. 278 In South African terms this would amount to a revolution. Anarchy, however, was rejected. Albert Lutuli and others made it clear that those who were behind the Defiance Campaign were not proposing the indiscriminate breaking of the law, but
279

wanted

to

signify

their

rejection of a particular kind of law.

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
280

were

claiming

the

inalienable

rights

of

every

South
281

African. However,

Lutuli asked the Question Shall we obey God or man? were differences in approach to the use

there

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

277 278

See Benson South Africa 146.

See 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. See 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.
280 281 279

Karis & Carter From protest to challenge vol 2 461 para 7. Id 488.

in non-violence, often clothed in strong religious fervour. 282 Looking back on the Defiance Campaign, Lutuli would later observe that June 26 marked "the acceptance by the African people of the fact that the road to freedom is sanctified by martyrs: in other words. No cross no crown." 283 Lutulis justification for the use of civil disobedience was strongly reminiscent of Gandhis 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 noncollaboration 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 Gandhis 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

See 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. See Lutuli's observations "What June 26 means to African people" New Age 27 June 1957.
284 285 286 287 283

282

See Luthu1i Let my people go 102. Benson South Africa 144. Id 146. See "'Democracy or open dictatorship'" People's World 9 Oct

1952.
288

See Kuper Passive resistance in South Africa 120.

in violence on the pragmatic basis that the use of violence leaves bitterness, as was evident from the aftermath of the Anglo-Boer War. 289 When asked whether the envisaged Campaign was to be conducted with methods similar to those used by Gandhi, Dr Moroka was also not dogmatic about it: Yes, along those lines. Passive resistance is the most effective method open to us. 290 As Lodge observed: It is unlikely that many subscribed to Gandhis 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 that headache. 292 ANC leaders like Oliver Tambo, while accepting the method of nonsay now? Hoe gaan ons werk, kerels, die mense baklei nie. You must give them

violent resistance, explicitly rejected Gandhis belief in the creative power of suffering. Tambos 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 selfpitying, 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 Gandhis passive resistance, the ANC launched, in 1952, the Campaign for the Defiance of Unjust Laws. 293

289 290

See Benson The African patriots 175.

Interview 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.
291 292 293

Lodge Black politics in South Africa since 1945 41. Quoted in Kuper Passive resistance in South Africa 119.

O Tambo "Passive resistance in South Africa" in Davis & Baker Southern Africa In transition 217 at 217. Fatima Meer responded to

To Tambo, [n]on-vio1ence was ... a political tactic that could be changed according to the demands of the political situation at any time. 294 Sisulu was also not a Gandhian and wanted the Campaign to be typically South African and militant. 295 Even the choice of the name Defiance Campaign as opposed to Passive Resistance Campaign, Yusuf Dadoo later said, was intended to signify the militant nature of the Campaign. 296 According to Mandela, [a]partheid had to be disorganised and the made later unworkable. 297 Treason Trial, He described the Defiance testified Campaign
298

as (In had

extremely dangerous to the stability and security of the state. however, Mandela that

he

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 violence.
300

the

Defiance

Campaign

as

broader

than

Gandhian

non-

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. O Tambo "Passive resistance in South Africa" in Davis & Baker Southern Africa In transition 217 at 221.
295 296 294

See Benson South Africa 137.

See the interview with Dadoo published as "The role of the Indian people in the S African revolution" Sechaba (Special Issue) March/April 1969 14.
297 298

See "Debates at ANC conference" The Guardian 27 Dec 1951.

See 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. See S v Adams & others, unreported case no 1/58 SCC 1961, at 15794.
300 299

Meli A history of the ANC 99.

Treason Trial, described the Campaign as coercive. 301 Others propagated civil disobedience as a necessary step towards violence. 302 In general, it seems that adherence to non-violence in the Defiance Campaign was largely a matter of expediency. 303 A clear vision of what the Defiance Campaign would achieve came from the talented journalist and politician, Jordan Ngubande, who described the rationale behind the Campaign, inter alia, as to create a climate for white democrats to cross the line against white supremacy, to teach Africans and Indians collaboration and to awaken world opinion to the dangers had of apartheid. 304 objective
306

Lutuli

would

later the

state native

that to

the

first
305

objective of the Campaign was to politicise the African people. the of awakening consciousness.

It

political

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 of of to administer. affecting Another group of discarded the the possibility objectives directly the of the conduct both government of of

altogether, and relied entirely on its indirect effects. The indirect Campaign encompassed the and possibilities mobilisation politicising prospective supporters

international support.

See S v Adams & others, unreported reasons for judgment of Bekker J at 9.

302 303

301

case

no

1/58

SCC

1961,

Meli A history of the ANC 120. Protest

See L Kuper "Nonviolence revisited" in Rotberg & Mazrui and power in black Africa 788 at 792.
304 305 306

See Walshe The rise of African nationalism In South Africa 402. See Karis & Carter From protest to challenge vol 2 426. See "Chief addresses ANC" The Friend 11 Nov 1952.

At the same time, it also seems fair to note a defensive component in the Campaign. Irrespective of its likely results, civil disobedience provided a relatively safe way of expressing feelings which people had to express simply in order to retain their own dignity. Whatever the underlying philosophy, the Campaign dearly struck a cord. Unlike many earlier attempts that had failed, this new initiative at least initially received fairly widespread support. At meetings around the country the following pledge was read out and accepted by the crowd by a show of hands: We, the oppressed people of South Africa, do hereby solemnly pledge to carry on a relentless struggle for the repeal of the unjust laws, as specified in the Plan of Action of the African National Congress, the Franchise Action Council, the Indian Congress and freedom-loving peoples. We shall do all within our power, to the utmost limits of our endurance and sacrifice, to carry out the Congress call to fight against the unjust laws, which subject our people to political servility, economic misery and social degradation. From this day onwards we vow to act as disciplined men and women and dedicate our lives to the struggle for freedom and fundamental rights. 307 It is perhaps worth noting that no mention was made of non-violence. (iii) The Defiance Campaign The Defiance Campaign was officially launched on 26 June 1952, peaked in August to October, and was largely over in December of that year. 308

Quoted in "Non-European plan for 'mass defiance'" The Cape Times 7 April 1952. On 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
308

307

In accordance with the plans for the first stage of the Campaign, groups of volunteers regulations resisted under in public of places the pass laws
309

and The

apartheid

auspices

trained

leaders.

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. The only laws directly broken were the pass laws. For the rest apartheid regulations were transgressed, mainly on the railways. Dr 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. See "Only volunteers will fight '.unjust' laws" The Friend 25 June 1952 and "Net sekeres mag wet uittart" Die Burger 25 June 1952. Quoted 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
312 311 310 309

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, SecretaryGeneral 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 location. awaiting convicted Mandela They trial. to the on were
316

and not In

Cachalia) granted public the ensuing

were trial

arrested spent they

317

at 24 were pass

the days

Boksburg in prison with the

bail

and

charged laws and

conspiracy

incite

violence. counts

They the

were

eventually

alternative

under

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. it They were granted that the bail 319 and
320

the

charges they

were were

eventually withdrawn, due to a lack of evidence. other accused, transpired

In respect of the when

protesters,

'Defiance Campaign'" Rand Dally Hall 2 June 1952.

313 314

See Benson South Africa 147.

See "Full list of arrested volunteers" and "Sisulu arrested in Boksburg" The Bantu World 27 June 1952. The 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. See "Aansoek om borgtog geweier" Die Volksblad 30 June 1952 and Sisulu and Sita jailed" Spark 25 July 1952. See "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.
318 319 320 317 316 315

See "Sentenced for 'defiance'" The Argus 21 July 1952. See "Freedom battle begins" Spark 4 July 1952. van 'protes'-veldtog vrygespreek" Die

See "52 Naturelle Transvaler 26 July 1952.

arrested, were asked as a group whether they had passes, to which they answered as a group no. Since it could not be proven that each one individually had answered no, no conviction could be obtained. 321 In urban areas, especially in the Eastern Cape but also on the Rand, groups of protesters entered waiting rooms reserved for Europeans, walked the streets without curfew passes, and went into locations for which they did not have permits, in order to invite arrest. 322 In some cases the protestors were unsuccessful to secure arrest the first time when they defied laws and they had to repeat their actions. 323 By and large the resistors acted with self-restraint, and the Campaign was free of violence. The first woman participant was arrested in July. 324 The Campaign picked up momentum in August 325 and was extended to Cape Town. 326 In September it spread to Bloemfontein 327 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

321 322

See "52 Rand 'defiers' acquitted" The Cape Times 26 July 1952.

See "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. See "Scorpion", "Arrested" succession" Flash 25 Nov 1952.
324 323

and

"Curfew

for

second

night

in

See "33 native women arrested" The Argus 24 July 1952. See also Walker Women and resistance in South Africa 131ff.
325

See "Defiance Campaign is gathering momentum" The Friend 19 Aug See "First city 'resistors' arrested" The Cape Times 4 Aug 1952. See "Defiance Campaign in Free State" The Friend 23 Sept 1952. See "Defiance in Durban" Drum November 1952. the Eastern Cape, 306 from the Western 116 from the Transvaal, 152 from Natal See "Defiance Campaign now in second Friend 22 Oct 1952.

1952.
326 327 328 329

Of these, 5 269 came from Cape, Mafeking and Kimberley, 1 and 147 from the Free State. stage: More will take part" The
330

See Sisulu's remarks as reported in "Organisers urge volunteers

Malan understood and expressed this aim well: [d]at die blankes as voogde van die nie-blanke meet abdikeer, 332 although the merits of this demand did not strike him as obvious. The progression of the Campaign saw a steady increase in the severity of the sentences imposed. At the beginning, the typical sentence imposed for the minor crimes committed was a fine of 1 or ten days imprisonment. 333 After warnings of an impending increase in sentence, fines of 8 or 40 days imprisonment, half of which was suspended, were imposed. 334 This was later raised to 10 or two months imprisonment, 335 and eventually to 15 or 90 days imprisonment. 336 From April 1953, convictions under the Criminal Law Amendment Act 8 of 1953 were handed down. The first person so convicted was sentenced to twelve months imprisonment and eight lashes. 337 As a general
338

rule,

the

resisters compliance

pleaded with

not all

guilty the

but

then of

in the

evidence crime.

admitted

formal

elements

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.

331 332 333

See "Op gelyke voet in die parlement" Die Burger 24 June 1952. See "Teen die witman" Die Vaderland 2 Sept 1952.

See "Trotseerders van wette gestraf" Die Burger 23 July 1952. See also "Sentenced for 'defiance'" The Argus 10 July 1952.
334 335

See "Swaarder gestraf" Die Burger 25 July 1952.

See "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.
336 337

See "Uittarters swaarder gestraf" Die Transvaler 26 Sept 1952.

See "First conviction under anti-defiance Act" The Bantu World 4 April 1953. See eg "Sentenced for defiance" The Argus 10 July 1952 and "151 go to jail in East London" The Friend 26 July 1952. See, 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.
339 338

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 Gandhis campaigns of Satyagraha was observed, even if there was no certainty was. to
344

as brim,

to

what

the

exact

philosophy the

underlying of

the the

Campaign Criminal

In order to counter the fact that some prisons were later filled courts implemented provisions

the

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

MacFarlane Political studies 1968 335 at 342 used this phrase to describe a system of permanent colonialism. See "Veteran leader Debi Singh leads defiance batch into action" Spark 14 Nov 1952.
342 343 341

340

Ibid.

See 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.
344 345

See Robertson Liberalism in South Africa 78. "Tronk reeds tot oorlopens toe vol" Die

Section 346. See Vaderland 28 Aug 1952.

346

See "'Defiance' natives expelled from gaol by order" Rand Daily Mail 25 July 1952 and "Heldedom deur tronkstraf" Die Burger 28 July 1952.

Law Amendment Act. 347 Especially pertinent to the question how the law should respond to civil disobedience, and revealing in the light of what is today commonly referred to as the legitimacy crisis of the South African legal system, are the comments made by magistrates from all over the country who presided in Defiance Campaign cases, as reported in the newspapers of the time. 348 An accused called Mhlaba stated in a Port Elizabeth court that by defying a railway station segregation notice he was defying an unjust law which was against Gods 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

See "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. Before 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. Quoted from "Natives in court in Port Elizabeth" The Cape Argus 10 July 1952. Reported in "21 go to gaol for 'defiance' at station" Rand Daily Mail 28 Aug 1952.
350 349 348

347

the accuseds 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 illegal upon civil disobedience, Ek was reflected dat in the words of a magistrate who sentenced a number of offenders who participated in an demonstration: betreur dit hierdie betreklik jong mense, wie se Intel ligensie nie hulle vryheid daarvoor moet boet. 355 At the trial of Dr Conco, Lutuli's second-in-command in the Natal bale hoog is nie, gewerf word om

aan versetpleging en wetsoortreding deel te neem, en dat hulle nou met

351 352

Ibid.

Quoted 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.
353 354

Quoted from "Muur sal nie seer kry!" Die Volksblad 11 Sept 1952.

Quoted from "Defier (87) not allowed to be a 'martyr'" The Argus 1 Oct 1952. Quoted from "'ANC vernietig sy jeug'" Die Burger 1 Oct also the seemingly bizarre case described in "Magistrate defiance men - frees them" Rand Daily Mail 7 Oct 1952. version of the facts of the case was given in "Congress Vereeniging magistrate" People's World 16 Oct 1952.
355

1952. See sorry for The ANC's reply to

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, with Mandela, the Moroka of
360

and

others

were

charged 11(b)

in of

the the

Supreme

Court

crime

contravening

section

Internal Security Act 44 of 1950.

According to the indictment they

356 357

See Flash 6 Nov 1952. Quoted from "First victims of Swart's new order" Advance 18 Dec See eg "413 Naturelle gister gevonnis" Die Transvaler 19 Aug

1952.
358

1952. Some people were also tried with Illegally collecting money to support the movement. See "'Defiance' collection test case" The Cape Times 14 Aug 1952. See "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
360 359

advocated

and

encouraged

the

achievement
361

of

the

objectives

of

communism as defined in the Act.

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 others 363 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,
364

which

was

different

from

what

is

commonly known as communism.

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
366

peaceful

course of action and to avoid violence in any shape or form. An appeal

367

against

the

conviction

to

the

Appellate

Division

was

dismissed.

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.
361 362

See the discussion of the offence infra chap four I C (l)(b). no case'" People's

See "'Nat government desperate - crown has World 11 Sept 1952.

363 364

Unreported case no 1417/52 W 2 Dec 1952.

During 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.
365 366 367

At the first unnumbered page of the reasons for sentence. Ibid.

Reported as R v Sisulu and others 1953 3 SA 276 A. Judgment by Greenberg A C J.

through

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
370

of

post

office

regulations in other courts, with the same result.

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 cases 372 the magistrate told the accused: You have committed a moral crime, but

368 369

At 290.

See "Charges of 'resisting' fail: 54 freed" The Argus 21 July 1952 and "Postal apartheid" The Cape Times 22 July 1952 See "'Defiers' are found not guilty at Worcester" The Argus 25 July 1952.
371 370

See "Blanke versetplegers deur hof ontslaan" Die Burger 20 Dec

1952. See eg the observations the magistrate in the "Great Trial" made regarding Gandhi, quoted infra chap three III B (1)(a).
372

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
374

of this

blacks

were

diminished was not

through upheld in

these the

regulations.

However,

contention

magistrates courts.

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
375

Division. The case originated in August 1952 when the accused, a European waiting-room Railways
376

black man, as part of the activities of the Defiance Campaign, entered the at and the Cape Town railway station, Control, and and refused to leave when requested to do so. He was charged with having contravened the Harbours Regulation, Management Act 22 of 1916. 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 nonEuropeans 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

373 374

See "No legal basis for PO apartheid" Advance 25 Dec 1952.

See "42 Oortreders skuldig bevind; 1 kry rottang" Die Transvaler 20 Aug 1952. The 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.
376 377 375

Read with regulation 20(a) of the General Railway Regulations.

1950 3 SA 136 (A). For a discussion of this case, see Forsyth In danger for their talents 95.

argued, however, was that the Railway Administration had "unfettered discretionary rights" to treat different races unequally and partially if it desired to do so. Centlivres C J, writing for the majority of the Appellate Division, argued that: If the crowns 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 in the Durban situation
382

in

South by UN.

Africa more After

be

debated 10 000

at

the

UN The

General rally the

Assembly.

A so-called United Nations Rally was held at Red Square and attended of the than people. solidarity

unanimously passed by acclamation a message which was sent to the Secretary-General expressing with 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

378 379 380

At 491 of the report. [1898] 2 QB 91 at 99.

See "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.
381 382

See Houser Nonviolent revolution 1n South Africa 25. See Lodge Black politics in South Africa since 1945 44.

country, we look forward to the United Nations to take a positive stand on this vital question. The future of the new world organization born in the struggle against Fascism depends on its ability to give the oppressed peoples of the world a clear lead on racial discrimination which like a cancer is eating into all that we hold dear in human relationships. In sending our greetings to you we hope that the democratic nations of the world will not allow any further impairment of world peace by allowing herren-volkism to hold sway in any part of the world. 383 A number of so-called UNO batches of resistors were now arrested. 384 Four months after the beginning of the Campaign, the ANC in the

Transvaal was considering the extension of the Campaign into the rural areas. 385 Just as the Campaign was about to move into its third stage preparation for nationwide mass civil disobedience - rioting broke out on a large scale. The first outbreak of mob violence occurred in New Brighton, Port

Elizabeth, in October. When a white railway constable tried to arrest two Africans suspected of stealing a drum of paint, some bystanders came to their assistance. Reinforcements for both sides arrived on the scene. Eventually a crowd of 2 000 to 3 000 were stoning the station and other buildings in the vicinity. The police opened fire. Four whites were killed by the mob, and nine (according to some reports seven) black people were shot dead by the police. 386 Similar incidents occurred at Denver and in Kimberley, also sparked off by trivial incidents. 387 Particularly the killing of a white nun who was sympathetic to the African cause during riots in a black township sent shock waves through the country. In total, 26 blacks and 6 whites died

383 384 385

Quoted in "Message to the United Nations" Flash 14 Oct 1952. See "Defiers' first 'UNO batch'" Cape Times 6 Oct 1952.

See "Extension of defiance" The Cape Times 13 Oct 1952 and "'Defiance' to spread to platteland" Rand Daily Mail 13 Oct 1952. See 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. The court case resulting from the incident at discussed by Kuper Passive resistance 1n South Africa 135.
387 386

Denver

is

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

388 389

Olivier Koers 1987 512 at 535. Luthuli

See Kuper Passive resistance in South Africa 138 and Let my people go 115.
390

See "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. For 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. See 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
392 391

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. During December, the number of resisters dropped to 280. Kuper Passive resistance in South Africa 143.
394 395 393

See Benson South Africa 146. See "ANC will continue to fight Nat dictatorship" Advance 4 Dec

1952. This theme is thoroughly discussed in Horrell Action, reaction and counteraction 6ff. The legislative consequences are discussed in Horrell Legislation and race relations 48ff. Calling 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. See "Defiance Campaign is mutiny, says Donges (sic)" The Friend 10 Dec 1952.
398 397 396

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, rejected this it denied the as Campaign one of the status and of being antiits exploitation, and treated it as policy-based. Not surprisingly, the ANC assumption hypocrisy, emphasised conviction that what it was striving for was recognition of the basic right of the people not to be exploited. 402 The Defiance Campaign its met with stern to reproach that in law Parliament. and order The was

government

stated

intention

ensure

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

399 400

See Kuper Passive resistance in South Africa 154.

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. See "Dr Eiselen gives his views on the unjust laws campaign" The Bantu World 20 Sept 1952. See "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.
403 404 405 406 402 401

Debates of the House of Assembly 20 June 1952 col 8759. Id 20 June 1952 col 8758. Id 26 May 1952 col 6319ff. Id 26 May 1952 col 6327.

At the beginning of 1953, in his opening speech in Parliament, the Governor-General of the Union announced that Parliament would be asked by the government with for additional acts powers of to deal of swiftly the law.
407

and The

effectively

any

further

defiance

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 government. opposed
409

the

Campaign,

it

refused

to

side

with

the

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 resistance 411 and accused the government of setting a precedent of lawlessness by overruling the Appellate Division in
412

their

effort

to

remove

the

coloureds from the common voters roll.

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

407 408 409

Id 23 Jan 1953 col 4. Id 27 Jan 1953 col 120.

In 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.
410 411 412 413

Id 27 Jan 1953 col 89. See "The chickens come home" The Cape Times 24 Sept 1952. See "Premier must set an example" The Friend 4 Sept 1952.

According to cabinet minister Or T E Dnges, the Campaign could be labelled "Made in Russia or India". See "Dnges sees mark of Moscow" The Argus 22 Nov 1952. See also "'n Siniese spel" Die Volksblad 26 June 1952; "Agter die versetveldtog" Die Burger 12 Aug 1952 and "Leiding van Moskou" Die Volksblad 15 Dec 1952. The approach accorded with the fact that civil disobedience was regarded as an "act of communism" in terms of the Internal Securuty Act 44 of 1950.

the blacks own best interest. 414 When it seemed that some prisons were approaching their capacity, it was suggested that those arrested for participation in the Campaign should be housed in concentration camps 415 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

See "'Unjust laws' is complete misnomer" Pretoria News 18 Sept 1952 and "Versetplegers is onkundig oor wette" Die Burger 18 Sept 1952.
415 416 417

414

See "Konsentrasiekampe vir versetleiers" Die Burger 22 Nov 1952. See "Padkampe vir versetters" Die Volksblad 4 Aug 1952.

See "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. See "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, s 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. See "'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 "Maatrels 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.
419 418

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 Tutu 421 and Gwendolyn Carter 422 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 In to the government it did more to the repeal very any of and the Its offensive the on be effect not legislation. government intellectuals underestimated. fact, opposite should, prompted

initiate and
423

oppressive leaders

legislation.

religious

however,

Eventually, these people would play an important role

in the liquidation of apartheid. 424 Executive harsh. and legislative the response to the the Campaign were swift and a

During

Defiance

Campaign

Governor-General

issued

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

See "Difficult to 'stamp out' Defiance Campaign" The Friend 11 Oct 1952. See 0 Tutu "Persecution of Christians under apartheid" in Metz & Schillebeeckx Martyrdom today 63 at 67.
422 423 424 421

420

See Robertson Liberalism in South Africa 85. See Karis & Carter From protest to challenge vol 2 426.

One 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. This proclamation is discussed infra chap four I C (1)(c). Se also "Heavy penalties under new proclamation" The Bantu World 6 Dec 1952
425

Criminal Law Amendment Act 27 of 1914 426 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 Coordination persons of Documents) Act 67 of 1952 was introduced which, in mockery of its name, made provision for the state to require all black 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
429

Act

of

1953

were

enacted.

Discussed

elsewhere in more detail,

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 of consolidate public regulations which new made Act provision for segregation facilities. This

specifically excluded the requirement of equality between European and non-European facilities posed by the courts. 431 Consequently the decisions in R v Lusu 432 and the post office cases 433 were effectively

Mandela was banned for six months under this Act. See Meer Higher than hope 59. See 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.
428 429 430 427

426

See Joseph Africa South 1959 20. See infra chap four I, II.

For a discussion of this period in South Africa's legal history, see Brookes s, Macaulay Civil liberty in South Africa 77ff.
431 432 433

See s 3. 1953 2 SA 484 (A). These cases are discussed supra chap three III A (3)(c)(iii).

neutralised. The effect of the Campaign on the white community, at least on the short term, was consequently overwhelmingly negative. Insofar as its aim was to underwrite a moral appeal, the Campaign resulted in a clenched fist rather than a softened heart. The long term results are more difficult to evaluate, but were perhaps more positive. Reaction of the black community

Views in the black community regarding the Defiance Campaign were, as was to be expected, not consistently favourable. From the conservative side, opposition to the Campaign by Mr Bhengu (who was later convicted on unrelated charges of fraud and theft) of the pro-government Bantu National Congress was the most vocal. 434 The latters 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 Lutulis 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

Kuper 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. See "Chief A Luthuli speaks of march to freedom" The Bantu World 18 Oct 1952. On 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. See "Bantu Chiefs warn followers against passive resistance" Rand Dally Man 8 Sept 1952.
438 437 436 435

434

See Luthuli Let my people go 111.

door? 439 National Party newspapers also tried to expose apparently not entirely without justification
440

black

resentment

at

Indian

leadership of the Campaign.

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

439See his statement: "The road to freedom is via the cross", reprinted in Karis & Carter From protest to challenge vol 2 486. 440See "Bantoes raak sat vir Indir-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. Quoted from the editorial of the movement's journal. The Torch 10 June 1952. On 19 Aug 1952, the editorial stated: "ImperialismHerrenvolkism 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.
441 440

439

morality and

needed

to

change. more

To

them,

civil goals

disobedience of the

was

an

unwarranted compliment to the humanity of the government. The indirect eventually perhaps important 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 hand, in respect values seen of the Campaign. 444 Kuper on indicated the other that hand, black Christianity was viewed with ambivalence by many blacks. On the one Christian was legitimised as
445

resistance; whereby

Christianity

plot

whites

appeased

resentment of suppression.

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

See eg "Public Safety Bi11 means political terrorism" Advance 5 Feb 1953. See 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. For a consideration of some of the studies conducted on the religious dimensions of African protest, see Jeeves International Journal 1973 511 at 518.
445 446 444 443

442

See Kuper Passive resistance in South Africa 116ff.

F See "Ministers' comment on political ban" The Bantu World 3 Jan 1953. See "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. See "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
448 447

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 movements wider support. 452 After the Campaign, the ANC was for the first time truly a mass

movement. It lost much of its litism 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.
449

See "Clergymen discuss Defiance Campaign" The Bantu World 21 Feb

1953. Mandela "No easy walk to freedom" in Mandela The struggle is my life 34 at 34. See "Civil disobedience Argus 31 July 1952.
452 451 450

campaign

continuing

struggle"

The

See Walshe The rise of black nationalism In South Africa 402. See also Gerhart Black power in South Africa 89, whose figures are slightly different.
453

Mandela, in his "No easy walk to freedom" address to the ANC

focus which resulted in the rejection of the more aloof Dr Moroka 454 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 nonEuropean 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. During 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.
455 456 454

See Robertson Liberalism in South Africa 102. L Kuper "Nonviolence revisited" in Rotberg & Mazrui Protest in black Africa 788 at 795 and Meli A history of the ANC also "Nie-blankes organiseer terwyl blankes 'skerm'" Die 28 June 1952 and "Appeal for unity to non-whites" The Natal July 1952.

See and power 122. See Vaderland Mercury 2

457

See L Kuper "Nonviolence revisited" in Rotberg & Mazrui Protest and power in black Africa 788 at 791. Lutuli emphasised the fact that the target of the Campaign was the system and not a race. See Luthuli Let my people go 105.
458

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
461

opinion

against

the

policies

of

the

South

African

government. the

Eliciting a negative world response to the South African tried to avoid. 463 International sympathy with the

government was one of the objectives of the Campaign, 462 and something government

See "ANC stands by the alliance with Congress of Democrats" New Age 13 Nov 1958. The same happened during the campaigns conducted by Gandhi. See infra chap three III B (1)(b). For 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. Right 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. 463For 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
463 462 461 460

459

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 support 466 and raised the issue in the UN. A commission was consequently appointed by the UN to study the effects of apartheid legislation 467 - a move which was deeply resented by the Nationalists as
468 469

an

unwarranted

interference in their countrys domestic affairs.

It was the first

direct international onslaught on apartheid as such.

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. See 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. Early 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 Indi" 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 See "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. See "Wil VVO op versettery in SA wys" Die Transvaler 25 Aug 1952; "Indi steun versetters" Die Vaderland 25 Aug 1952 and "Versetplegers en die VVO " Die Burger 25 Aug 1952. See "Huigelary ken geen perk in die VV, s Min Dnges" Die Vaderland 22 Nov 1952.
469 468 467 466 465 464

See Benson South Africa 153.

Campaign. 470 The defiance leaders (and a number of foreign governments), for example, claimed that the conduct of the police in raiding the houses of the participants violated the UN Charter. 471 As mentioned earlier, UN attention to the issue of apartheid led to an intensification of the Campaign. In Britain, the also from Defiance led the to Campaign, strong
472

apart
473

from of the

attracting the trade South

financial African the

assistance, government churches

475

criticism radio,

press,

the

unions, 474

and politicians.

476

In the United States, the New York Times commented that the Malan governments 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

For 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. See "Versetters s hu11e kry baie steun" Die Burger 4 Aug 1952 and "India attacks race policy of S Africa" Rand Daily Mail 15 Sept 1952. See "Net een antwoord moontlik" Die Volksblad 29 Aug 1952 and "British periodicals comment on Defiance Campaign" Rand Daily Mail 30 Aug 1952. See "Beskrywing van uittartery oor BBC gegee" Die Transvaler 22 Sept 1952 and "SA defiers described to Britain" Mercury 22 Sept 1952.
474 473 472 471

470

See

"Britse

vakbondkongres

se

besluit"

Die

Volksblad

Sept

1952. See "Prediker s 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.
476 477 475

See "Apartheid - the shadow over Africa" The Friend 4 Feb 1953.

See "New York paper's view of 'unjust laws' campaign" The Friend 15 July 1952. After 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
478

countries

such

as

Canada 479

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 The community, and the global of quicksand which of later civil threatened to engulf the country was starting to build up under its feet. implementation lack concrete results 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) The Evaluation of the Defiance Campaign 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 Indirs" Die Transvaler 16 Sept 1952.
479 480

See "Kanadese is geskok" Die Burger 21 Aug 1952.

See "Nepal betuig meegevoel met SA se versetters" Die Vaderland 18 Sept 1952. For an overview of United States economic pressure against South Africa, see Heyns CILSA 1989 269.
481

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
482

masses

and

failed

to

fire

them

with

revolutionary

ardor.

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 the prominent Campaign then as ha to would become or later. were In the absence it was of a principled commitment to non-violence, the fact that participants in resorted violence drawn into 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,

L Kuper "Nonviolence revisited" in Rotberg & Mazrui Protest and power In black Africa 788 at 795.
483 484

482

See infra chap three III B (2)(a).

According to Kuper Passive resistance in South Africa 92 "[p]urification by voluntary suffering is an integral part of Hindu culture, in contrast to Bantu culture."

given the particular circumstances of the Defiance Campaign, is open to doubt. As Kuper observed: From a purely expedient point of view, the resistors might have elected not to notify the authorities of their plans, nor to invite arrest. It would have been sufficient, for example, that more and more Africans should cease to carry their passes. Nor would the refusal of the police to effect an arrest have created a problem. But, in terms of Satyagraha, the courting of arrest and the willing submission to punishment are the essential means for conversion of the rulers. 485 It is revealing to note that, eventually, it was precisely the fact that Africans simply ceased to carry passes without drawing specific attention to it, that made the system unworkable. 486 The outward form of Gandhian protest was adopted during the Campaign without considering its applicability to the particular needs of the protest movement. Gandhian civil disobedience was designed to bring about suffering, and arguably Campaign a precise adherence in a to his methods too during much the was Defiance asked of resulted situation where

prospective protesters, with too remote prospects of success. It also seems that the laws targeted failed to arouse sufficient

enthusiasm to sustain resistance. It Nature of the adversary 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

485 486 487

Kuper Passive resistance in South Africa 125. See infra chap three III A (3)(e).

See on the role of religion in legitimising apartheid Infra chap five II.

year,

was

bound

to

encounter

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 Gandhis 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 Gandhis 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 1950s 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,
489

but

sufficient

stimulus to strengthen the counter-revolution. (vi) After rather

Black politics in the wake of the Campaign the Defiance Campaign, this time very little in civil the line of civil when

disobedience emerged from the ANC. Only in 1958 did the ANC again - and ambivalently encourage disobedience, 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

See L Kuper "Nonviolence revisited" in Rotberg & Mazrui Protest and power In black Africa 788 at 794.
489 490

488

Id 795. Lodge Black politics in South Africa since 1945 78.

which led to this will next briefly be considered. The Defiance Campaign left the leaders of the ANC with the problem of how to sustain and to channel the enthusiasm of their new following. The massive clamp-down by the stall forced those in the liberation movement to consider other alternatives than civil disobedience. Open and non-violent defiance of the state was almost guaranteed to result if martyrdom. The remainder of the 1950s 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 Peoples 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

governments 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

0n 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. See, on these two campaigns. Felt African opposition in South Africa 92ff, 143ff.
492

491

freehold

titles 493)

from

the

freehold

townships

of

Sophiatown,

Martindale and Newclare (Johannesburgs Western Areas) to the statecontrolled 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 Black from the provincial would now authorities be to the by a central special government. education controlled

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.

493 494

See Kotz African politics 1n South Africa 11.

Feit 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.
495 496

Quoted in Lodge Black politics In South Africa since 1945 115.

See verwoerd's "Verklaring oor die Bantoe-onderwysbeleid van die Unie in die Senaat, 7 Junie 1954", contained in Verwoerd Verwoerd aan die woord 59 at 77.

The ANC decided to launch a campaign to resist these changes in Bantu education. It was decided that the schools should be boycotted. Starting in April 1954, as many as 10 000 children were absent from school at some stage or another. However, as Lodge observed, the ANC's approach to the issue was characterised by uncertainty and disagreement between different sections of the leadership and between leaders and the rank and file. 497 The main thrust areas of the was who campaign was conducted a in geographically ultimatum, facilities provide

isolated from

and

sporadic. attended in

Following alternative the ANCs

government educational ability

children started to return to school at the end of the month. Apart some children public
498

provided for some time by the ANC, the boycott was dead. It also undermined belief to alternatives. reflected Whereas the Defiance Campaign brought the ANC great on its organisational and leadership skills.

popularity, the Western Areas and Bantu Education campaigns of 1955 badly 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.
499

In

total 1957

893

people the

were

arrested to

and strike

926

were

convicted.

From

onwards

ANC

turned

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

497 498 499

See Lodge Black politics in South Africa since 1945 121. Felt African opposition 1n South Africa 143ff.

The 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.
500

On the 1957 bus boycott, see First Africa South 1957 55.

On appeal, the Appellate Division confirmed the conviction. 501 Steyn C J held that the magistrates 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
505

lifetime that they

led, were

by

an

irresistible the

inference, overthrow

to of

the the

conclusion state.

planning

violent

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

501 502 503 504

See R v Pitje 1960 4 SA (A) 709. At 710. 503At 711, 712.

504S 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.
505

See Karis The Treason Trial in South Africa 17.

1954 to 13 December 1956, it was claimed by the state that the earlier history directly of by the ANC should or be seen the the as a prelude would would be to an be eventual attacked to act revolutionary offensive, force, where where state state either

provoked

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
507

Campaign

was

portrayed as part of the wider treasonable strategy.

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 1950s 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

This argument was taken over from R v Leibbrandt. unreported case no G 1/42 SCC 1943. See infra chap four I 0 (1). See para 6 of the prosecution's summary of facts, reprinted in Karis The treason trial in South Africa 59.
508 509 507

506

See the judgments of Rumpff J at 26 and that of Bekker J at 44.

The idea of the "return of Africa" can be traced back to John Cube's popular phrase: "Lapho ake ema khona amanzi ayophinde erne futhi" -"where there was once a pool, water will collect again." See Motlhabi The theory and practice of black resistance to apartheid 43.

people, mostly Communists, in the ANC, and the contents of the Freedom i Charter - especially the opening lines which state: South Africa belongs to all who live in it, black and white. The latter concession to whites was regarded as in irreconcilable conflict with the 1949 Programme of Action. 510 Members of the PAC viewed the Defiance Campaign as distorted because of the involvement of the SAIC 511 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 PACs 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 ANCs 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. prevented The idea that massive participation would result in the enforcing 1963. its policies, envisaged
513

prisons being filled up to capacity, whereby the government would be from in was a given central priority. of Pressure would build up and somehow political independence would be established Sobukwe never-ending stream campaigns until independence is won.

510 511

See Karis & Carter From protest to challenge vo1 3 505.

See Motlhabi The theory and practice of black resistance to apartheid 145. On 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.
513 512

See Pogrund Sobukwe and apartheid 127.

Privately, the leaders envisaged the use of violence in future, but for the time being they propagated non-violence in public. 514 Sobukwe stated that what was intended with the Positive Action Campaign differed from what was intended with the Defiance Campaign: We are not hoping for a change of heart of the Christian oppressor. 515 If the Defiance Campaign hovered between persuasion and coercion, the Positive Action Campaign was clearly premised on a commitment to the latter. It was also much more evident than was the case with the Defiance Campaign that the eventual overthrow of the existing apartheid system was a primary objective of the Positive Action Campaign. Sobukwe told his audiences that, when a house is flooding, the solution is not to throw the water out. The PAC, he said, aimed at closing the tap from which all this vile legislation flows. 516 Sobukwe gave the Commissioner of Police two weeks notice that the Positive Action Campaign was about to start. He told the press that he had appealed to the African people to keep the Campaign non-violent. Nevertheless, he cautioned that [i]f the other side so desires we will provide them with an opportunity to demonstrate to the world how brutal they can be. We are ready to die for our cause. 517 It turned out to be prophetic words. On 21 March 1960, Sobukwe walked four miles to the local police station and was joined on the way by small groups of men. At the police station they were arrested. With the PAC lacking a national organisational infrastructure, and its leader cutting off his ability to provide leadership by giving himself up for arrest right at the start of the Campaign, the success of the Campaign was left largely in the hands of fate. It proved to be fateful indeed. Events all over the country on that day suggested that the PACs call for Africans to present themselves for arrest remained largely unheeded on a national level. 518 the The PAC exception was well was the industrial and area near Vereeniging, where organised faced little

514 515

See Lodge Black politics in South Africa since 194S 203. The theory and practice of black resistance to

Motlhabi apartheid 153.

516 517 518

Quoted in Gerhart Black power in South Africa 234. Karls & Carter From protest to challenge vol 3 566. See Gerhart Black power in South Africa 236.

opposition

from

the

ANC.

At

Evaton,

several

hundred

men

presented

themselves for arrest, but were told by the police that the facilities were inadequate. At Sharpeville a large crowd - estimates ranged from three to twenty thousand - gathered around the police station where 300 policemen were on duty. A police officer was pushed and fell, and according to police witnesses stones were thrown at them. The panicking constables fired into the crowd, killing 69 people, mostly shot in the back, while 180 others were wounded. 519 The shock waves of the event reverberated around the country and indeed around the globe. As time passed by, it became clear that Sharpeville was one of the most important events in the history of black resistance in South Africa, occupying a place similar to that of the incident at Jalianwalah Bagh in India. Sporadic incidents of violence and some demonstrations occurred during the first week after the events at Sharpeville became known. In Pretoria, Lutuli burnt his pass, and both the ANC and the PAC organised a country-wide strike. The government did not delay their clampdown. Public meetings of all races in the large towns were banned. A nationwide state of emergency was proclaimed on 30 March. After a police raid on Langa early in the morning of the same day, a crowd of black people spontaneously marched to Caledon Square. A crowd estimated at almost 30 000 stopped before the Caledon police station. At this stage Philip Kgosana, the Secretary of the Cape PAC, was the leader of the crowd. Inexplicably he agreed to disperse the crowd in return for a promise of a meeting with the Minister of Justice later that day. 520 The crowd dispersed. When Kgosana arrived for his appointment he was arrested. Altogether 1 500 people were arrested that day in a nationwide sweep. Langa and Nyanga were sealed off by the security forces. Except for sporadic outbursts, demonstrations were over. At a subsequent trial, Sobukwe was charged with having incited natives in general or some of

Lodge 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. For 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.
520

519

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
521

minority.

He

was

sentenced

to

three

years

imprisonment.

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
522

now

crime

to

further

the

objectives

of

these

organizations.

Civil disobedience was once more considered a possibility at the Allin Conference that in an March 1961. to A three day strike to was call planned a to coincide with the proclamation of a Republic on 31 May 1961. It was decided ultimatum the government national convention would be issued, failing which a campaign of mass-non-cooperation 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

521 522 523

See Pogrund Sobukwe and apartheid 153. See Infra chap four I & II. & Davis Mandela, Tambo, and the African National

See Johns Congress 87ff.

524

See 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. See Mandela's "Black man in a white court'-statement, reprinted in Mandela The struggle is my life 133 at 156.
525

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 that purposes the of continuity at On the 16 and perspective was the on 1961 it could be of mentioned focus beginning sabotage

governmental

installations.

December

first

sabotage

attack was launched. A flyer, issued by the command of Umkhonto we Sizwe on that date, stated that "the peoples non-violent policies have been taken as a green light for government violence. 531

526 527 528

Id 157. Karis & Carter From protest to challenge vol 4 62.

See 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.
529 530 531

See Davenport South Africa 395. Karis & Carter From protest to challenge vo1 3 772.

See "Announcement of the formation of Umkhonto we Sizwe", reprinted in Johns & Davis Mandela, Tambo, and the African National

The movement was, however, severely crippled by a police swoop on its Rivonia headquarters in July 1963, and the subsequent trial and life imprisonment of its most important leaders - including Mandela. 532 When the armed struggle was resumed, it would be characterised by incidents of guerrilla warfare in which many people on both sides would lose their lives. A watershed year would be 1976, which saw the bloody Soweto riots.
533

Scores

of

youths

left

the

country

for

military

training.

Part of the ANC's struggle would include terror attacks on the moral appeal of the ANC's cause, and strained the

civilian or soft targets. There could be little doubt that these acts diminished 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
536

rights

following

the

findings of the Wiehahn Commission in 1979.

Civil disobedience re-emerged as one of the major political tools of resistance at the end of the 1970s. 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. On 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.
533 534 535 532

See Davenport South Africa 430ff and Holland The struggle 178. See infra chap four II A. See Davis & Fine Journal of Southern African Studies 1985 25 at in eroding

29. See "Quiet civil disobedience the real force apartheid, says Kane-Berman" Natal Post 5 May 1989.
536

they refused to move. They were eventually forcibly removed from the pavement. Press Under coverage its aroused public to indignation Stop now and and the was made organization, established. where ACTSTOP were (Action about to
537

Committee third take

Evictions), occupied consequently

auspices,

persons

houses

evictions

place,

eviction extremely difficult.

Judicial assistance to their cause came in 1983, when Goldstone J found in S v Govender 538 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 1980s, 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

See R Robertson "Three case studies of non-violent action" in Nrnberger et a1 Conflict and the quest for justice 319 at 319.
538 539

537

1986 3 SA 969 (T).

The Group Areas Act was repealed by the Abolition of Racially Based Land Measures Act 108 of 1991. See R Robertson "Three case studies of non-violent action" in Nrnberger et a1 Conflict and the quest for justice 319 at 320. This was done by the Immorality Marriages Amendment Act 72 of 1985.
542 543 541 540

and

Prohibition

of

Mixed

See Davenport South Africa 458ff. See "Kongres vir eenheid teen apartheid" Rapport 8 Oct 1989.

In 1985, Or Allan Boesak, patron of the UDF, announced a mass march on Pollsmoor prison to demand the release of Nelson Mandela. The march was prohibited under the state of emergency, proclaimed earlier that year, and police barriers were erected to prevent the march from taking place. Boesak was arrested. Between ten and twenty thousand people took to the streets. Serious clashes with the police ensued. 544 In the meantime the armed struggle continued. In a 1985 interview with the Washington Times, Mandela defended the use of violence. The interview was reported as follows: Reminded that Martin Luther King, Jr, professed a strategy of non-violence to achieve equal treatment for blacks in America, Mr Mandela said that conditions in South Africa are "totally different" from conditions in the United States in the 1960s. In the United States, he said, democracy was deeply entrenched, and the people struggling then had access to institutions that protected human rights. The white community in the United States was more liberal than whites in South Africa, and public authorities were restricted by law. 545 On a number of occasions public figures such as Sheena Duncan, President of the Black Sash, expressed themselves guardedly (no doubt possible prosecution for openly propagating civil disobedience played an important role in this regard)in favour of the continued use of civil disobedience. 546 In 1986, Bishop Desmond Tutu, from a pulpit in Atlanta, Georgia, promised that he would lead a campaign of civil disobedience against the apartheid laws of South Africa. 547 A somewhat bizarre and much publicised example of civil disobedience was the plunge taken by the rev Allan Hendrickse, at the time the only coloured cabinet minister, in January 1987 at the (then) whites-only King's Beach in Port Elizabeth. Coming out of the water, Hendrickse said to the press that this transgression of the Separate Amenities Act was not an act of civil disobedience, but an action to point out the

544 545

See Villia-Vicencio Civil disobedience and beyond 59.

The interview was reprinted in Johns & Davis Mandela, Tambo, and the African National Congress 172. The section quoted is from 173. See "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.
547 546

See "Focus on South Africa as King is saluted" The Star 20 Jan

1986.

urgency and necessity for change. 548 Exactly what the basis of the distinction was, is unclear. When it became apparent that State President P W Botha would either dismiss him or to dissolve the State the House of In as Representatives, a an subsequent affront to Hendrickse statement, the State apologised but for President. of this

Hendrickse said he had not apologised for swimming at a white beach, any
549

interpretation

President.

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 areas, to of black people who moved into cosmopolitan white 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

See "Hendrickse apologised for affront, not swim" The Citizen 23 Jan 1987.
549 550

548

Ibid.

See "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. See "Rektor praat van wet oortree" Vrye Weekblad 2 June 1989, with reference to the University of Stellenbosch. See, however, also "Akademiese vryheid is relatief, s Rektor" Die Burger 1 Jan 1987, where the same principal said that civil disobedience cannot be conducted in the name of academic freedom. See Villa-Vicencio Civil disobedience and beyond viii and "Kongres vir eenheid teen apartheid" Rapport 8 Oct 1989. See also
552 551

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 parlementarirs" Die Transvaler 9 Aug 1989 and "Civil disobedience" Business Day 24 Aug 1989. The Campaign is discussed at some length by Smuts & Westcott The purple shall govern, especially at 45ff and 81ff. Boesak 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.
555 556 554 553

Villa-Vicencio Civi1 disobedience and beyond xi.

For Oliver's explanation of his reasons for this decision, see Smuts & Westcott The purple shall govern 159. See "Veldtog van verset" Vrye Weekblad 21 April 1989. See also "Throwing a lifeline" Business Day 2 Aug 1989 and "Black miners join
557

The slogan used was All of Gods beaches for all of Gods people. 558 Many of those served with banning orders, openly defied their orders. 559 In a number of cases, state
561

of

emergency

restrictions 560

and

other

restrictions on meetings an open invitation to

and funerals, were openly defied. Veteran disobedience. 562 The most important

liberal Member of Parliament, Helen Suzman, called these restrictions civil 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 1980s 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 culture. as The a political of tool this is not an seems integral less part of if African it is validity view obvious

considered that the refusal of Mandela to accept a conditional release

Defiance Campaign" The Star 4 Aug 1989

558 559

See Smuts & Westcott The purple shall govern 148.

See "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.
560 561 562

See "Wits black students join defiance" The Citizen 30 Aug 1989. See "Beperkings bespotting" Die Vaderland 10 April 1986. See "Suzman hits at funeral restrictions" The Citizen 10 April For a fuller discussion, see Levin SAJHR 1989 518 at 521.

1986.
563 564

See "Cosatu campaign will assure NP victory" The Cape Times 2 Aug 1989 and "Throwing a lifeline" Business Day 2 Aug 1989.

can best be described as an act of sacrificial civil disobedience. As soon as the first offer of conditional release was made, he had a number of options. He could accept the offer, renounce violence, walk out of prison, this regime. and In stick the to the have agreement. involved he However, giving could have from to his the perspective, apartheid option would in

second

place,

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 wrath 565 (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. Mandelas 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

It 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. For 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.
566

565

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 English 570and black 571 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

567 568

See infra chap five I L (2).

See "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. See 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.
570 571 569

See eg "Don't" The Citizen 18 Oct 1990. See eg "The govt must take on the right wing" Sowetan 18 Oct

1990. 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.
572

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, process. B. GANDHIAN CIVIL DISOBEDIENCE IN INDIA for better or for worse, Gandhis method of political

resistance has become an integral part of the South African political

Gandhis 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 was the in in attainment the 1947 end an of to Swaraj see or independence when from was concerned, granted was which

Gandhi

success

India

was

independence

independence

colonialism

See "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. 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.
574

573

remarkable for the relatively minor role which violence played. In fact, Indias 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 in as the liquidator
575

of

the of

British India's

Empire domestic

and

of

colonialism

general.

In

respect

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

Gandhis 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 LieutenantGovernor. A second incident which set the stage was Gandhis conduct at Ahmedabad when strikers whom he had supported were considering ending the strike.

For a discussion of political obligation and colonialism, see Macfartane Political studies 1968 335 at 339ff. For a discussion of the most important campaigns, see Bondurant Conquest of violence 46ff. See Gandhi An autobiography 404ff and Bishop A technique for loving 59ff.
578 577 576

575

Gandhi An autobiography 414.

In

order

to

move as at

them

to

persist, would he

he

went often

on use

fast. 579 the

Whereas of

Satyagraha, strategy

Champaran, British,

constitute

Gandhis

preferred

against

the

would

technique

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, Empire.
580

India

would

become

the

most

favoured

partner

in

the

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, Gandhis quarrel was not yet with the British Empire itself but only with Indias 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 Against arrest, this trial without jury, and in camera proceedings. 583 mass civil background, Gandhi started organising

disobedience in India. (a) Phase one: The Non-co-operation Campaign of the 1920s

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.

579 580

Id 430 and Woodcock Gandhi S3. for loving 62. See also Gandhi An

Bishop A technique autobiography 444.

581 582

Quoted in Fischer Gandhi 60.

Gandhi An autobiography 454 and Moore Liberalism and Indian politics 117.
583

See Bishop A technique for loving 63 and Woodcock Gandhi 58.

Stalls were closed and workers downed their tools. In addition, Gandhi encouraged Satyagrahis (the followers he had by now assembled) to offer themselves for arrest by breaking one of a selected number of laws, such as
584

selling

forbidden

books

or

distributing

unregistered

newspapers.

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 Gandhis 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
587

initial

launching

of

the

campaign

Himalayan

miscalculation. enough for a

In typical fashion he did not blame his opponents as nationwide campaign of non-violent resistance.

the main culprits: Indians, he concluded, were not yet disciplined 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

584 585 586 587 588

Gandhi An autobiography 462 and Woodcock Gandhi 58, 59. See Bishop A technique for loving 65. See Woodcock Gandhi 60 and Fischer Gandhi 66. Gandhi An autobiography 469. See Woodcock Gandhi 61.

rejection

of

British

rule

in

India. 589

In

1920

he

returned

medals

awarded to him in South Africa during the Anglo-Boer War and the Zulu uprising, together with a letter saying: I can retain neither respect nor affection for a government which has been moving from wrong to wrong in order to defend its immorality. 590 He urged his countrymen not to co-operate on any level with the British structures in India. His appeal was heeded by many who started boycotting schools, resigned from posts at government institutions, from the courts, from the bar etc. Gandhi then selected one district, Bardolli, where he would personally supervise a tax boycott. 591 As always, Gandhi gave the authorities full notice of his intentions. The first reason for the delimitation of a particular district was to be able to keep the Campaign under control. The second was to impress the British with a display of Indian restraint. The Campaign in Bardolli had hardly started, however, when an Indian mob in a small town in another part of India savagely killed 22 constables. Gandhi, appalled once more by his countrymens proneness to succumb to violence, forfeited immediately political in called favour off of the moral
592

Campaign gains.

in This

Bardolli,

and

footwork did not go down well with all of his followers.

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 Gandhis fledgling support. Woodcock described what is today called

589 590 591 592 593 594

Fischer Gandhi 68. Ibid. Id 70. Woodcock Gandhi 64. Fischer Gandhi 72. Ibid.

the Great Trial as a turning point in Gandhis 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 Majestys 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 magistrates 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 the stated course that of it was his in duty India to sentence make Gandhi it to six years the imprisonment and proceeded: I should like to say in doing so that, if events should possible for government to reduce the period and release you, no one will be better

Woodcock Gandhi 64. A detailed account of the trial is given under the heading "Arrest and trial" in Mayer The pacifist console 204.
596 597 598

595

See Mayer The pacifist conscience 207. Id 211.

Id 213. To employ terms used earlier, he consequently described his civil disobedience as anti-exploitation.
599

Id 215.

pleased than I. 600 This was the last time that Gandhi was tried. It was not the last time that he was arrested. Gandhi served 22 months of his sentence and was released in February 1924 due to poor health. A massacre of Hindus by Muslims again brought Gandhi under the impression of the friction which existed between these two religious groups Gandhi - himself a Hindu - decided to fast for 21 days in order to focus attention on the problem and move the two parties to reconciliation. It did highlight the problem but hardly made a difference to the level of tension. 601 In the late on twenties, Congress, and the national mood from declare in the war India was ugly, to with

violence and talk of violence the order of the day. There was strong pressure especially to young, against declare In independence, consequently England.

February 1928, Gandhi for the first time articulated his desire not only to end Britains 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 in weaker which races England from is the the crushing greater heels of
602

Western Gandhis

exploitation

partner.

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 demanded. In December 1928, Gandhi managed to persuade Congress not to declare independence warning to with grant immediate India effect but to give England a one year independence. When Ramsay McDonalds Labour all prisoners and granted the reduction in taxes they

Party took office in England in 1929, new possibilities arose. The Viceroy, Lord Irwin, announced that the British government envisaged a

600 601 602 603

Ibid. Woodcock Gandhi 69. Id 71. See Woodcock Gandhi 71.

round table conference of British and the natural issue of Indias attainment of Dominion status.
604

Indian delegates, and said that progress ... is the

constitutional

Gandhi and the nationalist leaders

responded favourably. Then the Tories and the Liberals, in a combined effort in the British parliament, overruled Lord Irwins 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
607

essential Indian

commodity sun, this

for

those a

working heavy

in

the on

fields

in

the the

tropical poor.

placed

burden

especially

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.

604 605 606 607

See Fischer Gandhi 95. See Woodcock Gandhi 71 and Pischer Gandhi 94. Bishop A technique for loving 72. Woodcock Gandhi 72.

Gandhis progress was followed, in Woodcocks words, as the world had followed Lindbergs 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 large disobedience scale. of Other had started, included in this in time the nationwide. action the Salt were was the of illegally produced all over the country, and people were arrested on a crimes protest urging reading seditious literature public, boycott

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
609

in

prison,

including,

after

nearly

month,

Gandhi

himself.

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 Gandhi. the
611

British

government

to

settle

the

issue

amicably

with

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 be struck A Salt down Works, with which steel they shot intended staves the by to invade non-violently. under British to the Without offering any resistance, they marched, in file, to its gates to policemen command. fractured journalist skulls or witnessing broken confrontation ... The reported

world: Those struck down fell sprawling, unconscious or writhing with shoulders 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

608 609 610 611 612

Id 73. Id 75. Fischer Gandhi 99. See Bakshi Gandhi and [the] civil disobedience movement 104. Fischer Gandhi 101. See also Woodcock Gandhi 75.

found himself in a strong bargaining position. Churchill, with all his racial prejudices understood of Gandhis moral advantage Temple better lawyer, with than now the anyone else, when he described what was to him the nauseating and humiliating palace, spectacle to this and one-time parley
613

Inner on

seditious fakir, striding half naked up the steps of the Viceroys there negotiate equal terms representative of the King-Emperor.

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 people of England.
615

the working

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 Indias 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

613 614

Quoted in Fischer Gandhi 103. (Emphasis added.)

See on the Gandhi-Irwin Pact, Bakshi Gandhi and [the] civi1 disobedience movement 104.
615 616 617

Woodcock Gandhi 76. Ibid.

Fischer Gandhi 109. His friends described the scene around his bed as akin to that attending Socrates's when he drank the hemlock.

This time there was a considerable response to his call. Citadels of Hindu orthodoxy were thrown open. All over India, wells were shared, and age-old social barriers were taken down. Gandhis 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 1930s. Gandhis 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 Congress by Britain, without Indian leaders having been consulted. of war on reacted strongly against Britains declaration

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 not in a war. but Consequently, individual for the time in being, pursuit
619

he of

propagated

mass,

Satyagraha

independence. Eventual some 23 000 Satyagrahas were imprisoned. (c) Phase three: The Quit India Campaign

When it became clear in 1942 that Britain was not about to give in on the of issue
620

of

Indian

independence, Gandhi

the

Quit

India

Campaign to

was

launched.

This demonstration took the form of a massive demonstration Satyagraha. told his countrymen consider

general

themselves free, and to act accordingly. He and the other leaders were

618 619 620

Id 123. See Woodcock Gandhi 94. See Copley Gandhi 78.

arrested Large-scale violence broke out, which Gandhi was powerless to stop. Gandhi was released from prison two years later in 1944. 621 By now, it was clear that independence was imminent, Power was up for grabs, and the internal strife intensified. Mohamed Ali Jinnah, leader of the Muslim league, demanded a part of India exclusively for Muslims: Pakistan. This demand conflicted with everything Gandhi stood for - the common destiny and the indivisibility of the human race would be forfeited. Gandhi negotiated with the British and with Jinnah, but allowed valuable opportunities to reach a compromise to slip through his fingers. 622 In August 1946, Jinnah resorted to violence. In four days approximately 5 000 people were killed in riots, and the violence continued. Gandhi went from village to village to preach reconciliation. His lifes 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

Gandhi spent altogether almost six years in Indian prisons, and 249 days in prisons in South Africa. Fischer Gandhi 148.
622 623 624

621

Id 159. Id 171.

See Fischer Gandhi 171. For a detailed analysis of Gandhi's role in this process, see Nanda Gandhi and his critics 77.

extreme right-wing Hindu group who objected to his insistence that liberated India must treat adherents to all religions with equal justice and generosity. Several observations may be made with reference to the above: Gandhi was a reformer in South Africa and for the first part of his career in India. Thereafter he was a revolutionary. In his efforts to overthrow the British Raj, he remained

absolutely committed to non-violence. It was for him a matter of principle, not strategy. Gandhi clearly understood that civil disobedience, in order to be effective, force. required the presence of a benevolent background He addressed both the British public and world opinion

through highly visible campaigns, and expected them to pressurise the British government. Gandhis 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. give them self-confidence. Gandhi saw the essence of civil disobedience in the voluntary acceptance of suffering, when that suffering is caused by the opponents 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 He used Satyagraha not only to

demoralise his opponent but also to inspire his own people and to

disobedience, easily identifiable injustices (as with the salt tax) that would capture the imagination - even if these targets did not entail the worst injustices. He was a master at using civil disobedience as a tool of communication in an age when global communication was in the process of being established.

Also important was the development of Gandhi himself. From an elitist and indeed racist beginning in South Africa he developed into a champion of the third world. It is submitted that this development might to a considerable extent be a natural consequence of the use of civil disobedience, with its emphasis on morality. Especially his conduct in respect of the Harijans reveals the nature of civil disobedience as a double-sided sword - it makes a moral appeal to the opponent as well as to the person who practises it. (2) Gandhi's philosophy of Satyagraha

Leo To1st6y in 1910 described Gandhis 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 Gandhis 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, Gandhis own peculiar version of that strategy of protest is even more controversial. Especially Gandhis 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

The 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, Tolsty's Individual nonviolent resistance, which drew inspiration from Gandhi's acts in South Africa, seriously eroded the resolve of the Tsarist rgime. See Woodcock Gandhi 105. Fischer 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?"
626

625

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. Gandhis 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 as and non-military to the
628

use

of

nuclear and

power, the

activities conduct of

perceived

detrimental

environment,

unpopular foreign wars.

In Africa, at least until the 1960s, Gandhis 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 Gandhis 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, Southern Gandhi. light. During
631

whose

influence was

in

respect who Kaunda

of was

resistance most

in

the my

whole mind

of by

Africa Gandhis

immense,

markedly flooded

influenced

teachings,

said,

with

the

late

1980s

and

the

early

1990s

the

embattled

Eastern

European governments were given notice, in no uncertain terms, of the

See G Ostergaard "The Gandhian movement in India since the death of Gandhi" in Hick & Hempel Gandhi's significance for today 203.

627

Mistra & 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.
629 630 631

628

See Benson South Africa 90. See Nanda Gandhi and his critics 32ff. See Kaunda Kaunda on violence 15.

opinion of the people through often illegal marches which involved millions of people. It has been argued that the fall of Marxism, prompted by these marches, together with the upsurge in non-violent protest marches in South Africa in 1989, made a major contribution towards the eventual demise of apartheid. 632 Gandhis teachings in many cases did not prevent the eventual use of violence, especially in Africa of the 1950s 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 [ones] 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 Gandhis 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 Gandhis 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-

632 633 634 635

See Smuts & Westcott The people shall govern 81ff. See Mayer The pacifist conscience 210. Fischer Gandhi 59. personality is given in

A fascinating analysis of Gandhi's Wolfenstein The revolutionary personality.

636

See eg his assurance to English friends, on the eve of starting civil disobedience in 1930, that "I am no enemy of Britain." Gandhi Non-violent resistance 222.

Gita, 637

the

sacred

Hindu

book,

which

exalts

the

virtues
638

of

selflessness, or, as Gandhi referred to it, desirelessness.

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 Tolstoys 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 Ruskins 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 Thoreaus influence in forming Gandhi's ideas should not be overrated. Gandhi read Thoreaus essay On the duty of civil disobedience when he was already

Translated 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. As 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. On Gandhi's understanding of the Sermon on the Mount, see Das Bangalore Theological Forum 1985 17 41. See 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." Reprinted in To1sty 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.
642 643 641 640 639 638

637

Bishop Gandhi 52.

Reprinted in Ruskin Unto this last and other essays on art and political economy 115.
644 645

See Woodcock Gandhi 25. See Bishop A technique for loving 52.

in a South African jail in 1907 for having started a full-scale civil disobedience movement. 646 It is not the object of this study to cover in detail the essential elements of the Indian tradition in which Gandhi grew up and from which, as a devoted Hindu, he drew inspiration. It will suffice to say that the following has been identified as some of the key notions in Indian and specifically Hindu religious thought, pertinent to the issue of civil disobedience. In the first place, there is the notion of dharma, denoting an ideal of society which is in equilibrium and in harmony, creditor and
647

is It move the

shaped was, his for

by

the to

discipline an is payment the

a by idea

person engaging of which

voluntarily for a or in self-

undertakes. starvation. compromise.

example, this to this

established

practice

to
648

debtor to

Connected

anasakti

selflessness,
649

devotion

equilibrium,

necessitates

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 the belief of suffering. of our From reality, of the Jain truth theory derived is at of his best anekantavada, fundamental 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, manysidedness that Gandhi

understanding

fragmentary, which implies that we have no right to impose our views on

646 647 648

See Woodcock Gandhi 25. Chatterjee Gandhi's religious thought 19.

Id 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.
649 650 651

Chatterjee Gandhi's religious thought 36. Id 31. Id 33.

not inaction. To use the terms employed earlier, it points to resultoriented 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 Gandhis political thought

An essential key to understanding Gandhis 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 universalist 654 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, Gandhis 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

652 653

Gandhi Non-violent resistance 363.

In 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. Surprisingly, 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.
655 656 657 654

See Parekh Gandhi's political philosophy 110. Gandhi Non-violent resistance 93. Fischer Gandhi 35.

the welfare of those who govern to heart. As members of the same family they are, after all, worthy of our concern, even if they err. How, then, should the governed discharge this duty? If the violence is of those even if who we abuse manage we power to by subdue confirm counterviolence, importance we respond to them that to of they nothing

subjecting them, to them

gained,

because

then

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 him the pivot on which Gandhian by civil disobedience the turned. Gandhi of believed in the eternal law of purification through suffering. 658 To innocent suffering necessity accompanies emergence 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 ones 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. Satyagrahas
661

objective

is

to

convert,

not

to

coerce, the wrongdoer.

Gandhis 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

658 659 660 661

Gandhi Non-violent resistance 112. Id 69. See Chatterjee Gandhi's religious thought 77. Gandhi Non-violent resistance 87.

same time, truth, to Gandhi, was God. 662 Putting aside the deeper spiritual implications of this approach (and to use non-Gandhian language), in practice it means that civil disobedience is a form of immanent critique which could bring people to see the light for themselves. Civil disobedience is in this sense a form of education in which one lets the truth speak for itself. But it is a very special form of education: It educates both the person who practises it and the person against whom it is
663

aimed.

It

is

dialectical search for the truth with the opponent.

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 life premises signified about a the driving of the force behind that history. and Gandhis defence belief eternal

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 nonviolent society cannot be forged through violence. 667

See Gandhi Satyagraha Conquest of violence 15ff.

663 664 665 666

662

in

South

Africa

109ff

and

Bondurant

See also Haksar Civi1 disobedience, threats and offers 3. See infra chap five I BB. Quoted in Fischer Gandhi 88.

Both 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. According 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
667

Gandhis

thoughts

reflected

both

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 to voluntarily Gandhi, had suffer several injustice without It retaliating, purifies and

according

advantages.

strengthens ones own detachment from the seductions of material wellbeing, and allows one to attune ones 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 Satyagrahis 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 gain. resister occupies to the the moral of high the ground, state because full

voluntary acceptance of suffering would normally not be endured for personal Disobedience demands with 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.

668

Gandhi Non-violent resistance 289.

of the demand. Gandhi perceived his Utopia in explicit anarchist terms. believed anarchy. that
669

To him, the be an ordered

state represents violence in a concentrated and organised form." He [t]he ideally non-violent state will

Non-coercion, therefore, and a willingness to undergo suffering are the decisive factors in Gandhis 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 Gandhis Gandhis approach emphasis embodies on the several voluntary problems. acceptance In of the first place, (which

suffering

underlies his insistence that Satyagrahis 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 ones 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 Gandhis what was preoccupation earlier with suffering was that he

disregarded,

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 is penalty, of etc. On the one hand, an It application was argued of Gandhis that approach can in some cases lead to a situation where too much sacrifice required prospective resisters. earlier 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

669 670

Woodcock Gandhi 64. See Muzumdar Mahatma Gandhi 16.

the

approach The

of

the

magistrate of chapter

who six

sentenced will be

Gandhi that

in

the

Great is

Trial.

thrust

this

approach

unwarranted. Another problem inherent in Gandhis 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. Gandhis was boundless and optimism urged about the human to nature
671

often

rendered

him

incapable of recognising evil when he saw it. misguided Jews

He stated that Hitler Satyagraha against

practise

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 Gandhis 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
673

than

enchained

like

slave

to

her

foreign

oppressor. evil. Even if

Nevertheless, he was willing to go further than almost

anyone else in leaving scope for the good by itself to triumph over

Gandhi

went

too

far

in

certain

respects,

his

conduct

and

example provides a powerful reminder of the importance and power of spiritual values.

He 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. Gandhi 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.
673 672

671

See Woodcock Gandhi 61.

C. The

CIVIL DISOBEDIENCE IN THE UNITED STATES OF AMERICA 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 although examples still of civil disobedience civil in the United has

States are the Civil Rights Movement and the anti-Vietnam protests. Nevertheless, controversial, disobedience 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

674

See Black Texas Law Review 1965 492 at 493.

Quakers, for example, refused to pay taxes to support the colonial Massachusetts Church. 675 As described elsewhere, this history indirectly influenced Gandhi. 676 Some of the most important constitutional decisions of the United

States Supreme Court regarding defensive civil disobedience involve a clash between the convictions of and governmental demands Jehovas Witnesses attacked very religious people on the one hand public school regulations requiring on the other. In the flag salute cases,

students to salute the American flag. The Witnesses maintained that this was forbidden by demands of scripture. In Minersvi11e School District Court v Gobatis, 677 its the Court upheld
678

the

regulations. and struck

In down

West the

Virginia Board of Education v Barnette, overruled

679

barely three years later, the

own

decision

in

Gobatis

regulations. In

Wisconsin

Yoder 680

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) The Anti-slavery resistance issue of slavery deeply in the mid-Nineteenth many Americans. Century It led and to its legal

ramifications

troubled

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

675 676 677 678 679

Weber Civil disobedience In America 35ff. See supra chap three III B (2)(a). 310 US 586 (1940). 319 US 624 (1943).

For a full discussion of these cases, see Harpaz Texas Law Review 1986 817 at 820ff.
680

406 US 205 (1972).

owners. 681 As a result of these events, the idea of conscientious breaking of the law was discussed for the first time on a national level. 682 In the northern parts of the country, public resolutions were passed at meetings of citizens opposed to the law, pledging the defiance of the law. While some equated such behaviour to treason and emphasised the need for a religious reverence for the laws, 683 others formed the underground captured.
685

railroad, 684

which

assisted

escaped

slaves

from

being

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 Thoreaus famous act of civil disobedience in the 1840's was prompted by the American governments 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,

Art 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.
682 683 684

681

Weber Civil disobedience in America 95. Ibid. see

For the legal background of the "underground railroad", Villarruel Southern California Law Review 1987 1429 at 1437ff.
685 686

Weber Civil disobedience in America 94.

For the history of this era, see Alien University of Cincinnatti Law Review 1967 175 at 178ff.

Thoreau justified his conduct. 687 He gave a spirited and articulate defence of minimal government, after stating his case for maximum individual liberty in absolute terms. He maintained that the only obligation which I have a right to assume is to do at any time what I think right. 688 Thoreau asked: Can there not be a government in which majorities do not virtually decide right and wrong, but conscience? In which majorities decide only those questions to which the rule of expedience is applicable? Must the citizen ever for a moment, or in the least degree, resign his conscience to the legislature? 689 He proceeded: How does it become a man to behave toward this American government organization also.
690

today? as

I my

answer,

that

he

cannot is the

without slaves

disgrace

be

associated with it. I cannot for any instant recognise that political government which government In 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 ones 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
693

disobedience,

since

the

states

very

constitution is ... evil.

Thoreau urged people to use their "whole

influence" to counter the majority when it went wrong. A minority is

The essay is reprinted in Thoreau Walden or. Life 1n the woods and On civil disobedience 249.
688 689 690 691 692 693

687

Id 252. Ibid. Id 254. (Original emphasis.) Ibid. Id 259. Ibid.

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 Thoreaus 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
700

but

were

not

entitled

to

vote

in

terms

of

the

constitution.

Once this avenue was closed, the women concentrated

694 695 696 697

Id 261. Ibid. See supra chap three III 8 (2)(a).

See 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. This declaration is reprinted in Weber Civil disobedience in America 180.
699 700 698

See Weber Civil disobedience in America 184ff. See Minor v Happersett 88 US (21 Wall) 162 (1894).

their efforts on getting a new constitutional amendment passed which would ensure women the right to vote. They consequently turned from legality-based to legitimacy-based civil disobedience. The Woman Suffrage Movement reached a peak in 1917, when the White House was picketed for the first time in history. Although the demonstrations as such were not illegal, hundreds of protesters were arrested, tried and imprisoned on arbitrary charges of "obstructing sidewalk traffic. 701 In 1920, the right of women to vote was recognised when the Nineteenth Amendment was passed. (6) The Civil Rights Movement

The Civil Rights Movement finds a forerunner in the stand taken by A Philip Randall, who argued in 1948 for a mass refusal of blacks to be drafted into a segregated army. This achieved an executive order of President Truman prohibiting racial discrimination in the armed forces. In the course of testimony before the Senate Armed Services Committee, Randall denied charges of treasonable conduct on the basis that, as a loyal citizen, he wanted the country to live up to its aspirations as the moral leader of democracy. 702 The Civil Rights Movement was aimed at the inferior de facto and de jure position of black people in the United States society in the middle of this century, in spite of the lofty promises of the United States Constitution and especially the Fourteenth and Fifteenth Amendments. To a large extent, the emergence of the Civil Rights Movement and its use of civil disobedience was a consequence of Supreme Court rulings. 703 By 1954, the National Association for the Advancement of Coloured People (NAACP) had won 34 of the 38 civil rights cases it had brought to the Supreme Court. 704 The effect of Brown v Board of Education in the

Weber Civil disobedience in America 196 and Flexner Century of struggle 294. His 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.
703 704 702

701

See Sitkoff The struggle for black equality 19. See Barkan Protesters on trial 29.

south was, by all accounts, electric: [I]t heightened the morale among southern blacks and civil rights leaders, it increased their hopes for change,
705

and

helped

lead

to

the

protest

campaigns

that

occurred later.

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 the other campaigns of defiance of this century where

Unlike

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
707

and

engaged

in

an

act

of

defensive

civil

disobedience.

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.

705 706

Ibid.

For 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. She 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.
707

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 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
710

for

an

end

to

segregation. 708

At

this

stage

he

was

merely

seeking a way to make the prevailing system more acceptable to black

statutes

reached

the

Supreme

Court

in

Gayle

Browder,

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 Movements ability and sense of responsibility, and provided a resource to the movement to

708 709 710

Id 1026. S v King 98 So 2d 443 (Ala Ct App 1957). 352 US 903 (1956).

rely on in the difficult times to come. 711 (b) Little Rock 1957

In September 1957, the school board of Little Rock, Arkansas, acceded to a federal court order in the wake of Brown by admitting nine blacks to the Central ticket, High School to as a first the step order. towards He had integration. the school Governor Orval Faubus, however, seeking gubernatorial re-election on a racist decided obstruct 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 on black and white eventually to some participated. extent on Special Gandhis workshops non-violence, based

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

711 712

See Kennedy The Yale Law Journal 1989 999 at 1066.

See, in general, Freyer The Little Rock crisis and Sitkoff The struggle for black equality 29ff. See Barkan Protesters on trial 37; Lomax The Negro revolt 81ff; Sitkoff The struggle for black equality 69ff and Marable Race, reform and rebellion 66ff.
713

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 governments 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

However, 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.
715 716 717

714

Bovnton v Virginia 364 US 454 (1960). See Lomax The Negro revolt 132ff. See Sitkoff The struggle for black equality 105.

threatened. Attorney-General Robert Kennedy demanded protection for the buses from Alabamas governor. A new group of passengers set out under police protection for Montgomery. They were nevertheless mobbed, and Kennedys 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, facilities. (e) issued
718

rules

prohibiting

discrimination

in

interstate

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 states effective use of the criminal justice system, adopted both a on local and eventually federal the level, and the The sophistication of the local police under Laurie Pritchett, which also non-violent strategy against protesters. 719 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 to their to draw the grievances. the looming Thereafter of the Then they they staged and started sit-ins the with in Birmingham, government attention showdown. media federal 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.

718 719

Id 110. Barkan Protesters on trial 69.

On Good Friday he was arrested. While in prison in April 1963, King wrote his Letter from Birmingham City Jail, which will be discussed presently. Widespread demonstrations occurred. The televised images that shook the country and the Federal Government was that of the use of dogs, fire hoses (that stripped the bark of trees) and clubs against unarmed protesters, many of whom were children. An accord was reached between the leadership of the SCLC and white businessmen in Birmingham. This was Demonstrations would stop and the city would be desegregated.

rejected, however, by segregationist and white supremacist groups, such as the Ku Klux Klan, who attacked blacks at random. The house of Kings 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. Kings leadership helped restore order. 720 The victory of the demonstrations was certain when the Supreme Court on 20 May ruled that Birminghams 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, Virginia 722 and Selma, Alabama. 723 The same pattern repeated itself. In Danville, Pritchetts 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

See Barkan Protesters on trial 69 and Sitkoff The struggle for black equality 137. See 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.
722 723 724 721

720

See Barkan Protesters on trial 74. Id 79. On the Selma march, see Marshall Virginia Law Review 1965 785

(f)

The March on Washington 1963

August 1963 saw the tumultuous March on Washington, with a quarter of a million people peacefully and lawfully assembling in Washington DC. Here King delivered his now famous I have a dream speech, in which he sketched his vision of a non-racial America. 725 To many white Americans the image of black resistance turned from one of dark anger, to one of accessible eloquence. It was a major victory for non-violent action. (g) The Mississippi Summer Project 1964

Perhaps the clearest demonstration of the use made during the Civil Rights Movement of the indirect strategy of appealing to the benevolent background force of the Federal Government and broader electorate, came from the so-called Mississippi Summer Project in 1964. Lawyers and law students from the North came to Mississippi to assist in civil rights cases. They were told during their training: You just cant 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
726

for

an

eventual

and

successful

appeal

to

the

US

Supreme Court. (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 Act 727 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 everyones 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. See King A testament of hope 217 and Sitkoff The struggle for black equality 160ff.
726 727 725

Barkan Protesters on trial 84.

Pub 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. Title II, upheld in Heart of Atlanta Hotel v United States 379 US 241 (1964).
728

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) As Martin Luther King mentioned in earlier, his 1963, Martin part wrote in his Luther the King, civil Jr (1929 from 1968), while in City

imprisoned Birmingham

for

rights

demonstrations Birmingham

famous

Letter

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
734

in

Birmingham,

Negroes were the victims of a broken promise,

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 nonviolence. 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

Pub 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). For an overview of the political history of black Americans after 1964, see Marable Race, reform and rebellion 95ff.
731 732 733 734 730

729

The letter is reprinted in King A testament of hope 289. Id 290. Ibid. Ibid

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 Kings policy of non-violent resistance had its roots in Christianity and in his admiration of Gandhi. According to King, Christ furnished

735 736 737 738 739 740 741

Id 292. Ibid. Id 293. (Original emphasis.) Ibid. Id 294. Ibid. Ibid. (Original emphasis.)

the spirit and motivation, while Gandhi furnished the method. 742 King explicitly modelled his campaign on those of Gandhi. 743 The strategy that was used was to defy segregation laws peacefully. This defiance and the brutality that followed was then portrayed by the media to the nation and to the world. 744 This provided the moral context in which the relevant cases were eventually argued and decided. King clearly saw the benefits that non-violent resistance held for those who practise it: The nonviolent approach does not immediately change the heart of the oppressor. It first does something to the hearts and souls of those committed to it. It gives them new selfrespect; 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;

742 743

Id 17, 88.

See 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.
744 745 746

See Barkan Protesters on trial 34. King The words of Martin Luther King 79.

Webber 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."
747

Quoted by Kennedy The Yale Law Journal 1989 999 at 1021.

for the first time he also propagated the defiance of a federal court order. King propagated a campaign whereby an initial group of 3 000 people would camp out in the offices of high officials as long as it is necessary to fight the war on poverty and to obtain a new economic deal for the poor. 748 King now propagated the wide use of a highly coercive, although not a violent, strategy whereby an extra-legal attempt would be made to secure second generation rights for black Americans. Before this campaign was embarked upon, however, King was assassinated. (7) The anti-Vietnam protests of the 1960s

In the early 1960s 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 National and in non-combat its military with assistance the by to the South-Vietnamese the communist American government conflict Front, guerrillas the of

Liberation

backed

Viet-Cong.

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 Vietnam.
750

Johnson

in

defence

of

the

United

States

troops

in

South

Shortly after passage of the resolution, about 60 people demonstrated in midtown Manhattan against the War. Seventeen were arrested. A week

See "The trumpet of conscience", reprinted in King A testament of hope 651. A 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. The resolution was passed in the House of Representatives by 416 to 0 votes and 1n the Senate by 88 to 2 votes.
750 749

748

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 amendment 751 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 governments 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 legitimate 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 on the ground of that this kind of action constituted by the a expression symbolic speech, protected First

751 752

111 Cong Rec 19669 (1965). 79 Stat 586 (1965).

Appeals for the Second Circuit. 753 A number of people, however, followed his example, with the same result. 754 Nationwide demonstrations were held. On Thanksgiving Day, 20 000 opponents of the War marched on Washington. Similar acts of protest continued through 1966. By the end of 1966, 16 people had been convicted under the 1965

amendment, and the constitutionality of the law had been upheld in a number of appeals. The Supreme Court denied certiorari case.
755

in Millers

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 OBrien 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 OBrien 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

This view was upheld by the Court of Appeal for the Circuit. See Schechter Contemporary constitutional Issues 50.
754 755 756 757

753

Eight

Id 49. 386 US 911 (1967). O'Brien v United States 376 F 2d 538 (1967).

United States v O'Brien 391 US 367 (1968). For a discussion of this case, see J E Leahy "'Flamboyant protest', the First Amendment, and the Boston Tea Party" 1n Bosmajian Dissent 47 at 58. The case is discussed in more detail infra chap six IV B (1).

others to do the same. This is discussed elsewhere. 758 Suffice it to say that individuals who engaged in conscientious objection were often treated with exceptional leniency. In 1970, resistance against the War was jolted by the invasion and virtual devastation of Cambodia by the United States. Demonstrations occurred on many campuses throughout the country. The uproar increased when Ohio National Guardsmen shot and killed four students during protests at Kent State University. In the Anti-Vietnam Campaign, less stress was placed on non-violence and non-coercion, compared to the Civil Rights Movement. In a number of cases, low-level violence was indeed used to propagate the anti-war cause, and the actions of people such as the Cantonsville Nine, who poured blood over draft records, received considerable publicity. 759 At the same time, there was a massive increase in the level of legal political protest, manifested in mass demonstrations, peaceful vigils, protest letters, songs, speeches and so forth. Towards the end of the 1960s 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 Nixons 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

758 759

Infra chap six IV B (2).

This case is discussed by Barkan Protesters on trial and Weber Civil disobedience In America 275.
760 761 762

See Schechter Contemporary constitutional Issues 37ff. See Link et al The American people 990. See infra chap six IV B.

D.

SOME OTHER INSTANCES OF MASS, RESULT-ORIENTED CIVIL DISOBEDIENCE

The above historical survey might have created the impression that mass civil disobedience is inevitably successful and used in pursuit of laudable aims. The focus was mainly on cases where civil disobedience eventually succeeded in, or contributed towards, bringing about the desired changes in the behaviour of the adversary. We have also concentrated on instances of civil disobedience where most people today would agree that the objectives pursued were commendable (even if it is still controversial whether the use of civil disobedience was justified). There are, however, many instances where civil disobedience did not succeed, as well as cases where the goals pursued were commonly regarded as unacceptable or at least as highly controversial. In order to present a more balanced picture, a number of these examples will now briefly be mentioned. Earlier, reference was made to the standard example of a case where civil disobedience in all probability would not have succeeded, namely that of Nazi Germany. Indeed, very limited use was made of civil disobedience in this case, where a ruthless and independent opponent had to be confronted. 763 Einstein, for example, who was known for his pacifist convictions after the First World War, changed his mind when the Third Reich
764

was

established. service was

In

1933,

he

wrote to

pacifists save

that

rendering

military

necessary

European

civilization.

Perhaps the clearest recent example of a situation not amenable to civil disobedience comes from the Peoples 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

See 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.
764

763

Nathan & Norden Einstein on peace 172.

law, the demonstrations continued. 765 After several threats to the demonstrators from the authorities (and apparently after the police had refused to quash the demonstrations), the government called in the military, on the night of 3 to 4 June, to clear the the square. and At least a thousand with civilians The were killed of and the thousands more were injured when the troops fired indiscriminately into crowds overran bicycles tanks. crushing 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 Malans threat to defy a ban on meetings in support of the Ossewabrandwag, the support of Bill OConnor 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, been the the most controversial of protest of but at the same time power the and most the of

widespread use to which civil disobedience was put in recent years has expression and against nuclear The development deployment nuclear weapons. development

nuclear facilities - be they peaceful or military - does not place direct legal duties on anyone. Consequently, protests against it have

See the report of Amnesty International Death in Beijing Oct 1989 5ff.
766

765

Id 7ff.

traditionally taken the form of indirect civil disobedience, in the sense that crimes such as trespassing were committed to express protest against the governments nuclear policy. Perhaps because the of civil disobedience the premises has of also the to some extent worn off novelty in other the

campaigns, anti-nuclear protests have thus typically take the form of entering nuclear facilities, blocking 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 at drawing protest attention are to pro-environment the destruction acts of of the

resistance,

aimed

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.

See Weber Civil disobedience in America and Dworkin A matter of principle 104ff. See the discussion of "ecosabotage" and "monkey wrenching" in Martin Environmental Ethics 1990 291 at 292ff. On the activities of the "Greens" in Germany, see Papadakis The Green Movement in West Germany in general, and 67, 83 in particular.
769 768

767

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 perpetrators 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

The 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. As indicated earlier, civil disobedience does not necessarily involve the commission of a crime. See supra chap two I A.
2

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 is a wide variety of possible transgressions that could

There

constitute the primary offence. In principle, almost any fence of which dolus is an element can qualify as an act of civil disobedience. In practice these offences range from trespass or transgressions of the remaining vestiges of the apartheid laws, to breaches of security legislation. Many of these laws are in themselves not objectionable, but could be violated through acts of indirect civil disobedience with tent to express opposition to other aspects of the social and political life. It will not serve any purpose to discuss these laws here in any detail, except insofar as the particular law is specifically designed to curb the public expression of protest, for instance, where public demonstrations in certain places are prohibited. The Gathering and Demonstrations Act 52 of 1973 prohibits

demonstrations in a defined area by one or more persons for against any person, cause, action or failure to take action in an area in Cape

Town, 3 including the site of the uses of Parliament. 4 The Demonstrations in or near Court Buildings Prohibition Act 71 of 1982 likewise prohibits demonstrations "by one or more persons for or against any person, cause, action or failure to take action, and which is connected with or coincides with any court proceedings or the proceedings at any inquest in any court building, or in the open air within a radius of 500m from such building. 5 Contraventions of both Acts constitute crimes. Demonstrations in these areas almost inevitably constitute acts of civil disobedience. B. SECONDARY IMPLICATIONS OF THE CRIMINAL LAW

Special legal provisions that apply to crimes of protest and which also affect acts of civil disobedience, include those which apply to sentencing for political crimes. At one time the commission of a crime of protest in itself constituted a substantive or independent offence. (1) One Sentences imposed for crimes of protest element of civil disobedience Civil is openness, which implies their both bona

vulnerability

and

defiance.

disobedients

establish

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, of inter alia by providing for
6

in

section committed

1 to

for

the

imposition

drastic

penalties

offences

secure

changes in the law or its application

- 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

3 4 5 6 7 8

Section 2(1). See the Schedule to the Act. Section 1(a). See R v Segale & others 1960 1 SA 721 (A). Section 1(a). Section 1(b).

This provision has now been incorporated into the Internal Security Act 74 of 1982, which provides in section 58 that any person convicted of an offence which is proved to have been committed by way of protest against any law or in support of any campaign against any law or in support of any campaign for the repeal or modification of any law or for the variation or limitation of the application or administration of any law shall be liable to a fine of up to R3 000 and imprisonment not exceeding three years. Whipping is no longer a competent punishment for the offence under consideration. These heavy enactments penalties did for not
10

create

new

substantive

offence

as if

some that

commentators maintain;

instead it made provision for the imposition of offence, 11 however insignificant,

any

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 extralegal 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 another 12 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

Section 2(c). See eg Dugard Human rights and the South African legal order 175.

10 11

Including, 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). 1962 3 SA 572 (0. The case dealt with the similarly worded s 1 of Act 8 of 1953.
12

express

protest

by

committing of the the

the

crime was and

of

defacing a

post

office to his the

property.
13

Commission of

crime

"purely "not

incidental factor

advertisement

campaign

in

protest". Consequently, 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 Act 14 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 Act 16 provides for a procedure whereby, if an offender does not pay a fine imposed in terms of section 58 17 of that Act, the amount of the fine can be levied by attachment and sale of the property of the offender.

13 14 15 16 17

At 573. Preceded by s 4 of the Criminal Law Amendment Act 8 of 1953. See R v Pungula 8, others 1960 2 SA 760 (N) at 766. Preceded by s 6 of Act 8 of 1953. Or in terms of ss 59 and 60 of the same Act.

Given the apartheid governments 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, sentence however, in those as to the approach they of were the not courts bound in by respect of cases where 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

In 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). For 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). See 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.
20 19

18

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
23

in

the

course of the strike, likewise led to much bitterness.

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

21 22 23 24

Van der Linden Koopmans handbook 2.4.4.5. Dugard SALJ 1974 59 at 65. Id 66.

See S v Phillips & others (1896) 3 Off Rep 216, also reported anonymously in the Cape Law Journal 1900 15 at 30. Confirmed on appeal: R v Leibbrandt 8 others 1944 AD 253. See also infra chap four I 0 (1).
25

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,
28

was

endorsed

by

the

Appellate Division in R v Jolly and others,

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
30

stated

that

the

accused

were
29

not In

actuated by any personal motives, whether of gain or of revenge." an obiter dictum in R v Gomas,

Van der Lindens 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 Those of his political convictions. 31 of treason after the Second
32

convicted

World

War

were

also

punished relatively mildly. In R v Mardon,

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

26 27 28 29 30 31 32

See Anonymous SALJ 1901 164. See also Dugard SALJ 1974 59 at 65. 1923 AD 176 at 183. Ibid. 1936 CPD 225 at 235. Ibid. 1947 2 SA 768 (TSCC).

lighten his punishment. 33 An eventual fine of 75 was imposed. 34 It should be noted that the judgment was entered a considerable time after the War, the events occurred on a distant continent, and the appellant in fact fought against the Soviet Union and not against South Africa. The face of resistance in South Africa changed in about 1846 when there could no longer be any doubt about the intentions of whites to entrench as firmly as possible their privilege, and black protest changed to challenge. How would courts deal with political resistance in this new era? (ii) The era of black against white conflict

The sentences imposed during the trials resulting from the Defiance Campaign were discussed earlier. 35 In R v Sibande, 36 one of the earliest reported cases concerning the Defiance Campaign in which the issue of the appropriate sentence for political crimes was addressed, a very clear exposition is to be found of a judicial willingness to treat political offences with leniency. The conviction of the accused in the court a quo on a charge of unlawfully being in a certain magisterial area where he attended a meeting was confirmed on appeal, but the sentence of two months imprisonment that had been imposed by the court a quo was suspended. In justification of its approach to sentencing the Court remarked that the appellant was not committing an offence of dishonesty or anything of that kind. It is a political offence and he 1s not to be regarded, in my view, in the same way as an ordinary person contravening the ordinary criminal code of this country. 37 In R v Segale and others, 38 the accused were charged with incitement of an illegal strike. The appellants conviction of having incited certain municipal employees illegally to stay away from work was confirmed by the Appellate Division. The appellants acted in support of a campaign aimed at achieving a l-a-day law and the abolition of the pass laws,

33 34

At 776.

This 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.
35 36 37 38

See supra chap three III A (3)(c)(iii). 1956 4 SA 23 (T). At 25 per Kuper J. I960 1 SA 721 (A).

the Group Areas Act and National Party rule. 39 Prison sentences of varying duration were imposed by the Transvaal Provincial Division. 40 In confirming from those the in a sentences, Sibandes national the Appellate The Court was Division found that the the circumstances of the present offence ... differ obviously very widely case. proceeded: motivated Although by campaign for protest week 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 others 43 section were 11(a) convicted of the in the

magistrates

court

of

contravening

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

Because 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.
40 41 42 43 44 45

39

R v Segale & others 1959 1 SA 589 (T). At 733. Ibid. 1963 2 SA 363 (T). At 367. See also R v Sithole 1964 4 SA 477 (SR AD) at 480. 1973 1 SA 264 (C).

worth

quoting

at

length

reaffirmed

the

classical

approach

of

our

courts: One must remember that it is a political offence, and one must remember that the people who commit political offences are frequently people of high political morals and ideals who commit these offences not for personal gain but because of the beliefs they have - things they may believe in very strongly. An offence of this nature carries for a certain section of the community little or no social opprobrium. It may even carry approval. ... This is not something new in South Africa. Anyone of us who cares to turn back the pages of history will find that these circumstances have applied at one time or another to practically every race and language group in the country. But it has always been the duty of the courts to try to sit with cool heads, with the necessary humanity, to see that people who have transgressed on account of their differences are not unnecessarily harshly dealt with. 46 Arguably, the jurisprudential low-water mark in this regard was S v Hogan. 47 In this case the accused, aged 30, was convicted of treason for having joined the ANC and having furthered its aims in South Africa at a time when that was still a crime. There was no evidence that she was personally involved in acts of violence, but it was emphasised by the Court that the policy of the ANC was the violent overthrow of the state. In passing sentence, Van Dyk J pointed out that the accused had played a prominent role in certain strikes and boycotts in the country. He proceeded: As I understand the overall policy and strategy of the ANC, strikes and boycotts are in this particular field merely the beginning of one of many of the more sophisticated onslaughts on the state and that, should they succeed in creating substantial workers unrest, the switch from a non-violent political struggle to a violent militant confrontation would follow almost as a matter of course. 48 The judge indicated that he placed virtually no reliance on the

46 47

At 268.

1983 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.
48

At 68

reformatory effect which any sentence would have on the accused. Instead he emphasised his belief in the need for, and the good prospect of, deterrence of other prospective offenders. He found that the interests of society far outweigh all other considerations and imposed a ten year jail sentence. 49 It would be difficult to find a clearer manifestation of the total onslaught ideology in our jurisprudence. It short-circuits any calm and collected consideration of facts, such as the real imminence and the extent and nature of the perceived threat. The judgment also reflects a giant miscalculation on the part of the presiding judge concerning the direction history was taking. A pillar of reason in the changing current was S v Motlhabakwe en andere, 50 from that, a where number as the of appellants cases of were convicted related the to on several counts of at the terrorism under the Terrorism Act 83 of 1967 emanating, inter alia, arson unrest fide situations belief in schools. In considering the question of sentence, the Court stated mitigating circumstances, bona 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

49 50

At 69. 1985 3 SA 188 (N). See also S v Makape & another 1989 2 SA 753 At 209.

(T).
51

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 political of political participation be gives its some legitimacy in to the resistance should welcomed, application

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

52 53 54 55 56

1987 4 SA 276 (0). At 295. Unreported case no 166/86 W 3 Nov 1986. At 8 of the judgment. 1965 1 SA 215 (A).

the killing was not committed for personal gain, the facts of the particular case did not warrant a finding of extenuation. The murder was committed in cold blood and not immediately motivated by political fervour or an acute sense of political injustice, and the decision to commit the act was not taken at a moment when political emotion was running high. 57 The inference can be drawn, however, that, when present, these factors would constitute extenuation. A political motive was also not regarded as ipso facto an extenuating circumstance in S v Harris, 58 where the accused was sentenced to death upon conviction of murder of an innocent civilian in a politically motivated terror attack on a crowded train station. As the armed struggle intensified and changed its nature, especially since 1976, the approach of the courts hardened. In an obiter dictum in S v Mange 59 Rumpff C J articulated a shift in the Courts 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

57 58 59 60 61

At 217. 1965 2 SA 340 (A). 1980 4 SA 613 (A). Ibid. 1982 3 SA 113 (A).

found

themselves

may

be

regarded

with

sympathy

and

understanding,

especially by South Africans whose forebears at times were engaged in situations of open military conflict against British imperialism. 62 The Court proceeded as follows: In the present case the probable absence of inner vice and the presence of outer influences are, however, as mitigating circumstances, cancelled out by the callous and cowardly manner in which innocent people were
63

sought

to

be

killed

by

the

appellants for political purposes. were confirmed.

On this basis the death sentences

When the facts of the case are considered, the reference to innocent people directed in this dictum is difficult who are to understand. hard That term is The commonly used to denote civilian or soft targets. The attack was against policemen, considered targets. 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 McBride 65 he held that, in such cases,
66

it

all

depends

upon

the

particular

circumstances of the matter.

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.

62 63 64 65 66 67

At 124. Ibid. At 125. 1988 4 SA 10 (A). At 25.

The social and personal background of the appellant is discussed in Hear Robert McBride and Greta Apelgren.

In a later case involving the death sentence, S v Masina and others, 68 the accused, members of Umkhonto we Sizwe, were charged with a number of crimes, including four politically motivated murders. The appellants refused to participate in the proceedings on the basis that as soldiers they should not stand trial in a civilian court. One of them, however, did read a statement to the court in which he explained that the accused had turned to the armed struggle as a last resort after years of non-violent resistance to apartheid proved fruitless. In this regard he quoted Lutulis 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 accuseds 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,
70

depending

on

the

circumstances, constitute mitigating factors,

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 of Mncube the en n of ander 71 eight the Court dismissed in the appellants appeal the against the death sentences imposed upon them for murder, arising out death civilians landmine explosions. Both 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, acts. The these first considerations appellant also were outweighed that by the aggravating on civilian circumstances of the case, which included the terroristic nature of the testified attacks targets were against the policy of the ANC, and described such conduct as undisciplined. The Court rejected the contention that it should

68 69 70 71

1990 4 SA 709 (A). At 717. See also supra chap III A (3)(c)(ii). At 719. 1991 3 SA 132 (A).

impose a sentence which reaches out for reconciliation, and declared that it
72

could

not

take

into

account

the

political

climate

of

the

country.

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
75

necessarily

apply,

and

harsh

sentences

are

often

imposed. -

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 and the

that

the

increasing nature of

use the

of

indiscriminate in South

terror Africa

attacks

unresolved

conflict

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

See 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. Contra Benjamin, Hogan and Nel. but see Jolly, Gomas, Sibande, Mkaba, Budlender and Masina. Contra 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.
75 76 74 73

72

Contra Jolly, but see Harris, McBride and Mncube.

See most of the cases discussed from the era of white against white conflict. See, however, also Mncube. See most of the cases discussed from the era of black against white conflict.
77

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 incentive to to the state are the viewed state in as a part of this onslaught. if By overreacting to minor challenges, the divide is increased: there is no challenge non-radical manner 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
78

Hogan.

The

imminence

of

the

danger

must

be

established

clearly. 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
79

was

specifically

addressed.

In

R_v

Motlaaomang and others

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

See the discussion of the "clear and present danger" doctrine in American law infra chap six IV B (2).
79

78

1958 1 SA 626 (T).

in the court a quo, the Native Commissioner (as that official was then called) remarked as follows: Nieteenstaande herhaalde waarskuwings dat tensy die vernietiging van bewysboekies stopgesit word waardeur alreeds ernstige onluste in die afgelope jaar in die distrik plaasgevind het nog swaarder strawwe opgele sou word, het beskuldigdes die bewysboekies op so n manier verbrand dat dit n openlike verset teen die wet is. 80 No indication is given of any evidence to substantiate a link between the civil disobedience and the onluste, and if violence was involved in the onluste, whether that violence had been instigated by the protesters or the government. On appeal, the Transvaal Provincial Division indicated that the

deliberation shown by the accused could be regarded as an aggravating circumstance, because it showed malignity, which in turn brought into operation the provisions of section 1 of Act 8 of 1953. 81 Other circumstances taken into account were the prevalence of the crime in the district, and the need for deterring others from committing the same offence. Consequently, the Court did not find unacceptable the fact that the appellants in all probability would not be able to pay the fines and would have to serve the alternative prison sentences. This approach is open to criticism. The first objection relates to the fact that the Court regarded the openness of the crime to be an aggravating circumstance. To treat the openness of illegal protest as

an aggravating circumstance could result in secrecy being encouraged. The element of openness of civil disobedience implies that this form of protest is essentially an act of communication. This means that those engaging in civil disobedience deliberately seek contact with their opposition. Especially in a society riddled by deep division, openness and engagement ought not to be singled out for particularly is a harsh treatment. Moreover, openness (as defined earlier) 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

80 81

Quoted in the record of the appeal case at 628. At 629.

also makes more sense to encourage openness. The second aspect of the judgment that is open to critique concerns the Courts 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 evidence of it such a link has be to be established There is through nothing reliable in the cannot simply assumed.

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 if in respect to of the sentencing case of for

political

crimes

outlined

above,

applied

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 the a most crime crucial of years of the liberation an struggle in South

During Africa,

protest

constituted

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.

82

Section 18 (1).

During this time, section 11(a) of the Suppression of Communism Act, 83 later renamed 84 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,

For 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.
84 85

83

By the Internal Security Amendment Act 79 of 1976.

Section 11(m)(i). The minimum sentence was only introduced in 1976 by s 8 of the Internal Security Amendment Act 79 of 1976.
86 87

Section 1(1)(ii)(b).

For the parliamentary discussion that attended introduction of the Act, see Debates of the House of Assembly 14 June 1950 co1s 91789326 and cols 9331-9639.
88 89

See S v Nokwe & others 1962 3 SA 71 (T) at 74. 1953 3 SA 276 (A) at 290.

in terms of these provisions, would constitute the crime of furthering the objectives of communism. The breach of municipal by-laws by women protesting against certain provisions of family law, as well as farmers refusing to comply with certain farming regulations, as acts of protest against Division, such by-laws or regulations, as instances
90

according of the

to

the

Appellate crime of

would

qualify

statutory

furthering the objectives of communism. These provisions were subsequently

91

repealed

and

replaced

by

the

Internal Security Act 74 of 1982. outlawing a advocating crime. of the

As it was then defined, the crime of ideology this as it is commonly first

furthering the objectives of Communism 92 was more narrowly 93 focused on communist understood, and acts of civil disobedience in themselves were no longer substantive The operation of provision was 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)
96

could

possibly

be

charged,

will

later

be

discussed. C.

TERTIARY IMPLICATIONS OF THE CRIMINAL LAW who do not themselves necessarily engage in acts of civil

Those

disobedience, but who encourage others to do so, could also be liable to criminal prosecution.

See also supra chap three III A (3)(c)(iii), for the example cited by Rumpff J in the court a quo. Section 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.
92 93 91

90

Defined -in s 55 of the Act.

Mathews Freedom, state security and the rule of law 45 and S_v Ramgobin 4 others 1986 1 SA 68 (W).
94 95

Proc R229, Regulation Gazette 12287, 3 Feb 1990.

Sections 1 and 21 of the Internal Security and Amendment Act 138 of 1991.
96

See infra chap four I D.

(1)

Incitement of civil disobedience

Whereas civil disobedience often only becomes really effective when practised in the form of a campaign and with substantial numbers of people being mobilised, the crucial role of canvassing and organization and the exercise of leadership functions becomes apparent. An obvious strategy for the state to follow in order to prevent such pressures from developing, is to attach strong legal impediments to the advocacy of acts of civil disobedience. A whole arsenal of statutory measures has been put into place by the South African legislature to serve exactly this purpose. (a) Incitement to commit any offence

It should be noted at the outset that incitement to commit a crime that is any crime, whether political or not - has traditionally been, and still is, a separate offence in its own right in South African law. 97 The exact scope of this offence varied over the years. In 1921, for example, the Appellate Division ruled that it was an offence at common law to incite someone to commit a crime, even if the crime concerned was neither in fact committed, or not even attempted. 98 Since 1926, the crime of incitement is governed by statute. 99 Today the Riotous Assemblies Act 17 of 1956 provides that [a]ny person who ... incites, instigates, commands, or procures any other person to commit, any offence, whether at common law or against a statute or statutory regulation, shall be guilty of an offence and liable on conviction to the punishment to which a person convicted of actually committing that offence would be liable. 100 Intention is an element of this crime. 101 The question whether incitement requires an element of persuasion of the incitee, or whether

See Burchell et a1 South African criminal law and procedure vol 1 472ff.
98 99

97

S v Nlhovo 1921 AD 485.

Section 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.
100 101

Section 18(2)(b). Burche'n et a1 South African criminal law and procedure vol 1

474.

a mere request would suffice, is problematic. In the landmark decision of S v Nkosiyana and another 102 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 others 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 work. (b) Incitement to commit a political offence the accused were convicted of incitement for having encouraged municipal workers and domestic servants to stay away from

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
106

prosecute

those

engaged

in

advocacy

of

civil

disobedience.

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

102 103 104 105 106

1966 4 SA 655 (A). See also S v Dreyer 1967 4 SA 614 (E) at 621. At 658, 659. 1950 3 SA 136 (A). 1960 1 SA 721 (A).

On the relationship between common law incitement and special forms of statutory incitement, see R v Sesidi & others 1953 4 SA 634 (GW) at 637.

the achievement of any such object, was guilty of an offence and liable to imprisonment for a period of not less than one year and not exceeding ten years. 107 The definition of communism was the same wide one which applied to section 11(a), discussed above, namely any doctrine or scheme which aims at bringing about any political, industrial, social or economic change within the Republic by ... unlawful means or omissions. 108 It was under this provision that the
109

leadership

of

the

Defiance

Campaign was tried and convicted in 1952.

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

107 108

Section 11(m)(i).

For 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). See 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.)
110 111 109

See s 2(a) & (b). Section 2(i)-(vi).

for are not the same. 112 It provides that any person who, (a) in any manner whatsoever advises, encourages, incites, commands, aids or procures any other person or persons in general; or (b) uses any language or does any act or thing calculated to cause any person or persons in general, to commit an offence by way of protest against any law or in support of any campaign against any law or in support of any campaign for the repeal or modification of any law or the variation or limitation of the application of the administration of any law, commits an offence, and is liable on conviction to a fine of up to R5000 and imprisonment of up to five years. It is clear from the wording of section 59 that it only covers protests aimed against laws or their administration. The incitement of either direct or indirect civil disobedience (or other crimes of protest) would consequently not be outlawed as long as such protests are aimed against extra-legal aspects of society. It is also not the incitement that must express the protest, but the crime incited - that is, the primary offence incited must be a crime of protest. 113 The communication must reach the incitee, 114 although it is irrelevant how the incitee responds to the incitement. 115 While subsection (a) deals with direct forms of incitement, subsection (b) also makes provision for more indirect forms of influencing others. In practice, however, it is not always easy to draw the distinction. In S v Nathie, 116 the appellant was charged with having contravened subsection (a). The charge was based on a report which the appellant read out at a conference of the Transvaal Indian Congress. The report referred to refusals question by was members posed: of Is the it Indian any communities that to obey is orders to vacate certain premises in terms of the Group Areas Act. The rhetorical wonder there developing among our people in different parts of the country a feeling

Consequently, decisions and comments provisions can be applied to the 1982 Act.
113 114

112

dealing

with

the

older

S v Moilwanyana 1957 4 SA 608 (T) at 615.

R 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).
115 116

R v Alwyn 1955 3 SA 207 (A) at 211.

1964 3 SA 588 (A). The case dealt with the Identically worded 1953 forerunner of s 59.

that they should refuse to obey the orders to quit, no matter what the consequences? 117 The report referred positively to the refusal of Nana Sita (who was also active in the Defiance Campaign) to comply with such an order, and then, with reference to possible future conduct of the government, proceeded: But the question is: are we, the rest of the Indian people, going to remain silent when this happens? Are we just going to acquiesce because some madmen in the Department sit and decide what is going to be our future and the future of our children? I want to declare that to remain silent in the face of persecution is an act of supreme cowardice. Basic laws of human behaviour require us to stand and fight against injustice and inhumanity. Not for a moment must [those who refuse to comply with the orders] be allowed to imagine that they are alone in the stand that they have taken. The Nationalists must be made aware of the fact that the attack against these people is an attack against the Indian people as a whole and will be met by the organised strength of the entire community. 118 The appellant also stated that
119

we

will

continue

to

maintain

our

methods of non-violent actions.

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
120

well

be

said

to

constitute

contravention of [subsection (b)].

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

117 118 119 120

At 593. Ibid. Ibid. At 597.

criminalised by that subsection. 121 It is submitted that this interpretation of subsection (a) is not

correct. In the first place, incitement as used in the statute that codified the crime of incitement has been interpreted by the courts to mean seek to influence in any manner possible. 122 How can it be a crime (of which intention is an element 123) 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

See Mathews Law, order and liberty in South Africa 188. This observation is not repeated 1n his Freedom, state security and the rule of law. See the excerpt quoted from S v Nkosiyana and another 1966 4 SA 655 (A), supra chap four I C (1)(a).
123 124 122

121

See Mathews Freedom, state security and the rule of law 54. Milton & Fuller South African criminal law and procedure vol 3 See, however, Mathews Law, order and liberty in South Africa 1964 1 SA 269 (T).

136.
125

188.
126

intention to injure his dignity or reputation. Strydom observed that S v Nokwe and others 127 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 1950 128 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 an not included to to and in give subsection the an (a). of of Section the 59 simply in a represents particular attempt regulate crime incitement

context,

indication

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, commentators 132 subscribe to a subjective approach, similar to the one followed in S v Davies 133 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

127 128 129

1962 3 SA 71 (T). See supra chap four I B (3).

Strydom JCRDL 1964 314 at 316. Strydom's views in this regard are endorsed by Van Niekerk SALJ 1970 299.
130 131 132

Strydom JCRDL 1964 314 at 316. Id 318.

See Burchell et a1 South African criminal law and procedure vol 1 479 and Snyman Criminal law 261.
133

1956 3 SA 52 (A).

(error juris), on the other hand, does exclude 1iability. 134 In S v Peake, 135 this approach was applied to contravention of section 59 of the Internal Security Act 74 of 1982. In that case the Court held that an accused may be convicted if he encouraged people to defy the Group Areas Act 77 of 1957, even though it had not been proved that people in the audience were at that time in a position to in fact defy the Act. If this approach is to be followed, then R v Motorane 136 was wrongly namely decided. throwing In that his case the state failed The to prove that of
137

the the the

incitee had reached the age where he could commit the crime incited, away reference book. conviction appellant was dismissed on appeal. Similarly, in R v Plaatjies,

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 by an of the appellants juris. In in that R v Mpekwa the and others 138 was

justified by the Court on the basis that the act complained of was prompted take error of case appellants assaulted books. certain people in order to persuade them to allow the appellants to possession their (the assaulted peoples) reference Allowing a third party to take possession of ones 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

134 135 136 137 138

See S v Davies 1956 3 SA 52 (A) at 63. 1962 4 SA 288 (C). I960 4 SA 353 (0). 1960 2 PH H371 (C).

1958 1 SA 10 (T). This decision was endorsed in R v Bolo & others 1960 2 PH H290 (E).
139

Mathews Freedom, state security and the rule of law 54.

crime under consideration requires that the offence incited, not the offence charged, must be a protest offence. (c) In Proclamations prohibiting the incitement of natives November 1952,
140

when

the

Defiance
142

Campaign

was
141

at

its

peak,

proclamation present at

was issued by the Governor-General, one time,

143

outlawing meetings circumstances. 144

in the so-called native areas any

at which more than ten natives are under certain

except

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
146

of

up

to

300

or

imprisonment of not more than three years.

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

Proc 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.
141

140

Issued in terms of s 27 of the Black Administration Act 38 of

1927. The areas referred to in s 25(1) of the Black Administration Act 38 of 1927.
143 144 145 142

Section 1(1)(a). Section 1(2).

Section 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. Section 4. Patric Duncan and the other white resisters were convicted of contravening these regulations. See supra chap three III A (3)(c)(iii). Government Notice 2753, Government Gazette Extraordinary 4971 of 28 Nov 1952.
147 146

it

removed

those

obstacles to sustain

that their

normally

make
148

it The

difficult provision

for of

repressed

groups

resistance.

foreign funds to those engaged in civil disobedience was also seen as unwarranted foreign interference in, what was considered to be, South Africas 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 offence referred to in paragraph (b), who has committed any

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

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). For the penalties prescribed in s 59, see supra chap four I C (1)(b).
149

148

the purposes mentioned above. 150 The offence created in section and the 60(1) can be committed provider by of the the

(prospective)

recipient

(prospective)

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

150 151

Section 60(2).

See 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. This 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.
152

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. in to The the problem present who now is what It the is term "unlawfully that a assisting" assistance 60(1) the the means given context. committed an submitted

feasible guideline would be the general legal position relating to persons of of

153

offences. after

Consequently, the fact. after An the

paragraph (c) should be understood to have incorporated into section prohibition perpetrator being a accessory to escape accessory after the fact is someone who intentionally assists crime commission of that crime. to the and unlawfully

liability

Paragraph (c) renders someone whose conduct

satisfies the requirements of that particular common law crime, liable 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

153

See Snyman Criminal law 236.

encouragement and assurance money given for the

were intended, one would be dealing with of assisting future acts of civil

purpose

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 paranoia occasioned can statutory component of this body of laws emanated by an the Defiance Campaign to of in 1952 and later that civil from ad hoc legislation which followed in the wake of governmental manifestations of political resistance. It will be submitted that civil disobedience strive to have important role and play societies of uphold democratic values, that tolerance

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 countrys 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

See also Ackermann Die reg insake openbare orde en staatsveiligheid 2, 3, 14 and Milton South African criminal law and procedure vol 2 27.

154

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, or sedition (the common statutory law crimes),
155

and The

terrorism,

subversion

sabotage

(the

crimes).

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 in the do not cease to be acts of of civil the disobedience simply because those acts are intended to bring about a fundamental Africa, change basic in constitutional and of the China, structure Tiananmen are country. Certain protest campaigns against the apartheid state in South Gandhis in campaigns the India, Republic Square of demonstrations Peoples examples

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
158

substantial

part

of

the

states case in the Treason Trial.

Towards the end of the proceedings

the prosecution mentioned the possibility of a conviction of treason

The 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. On 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. See "Treason, sedition Daily Mail 31 July 1952.
158 157 156

155

searches

made

throughout

Union"

Rand

See supra chap three III A (3)(c)(vi).

for illegal conduct aimed at the non-violent overthrow of the state. This suggestion was called "[i]nteresting and important" by the Court. However, since the case was brought and conducted on the basis of a conspiracy to commit violence, the Court declined to consider convicting the accused for treason on the basis of their non-violent activities. 159 It is conceivable, however, that a civil disobedience campaign might be conducted in future, and the prosecution might then decide to bring charges for treason. The question whether an illegal campaign to overthrow the state nonviolently 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 will not is a necessary as element of treason, if any civil illegal disobedience qualify treason. However,

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

See 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. Milton 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.
160

159

the Republic by a person who owes allegiance to the Republic with the intention existence, Swanepoel unlawfully maintained: to overthrow, or security is coerce, of the die impair or
161

endanger De Wet

the and

independence

Republic.

"Hoogveraad

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 ones 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, itself. and
164

the

new

regime

will

have

no

incentives

to

prosecute

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

161 162 163 164

Snyman Criminal law 257. De Wet & Swanepoel Strafreg 518. Ackermann Die reg Insake openbare orde en staatsveiligheid 8.

According 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.
165 166 167

Milton South African criminal law and procedure vol 2 25. Snyman Criminal law 259.

For 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. As maintained by Gonin JCRDL 1951 1. Approved in S v Mayekiso & others 1988 4 SA 738 (W). As 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.
169 168

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 impair intent" is "an the intention existence,
171

unlawfully

to

overthrow, or security

coerce, of the

or

endanger

independence

government of the Republic."

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 position 172 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

170 171

Milton South African criminal law and procedure vol 2 29. Ackermann Die reg Insake

Snyman Criminal law 261. See also openbare orde en staatsveiligheid 11.
172

According to Milton South African criminal law and procedure vol 2 28 compliance with "one or other" of the rubrics will constitute hostile intent. A 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). Id 26. De Wet & Swanepoel Strafreg 529 maintained that "sodra die wil om die bestaande staat omver te werp, dws die bestaande staat
174 173

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
176

say?

Voet
177

regarded

the

intention
175

to

actually

overthrow the state as a necessary element of treason. as Van der Linden the security of and Moorman state,

Writers such

, however, took the view that animus does not require an intention to

hostilis is constituted by any intent to disturb, injure or endanger the and 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 governments 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. After 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. Van 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. Moorman 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.
178 177 176 175

1923 AD 73 at 81.

on the facts of the case, it had not been proven that the appellant had the intention of overthrowing the government, but nevertheless convicted him of treason. On appeal it was argued on behalf of the appellant that treason

requires an intention to overthrow the government, in the sense of either altering the form of the constitution or changing the personnel of the government. The objective of the strikers was only to induce the existing government to change its policy and practices in respect of the gold mines. The Appellate overthrow the government was Division, after a thorough overview of a necessary condition of treason. the authorities, rejected the notion that proof of an intention to 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

At 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. At 82. According to Kotz J A, the fact that the accuseds 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.)
181 180

179

See also R v Mardon 1948 1 SA 942 (A) at 945.

one of several commandos, armed with fire-arms, in violent clashes with the police. These commandos inter alia took possession of a police station, and
182

in

total

more

than

200

people

died

in

the

ensuing

skirmishes.

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 on a hostile intent can scale be inferred from with the the "warlike object of operations considerable undertaken

forcibly imposing the will of the participators upon the government of their country." 186 Again, an intention to impose ones 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 the state overthrow is a the government is not What a is necessary left element by of "hostile intent". On the other hand, an intention seriously to coerce sufficient condition. open these conclusions, however, is the question whether an intention to coerce

182 183 184 185 186

At 78. At 83. At 82. WS AD 90. Approved in R v Christian 1924 AD 101 at 133. At 92.

the state is also a necessary element of hostile intent and whether an intent to overthrow the state, where present, can be a sufficient condition even if no coercion is involved. Coercion, as was stated earlier when the elements of civil disobedience were identified, may involve the use of force, but it may also be nonviolent. 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 others 188 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

See 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 AngloBoer 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).
188 189

187

Unreported case no G 1/42 SCC 1943.

At 1950. (Emphasis added.) Approved by the court a quo in R _v Harden 1947 2 SA 768 (TSCC) at 774.

necessary condition. Milton pointed out that the words "by force" in Schreiner's definition in Leibbrandt were not repeated when the case reached the Appellate Division. He argued that "unlawful but passive means of coercion, such as an illegal strike or 'passive resistance campaign'" can also involve coercion of the state that constitutes treason. Consequently, he argued, the words "by force" should be omitted from the definition of hostile intent. 190 The view that the use of force was not a necessary element of hostile intent was endorsed and followed others.
191

in the case of S v Mayekiso and treason for having established as a type of alternative power"

The accused was charged with "organs of people's

so-called

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 whether treason. In a carefully that researched the use of judgment, violence Van der Walt the J came is to not the an such an allegation against had the not been was made, a the charge did not of disclose the crime of treason. Consequently the Court had to decide "violence state" necessary element

conclusion

against

state

essential element of treason. None of the old writers considered by the

Milton 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".
191 192

190

1988 4 SA 738 W, per Van der Walt J. At 739.

Court

regarded

violence

as

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 propaganda 197 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 still action can or be treasonable? non-coercive Is some of form of coercion necessary, can acts illegal

"propaganda" be treasonable? It could possibly be argued that the idea

193 194 195

The following quotations are from the Court's summary at 743ff. At 746.

The 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.
196 197

Approved in R v leibbrandt & others 1944 AD 253 at 282. civil

As was mentioned earlier, Bertrand Russell described disobedience as a form of propaganda. See supra chap two I B.
198

At 750.

that illegal propaganda can be treasonable even if it is non-coercive, finds some support in the Mayekiso Court's observation that "[i]n many cases [modern] warfare takes the form of insidious rebellion with hostile intent to unlawfully overthrow a particular state by any number of means." 199 Nevertheless, it is submitted that the Court's judgment should not be interpreted remains a as denying that the of presence treason. of In some the form first of coercion the necessary element place,

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 with a governmental sjambok. structures, were such as "people's prevented courts", from cowhich enforced their findings inter alia lashes People through the imposition of

physically

operating with the police, and the accused conducted their own anticrime campaigns. The approach of or the Court the was to regard unlawful of acts the aimed state at as

endangering

coercing

judicial

authority

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

199 200 201 202

At 751. 1989 3 SA 253 (W). At 260. At 318.

another, however, the intention seriously to coerce the state (either violently or non-violently) has always been required. No convictions for treason in South African law could be found where this element was not present. The intention seriously to coerce the state should therefore be regarded not only as a sufficient but as a necessary element of "hostile intent". It follows that the intention to overthrow the state illegally but not coercively will not suffice to constitute treason. This approach ties up with the nature of the interest which treason endeavours to protect, namely the majestas of the state in the sense of its sovereignty. 203 This interest has also been described
204

as

the

"existence, independence and security" of the state.

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
205

alternative It cannot be

governmental structures with their own coercive powers.

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

Compare J 0 van der Vyver "The concept of political sovereignty" in Visser Essays In honour of Ellison Kahn 289. See Snyman Criminal law 262. See also R v Adams & others 1959 1 SA 646 (SC) at 649. According 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.
205 204

203

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 nonexecutive 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 by traditionally means as regarded a an intention condition to of

overthrow

the

state

illegal

sufficient

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:

See 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.) See 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. R v Erasmus 1923 AD 73 at 88. See also R v Christian 1924 AD 101 at 134. S 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. See, in R v Leibbrandt & others 1944 AD 253 at 278, the Court's "[p]utting [of] the same argument in another way".
210 209 208 207

206

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 India of challenging the state in its to a entirety, protracted but times have with changed. In fact, hardly four years after the judgment in Leibbrandt. became independent subsequent struggle England in which Gandhis 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 of a approach according intention to which should an be

intention seriously to coerce the state is regarded as a necessary and sufficient condition treasonable 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

R 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 governments authority, can scarcely be said to Intend its 'overthrow'." He does not address the possibility of a more ambitious campaign of civil disobedience.
212

211

For a discussion, see infra chap six IV B (2).

To

summarise:

According

to

the

orthodox

position,

an

intention

to

illegally overthrow the state is not a necessary element of a hostile intention, but it is sufficient. According to this approach, a nonviolent 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 The is wrong. The intention to to overthrow the only state if, the is it state both a illegally is neither a sufficient nor a necessary element of hostile intention. can intention seriously treason coerce and necessary and a sufficient element. A campaign of civil disobedience consequently constitute if, involves be serious coercion. Non-coercive civil disobedience cannot

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 According sedition. to Milton: Again it is a question in of comparing the definitions. The definition of civil disobedience need not be repeated. "Sedition consists unlawfully gathering, together with a number of people, with the intention of impairing the majestas of the state by defying or subverting the government, but without the intention of authority of its overthrowing or coercing that

government." 213 According to Snyman "[s]edition consists in the unlawful and intentional gathering of a number of people in order violently to challenge, defy or resist the authority of the Republic of South Africa, or the unlawful and intentional causing of such a gathering with such a purpose." 214 The two definitions differ on the question whether violence is a

necessary element of the crime. We will return to this matter later on. A common feature of the definitions is their identifying the protected interest as the authority of the state and the act by means of which it is done as defiance. 215 "Authority" in this respect has been described as the "[p]ower the
217

or

right to inter

to a1ia.

enforce or as to

obedience: an "reject,

moral

or

legal

supremacy, "Defy" was revolt at"

right

command,

give

ultimate

decision." 216 disdain,

defined,

renounce,

. 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

213 214 215

Milton South African criminal law and procedure vol 2 46. Snyman Criminal law 263.

See 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.
216 217 218

S v Twala & others 1979 3 SA 864 (T) at 870. Ibid.

See also Snyman SALJ 1980 14 at 21. The author argued that the view of the Court in S v Twala & others 1979 3 SA 864 (T) at 869, that "violence is certainly not an essential part of the seditions gathering," cannot be accepted without the qualification that there must at least be a threat of violence.

ban on public gatherings. It would only become a seditious gathering once the participants violently defied a police order to disperse or once they threatened forcibly to prevent the bulldozers from proceeding with the demolition. 219 However, in a number of decisions over the past few years the view that sedition does not require the use or the threat of violence has been endorsed. In S v Zwane and others (1) 220 Grosskopf J stated that a seditious gathering need not necessarily involve an uprising or riot, or be coupled with clamour, uproar, violence or threats of violence. It seems to me requires a gathering in that the weight of authority only defiance of the authorities
221

for

an

unlawful purpose to constitute the crime of sedition.

This statement was based on the dictum of De Villiers J P in R v Endemann 222 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, campaign
226

is

carried

through or

to

its -

logical cannot

conclusion, it would follow that there is no principled reason why a civil disobedience whether coercive not constitute sedition.

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

219 220

Snyman SALJ 1980 14 at 22.

1987 4 SA 369 (W). See also S v Zwane & others (3) 1989 3 SA 253 (W) at 261.
221 222 223 224 225

At 374. 1915 TPD 142. At 147. 1988 4 SA 738 (W).

At 751. See also S v Mayekiso & others, unreported case no 115/89 W 24 April 1989, at 56 of the reasons for judgment. It 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.
226

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
228

in

itself

not

be

sufficient

to

constitute

seditious

gathering."

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.

227 228 229 230 231

1989 3 SA 253 (W). At 261. Snyman SALJ 1980 14 at 22. See supra chap four I D (1). Snyman SALJ 1980 14 at 21.

It is not sufficient that the dissident gathering should knowingly be in breach of a legal provision. For example, a heated political meeting does not become seditious if the fire-regulations pertaining to the number of people allowed into the hall are knowingly violated. Unlawfulness of the primary offence must be the vehicle through which the authority of the state is being defied. Also, not all acts of unlawful defiance of the authority of the state would qualify as seditious. If a number of neighbours, in order to use of water in their gardens, protest municipal restrictions on the

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 the with the In requirement the of unlawfulness whether for the the purposes to of the sedition, the action must in a serious way challenge the authority of state. making decision challenge 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

Recognition 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. Previously 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).
234 233

232

See Ackermann Die reg insake openbare orde en staatsveiligheid

25.

constitute terrorism. (4) Subversion

The crime of subversion was created by section 54(2) of the Internal Security Act 74 of 1982, which lists a variety of ways in which this crime can be committed. 235 Some of these possibilities involve the use of violence, but violence is not a necessary element of the offence. 236 Since it would be virtually impossible to summarise the relevant provisions, they have to be outlined in some detail. Section 54(2) provides that any person who, with the intent described in section 54(1), namely to (a) (b) overthrow or endanger the state authority in the Republic;

achieve, bring about or promote any constitutional, political, industrial, social or economic aim or change in the Republic; 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 ... 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, causes or promotes general dislocation or disorder at any place in the Republic, or attempts to do so; 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; interrupts, impedes or endangers at any place in the

(c)

(d)

[does any of the following:] (a) (b)

(c)

For 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). Where 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.
236

235

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; 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; 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; causes, encourages or foments feelings of hostility between different population groups or parts of population groups in the Republic, or attempts to do so be guilty of conviction be clear Most that the offence of subversion and liable on

(e)

(f)

(g)

[or in a variety of ways commits acts related to the above] shall (i) It should

to imprisonment for a period not exceeding twenty years. these provisions of can civil in many cases be

transgressed by means of both coercive and non-coercive acts of civil disobedience. successful campaigns 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 the required intent is present. 239 to preclude a charge of subversion from being based on acts of civil disobedience, as long as

237

See Minister of Law and Order v Pavlicevic 1989 3 SA 679 (A) at See S v Safatsa & others 1988 1 SA 868 (A) at 894. See Ackermann Die reg insake openbare orde en staatsveiligheid

690.
238 239

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
241

The

crime

covers

an

incredibly wide range of behaviour.

It entails the commission of any

act, attempt to commit an act etc, with the intention 242 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 conviction, imprisonment. The extraordinary wide reach of these provisions is evident from the fact that, on a literal interpretation of section 54(3), even the nonviolent 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 of the public are in any place to a in the Republic." 243 of twenty Upon years' offenders liable maximum

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. Previously, sabotage was circumscribed differently, in s 21 of the General Law Amendment Act 76 of 1962. See Ackermann Die reg insake openbare orde en staatsvei1igheid 33ff and Mathews Freedom, state security and the rule of law 4lff.
242 243 244 241 240

Dolus directus is required. S v Nel 1989 4 SA 845 (A). Section 54(3)(a). See Ackermann Die reg Insake openbare orde en staatsvei1igheid S v Radebe 1988 1 SA 772 (A).

34.
245

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 specific or a lesser or extent, common have law a bearing on At civil least disobedience, in a formal insofar as acts of civil disobedience may come within the confines of statutory provisions. 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 on those who resist it, and the reference greater is not also made, state would be unleashed implementation of these measures is brief, own to the ability to and

mostly left to the courts. The picture would, however, be incomplete if however in tendency - of the executive to use powers, the exercise of which to a or lesser extent lies its discretion, 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 state 247 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

See 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). The general Issue of state security is discussed at some length infra chap six III B (5).
247

246

be

imposed

on

individuals,

organizations

and

events,

without

the

official declaration of an (d) Detention

emergency or unrest situation.

Two forms of detention without trial has traditionally been authorised in terms of South Africas non-emergency security legislation: be a threat "preventative detention", which is "designed to remove certain actors from the stage of public life because they are deemed to 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

248 249

See Mathews Freedom, state security and the rule of law 62.

The 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. Section 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.
251 252 250

Section 50A. For a discussion, see Id 77ff.

By s 18 of the Internal Security and Intimidation Amendment Act 138 of 1991.

253

Section 50. For a discussion, see id 75ff.

individuals,

or

the

holding

of

meetings

may

be

subjected

to

far-

reaching restrictions or that organizations or meetings may in fact be declared unlawful. (i) "Banning" of organizations

The Internal Security Act 74 of 1982 confers virtually unrestricted powers on the Minister of Justice to declare organizations unlawful and hence to render any association with such organizations an offence. 254 This provision and its fore-runners have been used to silence a wide array of protest movements which at one time or another have been involved in organising campaigns of civil disobedience. 255 (ii) "Banning" of -individuals

Until July 1991, the Internal Security Act 74 of 1982 vested in the Minister of Justice a virtually unrestrained discretion to curtail the personal etc. 256 (iii) "Banning" of meetings The executive also has the power, when it deems it necessary in the interests of state of security, to prohibit would
257

freedom

of

individuals

in

respect

of

membership

of

organizations, presence at certain places, attendance of gatherings,

certain occur if

gatherings. the

manifestation

civil

disobedience

organisers

nevertheless proceed with such meetings.

254 255

See ss 4(1) and 13.

The 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. Sections 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.
257 256

See, for example, regarding the period just before the Defiance

Successive South African governments have for a long time taken upon themselves the power to exercise strict control over public gatherings. The Riotous Assemblies and Criminal Law Amendment Act 27 of 1914, which conferred upon magistrates the power to prohibit public meetings in their districts in order to preserve the public peace, made it an offence to attend, advertise, etc such meetings. 258 This legislation was later re-enacted and expanded upon; first by the Riotous Assemblies Act 17 of 1956 259 and later by the Internal Security Act 74 of 1982. 260 Today, section in 57 of the of last-mentioned etc by a Act Act prohibits the anyone has of from been the

convening, prohibited

advertising, terms

attending, the

gathering

which

either

magistrate

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.
258 259 260 261

See supra chap four II A (D(b)(iii). Section 2. Sections 46-53.

For a discussion of the other emergency powers at the disposal of the state, see Mathews Freedom, state security and the rule of law 215.

with the situation. 262 In 1960 a state of emergency was declared in virtually the entire country, and it remained in force for 156 days. 263 The limited state of emergency announced in 1985 was expanded to cover the entire country in 1986. It was renewed from time to time until 1990. 264 The State President is authorised to proclaim regulations in areas where a declared emergency is in force. Such regulations have in the past greatly enhanced the powers of the police to detain people without trial, to preclude access to legal representation and to use force against people who fail to respond to an order to proceed to any place or to desist from specified conduct. 265 In terms of the Emergency Regulations in force during the 1980s, it was also an
266

offence defined,

to

make,

possess as

or "a

disseminate statement

"a which

subversive contains

statement",

inter

alia.

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
268

been

used

to

curb

the

practice

of

civil

disobedience. (f) A

"Micro emergencies" amendment to the Public Safety Act introduced a mechanism

1986

262 263

Section 2.

For a discussion, see Mathews Law, order and liberty In South Africa 224. For 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. For a general discussion of the effect of these regulations, see Burns Woord en Daad 1988 7. See eg s 10 of Proc 109, Regulation Gazette 3964, Government Gazette 10280, 12 June 1986.
267 268 266 265 264

Id s 1 viii (b) iv; definition of "subversive statement".

In 1987, for example, an affidavit by a police sergeant revealed that two journalists were detained in terms of the regulations under the state of emergency because they had planned to publish "in a newsletter, news about radical persons and organizations in which the community would be incited to civil disobedience." See "Newsmen still trying for freedom" City Press 28 June 1987.

whereby the Minister of Law and Order can declare certain areas to be "unrest areas" 269. Although the initial declaration can be valid for a maximum of only three, months, the provisions which govern abridgments of legal processes that can be authorised in the case of a micro emergency are substantially the same as those which apply in the case of the macro emergencies. 270 B. CENSORSHIP AND STATE SECURITY

Executive control of matters perceived to affect state security can also be found in the countrys 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 produce 274 or distribute 275 an undesirable
276

publication.

In

some

cases

possession

may

also

be

prohibited.

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

269 270 271

Public Safety Amendment Act 67 of 1986. See Mathews Freedom, state security and the rule of law 214.

For 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. The 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. The term "publication" is used here to include any object, film or public entertainment as defined in s 47(1).
274 275 276 273 272

Section 8(1)(a). Section 8(1)(b). Section 8(1)(d).

should be applied to establish whether a sufficiently serious threat to this interest exists to warrant a finding that a particular publication is undesirable? First, then, the interest protected must be considered. According to Kobus van Rooyen, a former chairperson of the PAB, "[i]t would seem that the interests protected by this paragraph are related to a society which is free of political violence." 277 The only threats to the "safety of the state, general welfare or the peace and good order" which, according to this approach, can render a publication undesirable are those which involve violence, either actual or potential. If this view were correct, it would follow that the promotion of civil disobedience could not bring a publication within the reach of section 47(2)(e), since civil disobedience is per definition non-violent. What, then, is the criterion to be used in this regard? According to Van Rooyen the PAB has held itself guided by the "clear and present danger" doctrine of the United States Supreme Court - hastening, however, to add that this is limited to that doctrines 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 clear and This present danger] doctrine would." 279 if correct, would in render it may easy lead to to find a means that section 47(2)(e) "obviously deems more material to be undesirable than [the

interpretation, that the

publication fanciful,

undesirable if there is any chance, however remote or publication question 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.

277 278 279

Id 105. Id note 54. Ibid.

Van to

Rooyens

identification

of

the

interest

protected

by

section

47(2)(e) is too narrow, while his exposition of the criterion according 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 expression. 280 Again,

highly coercive, ways in which protest can find

the familiar example of the sealing off of a citys 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
281

of as or not

undesirabi1ity, it is submitted that the words "is prejudicial"

used in section 47(2)(e) pose a clear requirement of imminence particularly strong terms. What is required by the section is

presence of the danger. The language used in fact conveys this idea in 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 First Amendment jurisprudence on the introduction of a freedom of speech emphasis in American requirement of imminence than clause in the South African

with the classical clear and present danger approach. 282 Presumably the constitution will compel the PAB to adhere to a more liberal criterion

280 281

See supra chap two I B.

In the Afrikaans text, which was signed by the State President, the words "nadelig is" are used.
282

See Cheh SAJHR 1986 29.

in this regard. In spite of the above, the PAB in practice uses the "clear and present danger" test, and has in the past, in its adjudication of section 47(2)(e), speech.
283

followed

course

that

is

generally

protective

of

free

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 function of uninhibited speech.
285

valve" approach

Most instructively for our present the PAB has accepted the with a high

purposes, however, is the fact that degree

that "claims of national security must always be viewed

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 PABs approach regarding publications encouraging civil

See 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.
284 285 286 287

283

See SASPU National 105/83. See Grassroots 200/83 Annexure. SASPU National 221/84. Two Dogs and Freedom 129/86.

disobedience, however, is not entirely clear. The Board has held that the "ultimate question is whether the [publication in question] will contribute to a violation of state security and good order and the general welfare by contributing to terrorism, sabotage ... and civil disobedience." 288 On the other hand, it also stated that "the mere call for a boycott
289

or

strike

even

an

unlawful

strike

is

not

undesirable." In Benoni

Student

Movement, 290

the

PAB

declared

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 PABs 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 is any to the requirement given of of imminence. that Nowhere to in the that decision indication facts go show

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,

288 289 290

Grassroots 54/85. See also Izwe lase Township 144/82, See Grassroots 200/83 and Heartland 43/82 Annexure. 159/81.

refuse to prosecute, withdraw charges, stop a prosecution, 291 reduce a term of imprisonment, 292 or grant a pardon. 293 In order to facilitate the present process of negotiations between the government and previously outlawed organizations, the Indemnity Act 35 of 1990 was passed, increasing the governments 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 in South for the promotion of peaceful constitutional solutions persons 294 for a Africa," grant either conditional Similarly, indemnity from

or unconditional immunity from prosecution to any person or category of stipulated period. 295 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

291 292 293

In terms of s 6(2)(d) of the Criminal Procedure Act 51 of 1977. In terms of ss 61-72 of the Prisons Act 8 of 1959.

In 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.
294 295 296 297

Section 1(1). Section 1(2). Section 2.

Government Notice R 2625, Government Gazette 12834 Regulation Gazette 4584, 7 Nov 1990.
298

Paragraph 1.3.

A set of guidelines were adopted, in terms of which the following considerations should be taken into account when the grant of pardon or indemnity is considered: (i) The motive of the offender, ie whether the offence was

committed for a political motive (eg to further or oppose the aims of a political organization, institution or body) or for a personal motive. (ii) The context in which the offence was committed; in

particular whether it was committed in the course of or as part of a political uprising or disturbance, or in reaction thereto. (iii) The nature of the political objective (eg whether to force a change in the policy of or to overthrow or destroy the political opponent). (iv) The legal and factual nature of the offence, including its gravity. (v) The object and/or objective of the offence (eg whether it was committed against the political opponent or his property, or directed primarily against private individuals or property; or was committed on the assumption that a particular cause, governmental or otherwise, was being served). (vi) The relationship between the offence and the political

objective being pursued, eg the the objective pursued.

directness or proximity of the

relationship, or the proportionality between the offence and

(vii) The question whether the act was committed in the execution of an order or with the approval
299

of

the

organization,

institution or body concerned. Unconditional indemnity was granted

to

persons

who

had

left

South
300

Africa without being in possession of valid travel documents recognized port. 301

and

persons who left South Africa at a place other than an officially

Provision was also made for the establishment of indemnity committees,

299 300 301

Paragraph 3.2. Paragraph 6.1(a). Paragraph 6.1(b).

which are to investigate evidence and make recommendations to the State President regarding the exercise of the powers conferred on him in terms of the Indemnity Act. 302 At the same time unconditional indemnity was also granted to members of the ANC as well as other people who subscribed to "the principles of peaceful solutions and developments", and who have been involved, with the motive circumscribed in the guidelines referred to earlier, in one of the following activities: 303 Illegal gather ings; 304 arson, public violence or malicious damage to property; 305 treason, except where certain serious violent crimes were also committed; 306 attempted
308

murder; 307

possession
309

of

firearms,

ammunition and explosives

and trespassing.

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 someones 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 discipline question. The fact that the gravity of the offence is considered relevant seems to indicate that the level of coercion will be important, while and the objective the reference to the "directness" of the relationship between the offence pursued suggests that indirect acts of resistance will be more difficult to justify than direct resistance. of that more tolerance for those who when they committed were members the acts in of established organizations and who acted within the scope of the organization,

See Government Notice R 2633, Government 1990, for the regulations in respect of these promulgation of the names of the ad hoc members see General Notice 381, Government Gazette 13201,
303

302

Gazette 12838 9 Nov committees. For the of these committees, 24 April 1991.

Government Notice R936, Government, Gazette 13202, Regulation Gazette 4689, 24 Apr-11 1991.
304 305 306 307 308 309

Annexure paras (1),(ii). Id para (iii). Id para (v). Id para (vi). Id paras (vii)-(ix). Id para (x).

Most important for our purposes, however, is the fact that the focus in the criteria posed is not on the merits of the political convictions involved, but rather on formal or "content-neutral" criteria, such as the question whether the actions were directed against private individuals or political opponents. We will return to this issue later. III. CIVIL DISOBEDIENCE OF MEMBERS OF THE LEGAL PROFESSION Members of the legal profession are generally perceived to stand in a special relationship toward the law. Since they are entrusted with the administration and enforcement of the laws of the country, they are widely considered to have a more stringent obligation than other people to observe the law and not
310

to

undermine

respect

for

law

by

transgressing its provisions.

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 Andr 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

This 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. Somewhat surprisingly no support for this apparently selfevident 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.
311

310

legal systems 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 persons 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. concerned. There In is also the no substantial is distinction upon to between evaluate the the interpretation of these words as far as attorneys and advocates are essence court called 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 persons character for legal practice, is his previous

In 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. Sect1on 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.
314 313

312

See Ex parte Cassim 1970 4 SA 476 (T) at 477.

convictions. 315 As a general rule, the fact that someone has a previous conviction for a serious offence would preclude him from practising law. The rule is not, however, absolute. What really matters is whether the previous offence reflects upon the character of the person concerned. There are some offences that usually reflect negatively upon the character of the offender - the so-called "tainted offences", 316such as theft and fraud. However, even this classification should not be regarded as a hard and fast rule. Evidence of a serious previous conviction should, at the most, be

considered as constituting prima facie evidence of unsuitabi1ity for legal practice. It is not conclusive proof. 317 Courts are expected - by the legislature - to make value judgments based on the particular facts of each particular case. 318 What must be determined is not whether the particular already whether, person given should
319

be of

punished matter his

again for

the

that, Court

after to

all, decide

has is

been

done.

The fact

only

the

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

Courts 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). The 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. See 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. See Incorporated Law Society. Natal v Hassim (also known as Essack) 1978 2 SA 285 (N) at 291.
319 318 317 316

315

Ex parte Krause 1905 TS 221 at 223.

practise law. 320 What needs

321

to

be

assessed,

is

the

extent

to

which

the

"personal

honour" into

of the particular person has been affected by his criminal the

322

conduct, the conviction and the sentence imposed. The Court must take account probable effect which these factors will have on public opinion and the relationship of the convicted lawyer with his

clients, professional colleagues 323 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

A 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.
321 322

320

See Ex parte Krause 1905 TS 221 at 223. SA (Witwatersrand Division) v

See Society of Advocates of Fischer 1966 1 SA 133 (T) at 136.

323

In 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. It 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.
324

the law but must apply their discretion based on practical wisdom. In the first place, it must be determined exactly how serious the particular with which A crime the that was. 325 trial of a Insignificant regarded person offences, offence, least such is for as the as the traffic sentence a strong of time violations, are ignored. One indication of the degree of seriousness court the is (at imposed. sentence imprisonment often regarded

indication

particular

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 committed with an altruistic or idealistic objective in mind? was it
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 persons untruthfulness during his trial would likewise be to his detriment, although it is not necessarily fatal. 328

See Society of Advocates of Natal & another v Knox & others 1954 2 SA 246 (N). In 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. Re 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). See 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
328 327 326

325

A further important consideration is the question whether or not the offence was committed by the legal practitioner in his professional capacity. the If
329

not,

this

is

often

regarded can,

as in

mitigating appropriate

circumstance.

Nevertheless, crimes which are not directly related to persons legal practice

particular

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". See 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.)
330 331 329

See eg Incorporated Law Society (OFS) v Van Deventer 1933 OPO 124.

See Matthews v Cape Hoseneke 1979 4 SA 884 (T).

332 333 334

Law

Society

1956

SA

807

(C)

and

Ex

Law Society. Cape v Koch 1985 4 SA 379 (C) at 389. Natal law Society v N 1985 4 SA 115 (N).

See the judgment of Kriek J in Natal Law Society v N 1985 4 SA 115 (N) at 128.

While South African courts in general follow a "policy of severity" 335in respect of crimes such as the misappropriation of trust funds, insofar as the capability of the person involved to practise law is concerned, a much more lenient approach is followed in respect of crimes committed with a political motive, although some commentators have pointed out a gradual tightening in the course of the latter half of this century of the courts' indulgence. 336 (1) Political crimes in general

There are good reasons for courts to follow a lenient approach in respect of certain politically motivated crimes. History abounds with examples of respectable leaders in their societies who at some stage the political development to deny n of their countries were incarcerated for the services of some of society's most

political offences. To exclude such people from legal practice would be the legal profession 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 Both were merely suspended from practice for an imprisonment. 337

unspecified period. Judged by the way in which the orders were phrased,

335 336

See law Society. Cape v Koch 1985 4 SA 379 (C) at 387.

See Mihlik 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. Incorporated Law Society v Vermooten (1900) 17 SC 312 and The Incorporated Law Society v Badenhorst (1902) 19 SC 73.
337

it seems that the Court was of the opinion that this period should not necessarily be very long. A similar
338

case

was

heard,

with

similar

results, directly after the War.

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 On granting the application, Innes C J in the Transvaal. that the important

stated

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 he was furthering "the cause of his own country". into account the fact that war "blunts the
344

believed that sense", 345 and

The Court also took

moral

expressed the hope that its approach would help in "eradicating from memory many things which have been done in the past and which should

Incorporated Law Society v Scholtz (1902) 19 SC 439. See also Petition De Klerck (1903) 20 SC 161. 1905 TS 221. Approved, inter alia. in Natal law Society v N 1985 4 SA 115 (N).
340 341 339

338

See 224.

Supreme Court" The Star 10 May 1905. See also the headnote of the case, and Roberts SALJ 1959 364 at 368.
342 343 344 345

Ex parte Krause 1905 TS 221 at 223. At 227. At 231. (Solomon J, concurring.) At 227.

now be forgotten." 346 After the abortive Rebellion of 1914 the courts were confronted with

similar cases. In one of those cases, three attorneys who had been convicted of treason and sentenced to a period of imprisonment were merely temporarily suspended from practice. 347 In another, 348 however, one of the leaders of the Rebellion was indeed struck off the roll on the basis of having taken and broken the oath of allegiance. 349 (h) The era of black against white conflict

It was only a matter of time before the combination of the freedom struggle against white domination in this country, on the one hand, and the pervasive security system used by the state to suppress it, on the other, would percolate into similar cases. In Ex parte Cassim 350 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 Court 90 Days Detention Act. The record does not indicate whether the remarked that the applicants conduct "obviously
351

property of the post office was in any way physically damaged. The was an act calculated to incite others so also to protest." 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 applicants previous offences did not indicate that he was guilty of dishonest, disgraceful

346 347

At 228.

Incorporated Law Society v Roos & others 1915 OPD 112. See also Incorporated Law Society v Van der Merwe 1915 OPD 131.
348 349

Incorporated Law Society v De Villiers 1915 OPD 98.

The 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.
350 351 352

1970 4 SA 476 (T). At 477. Ibid.

or dishonourable conduct. In Ex parte Moseneke 353 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 lawyers 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

353 354

1979 4 SA 884 (T). 1979 3 SA 298 (A).

case

must

be

dealt

with

on

its

own

merits." 355

Since

the

attorney

concerned was in addition found to be an untruthful witness, this case cannot be relied upon as authority for the proposition that involvement in violent resistance against the state, even if remote, will necessarily constitute sufficient grounds for excluding a person from legal practice. The case of Natal Law Society v Maoubela is much more to the point. 356 In that case a practising attorney was struck off the roll after he had been convicted of high basis treason of the and sentenced was to his twenty close years personal imprisonment. The conviction

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 If it should is not apply to such acts of political to view resistance. correct that courts recently started

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 reg". words of Du Plessis, must show respect for "die weg van die
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

355 356 357

At 307. 1986 3 SA 849 (N). Du Plessis Die professionele gedrag van die juris 32.

someone who defies the law and tries to escape the consequences of his unlawful act. In the latter case, one could argue that the person involved shows fear for the law, but surely there is a difference between fear and respect. This issue was addressed in two seminal cases on the topic in the South Africa legal history. Both cases took place in the context of black against white resistance, and concerned incitement to civil disobedience during the Defiance Campaign of 1952. In Incorporated Law Society. Transvaal v Mandela 358 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 Campaign which was aimed at bringing about certain Defiance and social

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

358 359

1954 3 SA 102 (T).

For particulars of the charge, see R v Sisulu & others 1953 3 SA 276 (A) at 283, 284, and the discussion supra chap three III A (3)(c)(iii).

he has been punished. But his offence was not of a 'personally disgraceful character, and there is nothing in his conduct which, in my judgment, renders him unfit to be an attorney. 360 The facts in Matthews v Cape Law Society, 361 decided a year later by the Cape Provincial Division, were for almost all practical purposes identical to those of Mandela. 362 The only real difference lay in the fact that Mandela was already a practising attorney at the time of his conviction, while Matthews only later applied for admission to the attorneys 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 attorneys 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 respondents personal honour had Mandela court

been affected. The-obligation which an attorney has to the court was not considered at all. Consequently, the approach of the 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

360 361 362

At 108. 1956 1 SA 807 (c).

Mandela was the national President of the ANC Youth League during the Defiance Campaign while Matthews was the Secretary. Matthews, the son of Prof Z K Matthews, later became national President of the Youth League. While Mandela's case dealt with his conviction as a national organiser of the Defiance Campaign, Matthews' case dealt with his convictions as an organiser of local campaigns in Port Elizabeth and Kimberley.

Mandela

case

provide

striking

illustrations

of

the

two

opposite

approaches which can be followed in cases of this nature. In the one case a previous conviction for involvement in civil disobedience was not regarded as an automatic disqualification to practise law, whereas in the other it was. While the Mandela court made greater allowances for members of the legal profession to pursue (their understanding of the law. Even if it could be said that the Mandela case focused on the demands of) justice, and followed a natural law approach, the Matthews court emphasized the duty of the lawyer to uphold the positive

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 others (read: "black his judgment,
364

engage in acts of civil disobedience, was

almost explicitly motivated by his fear that such actions would incite people"), described in the application of the Law sentiment was repeated twice by the Judge Society as "generally uneducated and unenlightened". 363In the course of this President. 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

363 364 365

At 810. At 813. At 108.

- followed in respect of previous convictions of legal practitioners as outlined above. These aspects wi11 next be considered. With a view to precedent, it may be argued that the comments in

Matthews in respect of the Mandela case were made obiter, since the Court decided the case on different grounds. At the same time, however, the Mandela decision was repudiated (but not overruled) by a Transvaal full bench in Society of Advocates of SA (Witwatersrand Division) v Fischer. 366 In Fischer an application was brought to have the name of a senior advocate struck from the roll after he had forfeited his bail while awaiting trial on charges, inter alia, of being an office-bearer of the South African Communist Party. In this case, as in Matthews, the Court relied heavily on the impact of such granting the application, De Wet J P conduct on public opinion. In distinguished the case under Mandela court

consideration from the Mandela case, inasmuch as the

"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 judge level, in the more cautionary is approach not taken by the to

presiding

Fischers

case

perhaps

difficult

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

366 367 368 369

1966 1 SA 133 (T). At 137. Ibid.

At 136. The observation of Mihlik SALJ 1990 304 at 315 that this finding is "based on the false premiss that the majority or perhaps all of the applicants for bail wish to become fugitives from justice" seems questionable. Why, after a11, do courts require bail 1n certain cases if no danger exists that the accused might not appear to stand trial?

wrong view as it turned out." Nevertheless, although the judge in Fischer said that the Mandela and the Fischer cases were distinguishable, he did not identify the essential difference, which makes his reference to the Mandela case unwarranted. In Mandela an act of civil disobedience was at stake, which implied that the respondent openly defied certain laws. He did not attempt to evade the sanction of the law of the country; he in fact invited it. In Fischer the respondent did the exact opposite: In order to avoid the sanction of the law he became a fugitive from justice. Fischer, as Du Plessis indicated, specifically tried to evade "die weg van die reg". 370Even though Mandela broke the law, he still sought "the way of the law". Moreover, the offence in Fischer was directed 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,
372

against

in

spite has

of

his been

subsequent

incarceration

following

the

Rivonia

trial,

not

removed from the roll of attorneys in the Transvaal.

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

370 371

Du Plessis Die professionele gedrag van die juris 32.

See 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. Information 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.
373 372

At 813.

is not here to attack the basic premises of positivism. The problem with the way in which it was applied in the Matthews case, however, is that while the Court was required by a particular statute (that is, by parliament) to make a moral assessment of the applicant, it accepted without question that parliaments 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

374 375 376

See infra chap five I DD. Millner SALJ 1957 342 at 346. See Hart Harvard Law Review 1958 593 at 598. See also 618.

to evade the law. This he managed to do by using his status as a senior advocate of unquestioned integrity. It is this element of dishonesty which led to his exclusion from the legal profession. Since that element is normally not present in the case of civil disobedience, where the protest per definition is open, this guide-line points to the more lenient approach followed in Mandela. This can indeed be fact that the described as the greatest weakness of Matthews: the excluded acts of civil disobedience from the

Court

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 concerned the that would most likely also in remain the to this the the conditions which same. As alluded and of in to his civil become after a

gave rise to that motivation change, the convictions of the persons earlier, this is collaborated by the later history of the respondent in Mandela the case, culminating concerned some Rivonia engage trial in subsequent statements. At a certain point, if it is established clearly person with an intends acts disobedience or bring regularity, for consideration or suspension will only

paramount. In many cases it might, however, be appropriate to grant application removal repetition of unlawful conduct. If that is not the case, however, and it is clear that an isolated incident is at stake, it is submitted that this consideration should not be regarded as crucial. Courts have simply sidestepped the question whether the particular person has shown

remorse, at least where no violence was involved. 377 It was pointed of out the that courts that should be, guard against becoming their mere own

instruments

powers

and

should

protect

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 conducts 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

See 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. The observation of Mihlik 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. Mihlik's general "free pardon"
378

377

From the above it must be concluded that the Mandela courts 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 that the elsewhere. 380 For the moment the only claim made is according to which legal practice and Mandela-approach,

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 or in all cases is wrong or category of "conscientious such service in a particular case Such
382

immoral.

persons often

belong regard

to

the

objectors",

who

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. For 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.
380 381 379

See infra chap six III.

For 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. The term "conscientious objection" was circumscribed supra chap two V.
382

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 efforts? life But but on refuse the to participate hand, can in the state countrys force military to other the someone

participate in military activity even if that would mean the violation of that persons deepest beliefs? In most jurisdictions is to a value and systems military
383

the have

principle of at been

is

recognised some or for way

that

freedom in

of

conscience context, objectors

worthy service

least one

protection another to

this

devised in

allowing

conscientious render

alternative service.

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 would included normally in be conscription. at least The to period or of alternative that service of equal surpass required

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 persons conscience might be involved, are indeed extraordinary. Apart from the problems experienced by many people regarding military service

Resolution 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." Johan 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.
384

383

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 came its to operations be in neighbouring of states
385

and

in

black to

townships military

agencies in South

repression. has

In

addition

resistance by those who subscribe in general to the pacifist position, conscription Africa 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
388

of In

society what

was

inevitable, the legal

and basis

bound of

to

be

controversial.

follows,

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

See 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. The 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.
387 388 389 386

385

See infra chap five II B. See eg Degenaar Insig Sept 1988 18.

For an overview of the position in the United States, see Anonymous Harvard Law Review 1978 1056; Fox Cleveland State Law Review 1982 77 and Calabresi Tragic choices 158.

American legislation. 390 As mentioned earlier, a distinction should be drawn between legal and illegal conscientious objection. 391 In the case of legal conscientious objection, the objector qualifies for alternative service in terms of the relevant statute. In the case of illegal conscientious objection, the person concerned does not qualify for alternative service, but nevertheless refuses to do military service. In doing so he commits an offence. Illegal as well as legal conscientious objection warrant our attention, although the latter category of actions does not strictly speaking constitute objection civil shall of a disobedience. be considered concession it is alternative One is on reason part to why it of legal the conscientious an important system limits to of because the provides

illustration conscience. legally

legal the the

Moreover,

necessary service,

establish

recognised

which

denotes

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 male 392 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

See 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.
391 392

390

See supra chap two V.

Section 2(l)(b) excludes "females and persons who are not white" from compulsory military service.
393 394

Section 3(1)(b).

Section 22(3). For a discussion, see J Forder "Conscription" In Robertson South African human rights and labour law yearbook 1990 36.
395

An early forerunner of military conscription in the country can

Nevertheless, numbers. 396 Conscription

until

after

the

Second

World

War,

the

South

African

Defence Force relied almost exclusively on volunteers to supply its

in

its

modern

form,

administered

on

the

basis

of

the

ballot, was introduced in the 1950s, 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. For 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. Announced 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.
397 396

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 called up for military service.
400

served his sentence may again be

The courts initially ruled that the imposition of the maximum prison

In 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. Section 126A(1)(a). For a discussion, see Foundation for Peace and Justice Facing prison 10. Section 126A(1)(b). See also Foundation for Peace and Justice Facing prison 9.
400 399

398

sentence

in
401

the

case

of in

refusal the cases

to of

render S v

military S v

service Bruce
402

was the

mandatory.

However,

Toms:

Appellate Division ruled that the Court had a discretion to impose a lighter sentence of imprisonment, which may even be suspended. In of Toms, an appeal for was noted of against the sentence imposed for a a

conviction related to the appellants refusal to render further periods training reasons political conviction. The appellant, 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 already served.
403

he had

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
406

is

imprisonment

of

six

years

or

fine

of

five

thousand rand.

401 402

See eg S v Toms 1989 2 SA 567 (C).

1990 2 SA 802 (A). The appellants were convicted of contraventions of s l26A(1)(a). See also "Torr se appl gedeeltelik gehandhaaf" BeeId 21 May 1991.
403 404 405

At 821. Ibid

See "David Bruce freed from the spectre of jail" The Meekly Mail 21 Sept 1990
406

Section 121(c). This provision was introduced by s 10 of the

C.

LEGAL CONSCIENTIOUS OBJECTION

Traditionally, the only legal concession for conscientious objectors was a provision authorising that they could, in the discretion of the Defence Force, be assigned to perform non-combatant military service in a time of war. The criterion applied was largely objective, in the sense that this limited concession was available only to those who were bona fide All
408

members other

of forms

and of

adhered

to

"a

recognised were

religious considered

denomination, by the tenets whereof its members may not participate in war." 407 illegal, conscientious objection including religious objection to military training. 409 was amended and a more subjective test

During 1983, the Defence Act

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. In 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)).
408 409 407

Section 61 of the Defence Amendment Act 85 of 1967.

See S v Lovell 1972 3 SA 760 (A), affirming the decision in S_ v Schoeman: S v Martin & andere 1971 4 SA 248 (A).

as an individual would become decisive. 410 The alternative types of service open to those conscientious objectors who complied with the requirements for such service were also increased. The Defence Act now provides in section 72 that if the Board of

Religious Objection (the "Board"), established in terms of the Act, 411 is satisfied that it is against the "religious convictions" of someone who has been called up for military service to serve in specified capacities in "any armed force", such a person may be classified as a "religious objector". 412 This entails that he will not be forced to serve in the but Defence that he Force will in have a capacity to render that would violate service his as beliefs, alternative

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
414

allow them to render combat service in any armed force; 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

Section 9 of the Defence Amendment Act 34 of 1983. See Taitz De Jure 1988 239 at 241.
411 412

410

Section 72A.

Section 72D(1)(a). The English text of Act 34 of 1983 was signed by the State President. S v lovell 1972 3 SA 760 (A) 766. See also Willem de Klerk's editorial "Moker die ontdulkers" Rapport 30 Jan 1983.
414 415 413

Section 72D(1)(a)(i). Section 72D(1)(a)(ii).

connected with any armed force. 416 Those in category (i) must serve the normal period of military service in the SADF in a non-combatant capacity; 417 category (ii) must serve one and a half times the period for which they could still be called up in the SADF (unless the Minister of Defence provides for a shorter period), not in uniform 418 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 the still SADF
420

be

called

up,

doing Minister

community provides

service for a

outside

(unless

the

shorter period).

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
421

the

different

possibilities could be summarised as follows:

Universal

Selective

objectors(those

who

object

to

416 417 418 419

Section 720(1)(a)(iii). Section 72E(1). Section 72E(2)(a)(ii).

Section 72E(2)(b). Failure to render such service constitutes an offence in terms of s 721(1). Section 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.
421 420

See also Harris SAJHR 1987 240 at 241.

pacifists(those who serve army) Religious objectors (those who refuse to serve for religious reasons) a) UNIVERSAL RELIGIOUS PACIFISTS refuse in to any

fighting for a particular regime; against a particular enemy or with certain weapons)

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 diagram to their covered "religious by its convictions" and can be classified for as religious objectors), only those objectors in category a) in the above are provisions qualify alternative service. Objectors in all three the other categories will be guilty of criminal acts if they refuse to serve. While the protection is clearly which section 72 affords its exact to conscientious are

objectors

extremely

narrow,

demarcations

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

1987ST 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.

422

constitute

"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 wars 423. 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
425

of

the

United

States Supreme Court in United States v Seeaer.

In that case the

Court had to interpret section 6(j) of the Universal Military Training and Service Act 426 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

423 424 425 426

At 924. At 929 380 US 163 (1965). 5O USC App S 456(j) (1958 ed).

relation, but [not including] essentially political, sociological, or philosophical views or a merely personal moral code." Seeger was convicted in a lower court for having refused unlawfully to submit to induction in the armed forces. He was denied the status of religious objector in terms of the Act by the lower court, which held that his convictions did not qualify as religious beliefs as circumscribed in section 6(j). In his application to be classified as a religious objector, Seeger left the question whether he believed in a Supreme Being open, and stated that his belief was a "belief in and devotion to goodness and virtue for their own sakes, and a religious faith in a purely ethical creed." Seeger cited Plato, Aristotle and Spinoza as authorities for his ethical belief in intellectual and moral integrity, which precluded him from doing military service. 427 The Court found that the appellant's beliefs were covered by section 6(j), because Congress in using the expression 'Supreme Being' rather than the designation 'God', was merely clarifying the meaning of religious training and belief so as to embrace a11 religions and to exclude essentially political, sociological, or philosophical views. We believe that under this construction, the test of belief 'in relation to a Supreme Being' is whether a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God of one who dearly qualifies for the exemption. 428 Consequently, it was held that the appellant qualified for an exemption from normal service. This strongly subjective approach of the United States Supreme Court was rejected by the Orange Free State Provincial Division. Instead, the Hartman court identified itself with the dissenting opinion of Marian J in Welsh v United States. 429 In that case, of which the facts were similar to those of Seeger, 430 the United States Supreme Court went even further than in Seeger in upholding a subjective approach, and held

At 166. See also the facts regarding the other two appellants, whose cases were heard together with that of Seeger, at 167.
428 429 430

427

At 165. 398 US 333 (1970).

The basis of the objector's pacifism in this case was that he sincerely believed that taking anyone's 1ife was morally wrong. (See 343.)

that even though an objector's pacifism was to a "substantial" degree based were merely to some upon considerations based upon of public policy, ethical, he or was still entitled to an exemption as long as those beliefs were deeply held and degree "moral, 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,
432

or

philosophical views or a merely personal moral code'." 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, on since it draws a line 6(j) of between could theistic be religious in its beliefs on the one hand, and non-theistic religious beliefs and secular convictions long the other. 433 Section policy scrapped entirety consistent with the First Amendment. But in that event the standing congressional 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

431 432 433 434

At 343. At 351. At 357. At 367.

by the Hartman court. 435 The interpretation of what should be regarded as "religious

convictions" which emanates from the majority opinions in the American cases, is tied up in what Paul Tillich calls a person's "ultimate concern". 436 The effect of following this approach would be that secular resistors (categories c) and d) objectors in the above diagram) are treated the same as religious resistors (categories a) and b) objectors). The question as to whether selective pacifists categories b) and d) objectors) should be treated in the same way as universal pacifists unanswered. The Court in Hartman acted boldly in interpreting the phrase "religious conviction" widely enough to include non-theistic religious beliefs. Strictly the speaking, the of the Court phrase was to not required to say of more. secular Nevertheless, the Court rejected in anticipando a further expansion of interpretation include protection 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 in a that a narrower Being and or a wider meaning the of the words "religious refers to convictions" can be identified. The narrower meaning requires a belief Supreme Beings held while wider and meaning which "convictions which are conscientiously are observed (categories a) and c) objectors) is, however, left

435 436

See also Harris SAJHR 1987 240 at 245.

See Anonymous Harvard Law Review 1978 1056 at 1066. According to Robinson SAPL 1987 35 at 46 "behoort die staat ... a11e innerlikgefundeerde 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. For 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.
437

scrupulously

or

strictly." 438

In

regarding

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 in question must be based on such books or articles. indication that the legislature regarded it to be essential that the convictions 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
441

an

absolute

obligation on the Board to require such a statement. -

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
442

Hinduism)

can

presumably

constitute

the

necessary texts.

438 439 440 441 442

At 924. Section 72B(2)(d). At 929. See Robinson De Jure 1987 374 at 379.

At least one person who was sentenced to imprisonment for ("nonreligious") conscientious objection specifically cited Gandhi's teachings as his inspiration. See "Gandhi influence on peace fighter" Natal Post 22 Oct 1986.

Reduced to absurdity, the Hartman court's approach implies that both the founder of a faith and his followers, until he writes down his beliefs, would have to do military service. After that has been done, they may be exempted.

D.

EVALUATION

It is submitted that South African courts in appropriate cases in the future can go beyond the Hartman court, in accepting that genuine secular pacifism, adhered to on the level of an "ultimate concern", may qualify for the same protection as religious pacifism. In other words, at least category c) resistors in the diagram should also be protected. This suggestion is based on the following: As has been suggested, the court in Hartman simply had to

establish whether a non-theist belief should be regarded as a religious belief. Its finding that other beliefs should not be treated as religious beliefs was made obiter. As mentioned earlier, the direction in which our legislation has been moving in respect has of conscientiously-based from a more objection to a to military service been objective 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

443

See infra chap six IV B

other value systems which reflect the concerned person's most profound convictions should qualify as a religious belief. True, it would be easier for the purpose of proving that a particular conviction is sincerely held if the requirement of religious conviction, in the traditional sense of the word, were to be insisted on. Nevertheless, considerations of expediency cannot compromise the important principle of freedom of conscience. Either no exemption should be made for objection on the basis of conscience, or such exemption should be provided for all whose deepest convictions are violated by military service, irrespective 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 not exemption to by alternatives requested remembered, service who specific however, that what is at stake is to of to the community, military
445

from those

but

merely What is is an

forms object

national

service. service

alternative way of serving the community. -

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

See the judgment of Ogilvie-Thompson C J in S v Love11 1972 3 SA 760 (A) at 766. See B Steyn "The case for alternative service" in Centre for Intergroup Studies Conscientious objection 104.
446 445

444

Section 6(j), quoted supra

would be in favorem 1ibertatis. It is consequently submitted that, under the Defence Act, all

objections to military service, held on the level of ultimate concerns, should be treated on the same footing. This still leaves unanswered the complicated question whether selective pacifists should be treated in the same way as universal pacifists. As the Defence Act currently stands, it seems clear that only universal pacifists are covered. The Act explicitly requires objection to serve in "any armed force". It is submitted that this limitation cannot be justified. The philosophical is the basis of the of legal recognition integrity of or conscientious objection protection people's

"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.

447

See infra chap six III C.

CHAPTER FIVE: CLASSICAL VIEWS ON POLITICAL AND LEGAL OBLIGATION AND RESISTANCE The views of some of the most influential shapers of Western and South African political, religious, philosophical and jurisprudential thought on political and legal obligation and resistance will be considered next. The primary focus will be on the conditions of justified disobedience, but in the course of such an inquiry the basis and limits of political obedience or obligation must also be established. After all, the one defines the limits of the other. 1 At the outset, a problem pertaining to discussions of a right of

resistance must be noted. Public endorsement or rejection of a right to resist, however generally phrased, might have far-reaching practical consequences. Commentators might be induced to play down their true views on the topic for fear of governmental sanction, or because they anticipate that by endorsing a right to resist they might provide the oxygen for drastic might action. On the other support hand, for in situations where It is change is desperately needed but a sufficient stimulus is absent, some observers overstate their resistance. 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 Some be of given the of the most important Greek biblical text (Old and New Testament) on the relationship between the individual and the state. most influential philosophers (Socrates, Plato, Aristotle and the Stoics) wil thereafter be discussed, as well as the

For general discussions of the right of resistance, see D Lumb "Legality and legitimacy: The limits of the duty of obedience to the state" in Alexandrowicz Grotian society papers 52; H J Laski "Historical introduction" in Brutus A defence of liberty against tyrants 1; Sumida "The right to revolution" in McDougal & Reisman International law in contemporary perspective 167; Berman Law and revolution in general and the essays contained in HacCormick & Bankowski Enlightenment, rights and revolution. See also Van der Vyver Contours of the Kingdom May, June 1979 6 and Paust Emory Law Journal 1983 545 as well as C W Emmet "Resistance and non-resistance" in Encyclopaedia of Religion and Ethics vol 10 736; M C Smith "Rebellion, revolution" in Encyclopaedia of Religion and Ethics vol 10 598; P N Steams "Protest movements" in Dictionary of the History of Ideas vol 3 670; H J Berman "Law and religion in the West" in The Encyclopaedia of Religion vol 8 472 and G Lewy "Revolution" in The Encyclopaedia of Religion vo1 12 374. A useful summary of the literature available on the topic is contained in Macfarlane Political disobedience 79ff. See also Hurd The Yale Law Journal 1991 1611.

legacy of Roman law and jurisprudence. The contribution of the most important Christian theologians of earlier times (Augustine, Aquinas Luther and Calvin, as well as some aspects of their legacy and the dominant political philosophers (John of Salisbury Bodin, Hobbes, Locke, Rousseau, Blackstone, Kant, Bentham Hegel, the anarchists and Marx), as well as some of the most prominent contributors to the RomanDutch 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.

See Ebenstein Great political thinkers 1.

However, there is also another side to this tradition. Both Judaism and Christianity has a long history of official endorsement in different societies, which means that one might expect a strong emphasis to be placed on the duty of obedience rather than on the right of resistance. Both traditions place great emphasis on the divine endorsement of the institution of political power. Greek and Roman thought, with its politheistic religious orientation, lacked a universalistic ethical basis. This, in turn, made it difficult for members of this tradition to transcend and relativise the claims of their immediate social grouping. In the time of the golden age of Greek philosophy the era of

Socrates, Plato and Aristotle - the Greek polis was seen as a social, economic and political unity, and also as a spiritual and religious one, and consequently high priority was placed on obedience to its demands. In addition to the fact that membership of the polis was regarded during as a condition for meaningful from existence, the elite, Greek philosophy in a this era emanated mainly resulting

propensity to require blind obedience from the ruled, coupled with a strong aristocratic slant in its view of political life. However, as a more lasting contribution the Greeks had their philosophy to offer, which would provide a rational basis for dealing with the question of government. That is, they made a science of political philosophy. Judeo-Christian ethics and Greek science combined to form the basis of the Western approach to political obligation. Roman law, in the classical and post-classical age, also afforded to government a primary position. The Roman contribution, however, lay in its powerful demonstration of the extent to which legal science could be used to regulate human relationships. Western political thought largely developed on the foundations of Judeo-Christian values by means of Hellenistic and Roman science. However, to some extent the above observations, which largely represent the orthodox view, oversimplify the contribution of Greek and Roman philosophy in the field of ethics. As will be indicated later on, the Greek Stoics, who made their contribution after the golden age of Greek philosophy, had a major influence on Roman and also Christian thinking. The Stoic-Christian conception of political obligation and legitimate resistance dominated Western thought for many centuries. This school of thought posited a general duty of political obedience. Nevertheless, it regarded integrity-based, religious, defensive civil disobedience as

permissible, although

and

indeed

in

some

cases of

saw

it

as kind

positive was

duty,

result-oriented

resistance

any

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
3

be

cynical

but

it

is

not

for

that

reason

necessarily untrue. In the that respect of

obedience system can to also

to

earthly

authority, when that to

the

belief is the

in seen

an as

omnipotent god, however, is a two-edged sword. prevailing light, it believers, mobilise

Religion can legitimise system resist

conforming to their basic ideals. But when the system is not seen in people existing political dispensation. Because of the transcendental loyalty of the believer, religion has a strong subversive potential. The fact idea that that the political ruler act represents unjustly God on earth affords their

special authority to his station in life, but, at the same time, the rulers sometimes do and even require 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.

See Greyer Die wysbegeerte van die Grieke 69. The influential research of Emil Durkheim in this regard is discussed -In Lukes & Scull Durkheim and law.

There are a number of important passages in the Bible in which the issue of political obligation is canvassed, directly or indirectly. (1) The Old Testament played much a of major role in sustaining the political foreign is unity of

Religion inspired Religious

Israel and obedience to its internal leaders. At the same time, it Israels for resistance political against domination. for inspiration disobedience evident,

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 Israels 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 of was terms of this central pivot of Christianity, can who therefore defied and be consequently world order much Western It civilization, inspired many

described as an act of civil disobedience through which the present established. worldly authority to believe that their defiance was justified.

4 5 6 7

2 Kings 18.7. See Daniel 3.18. Daniel 6.

See M C Smith "Rebellion, revolution" in Encyclopaedia of Religion and Ethics vol 10 598 at 598. See also Calvert Revolution 49. For a discussion of the rulers of the Bible, see Weber Power 47ff.

At the same time, the New Testament contains passages which maintain, in strong language, that earthly authority should be obeyed. We will now consider some of the most important texts regarding non-violent political resistance, while brief reference will be made to interpretations of those texts. In his teachings, Christ emphasised the need not to take violent

revenge. In the Sermon on the Mount, in a passage often quoted by proponents of non-violent resistance, he said: You for who him have heard that it was said, "an eye for an eye, and a tooth a tooth." But now I tell you: do not take revenge on someone does you wrong. If anyone slaps you on the right cheek, let 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 Emperors", to which Jesus said: "Well, then, pay to the Emperor what belongs to him, and

8 9

Matthew 5.38, 39. See also Luke 6.29, 30. John 18.11. See 1 Peter 2.23. Matthew 21.12. See also Mark 11.15-19; Luke -19.45-48 and John 2.13-22. John 18.36.

10 11 12

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
16

Jerusalem,

and

you

want

to

make

us

responsible for his death!"

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,

13 14 15 16 17

Matthew 22.19-21. See also Mark 12.13-17 and Luke 20.20-26. Acts 4.19, 20. Acts 5.19-21. Acts 5.28. Acts 5.40-42.

which is encountered again and again in the works of later writers, is contained in Romans 13:1-6: Everyone must obey the state authorities, because no authority exists without Gods 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 Gods servant working for your own good. But if you do evil, be afraid of him, because his power to punish is real. He is Gods servant and carries out Gods wrath on those who do evil. For this reason you must obey the authorities - not just because of Gods wrath, but also as a matter of conscience. This is also authorities are Pay, then, what taxes, and show rule of the Roman the reason that you pay taxes, because the working for God when they fulfil their duties. you owe them; pay them your personal and property respect and honour for them a11. government. That government was described in

Paul wrote this to the congregation in Rome, which was subjected to the 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 Lords 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

18 19 20 21

Titus 3.1. 1 Peter 2.13, 14. 1 Peter 2.17.

See eg Wink Jesus' third way 12ff and Rgamey Non-violence and the Christian conscience 79ff. See also IDO-C When all else falls and Culliton Non-violence, where it is argued that non-violence is central to Christian spirituality. It should be noted, however, that 1t has been estimated that of approximately 980 million professed Christians in 1971, probably less than 600

However, controversy centred upon the question how the general duty to obey the state, as exemplified in Romans 13, is to be reconciled with the first loyalty of Christians toward God, as posited in Acts 5. 22 In view of the to
23

general God,

message some

of

the

Bible,

which

requires as a

ultimate supposed

obedience

have

rejected

Romans

13

interpolation.

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 government.
25

obedience to any

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 Gods 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. For 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 genspireerd wees nie." See 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.
24 25 26 23 22

Id 27. Id 20.

This approach, usually associated with the name of Kasemann (id 21), was also adhered to in the South African Kairos document (see infra II B). See also 0 J Bosch "Kerk en politick in die Suid-Afrikaanse konteks" in Smith et a1 Stonn-kompas 24.

the higher duty of disregarding the authorities if they were to require their subjects to disobey the will of God. In such cases, where ones 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. (1) GREEK PHILOSOPHY 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 Platos 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 ones own conscience with the obligation to obey the law. 31 In this section Platos views on political obligation will be considered. Platos 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 of of history of philosophy, is the all throughout day the twenty of three centuries its existence, incalculable. modern The first recorded political

articulation

virtually

issues

philosophy can be found in Platos writings.

27

On political resistance among the early Christians, see supra chap three

II D. On 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. 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.
30 31 29 28

See Copleston A history of philosophy vo1 1 120. See supra chap three II C.

Plato was the first to subject government as an institution to rigorous rational analysis. Moreover, he established the crucial connection between what psychology reveals about individuals on the one hand and political theory on the other (although much of what he said concerning the individuals psyche is no longer accepted). Plato also introduced the concept of the "public" as distinct from the "private". 32 Although inquiry, largely Platos and the subjection concepts His of he political introduced, was institutions have been to scientific to the or

central

development of Western political philosophy, his political views are discredited. and approach distinctly and elitist aristocratic, expressly anti-democratic anti-individual.

Platos position was that those who know should rule over those who do not know, regardless of the latters 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 Platos 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

32 33

See Ebenstein Great political thinkers 2. The trial of Socrates, I F Stone argued Socrates and its outcome was Socrates' and his failure to take a stand against he was undemocratic - a charge which, unfounded. that the main reason for the association with the Thirty them. In essence, the charge according to Stone, was not

In trial of Tyrants, was that entirely

accordance with the ebb and flow of nature. Social change had to be arrested, love of because honour) it would inevitably naturally involves evolve
34

social

deterioration. thence to

Timocracy (a state governed by by people whose primary motivation is into oligarcy, democracy and eventually to tyranny.

Platos approach is perhaps best understood - if contrasted with that of Hegel, which will be discussed later. Although both proceeded from the ideal of situation, to resistance Hegel to saw and conflict and change endorsed government, as a healthy while and conducive right development, consequently far-reaching Plato

authoritarian

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
36

scope

for

individual

decision-making

and

political resistance. result.

According to Plato, someone who disagrees with

the state should speak his mind, if that is likely to produce a good

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

34 35 36

See the discussion by Calvert Revolution 32. See Strauss & Cropsey History of political philosophy 3. in International

See Karl Popper's contribution entitled "Plato" Encyclopaedia of the Social Sciences vol 12 159 at 162.
37

See "Plato to the relatives and friends of Dion: Welfare", reprinted as Letter 7 in Plato The Platonic epistles 115 at 123, 331a-331e.

The central question addressed in The republic was what is dikaiosune what is "justice" or "doing right"? 38For Plato this was the same as asking what is the basis of social and moral obligation. This problem was addressed in four stages. First Socrates - the main character in the dialogue - showed that the conventional view, that justice meant honesty and rendering what is due to gods and men, had some merit but was ultimately inadequate. 39 The view that justice consists in helping ones friends and harming ones 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, be not in responding about their to own these statements, asked how this that the

understanding of justice was affected by the fact that rulers may often mistaken rulers. interests. that Thrasymachus is
42

replied and

rulers, as rulers, are never mistaken - when they are mistaken they are Socrates argued government a skill, exercise of any skill as such is disinterested. 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, Consequently, justice

38 39 40 41 42 43

Plato The republic 331c. Id 331e-334b.

Id 334b-336a.
Id 338c. Id 342.

It seems that Plato was deeply troubled by the argument advanced by Thrasymachus. His claim is repeatedly addressed in the other dialogues of Plato. See eg Plato's Gorgias 483, where Callicles observed "This is, in fact, how justice is determined: the stronger shall rule and have the advantage over his inferior."

as

"

Dahrendorf

indicated,

the

Socrates-Thrasymachus

debate

is

the

first recorded exposition of the opposition between what would become two dominant notions in political theory. 44 The Socratic position would be taken up by Rousseau and others, who emphasised the need for political power to be executed legitimately or with authority. On the other hand, Thrasymachus position would be followed by people like Machiavelli and Hobbes, who maintained that power is unequally divided in society and argued, in the words of Dahrendorf, which "legitimacy amounts at best to a precarious
45

preponderance

of

power

over

the

resistance it engenders."

To them political obligation is determined

by control and not by authority. After his encounter is prompted with Thrasymachus, by the Socrates of was confronted or by

Glaucon with the argument that an individuals morality and political obedience merely prospect reward 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 Platos description of the ideal city is well-known and need not be elaborated upon in any detail. Plato, through Socrates, described a

44 45 46 47 48 49

See Dahrendorf Essays in the theory of society 129ff. Id 138. See Plato The republic 358b. Id 360a. Id 358a.

See Strauss & Cropsey History of political philosophy 16. See also Plato The laws 201ff.

"first city" - a type of state of nature that would develop naturally before a "feverish condition" or serious instability sets in. Rational considerations then lead to division of society into three classes, which correspond with the "three parts of the soul". At the lowest level there are the workers, who satisfy material wants or appetite and are guided by the virtue of industriousness. At the intermediate level there are the fighters or auxiliaries, whose conduct is conditioned by the virtue of courage. At the highest level there are the rulers, whose characteristic attribute is wisdom. For Plato, the ultimate ideal is that of the philosopher-king, trained to have a proper understanding of the life good most and subjected to to his the most rigorous and
51

discipline. 50 three classes justice harmony

Justice do in of not the the

prevails in such a state when every individual occupies the station in suitable "with abilities jobs". that the interfere The each others then, is Similarly, is the

individual means that all parts of the soul are subjected to reason. 52 important point, justice 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 ones 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 democracy 54 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

50 51 52 53 54 55 56

See Plato The republic 471. Id 434c. Id 441b-444e. Id Book 8.4. Id Book 8.6. Id Book 8.8. Id Book 9,2.

metaphysical justified. (2)

ideal.

Because

Platos

ideal

state

had

transcendental

sanction, it needed no popular recognition and resistance could not be

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 Aristotles 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, 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 Aristotles 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 Aristotles 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 Aristotles teleological approach humankind strives towards eudaimomia, which refers to the fulfilment of each persons 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, which should be considered together with his Nicomachean

On Aristotle's philosophy in general, see Vorlnder 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. Aristotle'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.
58

57

this could be approximated in the social context. In the opening lines of The politics, Aristotle set out two crucial ideas: (i) the polis 59 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 not preservation for the sake of of life; life the only. village for the comforts nature can of be companionship; but the polis exists for the sake of the good life, and Humankinds moral 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 ones citizenship, which in turn is a natural consequence of being human.

For 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.
60 61 62 63 64

59

Aristotle The politics 1.1 Id 1.2. Ibid. Ibid. Sea infra chap five I EE (4).

This, however, does not imply that Aristotle expected rigid conformity. In spite of his belief in the organic nature of political society, Aristotle did not place the same emphasis on unity or uniformity in the polis as Plato. Having where Aristotle been recognised on the that edge "not of to only does a state of consist of a number of individuals but the individuals are different in kind," 65 raised was the Greek sphere influence, there much exposure different cultures,

Aristotles 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 In democracy perverted limited form by a types considerable of property become qualification). these government

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. Aristotles 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

65 66 67

Aristotle The politics 2.2. Id 7. Id 3.13.

rule. In accordance with his general approach, he also in this instance took the middle option. Aristotle is widely regarded as the founder of the study of

revolutions. In Book 8 of The politics, commonly known as the "Book of revolutions", he provided a most perceptive account of the origins of revolutions. He regarded their prime cause not in the stereotypical manner, as the design of malignant instigators who must be repressed by force, but rather as social conditions which often could and should be rectified. Aristotle regarded the general author of sedition and insurrection as inequality and what in modern terms could be called the "sense of injustice". 68He outlined various more specific reasons for political revolutions, such as the disproportionate distribution of power between classes 69 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 oligarchies 72 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 order 75 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

[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.)
69 70 71 72 73 74 75 76

68

Id 8.3.7. Id 8.3.11. Id 8.5. Id 8.6. Id 8.7. Id 8.10. Id 8.8.10. Id 8.9.

that tyranny in turn decays and initiates new cycles of change. 77 Aristotle, then, also adhered to the view that obedience was based on the natural a order. right At to the same he time, however, while he as did not recognise resist, regarded revolutions natural

phenomena under certain circumstances. As will be demonstrated, Aristotles 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 our difference existence and between which even is that which can be our no changed, power fear, is and that which of can the do cannot, and concern oneself only with the former. The only aspect of really within hold pursuit one correct moral attitude or virtue. We must become indifferent to all the passions, death should because

77 78

See Calvert Revolution 33ff. and its political and legal implications are discussed by its influence; Vorlnder Geschiedenis van de wijsbegeerte Eikema Homines Major trends in the history of legal Du Plessis Westerse regsdenke tot en met die middeleeue

Greek Stoicism Wenley Stoicism and vol 1 l20ff; Van philosophy 29ff and 115ff.
79

See infra chap five I C.

nothing about it. The only possible good is virtue, and the only evil is vice - all else is morally indifferent. Ones highest loyalty should be to be true to oneself, to ones 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 ones 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 ones 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 ones virtue should be obeyed, even if it causes discomfort, because it belongs to the realm of things beyond ones control. Resistance would here serve no purpose. On the other hand, it meant that in respect of laws that could compromise ones 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

80

See Van Eikema Homines Major trends in the history of legal philosophy

31.

perceived it to do instead it provided a criterion that could be used to establish the limits of obedience. In this sense. Stoicism can be seen as an exception to the traditional natural law approach and as the early forerunners of the modern notion of inalienable fundamental rights. Stoicism postulated the idea that one should be faithful to ones 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 can express justify the and but to Stoic approach demand to political resistance defensive This idea As in the civil would be

terminology used, in this study - the preservation of ones integrity indeed not integrity-based resistance. disobedience, interpreted result-oriented only to

largely be taken over by Christianity, although "integrity" would be refer religious convictions. will demonstrated, the Stoic-Christian idea of a general duty of obedience, except where ones 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 historys 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 treated was, and, whence in they derived to their powers, how dissidents was were to general, what extent recognition given

illegal political resistance.

For 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.

81

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,
83

according

to

Roman

thinking,

was

without

doubt

dominus

mundi.

Often quoted in this regard are the maxims: princeps legibus

solutus est 84 and salus rei publicae suprema lex. 85 Ulpians 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 politics in the formation Emperor of Western political the thought." 87 highest Roman of granted the merum imperium form

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.

See Kunkel An l4ff, 35ff.

83 84

82

Introduction to

Roman legal

and constitutional history

See Skinner The foundations of modern political thought vol 1 8.

The 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.
85 86

On the obscure origins of this maxim, see Venter JCRDL 1977 233 at 235.

Whatever 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.
87 88 89 90

See Hahlo & Kahn The South African legal system and its background 431. See Skinner The foundations of modern political thought vo1 2 127. See Van den Bergh The life and work of Gerard Noodt 194.

See D 1.4.1 pr and Inst 1.2.6. Ulpian also referred to the case of Barbarius Philippus, who was chosen as praetor while he was a runaway slave by people who were unaware of his true status. U1p1an argued that the edicts of such a praetor should not necessarily be deemed nullities since the Roman people were competent to confer such power on a slave. D 14.3.

Since earliest times, Roman law made provision for the imposition of harsh penalties upon those who were perceived to threaten the security of the state. 91 The law of the Twelve Tables had already mentioned perdue11io as a capital crime, stating: "If anyone would stir up war against his country, or delivers a Roman citizen into the hands of the enemy, he shall be punished with death." 92 This provision was supplemented by the introduction of other crimes against the state or its officials, such as proditio and seditio. 93 The exact demarcations of these different offences is a matter of controversy, but they were all compounded under Justinian as different ways in which the crimen laesae majestatis (forerunner of the crime of treason in South African law) could be committed. 94 The lex Julia de majestatis provided: "The crime of lese majesty is committed against the Roman people, or against their safety." 95 Acts through which this crime could be committed included not only a variety of threats to the state through the use of arms and the provision of assistance to the enemy, 96 but also desertion from military service 97 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

See eg the discussion of tyrannicide under Roman Davidson Problems of the Roman criminal law vo1 1 )7.
92 93

91

law

in

Strachan-

Table 9 Law 7. See also D 48.4.3.

See Coertze JCRDL 1937 274; Gonin JCRDL 1951 1 and De Wet & Swanepoel Strafreg 518. See 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).
95 96 97 98 99 94

D 48.4.1. Ibid. D 48.4.3. Ibid. Ibid. D 48.6.

100

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 law. highly Some developed comments Roman were positive made by (and Roman particularly private) loose

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 of the the value be of of references theoretical to Roman law in a

discussion

development

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 were "constitutionally". This meant that the "inferior magistrates"

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 tradition. would
105

later

find

support

in

especially

the

Calvinistic

101 102 103 104 105

D 48.6.10. D 48.6.12. Berman Law and revolution 239. See eg Syme Ten studies in Tacitus 119. See infra chap five I L (2).

Secondly,

Roman

private

law

had

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 was the referred tied to to above) where Romans the "rule subjected central of those who that the governed, as well as those being governed, to law. Hence, political obligation underlies legal obligation of the notion and modern concepts law"

"Rechtsstaat" as the basis of legitimate government. The above relates level, to a aspects number of of Roman positive Roman law. On the and

philosophical

prominent

lawyers

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 law suggested on Western that this
109

philosophical While political

approach

deeply will be

influenced Western political thought. positive notions

the influence of Roman obligation

of

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

Galus 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.
107 108

106

See infra I L (1).

See 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. See Skinner The foundations of modern political thought vol 1 xiv and vo1 2 275. To be distinguished from his father, Marcus Annaeus Seneca. As to Seneca's political thinking, see Griffin Seneca. Seneca, like Calvin, saw
110 109

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 Aristotle.
113

was the case in the philosophy of someone like early notions of "natural law" largely

Whereas

other

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 fathers of the Christian Church.
115

natural law that the

made this notion accessible to Roman and Romanist lawyers and to

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. A discussion and extracts from the works of Epictetus and Aurelius may be found in Ebenstein Great political thinkers 139ff.
112 111

Marcus

On 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. In 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. Stoicism 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. In 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,
115 114 113

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 fact that legislative formalities many pestilential statutes which have been nations executed does put in force which lacks not no imply more law "must ... for that reason be considered no state at all". 117The mere that law has been created. Cicero maintained that "the many deadly, the ... 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, As a one must expect the to have of not to put up with of son injustices. should demands be of general It rule, is demands incumbents worth if state the

authority belong to the category of these "outside things to which one indifferent. those in consequently of resisting that positions authority, even 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."
116 117 118 119 120 121

Ebenstein Great political thinkers 147. Cicero De legibus 2.12. Id 2.13. Ibid. Ibid. See Post Studies in medieval legal thought 261.

Cicero mention

maintained of a
122

that

"a

man

is

bound, but

not even

only to

to

suppress it

all with

parent's

offence,

endure

resignation."

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 (8634 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

122 123 124

See "Pro Cluentio" in Cicero The speeches 17. Cicero Philippics 2.15.

Cicero'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.
125 126

See eg Skinner The foundations of modern political thought vol 2 279. See Syme Ten studies in Tacitus 120.

the Empire. An even greater emphasis was placed on the need to accept the dictates of the prevailing government and, where necessary, to endure it with fortitude. One of the most prominent descriptions of the views that prevailed in the new era of the Principate is contained in the writings of the historian, Cornelius Tacitus (c 55-116). 127 Although Tacitus was not a lawyer, his works would become a source of reference for many great writers of
129

the

Roman

Dutch

legal

system,

such

as

Grotius 128

and

Pufendorf.

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
131

hostility

to

tyranny, he did not show much sympathy for its victims. Emperor". 132In (completed c typical 109)
133

The speakers histories but

in his historical reconstructions took for granted the "honour due an Stoic fashion, that "he a speaker for in good The remarked prayed Emperors,

endured any sort",

while 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 ones soul is not affected, political dispensations should be placed in the same category

For a thorough contextualised discussion of the political opinions of Tacitus, see Syme Ten studies in Tacitus 119ff.
128 129 130 131 132 133

127

See eg Grotius De jure belli ac pacis chap 4. See eg Pufendorf On the law of nature and nations 7.8.4. See Syme Ten studies in Tacitus 132. Id 136. Tacitus The histories 4.8.

Ibid. See Syme Ten studies in Tacitus 138, for a discussion of the irony involved in this observation.
134

Tacitus The histories 4.74.

as the weather: it is something one can do nothing about. It should simply be endured, because it cannot be changed. The position is different in respect of ones soul, because that lies in ones control. D. The GERMANIC JURISPRUDENCE 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 martyrs passive resistance - it taught that every command which exceeded the limits of the rulers 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 legal approach monument appears, of German for example, law from of the the Sachsenspiegel, Ages. a

compilation of customary law of the Saxons and the most outstanding feudal Middle Probably written between 1215 and 1233 by Eike von Repgow (c 1180-1233), the Sachsenspiegel represents the beginning of German jurisprudence, and

135 136

See Gierke Political theories of the middle age 73.

See 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.
137 138 139

See Kern Kingship and law in the middle ages 85ff. Gierke Political theories of the middle age 35. Ibid.

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 masters, 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. St AURELIUS AUGUSTINE Augustine Ages; of
144

(354-430), when this

from

Roman was

North deposed to

Africa, by

represented

the The

critical juncture where the era of the Roman Empire Middle himself, antiquity "African teachings writing Africans",

made way for the as he described

Christianity. 143

and father of the Christian churches (both Catholic and of the Greco-Roman world (particularly Plato, but also

Reformed), dominated Western thought for centuries. He integrated the philosophy 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. Augustines 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?

See K1sh Sachsenspiegel and Bible 3 and Van Zyl Geskledenis van die Rome1ns-Ho11andse reg 69. Sachsenspiegel 3.78.2. (Own translation, with assistance from Philip Thomas, from Eckhardt's edition of Sachsenspiegel Landrecht 260.) Id 3.78.6. See the discussion in Carlyle medieval political theory in the West vol 3 61ff.
143 142 141

140

&

Carlyle

history

of

0n his philosophy in general, see Vorlnder Geschiedenis van de wijsbegeerte vol 2 28ff and Versfeld St Augustines confessions and City of God. For a discussion of Augustines 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.
144

See Augustine Letters 17.

Following

its

initial

persecution,

Christianity

in

313,

under

Constantine, by virtue of the Edict of Milan, became the official state religion of the Roman Empire. 145 When Rome fell in 410, the charge that this was a result of the introduction of Christianity was to be expected. Augustines 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. would be less scope for the political After Augustine, there of the early indifference

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,
147

it

signified

in

the

harmonious relationship between man and God.

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 in appetites accordance or desires the take virtue over. of Good government In is government with justice. typical

145 146

See Cary & Scullard A history of Rome 547.

The 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. See 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."
147

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 Augustines 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
150

world The

the

world of the

of

those

who

pursue then, is

narrow his

selfdouble

interest.

problem

Christian,

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

148 149 150

Id 4.4. Augustine The free choice of the will 1.5.11.

The two cities then were created by two kinds of love: the earthly city by a love of self carried even to the point of contempt for God, the heavenly city by a love of God even to the point of contempt for self." Augustine The city of God against the pagans 14.28. See also id 14.13.

virtues". 151The Christian can be submissive to God while at the same time being obedient to political authority. Political authority, after all, was instituted by God for the purpose of administering the material goods which people need on earth. But what if the demands of the two cities do not coincide? Augustine argued that Christianity does not weaken earthly patriotism but in fact strengthens it. Relying heavily on Romans 13, Augustine argued that obedience to temporal authorities is a religious duty. In a passage strikingly reminiscent of of the a much later Marxist over ideal of an administration things (not government people) Augustine

reminded us that in paradise God placed man in charge of

the animals 152

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 Ambrioses 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 ones 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

151 152 153 154 155

Id 14.12. Genesis 1.26. Augustine The city of God against the pagans 19.15. See Calvert Revolution 51. Augustine The city of God against the pagans 5.17. (Emphasis added.)

violate Gods 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 Gods 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 ones fellow believers. should from One not sin, might be even win over more or of believers. solely to However, protect martyrdom the used the to discredit

otherwise undermine the law-giver, even if he is wicked. Its aim is redeemed

157

not

advancement

personal or societal ends. remove a tyrant.

Ultimately, it is within Gods power to

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. Augustines 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. Augustines 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 defensive, religious, integrity-based civil the narrow category of 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

On 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.
157 158

156

Augustine The city of God against the pagans 8.20. "Sermo" 62.13, contained in Augustine Opera omnia. (Own

Augustine translation.)

Modern

Western of the

political

science John

has of

an

early
159

forerunner (c

in

the a

writings

Englishman,

Salisbury

1120-1180),

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 applies in
164

alone. 162 to

Nevertheless, "[f]or

the

general are

rule

of

obedience John

also

tyrants,

tyrants

demanded,

introduced, and raised to power by sin." 163 To get rid of a wicked king, maintained
165

accordance

with

conventional

ecclesiastical

political theory, that king In

one should pray to God to bring his judgment over

- which God will do in his own good time. of commands by the ruler threatening to make one the

respect

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

For 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. Completed in 1159, and sometimes translated as "The statesman's book", although the Latin title is more commonly used.
161 162 163 164 165 166 160

159

John of Salisbury Policraticus 4.1. Id 8.17. Id 8.20. See Dickenson's introduction id 1xx Id 8.20. Id 6.25.

Johns 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 stiffnecked 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 Johns 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 ones 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

167 168

Id 5.6. (Emphasis added.)

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.
169

Id 3.15.

ones 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 approach. G. THE RE-EMERGENCE OF ROMAN LAW AND THE GLOSSATORS discourse, to counteract the traditional conservative

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

170 171

See infra chap five I H. See Ebenstein Great political thinkers 197.

from

above.

Under

the

new

approach

there

would

be

an

almost

unconditional duty of obedience to the ruler, who was subjected only to the laws of God and of nature. 172 Nevertheless, the idea survived that since the government is established for the protection of the law, it can forfeit its right to rule if it fails to uphold the law. 173 A number of intellectuals, including most proponents of the first major school of Romanists, the Glossators, supported the absolutist rule of the Emperor. Consequently, it is not surprising that they did not exploit the possibilities which imaginative interpretation of the Roman texts left for the recognition of a right to resist. Placentinus (ob 1192), for example, maintained that, according to the lex regia, the Roman people had once and for a11 transferred all the power they had in the Republic to the Emperor. 174 The method of legal scholarship practiced by the Glossators, characterised by a literal adherence to the original Roman texts with their broad assertions of the powers of the ruler, served their conservative political disposition well. of the cities as

At the same time, however, the idea of libertas

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

172

See Hahlo & Kahn The South African legal system and its background See Kern Kingship and law in the middle ages 195.

430ff.
173 174

See Van den Bergh The life and work of Gerard Noodt 194. See also Hahlo & Kahn The South African legal system and its background 434 n 26.

magistrates" was more limited than that of the Emperor, but it did not derive from his power had it the was independent. 175 to use the Consequently sword
176

the the

"inferior

magistrates"

power

against

Emperor, if he did not uphold his coronation oath. important role in Calvinistic thinking. H. The THOMAS AQUINAS early middle ages were dominated by

This approach,

called the "constitutional theory" of resistance, would later play an

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 1275)
177

the

church,

the

Italian

scholastic

Thomas

Aquinas

(c

1225-

. Aquinas political thinking is largely contained in his works

175 176

See Berman Law and revolution 289ff. in Skinner The foundations of modern political

See the discussion thought vol 2 127

177

On 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'Entrves in Aquinas' Selected political writings viiff. On his legal philosophy, see Du Plessis Westerse regsdenke tot en met die middeleeue 160ff.

On princely government 178 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 humankinds 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 and servilis the and subjectio civilis. is Slavery clear is contrary to nature, because it degrades man to a tool for someone elses good. But here Aristotelian influence 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 Gods reason is eternal.

178 179 180 181

Reprinted in Aquinas Selected political writings 3ff. Id 103ff. See eg Aquinas On princely government 1.1. Summary of theology 1.1

All things, irrational animals and rational man, are subject to divine reason or eternal law. 182 ii) Lex natural is refers to the special way in which human beings, as rational creatures, participate in the divine providence and reason by providing for themselves and for others. Rational creatures have a certain share in the divine reason itself, deriving therefrom a natural inclination to such actions and ends as are fitting. This participation in the eternal
183

law

by

rational creatures is called the natural law. iii)

Lex divina refers to the fact that mans 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
184

does

not

contradict

natural

law

as

apprehended by reason. iv) Lex humana, the

185

lowest

form

of

law,

is

what

we

would

call

positive law.

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 mans 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

182 183 184 185 186

Id 1.5. Ibid. Ibid. Ibid. Id 1.9.

the traditional one. It primarily stressed duties: the duty of the state to follow its pattern, and the duty of citizens to obey - not their right to disobey. 187 Although Aquinas, under normal circumstances, regarded the duty to obey the political ruler as natural, he did perceive limits to this duty. The individual could not be absorbed entirely by the state. Not all that a man has or is, is subject to political obligation: hence it is not necessary that all his actions be considered worthy of praise or blame with respect to the political community. But all that a man is, and all that he has or can be, must bear a certain relationship to God. 188 Although the need for "stability in human affairs" gives rise to a general duty to obey the political ruler, 189 one is not obliged to obey certain kinds of tyrants. 190 In order to distinguish a tyrannical government or unjust government from its opposite, Aquinas posed the question whose interests are being served. A tyrant pursues his own private benefit, while a just ruler pursues the common welfare. 191 In other words, the criterion is exploitation. Aquinas specifically addressed the question what action should be taken should a king become tyrannical. He distinguished between tyranny which is not excessive, and tyranny which is intolerable. In respect of the former he maintained that "it is certainly wiser to tolerate it in limited measure, at least for a time, rather than to run the risk of even greater perils by opposing it." 192 A rebellion might fail and inspire the tyrant to greater savagery. But even if it succeeds, it might create grave social turmoil or even prepare the road for a more vicious tyrant. 193 In respect of tyranny which has become so excessive as to be

intolerable, Aquinas stated that "it has been argued that it would be

187 188 189 190 191 192 193

See Aquinas Selected political writings xiv. Aquinas Summary of theology 1.3. Id 1.23. Id 1.16. Ibid. Aquinas On princely government 1.6. Ibid.

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

Id 1.6. Presumably he was referring Salisbury. See supra chap five I F.

195 196 197 198 199 200

194

to

the

arguments

of

John

of

Ibid. Id 1.6. Ibid. Aquinas Summary of Theology 1.9. Id 1.23. See Hahlo & Kahn The South African legal system and its background

431ff.

that could be used in this regard, was the decree dealing with unjust judges. The original decree stated that judges were not to be resisted with violence. The great Canonist, Panormitanus (1386-1445), commented that this should been seen in the context of the opinion of Pope Innocent IV that "if a judge does any injury to anyone", then "he may be resisted violently and with impunity". 201 On this basis, Panormitanus endorsed a far-reaching right of political resistance. J. PHILIP OF LEYDEN

The early Dutch jurist, Philip of Leyden (c 1330-1382), 202 opposed the vast political powers of the gentry of his time, and instead supported the view that the ruler has an inalienable right to rule the country. When a ruler does not protect his subjects against exploitation (by the gentry), "the subjects have a right to resist, on the basis that if ordinary medicine
203

does

not

provide

cure,

extraordinary

measures

should be taken.

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 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 Emperors decrees. This de facto position, he argued, had to be officially recognised. Insofar writing was not strict adherence to the Roman texts, but faithfulness to truth and reason. If necessary, the law had to yield to

201 202 203

See Skinner The foundations of modern political thought vol 2 125. See Van Zyl Geskiedenis van die Romeins-Honandse Reg 330.

See Van der Heijden Aantekenlngen bij de geschiedenis van net oude vaderlandse recht 28 and Rofflein Erflaters van onze beschaving 127. See also Feenstra Philip of Leyden 64.

as

the

cities

and

not

the

Emperor

exercised

power

over

their

own

subjects, they had to be regarded as the true law-givers. This power was confirmed by the fact that it had been exercised for a long time. According to Bartolus, since the cities were governed by free peoples wielding their own imperium, they could be said to be a princeps unto themselves - civitas sibi princeps. This led Bartolus to the conclusion that rex in regno suo est imperator - according to Skinner, the first decisive state.
204

move

toward

articulating

the

modern

legal

concept

of

the

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 Fourteenth the independence regarded were of the fact city-state that by (civitas). as a He rather of the idealistical1y the Italian tyranny communes

Century

characterised

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

204 205

See Skinner The foundations of modern political thought vol 1 9.

Contained in the University of Chicago readings in Western civilization vol 5 The Renaissance 7. References are to the paragraphs of this version. See also Woolf Bartolus of Sassoferrato 162ff, 173ff and Van der Kamp Bartolus de Saxoferrato 62, for a discussion of Bartolus' views on tyranny and how it should be dealt with.
206

On the tyrant paras 2, 5.

have the right to choose a leader. This would subject him to the lex Julia majestatis. His term of office may also have expired, or he may have forced the citizens to elect him. 207 The acts of such a tyrant are ipso jure nulla, even if he rules well. 208 This is also true in respect of the actions of officials appointed by the tyrant. To resolve the question as to the validity of the actions of officials during a time of tyranny, where such officials had been appointed by the city (and not by the tyrant), Bartolus drew a distinction between acts which the people performed themselves and would have performed even if there had been no tyrant, which he regarded as valid; and those acts which would not have been performed had there been no tyrant, which he regarded as invalid. 209 Contracts between the tyrant and subjects were void. 210 A ruler could also be a manifest tyrant in spite of the fact that he possessed a lawful title. He could be a tyrant by virtue of his conduct - that is, "because he performs tyrannical acts". 211 After a discussion of the approach of Aristotle, Bartolus concluded that keeping the city divided and pauperising the subjects were true manifestations of tyranny, and rendered the tyrant liable under the lex Julia de vi publica. 212 Again the question must be asked whether the actions of such a tyrant were valid. A process instituted by him against exiles and rebels was not valid, "since
213

no

one

is

bound

to

appear

before

notoriously

hostile judge".

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

207 208 209 210 211 212 213

Id para 6. Id para 7. Ibid. Ibid. Id para 8. Id para 9. Id para 11.

tyrant must be treated like a tyrant

by defect of title. 214

Even if one did not claim full jurisdiction over an entire state, like a king, one could still be a tyrant, as is the case with those who had themselves made captains of mercenaries, who exercised de facto control over the conduct of the officials of the state. Common knowledge of such a state of affairs was enough proof of its existence. To establish to what extent acts performed during tyranny of this kind were valid, Bartolus proposed the same approach followed in respect of officials elected by the people themselves during a manifest tyranny, discussed earlier. If, however, only a fraction of the people were abused by this tyranny, while in general the city was well governed, "then the person having a title of this sort or a similar distinction would not be a tyrant in the plain meaning of the word, since the public welfare is cared for by such a government which is the direct opposite of a tyranny." 215 The mere fact of the pursuit of self-interest by a ruler does not imply that his rule is tyrannical. "[J]ust as one is seldom found who is completely healthy indeed from all bodily defect, so it is a rare thing to find a government that is completely devoted to the public good without some of the qualities of a tyranny." 216 The decisive question is whether the ruler's personal or the public welfare prevails. Bartolus added a third category of concealed tyranny, when the tyrant has no title of any sort, but everything nevertheless proceeds according to his will. This type of tyrant should be treated in the same way as was the case with the previous category. 217 The above should be seen against the background of the general

provision that, where the tyrant himself has a superior (as is the case with dukes and counts), the superior should get rid of him. 218 The importance of Bartolus approach, it is submitted, lies in the fact that he regarded not only violations of integrity as a basis for resistance, but also exploitation, and that he provided a legal basis

214 215 216 217 218

Id para 12. Ibid. Ibid. Ibid. Id para 9.

for such resistance. L. THE PROTESTANT REFORMATION

Resistance, and eventual revolution or at least secession within the Roman Catholic Church in the Sixteenth Century, produced the modern Protestant churches. The Reformation hit been called the religious component of the Renaissance, in the sense that it broke the stifling hold which the church authority had come to have on the spiritual life of medieval times. The revolution of the Protestants took the form of an uncompromising choice for divine inspiration over earthly orthodoxy; it had the categoric nature, in the words of Luther, of "Here I stand for I can do no other." Nevertheless the Protestants by and large represented a conservative view regarding the question of political obligation. Protest in the sense of rejecting the dogma of the Roman Catholic Church formed a clearly targeted component of their message. In essence, they purported to affirm the Biblical revelation as they saw it, which included a demand for the separation of church and state, a view earlier defended by Augustine but subsequently abandoned. Earthly authority did not belong to the church, as was maintained by the Roman Catholic Church, but - and this is important in the context of political resistance - it did belong to the state. The two-tier notion of the state and the church both exercising could would one earthly be only not authority, one sword from was a rejected. that of robust For theory the of Reformers there the state.

Consequently,

expect

them

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 a theory approach which of to political the which resistance. Reformation a Nevertheless, eventually decisive to step circumstances develop existed prompted

resistance

represented

further to the modern-day position. According true to Aquinas, and the Roman Catholic the tradition, the state the

preceded sin - it was in the state where humans had to fulfil their earthly existence. Like Augustine, Reformers regarded existence of the state as a consequence of sin. The function of the state is to counter the sinful nature of man. Since the state was the only institution on earth which could counter the chaos which resulted from sin, it had to be obeyed. The use of coercion by the state

counteracted the consequences of sin and constituted the means whereby God in his mercy provided for the blessing of a peaceful social life. 219 In accordance with these points of departure, the Reformers saw as a critical part of the Christian message the divine endorsement of political authority. Their view was not founded on the notion of a social contract which lost its binding force once the state failed to keep its promise. To them, political authority and obligation did not depend upon consent and the rulers had to answer for their use of power only to God himself. The Reformers recognised the fact that some rulers were wicked, but regarded that as Gods 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-

See the discussion political philosophy 309.

219

of

this

point

in

Strauss

&

Cropsey

History

of

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 Luthers convictions regarding the total depravity of man - applying equally to those who rule and those who are being ruled. Luthers 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 soul".
221

authority,

but

the

state

has

no

jurisdiction

over

"the

If a political leader were to suppress the Bible or other books religious beliefs, one should

(Luthers own writings were banned and burned by several rulers) and enforce outward compliance to certain 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

For 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. Luther "Temporal authority", reprinted in Luther Selected political writings 51 at 61.
222 223 221

220

Ibid. the Turk" (1529), reprinted in Luther

See Luther "On war against Selected political writings 121.

224

Luther "Temporal authority" in Luther Selected political writings 51 at

63.

interference of other rulers or the violent uprising of the unfaithful masses. 225 In spite of Luthers 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 on mistaken these interpretation events, Luther of his own writings. 226 shocking In his commentary made some 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) government. has the right to defend himself against a violent

See Luther "Whether soldiers, too, can be saved" (1526), reprinted in Luther Selected political writings 101. The 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. Luther "Against the robbing and murdering hordes of peasants" (1525), reprinted in Luther Selected political writings 85 at 86.
228 229 227 226

225

See Manenschijn Burgerlijke ongehoorzaaroheid 166. See supra chap five I C.

Faced with an emergency, Luther chose the latter, more extreme of the two options. In "Dr Martin Luthers 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, Luthers inconsistencies can be regarded as a reflection of the strain which the traditional (2) Jean Calvin Stoic position was undergoing. 231

In theological terms, the modern, more activist approach to political resistance was Calvin introduced by the great figure of the Reformation, Jean Calvins ideas exerted a great influence on (1509-1564), 232

Holland and subsequently on South Africa, where it has been used and

230 231 232

Reprinted in Luther Selected political writings 133ff. See Ebenstein Great political thinkers 305.

For 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; VilliaVicencio Between Christ and Caesar 43; Vi11a-Vicencio Civil disobedience and beyond 67; Manenschijn Burgerlijke ongehoorzaaroheid 170 ff; Skinner The foundations of modern political thought vo1 2 189ff and Smith Hervormde Teologiese Studies 1988 434 at 441. Van der Watt Die reg van verset may be used to find references to the work of some of those who write in the Calvinistic tradition.

abused for legitimising political systems of opposing kinds. 233 Although Luther and Calvin derived their ideas from the same tradition, Calvin placed more emphasis on the division between church and state, which entailed
234

less

tolerance

for

state

interference

in

spiritual

matters.

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 states 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 and should not be obeyed purely out of fear.
235

evil"

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 Lords wrath upon the earth." Although rulers are required to rule justly, a wicked ruler can also accomplish Gods work on earth by punishing his subjects for their sins. The best and the worst king

See 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. The Calvinistic concept of "sphere sovereignty" is outlined in Van der Vyver Die jur1d1ese funksie van staat en kerk. See especially 98.
235 236 234

233

Calvin Institutes of the Christian religion 4.20.22. Id 4.20.23.

should be held in the same reverence, since both represent God. 237 As Calvin put it in "Commentaries on the first epistle to Timothy": 238 "The universal doctrine is this, that we should desire the continuance and peaceful condition of those governments which have been appointed by God" - and that means prayers of the all governments. 239 The only will send a "hero" or possible relief outside agency from continuous oppression can come from God, who, in response to the suppressed, ("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 1550s, those who participated in the Reformation in Europe and England experienced increased persecution. The punishment for heresy was death. Again, the whole movements 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 Gods ordinance. 241

237 238

Id 4.20.25. See also id 4.20.26.

Reprinted in Calvin Commentaries on the epistles to Timothy, Titus and Philemon 19.
239 240 241

Calvin "The first epistle to Timothy" 2.2. See the references in Murray Acta Juridica 1958 275 at 300.

Calvin Institutes of the Christian religion 4.20.31. The "ephors", the "tribunes" and the "demarchs", which he cited as examples of "magistrates of

The

important of

contribution "lesser

here

concerns That

resistance is, it is

through not for

the the

intervention

authorities".

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
242

of

opposition to tyranny by the so-called populares magistratus. also a duty.

He in

fact declared that resistance in such cases was not only a right but

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, circumstances the "freedom insofar be of as the exercise it and of this power more in may than in given

appropriate, the people",

could

involve

non-coof

operation or defensive civil disobedience. It can be used to protect especially those positions 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
243

of

violence, under As stated

certain circumstances, as a political instrument. the above does not technically

earlier,

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.
242 243

See Manenschijn Burgerlijke ongehoorzaamheid 172ff. See Van Wyk Orientation 1988 73 at 74.

obedience to [God]". 244 After all, Acts 5 demands just that: "We must obey God rather than men." Because God is "the king of kings", Calvin preached non-co-operation when co-operation would "incur the displeasure" of God. "If be executed even if it they command anything against him, let it go means losing one's life. It happened, for

unesteemed." To do so is not only a right but also a duty, which should example, that the Israelites were condemned for being too obedient to wicked kings. 245 Calvin, consequently, endorsed defensive, integritybased civil disobedience by individuals and result-oriented, antiexploitation 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 Calvins 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

Calvin 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.
245 246

244

Id 4.20.32. See also Hosea 5.13. See Alien A history of political thought in the Sixteenth Century

l03ff. In his influential work. Concerning the rights of rulers, Beza outlined the principle of fundamental law and his justification of the right to revolt. See Vi11a-Vicencio Between Christ and Caesar foundations of modern political thought vol 2 l89ff.
248 247

68

and

Skinner

The

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 Calvins 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 is not course certain, of events emerged a document of called the

Vindiciae contra tyrannos (1579), which was written by an author whose identity Brutus.
252

under

the

pseudonym

Stephen

Junius

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

See 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.
250

249

See Van Eikema Hommes Major trends in the history of legal philosophy See Villa-Vicencio Civil disobedience and beyond 94.

343.
251 252

The author was probably Philippe du Plessis Mornay, with a contribution by the lawyer, Hubert Languet. For a discussion of the Vindiciae, see H J Laski's "Historical introduction" in Brutus A defence of liberty against tyrants 1ff; Murray Acta Juridica 1958 275; Ebenstein Great political thinkers 307ff and P Coertzen "Burgerlike ongehoorsaamheid: n Kerkhistoriese perspektief" in Du Toit Staatsgesag en burgerlike ongehoorsaamheid 54 at 60.

and to South Africa. 253 According to the Vindiciae, the kings 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 ones 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

253 254 255

See Murray Acta Juridica 1958 276 at 312, 313. Brutus A defence of liberty against tyrants 71ff. Id 87ff.

Jesuits, Luis de Molina (1535-1600) and Francisco Suarez (1548-1617). These new Neo-Thomists delivered community
256

their was

contributions Some

at forty

time years

when after an

Christianity had been split by the Reformation and, in its place, the international emerging. Columbus took sovereigns, possession of the New Victoria transformed World on behalf of the Spanish Christian morality into

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 does not create law. human law was
260

a way "advantageous to the state", he simply if human law finds itself in such a

The possibility of conflict between natural and away:

defined

In 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.
257

256

See Scott The Spanish conception of international law and of sanctions See Skinner The foundations of modern political thought vo1 2 135.

2.
258 259

See Victoria "Concerning civil power", reprinted in Scott The Spanish conception of international law and of sanctions Ixxi at Ixxxiii.
260

See Kennedy Harvard International Law Journal 1986 1 at 17.

conflict,

it

is

not

law. 261

This

co-incided

with

the

traditional

Thomistic natural-law N. JEAN BODIN

approach, which equated morality and law.

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, own."
266

and

invades

the

property

of

others

by

treating

it

as

his

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

261 262

See Koskenniemi From apology to Utopia 77.

For a general discussion of his political philosophy, see Ebenstein Great political thinkers 349.
263 264 265 266 267

Bodin Six books of the commonwealth 1.8. Id 1.10. Id 2.2 & 3. Id 2.4 & 5. Ibid.

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 rulers 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, Bodins position consequently amounted to a radical

positivism which did not allow for an external vantage point from which the quality of a ruler can be judged. 272 O. GROTIUS

Hugo de Groot (1583-1645) is widely recognised as one of the greatest jurists in the Roman-Dutch legal tradition and indeed of the world. 273 He has acquired the reputation of father of international law and as one of the major proponents of natural law. The enduring appeal of his most famous work, De jure belli ac pacts, lies, according to John
-----------------------------------------------------------------------------------------------------------------------

273
-----------------------------------------------------------------------------------------------------------------------

268 269 270 271 272

Ibid. Ibid. Ibid. Ibid.

For 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.
273

See Kahn SALJ 1983 192 at 192.

Dugard, in its "attempt to inject morality, justice and idealism into the international legal order". 274 Grotius (his self-assumed nom de plume) represents the transition from the medieval to modern philosophy and as such his views represent elements of both worlds. While his approach to international law was modern, his views on political obligation showed Grotius to belong to the pre-modern rather than the modern age. 275 The modern conception of the state would emerge in the writings of people like Hobbes, who saw no metaphysical element in state authority. Grotius recognised that political obligation is based on consent, but since the obligations that arise from consent derive their force from the law of nature, the ultimate source of political obligation is natural law. Based on this premise, prison the in otherwise liberal of his Grotius, religious who himself
276

spend

time at

in a

consequence

beliefs,

arrived

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 selfinterest is pursued. 277 Grotius, on the other hand, maintained that mans unique rational faculty demonstrates to him that justice is a virtue, a good in itself, apart from any consideration of selfinterest. 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 nonresistance 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

274 275

Dugard SALJ 1983 213 at 215.

For commentary on his political views, see Strauss & Cropsey History of political philosophy 360.
276 277 278

See Kahn SALJ 1983 192 at 196. See Infra chap five I P.

For a more detailed discussion, see Van der Vyver Die juridiese sin van die leerstuk van menseregte vol 1 86ff.

rather than resist by force." 279 Grotius advised people who were wronged to "take it patiently"; "to bring goodwill to [ones] 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 Christianity 282 and Stoicism 283 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 cooperate 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 would manifest itself. However, we are to endure unjust treatment rather than positively resist the government, at least by

279 280 281 282 283

Grotius De jure belli ac pads 1.4.1.3. Id 1.4.4.6. Id 1.4.5. Ibid.

Id 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.
284 285

Grotlus De jure belli ac pads 1.4.1.3. Id 1.4.2.1.

"should implore the help of God, because, in fact, there would be no recourse at the hands of man". 286 Rebellion, in the opinion of Grotius, is even less compatible with the message of the New Testament. Romans 13 demands subjection and with that non-resistance. This requirement should be observed not only to ward of a greater evil (that is for consequentialistic reasons) but also because of a duty of obedience to God (that is, for deontological reasons). 287 Considerations of ones own advantage are not Irrelevant, however: Ultimately Grotius viewed the safety of the
288

state

as

the

sine

qua

non

for

the

safety

of

the

individual. Grotius the

rejected are

the also

view subject

that to

subordinate the
290

officials of the

populares both

magistratus - were entitled to rebel against sovereign authority, since former

289

authority

latter,

logically In order

and in terms of Romans 13. find an answer to

to

the above

question offering

whether violent

the

general

"principle of non-resistance", which has been alluded to above, obliged people to prefer being killed 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

286 287 288 289 290 291

Id 1.4.3. Id 1.4.4.1. Id 1.4.4.4 & 1.4.4.5. Id 1.4.6.1. Id 1.4.6.3. Id 1.4.7.2.

as a last resort but without abandoning considerations of the common good. 292 Nevertheless, the person of the king must be saved. 293 Grotius identified a number of other cases where the general rule of non-resistance does not apply. 294 One is where the king sets out with a truly hostile intent is, to in destroy cases "one of people ...
295

for It

the can

sake also

of be

another"

that

exploitation.

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

292 293 294 295

Id 1.4.7.4. Id 1.4.7.6. Id 1.4.9 8. 1.4.10.

The 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. Id 1.4.14. See also the Constitution supra chap two I A.
297 298 296

reference

to

art

20(4)

of

the

German

Id 1.4.8. Id 1.4.13.

validity of such laws, might reinstate the necessity of obedience to such laws. 299 Nevertheless, in a number of cases the right to use force against unscrupulous rulers is recognised. 300 In general Grotius agreed with Cicero that "peace on any terms between citizens seems more advantageous than civil war."
301

De jure belli ac pacis did not provide any justification for wars of national liberation, since Grotius listed the "desire for freedom among a subject people" as an unjust cause of war. 302 Grotius conservative approach in respect of political resistance is epitomised in the following words: "Above all, in case of a controversy the private individual ought not to take it upon himself to pass judgment, but should accept the fact of possession [of the governing power as conclusive]." 303 His approach can consequently be regarded as being in the traditional, pre-modern Stoic mould. 304 P. THOMAS HOBBES

Seventeenth Century Britain witnessed the kind of turmoil that often accompanies fundamental change. On the continent, the Reformation led to the Thirty Years War (1618-1648) which brought widespread belligerency and ruin to Europe. In Britain, the puritan revolution

took place and two civil wars were fought. In 1649, King Charles I was executed. The days of the "divine right of kings" were over, but it was by no means clear that democracy would bring stability. To many, the opposite seemed more probable. Under these circumstances and while in exile in Europe due to his close

299 300 301 302 303

Id 1.4.15.1 & 1.4.15.2. Id 1.4.16; 1.4.17 & 1.4.18. Id 1.4.19. Id 2.22.11.

Id 1.4.20. Grotius also argued that agreements reached with tyrants should be honoured. Id 3.19.2. However, 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.
304

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. of In it Hobbes
306

provided In

an

elaborate and his

and

well-reasoned works on

defence

absolute

government.

this

other

political philosophy,

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 persons. as
307

his

basic

premise

precisely

the

basic

equality

of

all

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

For a discussion of Hobbes' political thought, see Ebenstein Great political thinkers 362ff; Strauss & Cropsey History of political philosophy 370ff; Hffding 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.
306 307 308 309 310

305

The elements of law (1640) and De cive (1642). Hobbes Leviathan 1.13. Id, 1.11. Id 1.13. Ibid.

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 punished," unassailable: "[N]o man through the social that hath soveraigne power the subjects are can justly be put to death, or otherwise in any manner by his subjects because contract
313

regarded as the authors of these actions.

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

311 312 313 314

Id 1.14. Id 2.18.3. Id 2.18.5.

Hobbes "Philosophical rudiments concerning government and society", reprinted in Hobbes The English works of Thomas Hobbes of Malmesbury 111.

between the subjects and not between the subjects and the state. The state is a result of the contract, not a party to it. Hence the state cannot "breach contract" or in any other way act illegally or unjustly. The state, through its positive laws, determines what is lawful and just, and what is not. The sovereign "may commit iniquity; but not injustice, or injury in the proper signification",
315

because

per

definition the state cannot act illegally.

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 Cromwells 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
316

division

of

powers,

and

the

subjects

must

be

absolutely obedient.

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 sovereigns 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

315 316 317

Id 2.18.4. Id 2.18.8 & 2.20.

Ebenstein Great political thinkers 367 remarked that Hobbes with penetrating insight foresaw the revolutionary implications of the new natural law ideas as they became manifest only a century later in the American and French Revolutions.

tyrant did not, as far as he was concerned, indicate anything ethically the matter with the way in

that there was that person

which

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, at however, the mercy that of the the citizen in Hoboes state is is not not

completely

state.

Political

obligation

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 ones 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,
322

and

right

of

resistance insofar as ones own life is threatened.

This right can be exercised if the state does not properly protect

See the discussion in Van Eikema Hommes Major trends in the history of legal philosophy 105.
319 320 321 322

318

Id 1.14. (Original emphasis.) Id 2.21. Ibid. Id 2.21.

those interests or if they are threatened by the state itself. 323 The right to personal self-protection of life, bodily integrity and freedom is consequently inalienable, and in defence of this right one can, if necessary, use force against the officials of the state. As far as the protection of other persons interests is concerned, however, one in general has no right to interfere with the actions of the state. 324 It should be noted, however, that even in those cases where the subject considers his life to be threatened by the state, Hobbes merely granted the subject a weak right to resist. The sovereign retained the right to punish resistors, even when the resistance was justified. 325 The right of resistance is therefore a right of self-defence which primarily covers the protection of ones 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 resistance civil disobedience, did provide Hobbes limited notion of justified for moral nevertheless protection

convictions. According to him, one is also "not obliged not to resist" if one is forced to contribute to the conviction of ones own parent, or a benefactor, or to do any act that is so shameful that it would result in ones being so miserable that one would grow weary of ones 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

323 324 325

Ibid. Id 1.14. See the discussion of this point by Macfarlane Political disobedience

25. Id 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.
326

for the protection of spiritual integrity. 327 The basis of such a right was the states 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. almost important, Hobbes though, preoccupation of the is his with for of physical a the security led to of an is the obsessive view need powerful state. What

notion

inalienability

individual's right to survival. This right cannot even be alienated by the all-powerful state, since the latters 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 which this are new to be regarded the would use this same construction, but would as inalienable. of This resulted in in a of more his

afford a wider interpretation to those interests of the individual liberal view of the relationship between the state and its subject. In development, contribution Hobbes, spite absolutist tendencies, was crucial. Q. In SAMUEL PUFENDORF 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 Pufendorfs acceptance of a natural social inclination among humans led him to regard the social contract theory as the basis of political

Spinoza 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
328

327

Van Zy1 Geskiedenis van die Romeins-Hollandse Reg 197.

obligation. Pufendorf dealt with the question concerning the limits of obedience to the political ruler in his best-known work. On the law of nature and nations (1672), in a chapter entitled "On the sanctity of supreme that sovereignty civil in states". 329 With be regard to sovereign There rulers, is an Pufendorf maintained that it would be "to mankinds greatest interest" supreme sovereignty held sacrosanct. "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 that citizen, such a and that the citizen in should of be which regarded the as having by consented to whatever the state might do. Instead, Pufendorf maintained contract existed terms subjection 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 states 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, possible the state The can "injure" can
334

the

citizen treat

because people

there (i)

is not

a as

"community of natural law between them". "Injuries" can take one of two forms. ruler either his citizens, or (ii) not as "men". 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

329 330

See Pufendorf On the law of nature and nations book 5.

Pufendorf On the law of nature and nations 7.8.1. See also Pufendorf The elements of universal jurisprudence 2.5.21.
331 332 333 334

Pufendorf On the law of nature and nations 7.8.2. Id 7.8.6. Id 7.8.3. Id 7.8.4.

guise of an enemy". 335 The same applies when he subverts basic laws. The ruler owes to individuals - as citizens - "the enjoyment of the right each holds in common with the rest". 336 Pufendorf also identified ways in which the ruler can do injury to his subjects as persons or private individuals. 337 In such cases the state acts beyond the scope of its powers. But does this justify resistance? With reference to Tacitus, Plato and Cicero, Pufendorf counseled an endurance of at least the lesser injuries. In the case of more frightful injuries, ones 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 Gods 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

335 336 337

Ibid. Ibid.

Eg by disgracing an honourable man, denying a promised reward or debt, etc. Ibid.

338 339 340 341

Id 7.8.5. Ibid. Ibid. Ibid.

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
343

against

individuals

like

an

enemy,

the

same

principle

applies.

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 princes 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

342 343 344 345 346 347 348

Pufendorf The elements of universal jurisprudence 2.5.22. Ibid. Ibid. Pufendorf On the law of nature and nations 7.8.5. Id 7.8.8. Id 7.8.9. Id 7.8.10.

Consequently, Pufendorfs 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 to conservative great approach to of resistance. citizens". 349 Citizens, on their part, do not always obey their ruler; and violent resistance often leads "the slaughter 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. Lockes most important work on political philosophy. Two treatises of government 351 (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

349 350

Id 7.8.5.

For 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; Vorlnder 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. The 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. See the discussion by Sumid "The right to revolution" 1n McDougal & Reisman International law in contemporary perspective 167 at 168 and VillaVicencio Civil disobedience and beyond 72. Contra Van der Vyver Contours of
352 351

Written several years before the "Glorious" or "Bloodless" revolution of 1688, it was published only for after that event. from It provided the intellectual justification the transition royal absolutism

under the Stuart Dynasty to a constitutional monarchy under William of Orange in which parliament would be supreme. Locke substituted the principle 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, must be or possessions." 355 They are It is in the self-interest rights of every if individual to accept as a basic rule that these interests of everyone protected. inalienable natural which,
356

of

consent

of

the

governed

as

the

ultimate

source

and

delimitation of political power for the concept of the divine right of

violated, may be avenged by anyone, not only the injured party.

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.
353 354 355 356

Locke Two treatises of government 2.1.4. Id 2.11.119. Id 2.2.6. Id 2.2.6 & 2.2.8.

been wronged, there is no guarantee that he will be strong enough to survive. 357 The interests of all involved are unsafe and insecure because three conditions necessary for their preservation are absent: an "establishd, settled, known law"; 358 a "known and indifferent judge, with authority to
359

determine

all

differences

according

to

the

established law";

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 persons inalienable rights (collectively called "property" by Locks 361) 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

357 358 359 360 361 362 363 364 365 366

Id 2.2.13. Id 2.9.124. (Original emphasis omitted.) Id 2.9.125. (Original emphasis omitted.) Id 2.9.126. (Original emphasis omitted.) Id 2.3.25; 2.3.51 & 2.9.123. Id 1.7.77. Id 2.8.110. Id 2.8.95. Id 2.9.127. Id 2.14.168.

being that the people and not the state are viewed as supreme. Even though the people enter into an original contract to set up a state (and we will return to the terms of this contract shortly) no contract is concluded with the state. Instead the state is set up in the form of a fiduciary trust, of which the people are both the trustor and the beneficiary. 367 The trustee has obligations only and no rights, and if these obligations are not properly executed the trust can be revoked by the people, who can then appoint a new trustee. Within the structure of the state, the legislature is superior to the executive, because the legislature represents the popular will of the people. However, the ultimate source of legitimacy, and consequently of political obedience, remains the consent of the governed. 368 Neither Hobbes nor Locke, consequently, maintained that government

derived its powers from a contract with society, but their reasons for this were very different. A contract implies rights and duties on both sides. For Hobbes, the absence of such a contract implied that people do not have rights against the government and that the government has no duties. For Locke, the absence of a contract implied that people do not have duties and that the government has no rights against the people. The theory of the divine right of kings placed the ruler above the subjects; the social contract placed them on an equal level; Lockes 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

367 368 369

Id 2.11.142. Id 2.13.149. Ebenstein Great political thinkers 396.

case in the state of nature. It is in fact worse than the state of nature, because in the state of nature everyone was at least the judge in his own case, whereas in an absolute monarchy only one person, the king, has that prerogative over everybody else.
370

Locke emphatically recognised a right of revolt against a despotic ruler. In a famous passage he stated: [W]henever the legislators endeavour to take away, and destroy the property [ie the natural rights] of the people, or to reduce them to slavery under arbitrary power, they put themselves into a state of war with the people, who are thereupon absolved from any farther obedience, and are left to the common refuge, which God hath provided for all men, against force and violence. Whensoever therefore the legislative shall transgress this fundamental rule of society; and ... endeavour to grasp ... absolute power over the lives, liberties, and estates of the people; by this breach of trust they forfeit the power, the people had put in their hands, for quite contrary ends, and it devolves to the people, who have a right to resume their original liberty, and, by the establishment of a new legislative ... provide for their own safety and security, which is the end for which they are in society. 371 In such a case, violence may be used: "Force is to be opposed to ... unjust and unlawful force." 372 One reason for the existence of such a right, alluded to above, is the fact that a tyrannical government does not act as a trustee and consequently has no authority. Any government which breaks the law acts ultra vires and may for that reason be opposed: "He that hath authority to seize my person in the street, may be opposed as if he as a thief and a robber, if he breaks into my house to execute a writ." 373 Ordinary citizens also have a right of self-defence against a despot, which is a part of the law of nature. 374 "Whosoever uses force without right ... puts himself into a state of war with those, against whom he so uses it, and in that state a11 former ties are cancelled ... and every one has a right to defend himself, and to resist the

370 371 372 373 374

Locke Two treatises of government 2.7.90. Id 2.19.222. (Original emphasis omitted.) Id 2.19.204. (Original emphasis omitted.) Id 18.202. Id, where Locke Quoted Barclay to this effect.

aggressor." 375 The people must decide whether or not to bring the rule of a tyrant to an end. 376 Anticipating charges that the "unsteady opinion" of the people will lead to unduly frequent rebellion, Locke argued that his approach would not invite anarchy and
377

revolution People by same drive

any nature time,

more do no

than not

other easily or is

views engage

of in

political in are public

obligation.

revolution, and revolution "happen not upon every little mismanagement affairs". 378 The At the divine freedom of theoretical simply too the foundation can prevent revolution when people are "made miserable" and ill-treated. 379 To provide human towards strong. people with the opportunity changing

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 the existence of the state:

hands of the state, but it was also the prerogative of the people. Natural law would no longer merely justify 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. Lockes 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

375 376 377 378 379 380

Id 2.19.232. Id 2.19.240. Id 2.19.223. Id 2.19.225. (Original emphasis omitted.) Id 2.19.224.

Id 2.19.226. (Original emphasis omitted)

those of Hobbes. In a debate with Jacob Perizonius, Huber argued that the transfer of power by the people was absolute and indivisible and could never be revoked. The Dutch Revolt, in his view, consequently replaced the absolute rule of Philip II with the absolute rule of the aristocracy. 381 T. The GERARD NOODT Dutch humanist, was Gerard Noodt when of (1647-1725), delivered entered his the debate

concerning the real implications of the lex regia, also as far as the Netherlands Revolt, much concerned, the he first of the rectorial Glorious address at Leiden in 1699. It was an intellectual defence of the Dutch along lines Lockes defence 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 Ulpians 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 Noodts 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

On Huber, see id 82ff and Van den Bergh The Life and work of Gerald Noodt 193.
0n Noodt's contribution in this regard, see Van den Bergh The life and work of Gerard Noodt.
383 384 382

381

Id 202.

Van den Bergh argued that the importance of Noodt's contribution should be ranked equal to that of Locke. Id 198.

regarded as one of the According the to Wolff,

founders of modern natural law ideas. 385 by nature all persons are equal and all have

certain innate rights. By nature, no one has the right to dominate over actions of others. Civil society involves the subordination of the be founded on individual by a ruling will, and it can therefore only

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 of described his Wolff's
389

approach

as

inherently to state

contradictory,

because

simultaneous

adherence

absolutism and the doctrine of human rights. 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

See 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.
386 387

385

Wolff The law of nations vol 2 xxxi.

See Wolff Institutiones luris naturae et gentium par 1079 and Wolff Ius naturae 8 6 1091-7.
388 389

Id xxxiii.

See eg Van der Vyver Die juridiese sin van die leerstuk van menseregte vol 1 340.

to a considerable degree shaped by Jean-Jacques Rousseau (1712-1778). 390 Rousseau set out his political ideas in "A discourse on the moral effects of the arts and the sciences" (1751); 391 "A discourse on the origin (1775) of
393

inequality"

(1755); 392

"A

discourse

on

political

economy"

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 As and he obligation. it: of "The each How can citizenship is and to in and a individual form of while freedom be reconciled: "Man is born free; and everywhere he is in chains." 395 the person put problem associate, find which association which will defend and protect with the whole common force goods each,

On his philosophy in general, see Hffding 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.
391 392 393 394 395

390

Reprinted in Rousseau The social contract and discourses 125ff. Id 155ff. Id 247ff. Id 1ff. Rousseau "The social contract" 1.1.

uniting himself with all, may still obey himself alone, and remain as free as before." 396 Rousseau, therefore, rejected the notion of rule by the strongest. Under such a system he held that "[a]s soon as it is possible to disobey with impunity, disobedience is legitimate; and, the strongest being always in the right, the only thing that matters is to act so as to become the strongest." 397 Consequently, "(l]et us then admit that force does not create right, and that we are obliged to obey only legitimate powers." 398 The only solution against government by force is the use of force: A popular insurrection that ends in the death or deposition of a sultan is as lawful an act as those by which he disposed, the day before, of the lives and fortunes of his subjects. As he was maintained by force alone, it is force alone that overthrows him. Thus everything takes place according to the natural order. 399 How, then, would a society be composed in which the maximum individual freedom is preserved? That would be the case if people are only bound by laws to which they themselves have consented. We must therefore ask what sort of arrangement people in the state of nature would accept. The reason why humans cannot live in the state of nature is that, while the person who pursues his own self-interest in a state of nature is basically good, he eventually finds his self-interest to be in conflict with that of others to the extent that he cannot preserve himself against their combined efforts. He then enters into a social contract to obtain security while maintaining liberty. 400

This, however, can occur only if the individual surrenders himself totally to the group. The terms of Rousseau's to the whole community". 401 This means that social contract involve each individual places "the total alienation of each associate, together with all his rights,

396 397 398 399

Id 1.6. Id 1.3. Ibid.

See Rousseau "A discourse on the origin of inequality", reprinted in Rousseau The social contract and discourses 155 at 236.
400 401

Id 1.6. Ibid.

himself under "the supreme direction of the general will". 402 People thus do not rule surrender in which themselves "each man, to in the state but to to all all, other gives citizens. Rousseau's commitment to liberty led him to demand direct popular giving himself 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 It is more than the sum of the the concept of the "general will",

which aims at the general good and comes from all and applies to all. 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 "antisocial" 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

402 403 404 405 406

Ibid. (Original emphasis omitted.) Id 1.6. Id 4.2. Id. 1.7. Id 4.8.

[t]he existence of a mighty, intelligent and beneficent divinity, possessed of foresight and providence, the life to come, the happiness of the just, the punishment of the wicked, the sanctity of the social contract and the laws: These are its positive dogmas. Its negative dogmas I confine in one, intolerance, which is a part of the cults we have rejected. 407 Rousseau rejected the instrumentalist view of the state as propounded by Hobbes and Locke, and revived the organic theory of the state of Plato and Aristotle. Before Rousseau, political philosophers concentrated either on the aim of good government (Plato and Aristotle) or self - government (Locke). Rousseau, through the concept of the "general will", attempted to synthesise good government. The
408

government and self-

concept of

of

the

"general to

will"

has

been

subjected has

to

severe held

criticism. Because of the total surrender of the individual to the group individualism collectivism Rousseau been 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 in the the majority Civil against Rights a minority in government the (as in the Defiance would be Campaign in South Africa) but not by a minority against a majority (as Movement United States) 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

407 408 409 410

Ibid. Ebenstein Great political thinkers 448. See Duguit Sovereignty and liberty 135.

For a discussion of his political philosophy, see the introduction of G Jones in Blackstone The sovereignty of the law ix and Van der Vyver Die juridiese sin van die leerstuk van menseregte vol 1 342ff.

States

and

on

the

European

continent.

In

respect

of

the

right

of

resistance, however, Blackstone's approach is far from consistent. Proceeding "merely from a natural law position, Blackstone proclaimed the

rights of human beings in ringing terms. He maintained that individuals 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 throne crown." At the was
416

constitution rendered

of

the

realm",

natural a new

law

prevailed of

over the

positive law and "the convention declared an abdication, whereby the vacant, which induced settlement

same in

time, respect

however, of

Blackstone

also

defended on the

an

absolutist of the

position

political

obligation

basis

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

411 412 413 414 415 416 417

Blackstone Commentaries on the laws of England 1.1. Ibid. Id intro s 1. Id 1.1. Ibid. Id 1.7. Id intro s 2.

a right to decide how far he himself shall obey." 418 The above contradictions have led commentators to observe that

Blackstone's ideas about natural law could not be reconciled with his absolutist tendencies. 419 X. IMMANUEL KANT

Immanuel Kant (1724-1804) is widely considered to be a proponent of the natural law approach, and is regarded as one of the fathers of liberalism and the notion of the Rechtsstaat. He was seen by many, including no one less than Karl Marx, as the philosophical champion of the American and French Revolutions. 420 He asserted the inviolability of the individual and placed the issue of human freedom squarely on the agenda of the modern world. Most famous in this regard are the following formulations of Kant's categorical imperative: "Handle nur nach derjenigen Maxime, durch die du zugleich wollen kannst, dass sie ein allgemeines Gesetz werde" 421 and "Handle so, dass du die Menschheit, sowohl in deiner Person, als in der Person eines jeden Andern, jederzeit zugleich als Zweck, niemals bloss als Mittel brauchst." 422 To a large extent Kantian ethics, and more specifically its requirement of non-exploitation of the individual, constitutes the philosophical basis of the modern recognition of fundamental human rights. At the same time, however, Kant denied the existence of a right to resist any sovereign, irrespective of how just or unjust its commands are. 423 Can these two propositions be reconciled, and if so, how? A brief survey would of be some aspects for of an Kant's philosophical of his of the world notions views in on

general

required Kant

understanding

political

obligation.

distinguished

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

418 419 420 421

Id 1.7. See G Jones in Blackstone The sovereignty of the law xxxviii. See Reiss Journal of the History of Ideas 1956 179 at 179.

Kant "Grundlegung zur Metaphysik der Sitten", reprinted in Smmitliche Werke vol 5 269.
422 423

Id 227. See Williams Kant's political philosophy 198ff.

how can could

these two worlds co-exist without destroying each other? How determinism of natural science be reconciled with the

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 the realm of metaphysics,
425

as revealed sich or the

by the senses. The mathematical method could not be used to penetrate the world of the Dina an unconditioned. 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). (or The nature of and the not moral law is consequently 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. categorical deontological) hypothetical

(consequentialist or conditioned). True freedom lies in obedience to

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

424 425 426

See Kant Critique of pure reason 12. Id 13ff. Id 16.

promises maxim

without

intending

to

keep

them as

cannot soon

be as

universalised, it was made a

because in such a case all faith in promises win be destroyed. "Thus my would necessarily
427

destroy

itself

universal law."

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 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 restated Romans 13 as follows: "It is a duty to obey the law of the existing legislative power, be its origin

427 428

Id 64. Van Eikema Hommes Major trends in the history of legal

See also philosophy 170.

429 430

See Kant The philosophy of law 175.

For a discussion of this argument as advanced in respect of, what was called, legality-based civil disobedience, see supra chap two I A.

considered

repressive.

Kant,

in

fact,

believed

that

tyranny

cannot

last, but while waiting for it to come to an end, one shows greater respect for human dignity by obeying than by resisting, because the latter always brings about greater suffering. 431

Hence it follows that the supreme power in the state has only rights, and no (compulsory) duties towards the subject. Further, if the ruler or regent, as the organ of the supreme power, proceeds in violation of the laws, as in imposing taxes, recruiting soldiers, and so on, contrary to the law of equality in the distribution of the political burdens, the subject may oppose complaints and objections (gravamina) to this injustice, but not active resistance. There cannot even be an article contained in the political constitution that would make it possible for a power in the state, in case of the transgression of the constitutional taws by the supreme authority, to resist or even to restrict it in so doing. For, whoever would restrict the supreme power of the state must have more, or at least equal power as compared with the power that is so restricted; and if competent to command the subjects to resist, such a one would also have to be able to protect them, and if he is to be considered capable of judging what is right in every case, he may also publicly order resistance. But such a one, and not the actual authority, would then be the supreme power; which is contradictory. 432 At the same time, however, it should be noted that, according to Kant, if the authorities command something which is directly in opposition to the moral law, it should not be obeyed. 433 Disobedience in order to avoid acting unjustly should not be regarded as illegitimate, because it is not regarded as a manifestation of resistance. There cannot be a categorical imperative which compels one to break another categorical imperative. 434 In other words, integrity-based, defensive disobedience is acceptable, but not any form of result-oriented resistance. Kant's approach to the right to resist revealed him to be even further removed from the natural lawyers than most positivists, who at least recognised a moral right of resistance, although they denied the existence of such a legal right. Kant denied the existence of both a legal and a moral right, and in this sense he can be regarded as an

431 432 433 434

See Reiss Journal of the History of Ideas 1956 179 at 190 Kant The philosophy of law 175. (Original emphasis.) See Schwartz Ethics 1963 126 at 130. See Nicholson Ethics 1976 214 at 218.

absolutist. However, despite Kant's conservative views in respect of resistance, his insistence on the non-exploitation of the individual would inspire much of the modern human rights ethos, and consequently also Y. much of the modern recognition of the right of resistance, 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 of in the and utilitarian legislation tradition. (first Bentham's in philosophy and developed in naturally from the opening lines of An introduction to the principles morals printed 1780 published 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

435 436

See infra chap five I EE 2.

For 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. Bentham An introduction to the principles of morals and legislation 1.1. (Original emphasis omitted.)
438 437

Id 1.2.

be in promoting happiness, and the question as to what extent that legislation should be obeyed or disobeyed should be same basis. In A fragment on government (1776), Bentham attacked the hypothetical contract theory for as advanced by Blackstone
439

answered on the

as

philosophical the difference

explanation

political

obligation.

To

Bentham,

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
441

of

justice.

He

declared that the "season of fiction is now over".

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.

439 440 441 442 443 444

Bentham A fragment on government 1.1 & 2. Id 1.12-14. Id 1.37. (Original emphasis omitted.) Id 1.43. (Original emphasis omitted.) Ibid. (Original emphasis omitted.)

See Bentham "Deontology", reprinted in Bentham The collected works of Jeremy Bentham 121.
445

See, for a general discussion, Strauss & Cropsey History of political

According

to

him,

all

progress

is

the

result

of

opposition

and

contradiction of ideas. Every thesis posits its own antithesis, without entirely abandoning both a "lifting constitutes a new its own nature. There then occurs an aufheben of up" and a more complete synthesis, which 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
447

In

is

necessary of his

vehicle

of

social views

progress on the

follows German

naturally.

spite

conservative

constitutional dispensation, Hegel was consequently a philosopher of revolution. 448 To Hegel the French Revolution of the inner contradiction of the destructive effects, the Revolution was the final culmination Despite its Enlightenment.

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. political reasons Anarchy for the is the who ideal of in the the opinion state of a wide range of of the theorists contemplated the eventual disappearance therefore

existence

and

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.
446 447

Hegel Philosophy of right paras 341-360.

For a fuller discussion, see H Klenner "On the right to revolution: A German dilemma" in MacCormick & Bankowski Enlightenment, rights and revolution 287 at 294.
448 449

Ibid.

See Hegel Political writings 40ff. See also Taylor Hegel 418. On the ambivalence which Hegel felt because of the reign of terror which followed the Revolution, see Prior Revolution and philosophy 4ff and 115ff.

terms, as the absence of repression. At the same time, political theory for the greater part has as its prime objective, justification of the state's function of regulating human affairs, by force if necessary, insofar as utopia remains a figment of the imagination. In this time-frame anarchy is the worst possible enemy: it represents failure and heralds doom. To Hobbes and Locke, it was the "state of nature" where no one can enjoy security and from which the social contract was designed to rescue human kind. To the fathers of Christianity, disobedience to political rulers was often perceived as dangerous and a disposition that would lead to chaos. Many of the long-term anarchists were consequently very authoritarian in their short-term approach. However, there is a group of political commentators who sought the disappearance These of the the state, not only did in the distant other future but immediately. To them, the state as an institution has no legitimacy. theorists, anarchists, not, like political theorists, reject certain manifestations of governmental authority and propose alternatives - they rejected did not propose of could a be political resisted: theory they conditions sovereigns legitimate political authority as such. They which by carefully a sets what out kind right the of of describing

resistance

advocated

general

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 Chinese Taoists,
450

most unsuccessful, and Stoics and to early

the most persistent political doctrines. Its roots can be traced to the the Cynics of Greece, the Christianity. Although

anarchism

is

wide

(and

often

misunderstood)
451

term,

some

features common to anarchistic

thought can be identified:

On 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. See D T Wieck "Essentials of anarchism", reprinted in Hoffman Anarchism 86 and Carter The political theory of anarchism 13ff
451

450

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 humankinds natural social instincts.

Anarchists, qua law.

452

mostly

on

the

basis

of

an

inalienable

right

to

conscience, do not recognise a

moral obligation to obey the law

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 he never used the term "anarchy", the first
453

Although

systematic In his most

anarchist was the Englishman, William Godwin (1756-1836).

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
454

of

human

beings

to

improve

and

eventually to reach perfection.

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

452 453 454 455

See in this regard Richards Georgia Law Review 1984 vol 18 771 at 771. See Joll The anarchists 31ff and Bose A history of anarchism 78ff. See Godwin An enquiry concerning political justice vo1 1 6ff. Id vo1 2 77.

(2) In

Pierre-Joseph Proudhon contrast to the radical individualistic anarchism advanced

456

by

someone like Max Stirner, Pierre-Joseph Proudhon (1809-1865) movement. To the question
457

proposed

mutualist anarchism, and opened the way for anarchism to become a mass

"what

is

property?",

Proudhon

answered

"[i]t

is

robbery",

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) The Michael Bakunin exiled Russian, although Michael he Bakunin (1814-1876), 458
459

propagated and his

collectivism

rejected

communism.

Bakunin

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 state anarchist movement the idea that society could rid itself of the through the use of violence only - an would greatly stigmatise anarchism. (4) Peter Kropotkin collectivism anarchistic Peter was largely as replaced in Europe by
461

element which through the years

Anarchistic 1870's by Russian,

during

the

communism, Alexander

introduced

another

exiled

Prince

Kropotkin

(1842-1921).

Kropotkin,

however, also rejected authoritarian communism, and envisaged a new

456 457 458 459

See Jo11 The anarchists 61ff and Bose A history of anarchism 115ff. Proudhon What is property 37. See Joll The anarchists 84 and Bose A history of anarchism 179ff.

See his essay "Statism and anarchy", reprinted in Bakunin Bakunin on anarchy 325. Bakunin stated: "[I]f God really existed, it would be necessary to abolish him." Bakunin God and the state 28.
461 460

See Joll The anarchists 125ff and Bose A history of anarchism 257ff.

society comprised of independent free village communities. Anarchistic communism differed from collectivism and mutualism on a fundamental point. According to the to latter the approaches, he the worker had to be remunerated according hours 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 Tolsty most anarchists rejected religion as an impediment
463

Whereas

to

the

emancipation of mankind. Count Leo To1st6y (1828-1910)

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
465

brand

of

pacifist

anarchism

on

Gandhi

was

referred to earlier.

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 nature upon of the communism, Marxist which to as a greater or lesser by extent Karl was Marx regarded as a revolutionary ideology. Without going into the general thought initially developed (1818-1883) and Friedrich Engels (1820-1895), some fundamental aspects

Kropotkin's ideal society is set out in his books, Fields, factories and workshops and The conquest of bread.
463 464

462

See Joll The anarchists 152ff and Hoffman Anarchism 70ff.

See L Tolsty "Patriotism and government", reprinted in part in Hoffman Anarchism 70 at 70.
465

See supra chap three III B (2)(a).

of

that

ideology,

which

are
466

relevant

to

the

issue

of

political

obligation, should be noted.

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
467

the

contrary, their social being that determines their consciousness."

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 The key to social change, consequently, However, lies in changing material conditions of living. 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.
469 470

Let

the

ruling

classes

tremble

at

communistic revolution." locomotives of history."

To Marx, therefore, "[r]evo1utions are the

For 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. Marx "Preface to A contribution to the critique of political economy" in Marx & Engels Selected works vol 1 327 at 329. For extracts from the work of Marx and Engels on the function of law, see Cain & Hunt Marx and Engels on law 165ff.
469 468 467

466

repressive

See 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. Marx "The class struggles in France 1848-1850" in Marx & Engels Selected works vo1 1 109 at 198. For a discussion of the "theory of
470

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. For a discussion of the views of Marcuse in this regard, see Paust Emory Law Journal 1983 545 at 577. Speaking 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. See 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".
474 473 472 471

See Calvert Revolution 67ff.

was the Dutch Revolt. In 1581, during the Eighty Years War (1568-1648), the Netherlands formally renounced their allegiance to Philip II of Spain by means of the Act of Ajuration or the Placcaet van Verlatinge, on the basis that, ultimately, political power was granted - and could be revoked - by the people (or at least the estates). 475 The Placcaet provided as follows: A prince is constituted by God to be ruler of a people, to defend them from oppression and violence, as the shepherd his sheep; and whereas God did not create the people slaves to their prince, to obey his commands, whether right or wrong, but rather the prince for the sake of the subjects, to love and support them as a father his children, or a shepherd his flock ... and when he does not behave thus but ... oppresses them, seeking opportunities to infringe their ancient customs, exacting from them slavish compliance, then he is no longer a prince but a tyrant, and they may not only disallow his authority, but legally proceed to the choice of another prince for their defence. 476 Much of the political debate in the Netherlands during its golden age the Seventeenth Century - centered upon justification of this Revolt, which, as we saw earlier, highlighted the question concerning the exact implications of the lex regia. 477 The theory of sovereignty was developed to a high level by writers such as De la Count, Spinoza and Van der Muelen. 478 In global terms the American and French Revolutions deeply affected the way in which political obligation was seen. After the English civil wars of the 1640s, the right to resist was cautiously canvassed by jurists like Grotius. It was John Lockes 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

475 476

See Van Zy1 Geskiedenis van die Ronieins-Hollandse reg 296.

The 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. This 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. See Kossmann Po1itieke theorie in net Zeventiende-eeuwse Nederland 36, 50, 69.
478 477

destructive of [the protection of fundamental rights], it is the right of the people

479

to

alter

or

to

abolish

it,

and

to

institute

new

government."

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
481

regarded

as

the

unequivocal

announcement

of

he

age

of

democracy.

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 1990s, 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 worlds understanding of the right to resist. The only regret most people felt in respect of these attempts was that they had failed. 483

479 480 481 482 483

Quoted from Hammond "We hold these truths ..." 43. Id 206. See Tilly et a1 The rebellious century 17ff. See Calvert Revolution 75. See Villa-Vicencio Civi1 disobedience and beyond 92ff and De Gruchy

The idea that violent revolution could be justified if people were subjected to sufficiently serious injustices while having no other recourse, gained sufficiently widespread acceptance after Nazism and the Second World War to be incorporated into the Universal Declaration of Human Rights of 1948. The Declaration states that "it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law." 484 Several writers consequently concluded that the right of people to revolt against
485

tyranny

has

become

recognised

principle of international law.

As mentioned earlier, the decolonisation process in Africa and the East found inspiration in the stance - and success of Gandhi. The second half about of by the Twentieth Century saw in the which liquidation violent of the European played a colonial empires. At least in Africa this was to a large extent brought national revolutions uprisings 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.

484 485 486

See the publication of the United Nations Human rights 1. This issue is discussed by Paust Emory Law Journal 1983 545 at 560.

This 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. The 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.
487

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 of if decree moral X was issued according of its to the essential The maxim law-making could be procedures of the particular society, X constitutes law irrespective the acceptability contents. 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

488 489

See eg Hart Harvard Law Review 1958 593. Id 620.

that law has an intrinsic quality requiring obedience, which means that to call an immoral decree a law goes a long way to insuring that it should be obeyed." 490 The important question is what type of jurisprudence would ensure that people do not obey wicked governmental decrees. The chain of causality which leads to such a result is as follows: Step one: People are socialised to obey the law. Step two: Wicked commands are called law. Result: People do wicked things. In order to avoid this result, the natural law approach focuses on step two and insist that wicked commands should not be called law. The problem with this approach is that it is counter-intuitive. What should one call a decree issued according to the correct procedures if not a law? In order to be able to analyse and evaluate a phenomenon, one first needs terms to describe it. Moreover, the natural law-approach perpetuates the idea that law qua law is something good, something inherently deserving of obedience, while the morality of a particular law might be controversial. The positivists concentrate on step one. They see the problem as the fact that people are socialised to obey official orders unquestioningly. This tendency is encouraged through the reverence in which natural law holds law. Instead of artificially delimiting the meaning of the word "law", and requiring blind obedience to it, a culture should be fostered in which people would be willing to challenge laws on independent moral grounds. From the perspective of the decision-maker the question is how people should be treated who have defied - or obeyed - a clearly immoral decree. Perhaps the difference between the two schools of thought under discussion can best be illustrated with reference to a famous German case, which deals with precisely this question. 491 During the Nazi era a woman, wishing to get rid of her husband,

denounced him to the authorities for insulting remarks which he had made about Hitler. He was arrested and sentenced to death, apparently in terms of statutes making it illegal to make statements detrimental to the Third Reich. Eventually his sentence was commuted and he was sent to the front. In 1949 the wife was prosecuted in a West German court for having illegally deprived her husband of his freedom. Her

490 491

Villa-Vicencio Civil disobedience and beyond 67. See Hart Harvard Law Review 1958 593 at 618.

defence was that she had acted in pursuance of a valid statute. The court, in what has been hailed as triumph for the doctrine of natural law, described the statute as "contrary to the sound conscience and sense of justice of all decent human beings" and held that she was guilty. The law on which she relied for her defence was not was not regarded as a valid law.

Hart criticised the decision from a positivist perspective. According to him, it is conceptually dishonest not to call something which was clearly a law by that name. He argued that the laudable objective of punishing the woman for her "outrageously immoral act" could only be achieved through the use of legislation which retrospectively repealed the statute in terms of which she acted. 492 EE. CONTEMPORARY POLITICAL THEORY

In recent times, the issue of political and legal obligation attracted considerable attention amongst philosophers, political scientists and legal theoreticians. 493 Typically, the question they addressed was: Should law qua law - that is, simply because it is law - be obeyed, such as one's agreement or non-agreement with the

and if so, why? To put it in a slightly different way: Apart from considerations demands of a particular law, or fear of sanctions in the case of noncompliance, does the fact that the law requires certain conduct, in itself demand? provide Does an independent as an reason why one should observe or would that only law institution have legitimacy,

particular legal systems and laws have legitimacy? It is clear that, short of the Utopian ideal, few people accept the anarchist extreme compliance punishment,
494

position and

that

law

never

represents simply coupled

any offers

moral

value.

The or

realist

position,

that

law

choices

between

non-compliance

with

compensation

is also no longer widely accepted. At the other extreme,

the view that a duty exists to uphold any law, however instituted and

492 493

Ibid.

For 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. A caricature of the arguments advanced by Holmes Harvard Law Review 1897 457 at 461.
494

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.

495 496

See Bedau The Journal of Philosophy 1972 179.

See Ross The right and the good 8. In an influential article Smith The Yale Law Journal 1975 950 argued that there might be a prima facie obligation on those subjected to a government to obey particular laws, but not to obey all its laws.

The social contract can be seen as actual or hypothetical. An actual contract can in turn be seen as explicit or implicit. The obvious problem with the explicit contract hypothesis for obedience is that few people in fact do explicitly promise to obey the laws of their country, and when they do so it is often not entirely voluntarily. 497 Consequently, most theorists in this tradition take recourse to the idea of an implicit promise to obey. As we have seen, theorists such as Socrates and Plato, for example, argued that mere residence in a country constitutes an implicit promise to obey its laws. The problem with this approach, of course, lies in the fact that emigration is often not a real option, which means that the alleged voluntary basis of a decision to remain in a country is seriously undermined. A popular argument, at least in respect of liberal democracies, is that by participating in the political processes one incurs the duty to obey the law. 498 The argument is that by voting one accepts the legitimacy of this mechanism as the final arbiter in respect of the issues at stake. This consent cannot be withdrawn once it becomes clear that ones 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 ones 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

For 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. On the relationship between voting and consent, see Simons Georgia Law Review 1984 791 at 798.
499 498

497

See eg Smith The Yale Law Journal 1973 950 at 960ff.

polls, or engaging in more direct resistance. Casting a negative vote is a strategy to avoid certain consequences, not an undertaking to "forever hold ones 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 procures. detail. There
503 502

consequences The views of

in

terms

of

the

happiness

or

utility in

it

Bentham

were

considered

earlier

some

are

two
504

main Act

forms

of

utilitarianism measures

"act"

and

"rule" act

utilitarianism.

utilitarianism

each

individual

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

500 501 502

R Dworkin "The original position" in Daniels Reading Rawls 16 at 18. See infra chap five I EE (4)(a).

See also Mill On liberty and Mill Considerations on representative government, who further developed Bentham's ideas.
503 504

See supra chap five I Y. For a discussion, see Mackie Ethics 125ff.

utilitarianism, according to which an act is morally right if it can be justified by a moral rule which, if followed in general, would increase overall utility. In terms of this approach, short-term utility can sometimes be sacrificed in favour of long-term utility. general requirement of obedience to law can then be justified in terms of rule utilitarianism, even if in individual cases it causes hardship, as long as it increases the overall long-term utility of the society. The problems of In essence it utilitarianism as a moral theory are well documented. 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 oclock 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

505 506 507

See Rawls A theory of justice 22ff. See S v Goliath 1972 3 SA 1 (A).

See the discussion of this Issue in Greenawalt Michigan Law Review 1985 1 at 27ff.

universal

civil

disobedience

cannot

justify

the

conclusion

that

it

should never be practised. (3) The "duty of fair play"

Legal obligation may also be based on a so-called "duty of fair play", which entails that those who voluntarily choose to accept benefits under a particular system have a duty to comply with the demands of that system. The underlying idea is that such people must carry their fair share of the burden to sustain the system. There are two variations to this approach. In terms of the first

variant, the basis of the obligation is a duty to treat the state fairly once one has accepted benefits from it. This is largely the basis on which Socrates justified and explained his willingness to drink the poisonous cup. Since the state as such is an impersonal institution, it is difficult to see how one can have a moral duty towards it, without taking into account the people that constitute its substratum. The more popular contemporary variant of this approach, developed by Hart 508 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 ones fellow citizens, even in societies other than liberal democracies, has considerable force. The argument, however, also has its limitations.

508 509

Hart Philosophical Review 1955 175 at 185ff.

J Rawls "Legal obligation and the duty of fair play" in Hook Law and philosophy 3. See also the argument of Ball Georgia Law Review 1984 911 that there is no obligation to the law but only to the neighbour.
511 510

S v Lovell 1972 3 SA 760 (A) at 766.

In the first place, many "public benefits" are not voluntarily accepted and could indeed be resented. Someone who uses a public road might be expected to pay a proportionate toll, but true pacifists might genuinely be willing and even eager to do without protection. In the second place, when benefits are voluntarily accepted it does not necessarily give rise to an obligation to contribute to its perpetuation in all cases. As Robert Nozick asked, why should I be expected to give a Quid pro quo for broadcasts of classical music over a public address system which I hear and even appreciate but did not request in the first place? 512 Moreover, someone might agree that he is to pay his share of the price for that from which he benefits, but he might disagree as to what the extent of that share should be. The classical example in this regard is the disputes which arise concerning the proper scales of taxation. It should also be realised that, according to this approach, a general duty of compliance does not arise when other people are not complying for example in a society where corruption is rife. (4) In The "natural duty to obey the law" recent years, a number of commentators described political

obligation as a "natural duty"; that is, a duty which is simply a result of ones status as a citizen, or the position one occupies in society, into, irrespective of considerations of ones
514

such

as etc.

agreements
513

entered the

the

consequences

actions,

Apart

from

traditional natural law approach,

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

512 513

Nozick Anarchy, state, and Utopia S3.

For an overview of these approaches, see Greenawalt Michigan Law Review 1985 1 at 3ff. Perhaps the most influential modern proponent of this school is John Finnis. See Finnis Natural law and natural rights.
515 514

See Rawls A theory of justice 333ff.

are also to assist in the establishment of just institutions when this can be done with little cost to themselves. 516 Rawls maintained that the parties to his "original position" would not only accept certain principles of justice, but would also accept the natural duty to create and support just institutions. One aspect of a just institution would be majority rule, and majority rule is bound to produce some results which the minority will regard as unjust. Obeying even those laws (as long as a certain threshold of injustice is not surpassed 517) 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
521

are

met,

if

it

is

likely

to

lead

to

serious

disorder.

516 517 518

Id 334. Id 351.

Rawls 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.
519 520 521

Rawls A theory of justice 372. Id 373. Id 374.

(b) Tony

Obedience based on necessity Honore argued in that all a prima facie stems obligation from to obey
522

the

law

generally

and

societies

necessity.

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 childs 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 states 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 can It give is consequently to a difficult duty to of see how this which consideration rise general obedience

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.

522 523 524

Honor Virginia Law Review 1981 39. Greenawalt Michigan Law Review 1985 1 at 19.

See Soper A theory of law 75ff; Soper Georgia Law Review 1984 891 and Soper Michigan Law Review 1985 63.

Perhaps Sopers 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 plays a particularly important role in politics in South

Religion

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 countrys history. 527

525 526

See Mackie Virginia Law Review 1981 143. Research Council report Investigation into

See the Human Sciences intergroup relations 36.

527

Due to the apparent lack of literature available that analyses the role of the South African churches during the Reef strikes of 1922 (see, however.

A.

THE 1914 REBELLION

The first major political event since the Union of South Africa was established in 1910 that raised the issue of illegal (and, as it turned out, violent) political resistance, was the 1914 Rebellion. 528 The Rebellion deeply divided the Afrikaner community, and predictably also threatened to bring disunity into the Afrikaner churches, 529 which were confronted by demands to give spiritual guidance." 530 All three of the major Afrikaans churches took a non-committal position. The rebels were not directly supported, but - more significantly - they were also not censured. Although it was recognised that resistance can under certain circumstances be justified, the Question whether
531

the

circumstances of the time justified, disobedience was left open.

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). Some 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. Article 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. Some 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. See C F A Borchardt "Die Afrikaanse kerke en die Rebellie 1914-1915" In Eybers et a1 Teologie en vernuwing 91ff.
531 530 529 528

In

1915

the

Dutch

Reformed could

Church be

("DRC")

in

the in

vaguest

possible with

terms, stated that there was a general duty to obey the government and that disobedience
532

only

justified

accordance

Scripture.

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
533

in

Gods

laws

or

the

freedom and basic rights of a people.

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

The "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. See 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.
534 533

532

Du Toit Die drie Afrikaanse kerke en die Rebellie 95ff.

state and between church and church in South Africa as much as did apartheid. On the one hand, a group of (mainly Afrikaans) conservative churches gave the government spiritual support for its pursuit of racial hegemony; on the other hand, a group of (mainly English) more progressive churches rejected apartheid 535 and legitimised opposition to the governments 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 remained than people. Apparently, or the at predominantly not black churches largely a-political least outspokenly

political in this regard. While the conservative that in churches would agree a with right the progressive extreme

churches

principle

there

was

under

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 Gods. There are therefore some matters which are Gods and not Caesars 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

For an early example of the view taken by the Roman Catholic Church, see Hurley Africa South 1958 13.
536 537

535

29(c). Extract from letter, reprinted in Vi11a-Vicencio Between Christ and

The Cottesloe Consultation, called by the World Council of Churches, followed in the wake of the Sharpeville shootings. 538 Here, in 1960, the participating churches, which at the time included the DRC, expressed themselves against the primary cornerstones of apartheid. Under pressure from the government, the DRC - often called the National Party at prayer - subsequently retracted its support. Under the leadership of, inter alia, the South African Council of

Churches ("SACC") (as the Christian Council has been called since 1968) and the Christian Institute, the progressive churches now more and more openly aligned themselves with opposition to the government. In 1968, the South African "every Council
539

of

Churches person in

published the

"A

message was

to

the the

people of South Africa". faith"; and

In it apartheid was rejected as "a false country" asked

Christian

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
542

objection Defence

to

military was

service in

received 1974 to
543

from

other

churches,

the

Act

amended

criminalise

incitement of conscientious objection to military service.

For their part, the leaders of the Christian Institute, such as Beyers Naude, in 1974 refused to of give evidence into before Certain the Schlebush Parliamentary "Commission Inquiry Organizations",

Caesar 209.
538 539 540 541 542 543

Id 200, 211. Reprinted Id 214. Id 216. Resolution reprinted Id 225. See Esterhuyse Broers buite hoorafstand 26. See supra chap four IV.

charged with investigating several church and other organizations. 544 Quoting extensively from biblical and other theological sources, Naude and others issued a document entitled "The right and the duty to resist unchristian governmental authority in the name of Christ." 545 They stated the following: When the government deviates from the Gospel, the Christian is bound by his conscience to resist it. Even if this results in breaking the law, it has to be done because God's will must be maintained above the law of man (Acts 4). The government is God's servant and this means that it cannot arbitrarily place itself above the rule of law without impinging on the highest authority. If it does it, it becomes the evil-doer (Romans 13), which must be resisted in obedience to God. 546 Also in 1974, the DRC Synod adopted the fateful Ras, volk en nasie en volkereverhoudings in die 1ig van die skrif report. This report stated that: Onder bepaalde omstandighede en voorwaardes laat die [New Testament] ruimte vir die reeling van die saam-bestaan van verskillende volkere in een land 1angs die weg van afsonderlike ontwikkeling. 547 It was stated that "'n staatkundige stelsel wat gebou is op eiesoortige ontwikkeling by verskillende bevolkingsgroepe kan in die lig van die skrif prinsipieel verantwoord word." 548 It was also accepted that, insofar as the state acts in accordance with the norms of the Bible, "mag die staat van 'n gesagsorde, gesagsorgane en die swaardmag gebruik maak om die deurwerking van die sonde te beteuel (Rom 13.4)." 549 The dangers inherent in a revolution, which was described as an ultima ratio, were outlined and emphasised. 550

Naud 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.
545 546 547 548 549 550

544

Reprinted in Villa-Vicencio Between Christ and Caesar 217. Id 220. Ras, volk en nasie en volkereverhoudlnge in die lig van die skrif 13.6. Id 49.6. Id 49.2. Id 45.1.

The World Alliance of Reformed Churches, largely in response to this document, in 1982 declared that apartheid was a heresy, and suspended the membership of the DRC. In 1979, the SACC passed a resolution justifying the use of civil disobedience. It stated that "the South African churches are under an obligation to withdraw, as far as that is possible, - from co-operation with the state in all those areas in the ordering of our society where the law violates the justice of God." 551 The Dutch Reformed which
552

Mission

Church that

in

1982

issued

"Confession a

of

Faith",

declared

apartheid

constituted

status

confessionis.

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
553

forbid

them

and

punishment

and

suffering

be

the

consequence."

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 that as "dangerous in thinking", civil and stated is (without a very motivating) "[participation disobedience

The 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.
552 553 554

551

Reprinted in Villa-Vicencio Between Christ and Caesar 241ff. Id 244.

See 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 "Bre Moderatuur" of the DRC in 1980. For a discussion, see D E De Villiers "Die NG Kerk se standpunt oor gewetensbesware teen militere diensplig" in Centre for Intergroup Studies Conscientious objection 64ff.

dangerous operation which can easily lead to incalculable harm". 555 The South African Catholic Bishops Conference consistently affirmed the right to object to military service on conscientious grounds, and in 1985 issued a statement calling for an end to conscription. 556 In June 1985, Or Beyers Naude, in his capacity as General Secretary of the SACC, again called for civil disobedience. He was strongly rebuked by the Minister of Law and Order. 557 In 1985, the influential ecumenical Kairos document was published and circulated. Signed by more than 150 theologians from a wide spectrum of churches, it challenged Christians to action against the apartheid government. In this document, Romans 13 was interpreted as a correction on the Roman Christians who believed that Christians, and Christians alone, were exonerated from obeying any state. Romans 13 proclaims that they should accept the institution of secular authority, but "it does not say anything at all about what they should do when the state becomes unjust and oppressive." 558 Under the heading, "Tyranny", it was stated that a tyrannical regime was illegitimate. A tyrant was seen as one who was an enemy of the people, and the South African government of the time was such a tyrant.
559

identified as indeed some

It

was

observed

that:

"There

are

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:

See 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.
556 557

555

Reprinted in Villa-Vicencio Between Christ and Caesar 245ff.

See "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. On 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.
559 560 558

Kairos document 4.4. Ibid. (Original emphasis.)

Once it is established that the present regime has no moral legitimacy and is in fact a tyrannical regime certain things follow for the church and its activities. In the first place the church cannot collaborate with tyranny; [s]econd1y, the church should not only pray for a change of government [and finally] the church will have to be involved at times in civil disobedience. A church that takes its responsibilities seriously in these circumstances will sometimes have to confront and to disobey the state in order to obey God. 561 Also in 1985, the Western Province Council of Churches issued a "theological rationale", stating that it was praying for a change of government. 562 The Synod of Bishops of the Anglican Church in 1986 issued a document entitled "Christian obedience and unjust laws", 563 which emphasised that the right to engage in civil disobedience under certain circumstances was widely recognised in the Christian tradition. It proceeded: "Conscientious defiance of unjust laws may be the only alternative to violence and the taking up of arms by those who are attempting to establish a just order." 564 Certain guidelines were thereupon proposed to Christians who believe that they must disobey the law of the land, inter alia:

"Where a particular law is disobeyed it should be with a view to restoring just laws";

"A

decision

to

act

in

this

way

should

normally

be

taken

individually only after consultation with other Christians"; and "The law may be disobeyed only by those who are prepared to suffer the consequences of their actions." 565 In 1986, the DRC Synod accepted as its testimony Kerk en samelewing. In what was seen by many as a dramatic about-turn the Church now declared that racism was a sin which could not be defended by any individual or church. 566 One of the most important sources of spiritual support for

561 562 563 564 565 566

Id 5.5. (Original emphasis.) See Clarke Journal of Theology for Southern Africa 1986 42. Reprinted in Grace and Truth 1987 194. Id 195. Ibid. Kerk en samelewing 12.1. 4

the apartheid state had now been terminated. However, the DRC was far from endorsing a right of resistance in the South African context. Under the heading, "Die Ned Geref Kerk en die owerheid", it was stated that "van alle lidmate word verwag om as dee1 van hulle Christelike lewenswandel Violent die owerheid was te gehoorsaam." 567 as contrary to The the right demands of of the the authorities to make military service compulsory was still recognised. 568 revolution rejected 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
569

magistrate')

gehanteer moet word en nie deur die kerk nie." 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

567 568 569 570

Id 15.3. Ibid. Ibid.

Ibid. 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.
571

See "Ons werk vir een tuisland" Beeld 4 July 1987.

resistance". 572 In March 1989, the members of the DRC family accepted a resolution stating that, if the church concluded that violent revolution was wrong (which, it was added, was not altogether clear in the reformed tradition) it must support non-violent forms of protest, and provide leadership in this regard. 573 Member churches of the SACC in 1989 also threatened to defy the

emergency regulations should the government decline to end detentions and lift the state of emergency. 574 Theologians in South Africa expressed views which to a large extent reflected the attitude adopted by their respective denominations and their own political affiliations. Dr Allan Boesak, former Moderator of the Dutch Reformed Mission Church and former President of the World Alliance of Reformed Churches, on a number of occasions expressed himself in favour of the use of civil disobedience and in fact led such campaigns of protest. 575 Archbishop Desmond Tutu took a similar stance and stated that "[t]o obey an immoral law is an immoral act". 576 One of the most persistent theologians sympathetic to the idea of the use of civil disobedience against apartheid is Charles Villa-Vicencio of the University of Cape Town. 577 Within the DRC, Pretoria theologian and former moderator, Johan Heyns, gave a guarded, general defence of civil disobedience, without directly

See "Bishops give a nod to non-violent protest action" Weekly Mail 2 Feb 1989.
573 574

572

See "Boesak en wetsuitdaging" Die Transvaler 24 April 1989. and

See "Churches challenge govt" The Natal Witness 9 March 1989 "Church leaders threaten to defy emergency" New Nation 21 March 1989.
575

His 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.
576 577

Quoted in Villa-Vicencio Civil disobedience and beyond 71.

See eg Villa-Vicencio Between Christ and Caesar and Villa-Vicencio Civil disobedience and beyond. See also Vi11a-Vicencio Wetenskaplike Bydraes van die PU vir CHO 1990 38.

addressing its use in the South African situation. 578 More explicitly sympathetic towards this form of protest is academic, Danie du Toit of the University of Stellenbosch. 579 Special interest, 580

in

this

subject-matter

has

come

from

the

Gereformeerde Kerk.

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. Since TRADITIONAL AFRICAN SOCIETIES we are primarily be Is civil interested to in civil disobedience inquiry with in South values

Africa,

it

would

one-sided

confine

this

to the

Western

jurisprudence.

disobedience

compatible

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 traditional 582 and contemporary 583 - 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

578 579

See Heyns Teologlese etiek part 2/2 162ff.

See 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. See 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. In 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.
582 583 581 580

See eg Estermann The ethnography of Southwestern Angola 124.

For a discussion of the political history of post-colonial Africa, see Ungar Africa 19ff.

liberation struggle, in which civil disobedience played an integral part. It was argued that the extraordinary hold which Nelson Mandela had on the South African government while he was in prison can best be seen if his conduct It is there true is understood these as an by example and of civil do not disobedience. that examples large

represent civil disobedience in its purest, non-coercive form (as is illustrated by Tambos rejection of Gandhis methods as "hands-folding" and Mandelas 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 governments 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

For 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.

584

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, a and traditional of in African and and

societies authority;

were

held

together physical
585

through

combination powerful

control

through internal

compulsion most a common

psychological of

sociological disruptive

sanctions.

However, was

countering reality,

strife

understanding

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 the is important, of however, is that the people who occupied these

positions were commonly considered not to be above the law and above demands custom. 588 Although Western-style, direct political participation of the governed through universal suffrage did not occur

See 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. According 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".
587 588 586

585

See Gluckman The ideas in Barotse jurisprudence 5.

See Elias The nature of African customary law 98. See, however, also Cuttshall Disputing for power 103. On the relationship between the kraalhead and his family in the so-called "native territories" of the Cape Province, see W M Seymour Native law and custom 65ff and, for a wider perspective, S M Seymour Bantu law in South Africa 65ff. See also Gluekman The judicial process among the Barotse of Northern Rhodesia (Zambia) 7 and B Sansom "Traditional rulers and their realms" in Hammond-Tooke The Bantu-speaking peoples of Southern Africa 246 at 247.

in Africa, there were many other devices through which absolute rule was counter-acted. We need not detain ourselves here with the legal procedures through which this took place at the initiative of the king, such as consultation. 589 Our concern is with "illegal"
590

protest,

or

protest which in that society would be considered taboo.

At least two fascinating instances in traditional Africa have been recorded behaviour where formed what an would normally part have of the been considered illegal of integral political processes

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 attack ordinary those in people positions were of sometimes authority. allowed What to symbolically 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 openly express social have been described as follows: "[T]hey women have to assert licence and tensions:

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 Their These effect act was were not to of not understood the as expressing of society. the disrespect for the existing social order or for those in positions of authority. Instead, weaken fabric those the catharthic effect expressing feelings,

reminder which it gave to those in positions of power concerning the

For 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. The meaning of the term "illegality" in this context is discussed supra chap two I A
591 592 590

589

Gluckman Rituals of rebellion in South-East Africa 3. See Gluckman Order and rebellion in tribal Africa 18.

effect their conduct had on other people, and presumably the hidden messages which could be conveyed under the veil of ritual, a11 served to strengthen the group's solidarity. In order to renew the unity of the system, institutional provision was therefore made for expressions of protest that would normally be considered taboo. Not all forms of resistance would, however, enjoy such a high degree of formal acceptabi1ity. B. REBELLION AND REVOLUTION the actions referred to above were non-violent and non-

Whereas

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

See 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. See G N Uzoigwe "The warrior and the state in precolonial Africa" in Mazrui The warrior tradition in modern Africa 20 at 47. Obviously, there would be no need, or at least no opportunity, for the legal system to evaluate a successful insurrection in retrospect.
595 594

593

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 cost of the are here dealing with a situation where a person of the highest authority. Even though was expected or required to be obedient to a lower authority at the interests authoritarian rule might still prevail, this at least meant that not

Among 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 See Gluckman Order and rebellion in tribal Africa 22ff and Gluckman The Ideas in Barotse jurisprudence 53ff.
597

596

a11

power

was

centralised;

in

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 rebellion necessary contended could part that a it was recognised or in these societies and was would that not be had

serve of the

unifying political

integrating that

role,

necessarily a disruptive force. That is, it was considered to be a process rebellion possible. The fact that potential successors to the throne often

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

See 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."
599 600

598

Ibid.

According to E1ias The nature of African customary law 18, "if a king abuses his powers, subordinate chiefs have the right to secede from the commonwealth or, in the alternative, depose him."

Gluckman indicated that this construction could also explain chapter 61 of the first it edition gave of the the Magna Carta. Omitted be from the later as
601

editions,

Barons

what

could

described

constitutional power to rebel if the king broke the social contract.

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 at that rebellious the princes, but not their A followers, rebellious primarily were prince on the

punished also corresponds with the fact that African law is primarily aimed "restoring the social elite equilibrium". 602 was dealt threatened existing and with

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

601 602

See Gluckman The ideas in Barotse jurisprudence 55.

On this directive of African law, see E1ias The nature of African customary law 269ff.

fact doing exactly what the society was expecting of them, namely to obey their direct leaders. Consequently, there was no need to punish them. To summarise: By granting indemnity to subjects who had engaged in rebellion, African society provided a powerful check on the tyranny of the king. African jurisprudence afforded recognition to the fact that while the proscription of illegal resistance had to be sustained, law at the same time had to afford recognition to the fact that self-help was sometimes the only way in which a society could be changed while its unity was maintained. By so drastically restricting the confines of the crime of treason, African law provided perhaps the best example of official recognition of a right to resist in the strong sense of the word. IV. CONCLUSION

Where does the above overview bring us? It is submitted that, as far as Western philosophical views of resistance are concerned, a distinction should be drawn between the perception of political resistance in the pre-modern and the modern era. Generally speaking, it could be said that during pre-modern times political obligation was seen in near absolute terms. Only integrity-based, allow a much defensive more disobedience right was of recognised. Modern times extensive

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 refuse order to that is, in where such one's a soul was placed in jeopardy. was not According to Stoic-Christian values, one could and in fact had to co-operate case. Active resistance permissible. Political dissatisfaction could not legitimise resistance of any sort, because only the state had political power, which was derived from above. The modern era dawned with the emergence of the idea of fundamental human rights, as evidenced in the philosophy of people like Locke and

Kant,

and

the

revolutions

of

the

Eighteenth

Century.

Power-

relationships were now being regarded in a radically different light. The power of the state was seen as being derived from the people, from below, which meant that people also had the right - and responsibility - to control the way in which it was exercised. There no longer was any reason to accept injustice passively. Political motivations, such as the conviction that one was being exploited, could now be a sufficient basis for result-oriented resistance. Although these positions differ dramatically, it is submitted that the modern approach is best seen as a development of the same idea which underlay the recognition of a right of resistance in earlier times. The basic premise of the Stoic-Christian approach to resistance was the notion that, ultimately, each person is the "captain of his own soul". This tradition insisted on the recognition of what in Lutheran terms could be called a "private sphere", the area of conscience, over which the state had no jurisdiction. In accordance with the prevailing worldview of the time, the political dispensation in which one lived was, like so many other things, not under human control. As a result, political repression had to be accepted like the weather. The truely meaningful life was not the present one and only that which affected the eternal life was important. The essential feature of the modern era is the perception of increased human ability. Political dispensations are no longer seen as "natural and necessary". There is a universal perception of the possibilities of change, and the contingency of political systems. In accordance with the increased secularisation of the world, it is widely believed that the present world is the one in which one's live must have meaning. This process of politicisation was manifested most clearly in the Marxian attempt to create Utopia on earth, but it also underlies much of the urgency of the present worldwide quest for conditions of living which makes a dignified existence possible. This modern view of the world was well understood by Athol Fugard, whose leading character in A lesson from aloes described the first thoughts of his political awakening (pompted, as it were, by the bus boycots in South Africa in the 1950's) as follows: "[A]n evil system isn't a natural disaster. There is nothing you can do to stop a draught, but bad laws and social injustice are man-made and can be

unmade by man. Its as simple as that. We can make this a better world to live in." 603 It is this crucial insight - that we are to a large extent the masters of our own earthly existence which underlies the modern wide recognition of a right of resistance.

603

Fugard A lesson from aloes 35.

CHAPTER SIX: THE STATE AND CIVIL DISOBEDIENCE I. INTRODUCTION

We now turn to the issue of how the state should respond to acts of civil disobedience. As was indicated at the outset, the objective is to develop a "flexible" theory of civil disobedience, which provides guidelines on the acceptability of such acts of protest in more and less democratic societies. Much of the terminology to be used in this inquiry was introduced earlier. Particularly important is the distinction between a right to resist in the strong sense of the word, which entails a corresponding duty of leniency on the part of the state, and a right to resist in the weak sense of the word, which does not imply the existence of such a duty. It was also argued that it is not self-contradictory to assert that civil disobedience can be morally as well as legally justified. There is nothing logically inconsistent in the notion of a moral and a legal duty of judicial officers to treat disobedients with leniency. It must now be established whether, and if so when and how, the existence of such a duty should be recognised in practice. In this chapter an attempt will be made to answer three main questions: Should democratically-minded state officials (and particularly

judges) give recognition to a strong right to engage in civil disobedience? That is, should they accept in principle that there are circumstances in which they could have a moral and a legal duty to treat a disobedient leniently? If the previous be question is answered what in the affirmative, such a it

should

established

under

circumstances

right

exists and a duty of leniency would arise. Where terms. Before these questions can be answered, however, clarity must be gained on what two points: what is the meaning of the term "democracy", and from perspective should the justification of civil disobedience be the presence of such a duty is accepted, it must be

determined how this duty could be discharged in practical, legal

evaluated?

A.

THE TERM "DEMOCRACY"

The word, "democracy" has many different meanings. 1 In this study the term is used in a normative sense to signify the absence of repression. It is taken to describe a political system in which there is (i) fu11 political participation and (ii) complete protection of basic human rights. This definition greatest implies that for democracy the entails the simultaneous, maximum protection of the interests of the group and the individual: "the happiness 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, could be however, the to two values that underlie of democracy many are

irreconcilable. Consider the question whether one persons interests sacrificed protect similar interests 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. other is At the same time it would it be a matter of courting of the disaster if one perspective were to be abandoned entirely, while the being upheld. of Because opposing entails acceptance is an simultaneous 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 as the most or fundamental. These entitlements that are in described inalienable fundamental rights, signifying validity values, there inherent

contradiction, and one could almost

say instability, in the notion of

these respects the individual may not be used as a means to advance the

See, for an overview, G Sartori "Democracy" in International Encyclopedia of the Social Sciences vol 4 112 and S R Graubard "Democracy" in Dictionary of the History of Ideas vol 1 652. See also G A Rauche "Die konsep 'derookrasie'" in Faure et al Suld-Afrika en die demokrasie 3 at 8, who regarded the essence of democracy as being its ability to accommodate conflicting views. An up-to-date discussion of the different concepts of democracy is given 1n Held Models of democracy.

welfare of others. 2 Utilitarianism is applied to the public sphere, where the interests of one person may legitimately be sacrificed to enhance the welfare of others, according to the decision of the majority. However, the above distinction between the public and the private

spheres means that each one of the principles which democracy pursues are at best partially fulfilled. Moreover, the dividing line between the two types of interests is by no means fixed. Neither Kantian nor utilitarian values can ever be said to be completely satisfied. It follows from no the above can that no government give can full be completely to the

democratic. As scarcity

long as there is scarcity - and there win always be society simultaneously effect the group. Democracy can only be an use the terms "democratic" in and

interests of the individual and reality. Consequently, to when we

ideal directive which can never be fully realised in our corrupted "undemocratic" A person is describe political minded" dispensations when he particular the optimal

societies, we inevitably mean "more democratic" and "less democratic". "democratically pursues 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.

For 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. As 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.
3

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 protection every of ones manifestation recognition of freedom of conscience integrity of or "ultimate can be concerns". protected. integrity is the not the

Clearly, However,

protection which conscience does enjoy illustrates that it is by no means incompatible with democratic theory to claim to have the right against govern-mental interference in what is believed to be matters of integrity. Most of the other rights recognised in the human rights instruments of the world are intended to protect the weak from different kinds of exploitation - from being used in certain ways for the benefit of those in positions of dominance in society,. They counteract the corruptive effects of power. In a majoritarian system they protect the minority from the majority. It is consequently also not incompatible with democracy to claim to have a right against what one believes to be governmental exploitation. As a general rule, the same does not apply in respect of matters of policy - that is, issues where neither integrity nor exploitation are at stake. At least where majority rule prevails, it is accepted that all members of society should obey the decisions of the authorities in respect of policy issues. Policy decisions are completely in the hands of the majority. The minority holds no veto in this regard, because there is no danger of repression. This is particularly evident in respect of matters of policy, where the interests of every member of society are equally at stake. At most it may be said in such cases that measures introduced by the government are misguided or even recklessly stupid, but they cannot be repressive, because the majority cannot repress itself. In such cases the minority has no distinct interest in restraining the majority - it is accepted that the majority will restrain itself. A minority that aspires to restrain the majority in respect of the letter's own self-interest, implies that it knows better what is good for the majority. For want of a gender-neutral word, we might call their conduct "paternalistic". Traditionally, democratic theory does not recognise paternalistic

rights. The recognition of human rights should be seen as a device whereby is protected against other persons - not against himself. However, modern developments seem to suggest that this general rule is subject to exceptions. To a limited extent, the function of the recognition of human rights can also be to protect those who rule against themselves. To some extent paternalistic rights are now-a-days recognised. This is revealed most clearly
44

by

the

wide

recognition

presently afforded to environmental rights.

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, of therefore, policy might that also under form the certain basis circumstances of inalienable

considerations

rights. Where there is an impending global disaster, individuals can obtain rights that could constrain the majority in the latters 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

0n 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. The 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.
5

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
7

type

of

resistance those establishing society would have allowed. 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

6 7 8

See Rawls A theory of justice 152ff. See supra chap five I 0.

See Gandhi Non-violent resistance 20. On Nehru's position on civil disobedience after his own assumption of power, see Brownell American Criminal Law Quarterly 1964 27 at 29.

themselves make the

what

approach

would

on

the

one of

hand the

not

undermine of

the this

individual's conscience and country

most basic interests, but on the other not Because neutrality

ungovernable.

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 in the will be once the veil will of ignorance on a is lifted, of participants original position insist right

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 Neros Rome, a Jew in Hitlers 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.

Using 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. See New York Times Magazine 26 Nov 1967. See also Lewy Western Political Quarterly 1960 581.
10

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

See 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
12 13

11

See Sherr Freedom of protest, public order and the law 15.

Cohen Civil disobedience 85, for example, argued that considerations which apply in favour of the civ11 disobedient - "the abscence of selfishness, the candor, the moral Integrity" - are outweighed by those that count against him - the fact that "he breaks the law knowingly, and perhaps with a defiant spirit." Civil disobedience should, consequently, neither be treated leniently nor harshly. It is submitted that this approach does not take into account that the acceptability of acts of civil disobedience may differ from case to case.

really turned on individual conscience, it is hard to see in law how Or King is better off than former Governor Ross Barnett, of Mississippi, who also believed deeply in his cause and was willing to go to jail." 14 To put this point even stronger: If personal convictions were to be the ultimate criterion of criminal liability, the murderer in the public square, who sincerely believes that he has to exterminate members of a certain race, will go out scott free. Convictions and even conscience are radically subjective, whether based on ones 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

14 15

Marshall Virginia Law Review 1965 785 at 800.

See Cohen Rutgers Law Review 1966 1 at 12. Thoreaus 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 goodnatured 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. 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 16

Cox v Louisiana 397 US 559 (1965) at 584. (Black J, dissenting.)

Those who fear such eventualities - and this not only include some of those who have to evaluate civil disobedience, but also some who practised it, like Socrates and Gandhi - see punishment as a necessary consequence of civil disobedience, even though they might recognise that a particular act of disobedience may be justified. They maintain that if someone disobeys a particular law, respect for the legal system as such, or at least law as an institution, can be preserved only if he is punished. The martyrdom of the person concerned in such cases ensures that respect for the law is maintained, and this is the price one has to pay for following the dictates of ones conscience. If acts of civil disobedience were treated with leniency by the

authorities - it is argued - that which is supposed to be the forces of order would undermine themselves. If law does not respect itself, as evidenced by reluctance in punishing those who transgress its commands, how can the subjects be expected to do so? No system can sanction its own demise. There can be little doubt that, if all acts of civil disobedience were to be tolerated, it would indeed make the country ungovernable. 18 Consequently, the observation of Hugo Bedau that "[t]here is no logical reason why every law could not have a rider to the effect that anyone who violates it and on conscientious
19

grounds

shall

be

exempt as that

from

prosecution it does not

penalty,"

is

unacceptable. nor is there

However, evidence,

Dworkin it win

observed, "[s]ociety 'cannot endure' if it tolerates all disobedience; follow, however,

20

collapse if it tolerates some." In what follows, it will be

argued

that

society

could

and

should

tolerate some acts of civil disobedience precisely to preserve respect

The 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. See Bedau The Journal of Philosophy 1961 653 at 655. See also Walzer Ethics 1966/67 163, who expressed the same opinion.
20 19

18

Dworkin Taking rights seriously 206.

for

the

law.

The of

question civil

about

the

criteria should be

in

terms

of

which from

acceptable

acts

disobedience

distinguished

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 peoples 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
22

alienate

some

of

society's

most

thoughtful and loyal citizens. dissentient minorities, harms

As Alien observed, a country "whose itself by a too percipitous

interest lies in lessening rather than increasing the alienation of its chiefly 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

21 22 23 24

United States v Sisson 297 F Supp 902 (1969) at 909. Dworkin Taking rights seriously 207. Alien University of Cincinnati Law Review 1967 1 at 12.

See 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).
25

See supra chap three III A (3)(c)(iii).

legal

system

resulted

through

its

use

as

an

instrument

for

the

repression of popular dissent. It should be noted that, in order to ensure a more responsive legal system, a host of social causes are commonly considered as constituting good reasons for not unleashing the full power of the state against individuals who have transgressed its commands. Examples in this regard include the imposition of light sentences for crimes committed for altruistic reasons, and in cases where the offender is of a tender age. In this way, law may be adjusted in order to accord with the moral convictions of society. 26 There seems to be no reason why the same cannot apply in respect of certain cases of civil disobedience. Giving recognition to civil disobedience can also serve as an important mechanism that would promote reform in society to be initiated from below; that is, from the grassroots level. Self-help has always been one of the prime sources of law in its early development, and as long as society remains in a developing stage, it is inevitable that selfhelp 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 people. secure
27

to

impose

externally

determined

patterns

of

behaviour

on

Self-help is often the most reliable indicator of what people acceptable level of peace and tranquility in society.

see as their most basic Interests that have to be protected in order to an 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-

26 27

See Dworkin Taking rights seriously 206

Johan 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 dustpaths developed on the lawns. To some extent law has to be retroactive, and accomodate society's natural flow. As 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. Ferreira SAPL 1987 158 argued that civil disobedience should under certain circumstances be regarded as a legitimate form of self29 28

help, law has to avenge violation of peoples 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.

30 31 32

See supra chap five III. See Weber Civil disobedience in America 300. Arendt Crises of the republic 81.

influenced the British to live up to their reputation of fair play and the Civil Rights Movement induced the American government to make true the promises of the United States Constitution. By exposing injustice in society and demanding more humane conditions, civil disobedience can, in the words of Charles Black, "help the law in quest of itself". 33 In this way breaches of the law can ultimately make law more credible. In some cases, lenient treatment of civil disobedience, then, can

enhance instead of undermine respect for the law. Through a sensitive treatment of protest, law can come out on the right side of history, namely if it accommodates rather than annihilates an idea for the realization of which the time has come. Allowing too little tolerance of civil disobedience can undermine respect for the law, just as much as would be the case if too much tolerance is shown. In a society where civil disobedience is a viable option it can also serve a variety of other social causes. For example, civil disobedience can jolt the national debate on a particular subject into action. Often a dramatic catalyst is needed to set in motion a process of social change which is long overdue. An input from outside the established structures is needed to "jumpstart" the process of reform, where the social system is incapable of regenerating itself. In such cases illegal action serves a vital social function. If it is treated too harshly, this might not occur. It is not typical of those who on behalf of the state prosecute

offences to defend illegal behaviour. Nevertheless, Archibald Cox, a former Solicitor-General of the United States, stated that [s]ocial protest and even civil disobedience serve the law's need for growth. Ideally, reform would come according to reason and justice without self-help and disturbing, almost violent, forms of protest ... Still, candor compels one here again to acknowledge the gap between the ideal and the reality. Short of the millennium, sharp changes in the law depend partly upon the stimulus of protest. 34

33 34

Black Texas Law Review 1965 492 at 494.

A Cox "Direct action, civil disobedience, and the constitution" in Cox et a1 Civil rights, the constitution, and the courts 3 at 22. His sympathy, however, was confined to acts of legality-based civil disobedience.

In

many

instances,

toleration

of

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 should, and creative the force." 37 they Clearly, attach to then, the authorities through sanctions 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

Quoted 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.
36 37 38

35

See Fortas Concerning dissent and civi1 disobedience 40. See Weber Civil disobedience in America 211.

Studies have also indicated that, apart from the alleviation of the direct causes of protest, there have been substantial reductions in general crimes of violence in communities engaged in civil disobedience. See HacGuigan The Canadian Bar Review 1971 222 at 265.

social tensions which need to be addressed. 39 In many cases, civil disobedience does not
40

create

but

rather

reflects

the

underlying

conflicts in society.

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 nonconformity 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" unchallenged, for what and it it "government". 41 is is, experienced only if While as it political and authority Order is remains natural is

necessary, and the fact that it can be improved recognised

becomes obscured. 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

See 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.
40 41 42

39

See Heyns Teologiese etiek part 2/2 166. See Calvert Revolution 16.

N P v W Louw "Lojale verset", reprinted in Louw Versamelde prosa part 1 65 at 66. For 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.
43

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

0n this defence in Roman law, see Daube The Law Quarterly Review 1956 494. On the South African criminal law, see Snyman Criminal law 104. This 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 nonmilitary applications. See R v Albert 1895 SC 272. See 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. On 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. The Nuremberg approach was more lenient than was required by the law of war, in the sense that the possibility was recognised that
48 47 46 45

44

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 ones country. 49 Of particular significance in respect of the South African situation is the fact that apartheid was
50

declared

crime

against

humanity by the international community.

There is a dark argument which could be used to support the imposition of punishment would for civil that the disobedience. it was imposition It of could be maintained the that that of civil history leniency reveal through precisely through absence

martyrdom

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.
49 50

See also Fedorenko v United States 449 US 490 (1981).

International Convention on the Crime of Apartheid G A Res 3068 (XXVIII) of 30 Nov 1973.

to speak, "nationalise the revolution", if they think the revolution is justified. As indicated earlier, all civil disobedience need not involve

martyrdom. By tolerating the conduct of those who pursue what appears to be deviant causes, a legal system can in appropriate cases, to some extent accommodate and internalise those values. In view of the above, it is submitted that a strong right to resist should in some cases be recognised. However, even if it is agreed that in some cases a strong right of resistance should be recognised, some might feel that this does not apply in democratic systems. Several commentators maintained that the right to disobey the law "is not obtainable at all in a parliamentary democracy, although different considerations arise under a totalitarian rgime." 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

Francome 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. See 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. Lipproan emphasis.)
53 52

51

Washburn

Law

Journal

1987

233

at

238.

(Original

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
57

of

human which

rights. could

In

all

societies

there

are

instances

repression

potentially

justify

civil

disobedience.

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

54 55 56

Id 239. Martin Ethics 1969/70 123 at 129. This argument was discussed - and rejected - supra chap five I EE

(1). See also Sibley Journal of tha Minnesota Academy of Science 1965 67 at 72.
57

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 that the democrats have solved the problem of democracy suggests 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 main question basis a distinction may be drawn between acceptable and unacceptable acts of civil disobedience. We now turn to the second 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

58 59 60

See Weingartner Columbia University Forum 1966 38 at 44. Martin Ethics 1969/70 123 at 135. Weingartner Columbia University Forum 1966 38 at 42, for example,

The idea that the injustice of a law can dissolve the obligation to obey that law, is in line with the often-quoted maxim of Augustine, referred to earlier, that an unjust law is no law at all. The injustice of a law, in modern terms, is defined with relation to compliance with the norms of human rights. It is submitted that the recognition of a right of resistance is

inextricably linked to the idea of basic human rights, because human rights define the limits of the legitimate powers of governments. The point is best put in the form of an apparent contradiction: someone has a right to resist if his inalienable rights are being alienated - that is, if his fundamental rights are right to do this and being violated. No government has a as well as non-majoritarian 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 disobedience. These conditions are "formal" in the engage in civil sense that the against - is

merits of the protest - the justice of the law objected civil disobedience is engaged in only in exceptional cases.

not taken into account. Where applicable, they serve to ensure that

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." See 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." Oosthuizen The ethics of illegal action 12 saw the criterion for legitimate resistance as "the dignity of man" and "his universal rights".
62 61

resist

the

right

of

political

participation

is

considered

to

be

merely one of a wide array of basic could justify resistance.

rights, the violation of which

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

63

See Corbett SALJ 1987 52 at 67.

of

the

original

position.

Internationally

accepted

definitions

of

inalienable rights provide perhaps as close an approximation of those values which could legitimate disobedience and that people would accept from behind a "veil of ignorance", as one might expect to find. The bills of rights of the world are in a sense simply an index of those interests, the violation of which would be regarded, according to the boni mores of the world community, as a legitimate basis for resistance. The substantive criterion of the boni mores operates well where there is national and international consensus as to the demands of justice. The problem, however, is that civil disobedience mostly occurs where there is no agreement about the boni mores in this regard. Even if everybody were to agree that one should be able to transgress wicked laws with impunity, the point is that agreement seldom exists as to the question warrant whether such of or the not a specific Is a law and is if sufficiently right so, is the wicked in to the transgression. 64 basic violated

circumstances

particular

case,

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 a formal wholly .criteria. insufficient However, basis by for themselves these criteria provide

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

64

See Dworkin A matter of principle 106.

be tolerated. On what basis should the distinction then be made? One possibility is that judges and other decision-makers could simply rely on their intuition. This would inevitably mean that in order to be able to make the necessary distinctions they will fall back on their own subjective concept of values. In such cases the scope of the right to resist would depend entirely on their own biases, resulting in arbitrary judgments. This should not be taken as minimising the importance of intuition. However, the scope for discretion is so wide, and the consequences so immense, that it seems imperative to find some guidelines that could be applied in this regard. In cases of legitimate uncertainty about the merits of a particular law, an alternative substantive criterion will have to be found. Moreover, it win be argued that some of the formal criteria posed by traditional theories of civil disobedience are inappropriate in respect of certain types of resistance whether or not certainty exists about the merits of the particular law in question. 65 (2) The secondary, alternative criterion: The types of convictions involved Inasmuch as the boni mores do not serve as a dear, substantive

criterion, an alternative inquiry should be undertaken for establishing which acts of disobedience are acceptable and which are not. Developing an idea of Dworkin, it is submitted that the determining question in such cases ought to be to what extent the type of claim made by the protester can underlie basic rights. 66 If it should be found that the type of claim (irrespective of what is being claimed) can in principle underlie basic human rights, this would point toward leniency. If not, leniency would be inappropriate. The above is subject to the condition that the formal criteria have been satisfied. Since posing such an alternative, substantive standard does not involve an investigation, into the merits of the particular law or governmental act in question, but the type of convictions involved are nevertheless taken into account, this approach could be described as semi-content-

For 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).
66

65

See Dworkin A matter of principle 106ff.

neutral. Three types of disobedience were identified earlier with a view to the type of conviction involved, or, to put it differently, the type of claim which was being made: Integrity-based belief that a civil disobedience, law which is motivated one's by the

particular

compromises

"ultimate

concerns" (either religious or secular). Anti-exploitation are being civil by disobedience, the rulers; which that is is, motivated the rulers by a

conviction that certain groups or individuals in the community exploited 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) In Integrity-based civil disobedience the case of integrity-based, defensive civil disobedience, the

protester refuses to obey a particular law because it requires him personally to act in a way which conflicts with his most basic beliefs. He is expected either to become an instrument of what he considers to be evil (for example, the government requires him to pray to a foreign god) or to refrain from what he regards as imperative (for example, the law might require him to stop praying to his own god). He does not expect society to share his convictions but wants to be left at liberty to practise his most fundamental religious or secular beliefs. Such acts of civil disobedience are inevitably direct, in the sense that only the law which -is considered offensive is violated. The following are also examples of this type of disobedience: Refusing to participate in mandatory racially discriminatory practices; refusing

to salute a flag if one believes it to be prohibited by one's religion; refusing to fight in a war which one considers to be unjust; altogether refusing to participate in military activity if one is a pacifist, etc. As indicated in the chapter on classical views regarding political resistance, this type of disobedience has the longest history of recognition in Western political culture. It is exactly this type of resistance which was defended, and indeed propagated, in the StoicChristian tradition and which constituted the basis on which Western notions of justified resistance are developed. Majoritarian not to and nontheir majoritarian governments generally expected force

subjects to betray their ultimate concerns. Although absolute protection of every kind of belief is not possible,

it should be clear that, in as much as this is compatible with the reasonable expectations of others, there will be the highest degree of sympathy for this type of disobedience in the original position. As indicated earlier, no one in the original position knows what her "ultimate concerns" are going to be. No one would want to find herself in a situation where she is expected to betray her ultimate concerns. Following the "maximin" approach, those in the original position would want to give as much protection as is possible to matters of integrity - although, as indicated earlier, they would not pursue this objective to the point of making the country ungovernable. Consequently, the greatest measure of leniency should be shown for this type of disobedience. It will be illustrated shortly that, because of the categorical nature of integrity-based disobedience, almost all the formal conditions of justified civil disobedience that apply in other cases should not be required in respect of this form of disobedience. In spite of the way in which it is often perceived, most of the actions of protest in the Defiance Campaign in South Africa and the Civil Rights Movement in the United States cannot properly be depicted as integrity-based. Specific laws were disobeyed in artificially created circumstances. The protesters "went out of their way" to break the law. No one has a general moral duty to seek out and disobey laws considered to be unjust. 67 This is not to deny the legitimacy of these actions - it is merely being claimed that they do not belong to the category of

67

See Dworkin A matter of principle 107.

resistance

with the

highest grade of legitimacy.

Those who refuse to pay taxes as a means of registering their protest against the application of state funds, also often represent their actions as integrity-based. In principle, this representation is valid, insofar as its protagonists are expected to fund activities which they regard as reprehensible, but it should be noted that the connection between the act of disobedience and the eventual use of the money is rather remote. Consequently, the latitude which integrity-based civil disobedience solicits could only be applicable in scaled-down form to the refusal to pay taxes. The fact that one is here dealing with defensive integrity-based

protest is important. Very little latitude -it is submitted - will apply to cases of result-oriented integrity-based disobedience, where one endeavours to change the world according to one's own beliefs. Other persons might have equally strong views on the same subjectmatter which should also be respected. 68 (b) Anti-exploitation civil disobedience resistance, 69 which is normally result-oriented,

Anti-exploitation

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.

An 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. Dworkin'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.
69

68

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 are the not interests "ultimate protected by anti-exploitation the same civil

disobedience

concerns",

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

On exploitation, democracy and civil disobedience, see Ackerman Social justice in the liberal state 299.

70

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) The Policy-based civil disobedience objective of this type of resistance, which is also normally

result-oriented, is to persuade those in power to change an aspect of the communal life that cannot be regarded as destructive of integrity, or exploitive, but which nevertheless is to the disadvantage of either a section of the community or the community as a whole. The presupposition is that the government is acting in an unwise or perhaps even recklessly stupid manner. Examples in this regard would be protests against a government decision to import maize because it believes that the locally grown crops would be insufficient to provide in the country's demand, or against a law requiring motorists to drive on the right hand side of the road instead of on the left.

In general, of all the instances of civil disobedience this variety can be expected to provoke the least tolerance. The urgency which attends the other cases and make self-help mandatory, is not present in this instance. Especially disobedience democracy in is can a act system without of majority As a in rule, its this the pursuit form of of civil in a of

problematic.

general

rule,

majority

restraint

matters

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 and in the latter's can own in interest. principle While concerns basic about human integrity rights, and as exploitation of policy rule it underlie civil

issues a

cannot. should

Policy-based be

disobedience, The

therefore, challenges the principles of democracy in a fundamental way, general considered unacceptable. 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 antiexploitation 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 policybased act of civil disobedience. Since the protester himself, in the latter case, does not raise the issue of the legitimacy of the system, but merely object to what he regards as an issue of policy, it could be

expected that considerations of public order override the right to resist. Even in non-majoritarian systems certain types of claims should be regarded as less legitimate bases for resistance than others. It is important to note, however, that insofar as there is consensus that a particular irrelevant. Perhaps the most controversial contemporary examples of what on the face of it appears systems to are be policy-based civil and disobedience in majoritarian illegal anti-nuclear pro-environment regime is unjust or even wicked, the primary criterion suggests a general right to resist and the alternative criterion is

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
72

environment should be regarded as a basic and inalienable right. that those in power are acting to the detriment of the

The

primary rationale behind the recognition of such a right is the belief 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 be against accepting that such protest could be legitimate cannot

Dworkin A matter Philosophy 1986 24

72

71

of

principle

111.

See

also

Norman

Radical

See supra chap six I A.

accepted. The principle that necessity justifies self-help, which is almost

unversally accepted in the legal systems of the world, suggests that if the ultimate threat - the destruction of the world as we know it - is in fact present, not even the majority can constrain the minority. At some point, the minority should be allowed to free itself from a selfdestructive 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 antiexploitation civil disobedience. As far as the interests of the present generation is concerned, it falls under the "global disaster" exception to the general
75

rule

that

policy-based

civil

disobedience

is

unacceptable.

73 74

See Rawls A theory of justice 128.

See the discussion of the literature on this topic by Labuschagne JCRDL 1984 334 at 337ff and Labuschagne S Bekker Obiter 1986 33 at 48. Without 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 proenvironment disobedience: In cases of policy-based civil disobedience, one has to take into account the concerns which those in power seek to
75

(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 concerning the boni mores might in this activity on the exist, one

grounds that he is a secular pacifist. Insofar as uncertainty instance 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 selfinterest and not by conviction. If that is indeed the case, it should not be regarded as a form of civil disobedience at all. Civil disobedience is per definition based on conviction. Someone breaks the law to demand the right of a group of people

balance. In the case of pro-environment disobedience, conservation and progress must be weighed and balanced. An imminent disaster is weighed up against a reduction in development. In such a case, a measure of paternalism might be justified to highlight the danger. In the case of nuclear deployment, the governments concerned are balancing the dangers of unilateral disarmament against the dangers of taking part in the arms-race. In other words, they were balancing two global disasters. In that circumstance, the positive contribution of civil disobedience is not all that clear, and paternalism seems less acceptable.

who share his convictions to secede, and to form their own state - in a small and desolate part of the country. His claims could possibly find support in the current secessionist movements in many parts of the world. However, insofar as there is uncertainty in the legal convictions of the community with regard to his demands, it civil should be treated as an example of anti-exploitation which suggests leniency. Insofar as disobedience,

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 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-, be no

See, however, on secession along racial lines under international law, Van der Vyver Emory International Law Review 1991 9, especially at 90.

76

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 wellestablished social group. In what follows, (that the is, extent assuming to all which else each to consideration, be equal), seen in the

isolation

affects

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 illegal ones, even if one is subjected to a not be taken to measure of certain

See 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.

77

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 direct are expected to for exhaust the other reasonable of civil

alternatives

has

implications

tenability

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 does not provide it a realistic cannot be prospect excluded of relief. Although simply civil disobedience can more readily be justified where universal franchise exist, completely 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

78 79

See Dworkin A matter of principle 108. See eg Singer Democracy and disobedience 1.

mechanisms such as referenda may be resorted to when contentions issues are to be resolved, however, indicates that where legitimacy is really at stake direct participation is still the most appropriate form of decision-taking. The less frequent elections are, the more restricted are the channels by which citizens may express their grievances; and the less responsive the political system turns out to be, the more restricted is one's duty to obey the dictates of the powers that be. As stated earlier, the fact that one has not participated in the

enactment of a particular law does not necessarily rule out a duty of obedience, while, on the other hand, participation in the law-making process does not dictate an absolute duty of obedience. It would be more correct to assert that participation does add to legitimacy, while absence of participation derogates from the system's entitlement to moral support. It seems clear, however, that this issue should not affect integritybased 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

80 81

Williams v Wallace 240 F Supp 100 (MB ALA 1965) at 106

Fortas Concerning dissent and civil disobedience 63 maintained that indirect civil disobedience could never be justified. See, however, Walker v City of Birmingham 388 US 307 (1966), where he held the opposite.

disobedience, transgressed absence of

the and

absence the

of

natural pursued is the

link could focus

between detract of one's

the from

law the

objectives action in civil equal,

justifiability of disobedience. In some cases, for example where the governmental cannot else than engage being indirect protest, However, is more civil protesters everything acceptable direct direct civil civil
82

disobedience. disobedience because

disobedience,

indirect

disobedience involves an element of randomness. 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
83

and

anger

in

the

government and public and provoke a backlash. worsen the situation chance to if that of is protest substantially, success. against likely the to or, at

It has therefore been least, of even if it has not by abuse no be the or

said that civil disobedience cannot be justified if it is likely to reasonable practised authorities retaliation. From the perspective of decision-makers, however, this consideration is largely the irrelevant. into be It would hardly the make sense to The suggest only is that disobedience should be treated harshly because it is likely to provoke authorities would increasing case repression. possible likely to exception the where civil disobedience Civil disobedience in should greater

treatment result

prisoners

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

82 83

See also MacGuigan The Canadian Bar Review 1971 222 at 264. 155 and Dean The Western

See eg Cohen Civil disobedience Political Quarterly 1955 601 at 605.

threatens

state

security. 84

This

open-ended

statement

needs

closer

definition. Reference was made earlier to the fact that civil dis-obedience,

although it might be intended to bring about positive changes, can degenerate into anarchy, or at least increase the level of lawlessness in society to an unaccep-table level. Charles Black argued that "[i]f every man and every group used all the room the federal law gave it to clash with local custom and local authority, the resulting dislocation would jar our
85

states

and

our

towns

to

the

point

of

virtual

fragmentation."

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
86

the

legal

order

breaks

down

and

widespread lawlessness sets in.

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
87

the

law.

Consequently, groups can case and also its

Rawls a need

required to with

a an

political their be external also

understanding efforts. (unrelated)

amongst

such

co-ordinate would

Civil

disobedience in which

coincide

threat,

justification

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 Cooper 88 "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

84 85 86 87 88

See Ackermann Die reg insake openbare orde en staatsveiligheid 3. Black Texas Law Review 1965 492 at 500. See Schuyt Recht, orde en burgerlijke ongehoorzaamheid 353. Rawls A theory of justice 375. 1976 2 SA 875 (T) at 878.

authority." threatened disobedience.

According by the

to

this of

approach,

state

security

would with

be

kind

turbulence

often

associated

civil

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
91

which

was and

emphasised even a

by

Socrates of

in

the and

aforementioned self-help in

debate. strife,

One such approach gives explicit recognition to the role of conflict degree "unrest"

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

See eg Venter JCRDL 1977 233 at 233, who defined state security as "(the] prevention of the lapse of the existing constitutional disposition".
90 91

89

See supra chap five I B (1).

Johan 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. See 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.)
93 92

See Du Plessis JSAL 1985 233 at 234. 94.

approach, rioting and acts of civil disobedience are seen as largely symptomatic of underlying threats to public security; namely the lack of authority of the basic institutions of the state. It is accepted that the long-term interests of the legal system could sometimes best be served by not insisting on enforcing the letter of the law. The polemos - approach fits in with the plurality of values recognised in the the earlier descriptions To of the away original position and a in the definition of democracy, and which suggests that strife is inherent in human condition. wish conflict, reflects 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

94 95 96

Dahrendorf Essays in the theory of society 150. See Held Models of democracy 298.

See supra chap two III. See also Fortas Concerning dissent and civil disobedience 30, who maintained that the civilly disobedient "seeks changes within the established order". Keeton Texas Law Review 1965 507 at 508 argued that he must "act within the framework of the

fundamental change per se: at least not if such change can lead to greater democracy. They are against fundamental change in a society which is already democratic, because that could only entail a move away from even liberal though values. 97 it could However, cause in highly unjust in societies society, it is in conceivable that revolutionary civil disobedience is legitimate, and temporary turmoil those 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 afford course tolerance before towards Africa. It is often argued that in It is argued of the that temporary of times of great social dislocation and transition social systems cannot defiance. such as restraints are needed to get the "ship of the state" on the right luxuries tolerance expression 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 dissent. to It this is rationalization difficult to for get the rid suppression of of political very 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 transition. (6) Some Approach of the protesters regarding punishment commentators maintain that a positive disposition towards the extent on its preservation during the process of

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". See Bedau The Journal of Philosophy 1961 653 at 659 and Martin Ethics 1969/70 123 at 125, 131.
98 97

For a discussion of these views, see G J Schochet "The morality

It is submitted that a distinction should be drawn between accepting the penalty in a passive way, in the sense of not resisting punishment through illegal means (for example by covering up evidence or fleeing), and actively insisting on punishment (for example by pleading guilty, supplying evidence and asking for the maximum sentence to be imposed). It was argued earlier that accepting the penalty is part of the

definition of civil disobedience, in the sense that it is required by the element of openness. 99 Insisting on punishment, however, is not to be regarded as part of the definition of civil disobedience as such. The question must now be asked whether it is essential for the justification of civil disobedience. It is hard to see why that should be the case. The only reason for this could be if it was necessary for the preservation of respect for the law. It was argued earlier that there is no reason to believe that legal systems cannot tolerate non-sacrificial civil disobedience and that there is are not indeed in is good reasons of to insist that conduct they should. to the Martyrdom legal all instances to illegal required and that

restore respect for the law. To claim that it does, seems to imply that obligation similar religious obligation, 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'."
99

See supra chap two I C.

It should also be noted that because this element affects conduct after the event, it is the only purely formal consideration that can possibly apply to both integrity-based and anti-exploitation disobedience. (7) The level of coercion involved

It was stated earlier that civil disobedience is per definition nonviolent, but it can involve a measure of coercion. If the level of coercion constitutes the only difference between two acts of antiexploitation 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 of that it is something will which also requires be more explanation. difficult to Coercion disinterested parties

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 upon disobedience the body is to to "address the its sense
100

of

justice" The aim

of is

the to

government or those who control the government. politic reconsider

It purports to call

position.

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

CJ Rawls "The Justification of civil disobedience" in Beauchamp Ethics and public policy 132 at 138.

100

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 antiexploitation civil disobedience. (9) The question whether or not the protesters are members of a wellestablished 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 such as individuals Calvin, was met, to on which the reference protest was made earlier, from supports this claim. Especially writers in the Christian tradition, have insisted being initiated within established structures. As a general rule, those who accept the discipline of a well-established social or religious group 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, the one is dealing attitude with was integrity-based by an disobedience. Presumably state's influenced would more readily integrate into society than the ones ho are not part of any

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 regard a with its own discipline. as Those are who, more for secular reasons, and particular war unjust individualistic

subjectivistic - and consequently more difficult to govern. Although it is submitted that this consideration should not be decisive in respect of military service, its general validity cannot be denied. C. CONCLUSION

To summarise the above: As a basic point of departure, the question whether a strong right to resist should be recognised in a particular case, should be made to depend on the substantive criterion of the national and international consensus on the merits of the laws objected against, and in particular on the question whether fundamental rights are violated, as well as compliance with certain formal conditions. Insofar as the boni mores provides no clear answers, the alternative

substantive criterion should be applied. It should be asked what type of conviction is involved, and whether that type of conviction can in principle underlie basic human rights. In addition to the above, certain formal conditions should be posed in appropriate cases. By applying the two substantive tests and comparing different acts of civil disobedience, one should eventually be able to find the appropriate equilibrium and establish which acts of civil disobedience are more deserving of leniency. Does the absence of a basis for leniency imply that the protesters concerned Dworkin, imposition should a of necessarily punishment be is treated not the harshly? As indicated for by the that necessary, although sufficient, utilitarian
101

condition

requirement

retributive action should serve a certain goal.

Punishment should not

be imposed if it is more likely to hurt society than to benefit it. In some cases where the application of the approach suggested above points away from leniency, ongoing political processes might dictate leniency and overrule the case for harsh treatment. IV. THE LAW AND LEGITIMATE CIVIL DISOBEDIENCE

The third, and final, main question to be addressed in this chapter is: How should the duty of leniency be discharged in practical, legal terms, where the existence of a strong right to resist is recognised? Up to now the discussion proceeded largely on the assumption that the state is a monolithic unit, in the sense that the appropriate response of all its components to civil disobedience would more or less be the same. The impression was also perhaps created that acts of civil disobedience are either completely legitimate or not justified at all. In other words, there is either a moral duty of absolute leniency, or no such duty whatsoever. A more nuanced approach is now called for. It should be recognised that the executive, legislative and judicial branches of government all function in different ways, which means that their responses to acts of civil disobedience should differ. There are also many different degrees of justification of civil disobedience, or absence of justification. Greater or lesser compliance with the standards set out above requires greater or lesser leniency.

101

Dworkin A matter of principle 114.

The differences between the various branches of government will first be considered. The legislature, in the nature of things, has to establish rules which for the greater part affect the future conduct of the public at large. This means that it can only pose the most general criteria. As demonstrated earlier, however, the proper treatment of civil disobedience requires a highly individualised consideration of the facts of each particular case. The tool of legislation is simply too blunt for this delicate challenge. Consequently, neither legislative requirements of the imposition of minimum sentences for acts of civil disobedience, nor the proposal that all statutes make provision for legitimate conscientious objection to their requirements, would make.sense. 102 Courts, on the other hand, evaluate facts after the event. Although their treatment of past cases also create precedents for the future and a certain degree of generality is consequently required, they have access to the facts and circumstances of individual, concrete cases, and safe therefore in a much better position than the legislature to evaluate acts of civil disobedience. Given the general standards of illegality institution in to the particular system, a which defines the "primary should be offence", it is submitted that the courts are the most appropriate determine whether particular protester 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

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.

102

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
104

options

open

to

judicial

officers

when

evaluating such actions.

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 the who deliberately conditions for violated a salutary law or disregarded formal 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

See Dworkin Taking rights seriously 207 and Alien University of Cincinnati Law Review 1967 1 at 16. For 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. For 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. The classic exposition of this debate is contained in Wacks SALJ 1984 266 and Dugard SALJ 1984 286.
106 105 104

103

regards

enforcing

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 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

movement with an important

moral victory, and moral victories are after all the primary objective

and

See 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.
108 109 110 111

107

See Tribe The Yale Law Journal 1974 1315. See eg S v Adams 1979 4 SA 793 (T) at 801. See supra chap three III B (1)(a).

The fact that (part of) the motive of the accused was his convictions and not simply his own self-interest should in many cases serve as a mitigating factor. See Freeman Indiana Law Journal 1965/66 228 at 246 and Hall Ethics 1970/71 128 at 133. On the United States history in this respect - often not a happy one - see Lippman Washburn

even

finding
112

that where

the that

accused's is

conduct a

did

not
113

constitute the

an

offence,

or,

relevant,

finding

that

person

concerned is a "fit and proper person" to practise law.

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 or detail, similar save to say laws that through might "constructive seem highly interpretation" measures which

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 as of the necessity defence free to acts of civil two disobedience; the other is the possibility of treating acts of civil disobedience constitutionally protected speech. These 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 ones own hands in order to protect a higher interest. Where the defence of necessity applies, the law that has been broken is not nullified particular its operation That is merely suspended of the in law respect in of that is case. particular breach question

Law Journal 1987 233 at 251. It was argued earlier that a legal right to engage in civil disobedience is not a contradiction in terms. See supra chap two I A.
113 114 112

See supra chap four III.

For an overview of Dworkins views in this regard, see E Murefnik "Dworkin and apartheid" in Corder Essays on law and social practice in South Africa 181.

"excused". The defence therefore acknowledges that the law itself can sometimes justify non-compliance with the law. The similarity of the necessity defence and the circumstances that inspire civil disobedience is obvious, and an argument that acts of civil disobedience may be legally justified on this basis clearly commends itself. As will be demonstrated, many of the requirements to justify civil disobedience posed earlier also apply in the case of successful appeals to the defence of necessity. Advancing generation the of necessity civil defence particularly who do not appeals share to the the new

disobedients,

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 the the past few decades, protesters in in the its United common States law or have its

During invoked

necessity

defence,

either

statutory form, to escape liability for acts of civil disobedience. This was first done by anti-Vietnam protesters 116 and later by members

See supra chap three III A (3)(c)(111). Eckerstrom Stanford Law Review 1987 1173 at 1176.
116

115

See

also

Bauer

&

See eg United States v Malinowski 472 F 2d 850 (3d Cir), cert denied. 411 US 970 (1973); United States v Simpson 460 F 2d 515 (9th Cir 1972); United States v Kroncke 459 F 2d 697 (8th Cir 1972) and United States v Moylan 417 F 2d 1002 (4th C1r 1969), cert denied. 397 US 910 (1970).

of the anti-nuclear movement. 117 More recently, protesters charged with trespass at South African diplomatic missions in the United States have also raised the defence. 118 In the vast majority of these cases, courts excluded the defence on the basis that the accused had failed to bring adequate evidence to enable a jury to find in their favour. However, the courts have accepted in principle that the defence is available to political protesters. 119 The necessity or "choice of evils" defence in American law gives

expression to the idea that "the law ought to promote the achievement of higher values at the expense of lesser values." 120 The elements for successfully relying on necessity under the United States common law may be discussed under the following four headings: (a) Relative severity of harm

The harm to be avoided must be greater than the harm caused by the defendant's illegal activities. 121 This "balancing of evils" requirement normally single, does not pose substantial of difficulties the law is to the civil against disobedient, especially where the possible harm which can flow from a non-coercive transgression weighed commonly perceived evils, such as a nuclear war, nuclear accidents or being "contaminated" by one's involvement in practices of apartheid. 122

See 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).
118 119

117

See infra chap six IV A (i)(d).

The 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.
120

See Wride The University of Chicago Law Review 1987 1070 at See Bauer & Eckerstrom Stanford Law Review 1987 1173 at 1182 Lambek Yale Law and Policy Review 1987 472 at 477.

1072.
121 122

(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;
125

and

by

release

of

information to the media, to name only a few." 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) The Imminent harm 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

See 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.
124 125

123

741 F 2d 1031 (7th Cir 1984).

At 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).
126 127

See Bauer & Eckerstrom Stanford Law Review 1987 1173 at 1180.

See 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.
128 129

See Lambek Yale Law and Policy Review 1987 472 at 483.

In Commonwealth v Berrigan 501 A 2d (1968) at 229. In S v Dorsey 118 NH 844, 395 A 2d 855 (1978), the Court held that the necessity defence applies only to those damages easily recognised by the average person.

In S v Warshow, 130 the Court nuclear plant to be too

held the danger of an accident at a and uncertain" to constitute

"speculative

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

130 131 132

410 A 2d 1000 (Vt 1979) at 1002. See eg Lambek Yale Law and Policy Review 1987 472 at 484.

For 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.
133 134

687 F 2d 1270 (10th Cir 1982), cert denied. 459 US 1147 (1983).

At 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). 501 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.
135

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
139

necessity

be

contradicted

through

defiance of the law in question.

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

136 137 138 139

At 230. 12 Mass App Ct 260, 423 NE 2d 6 (1981). At 7.

See eg S v Warshow 410 A 2d 1000 (Vt 1979). For a discussion, see Levitin The Wayne Law Review 1987 1221 at 1237.
140 141 142

See Lambek Yale Law and Policy Review 1987 472 at 476. Criminal Code of 1961, Ill Ann Stat chap 38 para 7.

See eg City of Chicago v Streeter no 85-108644 Cook Cty, I11, May 1985. For comments on the cases, see Neely Illinois Bar Journal 1986 596 and Wride The University of Chicago Law Review 1987 1070.

has been advanced under the heading of "justification". 143 It has also been suggested that "conscientious disobedience" be recognised as a "special defense" which would "find
144

its

proper

place

beside

such

defenses as insanity or self-defense." (2) Can South African law 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

A 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.
144 145

143

Hall Ethics 1970/71 128 at 139.

See, 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.
146 147

1951 2 SA 317 (A) at 324.

1951 1 SA 187 (A) at 221. For a full discussion, see Van der Vyver SALJ 1981 135.
148

Reported in the court a quo as S v Adams 1979 4 SA 793 (T).

dictum, the Court added that complete absence of alternative housing ("absolute woningnood") would in any case not have entitled the appellant to the defence of necessity, because, due to the economical basis that prompted the appellant to break the law, his conduct did not fall squarely within the confines of legal necessity. The Court seemed to have followed an approach which was even more stringent than that of Hobbes, according to whom all direct physical threats can give rise to a right to take the law into one's own hands. 149 Thus limiting the protection of physical interests through necessity stands in sharp contrast to the fact that certain non-physical interests may be protected on this basis. One such possibility is the preservation of a woman's mental health through procuring a miscarriage if that constituted a crime. 150 Labuschagne identified honour as an interest which can be protected in this way, and argued that where a naked woman (or for that matter, presumably, also a naked man) can escape from an immediately threatening danger either by breaking a window or by running into a public place, breaking the window will be justified on the basis of necessity. 151 Nevertheless, he maintained that "[s]uiwer psigiese of morele oorweginge bied me "n grondslag vir 'n beroep op noodtoestand me." 152 Consequently, according to him, euthanasia or refusal to do military service for reasons
153

of

conviction

cannot

be

justified

on

grounds of necessity.

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,

149 150

See supra chap five I P.

See Burchell et a1 South African criminal law and procedure vol 1 339 n 57. Labuschagne 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.
152 153 151

Labuschagne Acta Juridica 1974 73 at 97.

See, however, Burchell et a1 South African criminal law and procedure vol 1 339 n 157, where reference is made to the killing of a dog to save it from extreme suffering. It is difficult to see what the protected interest in this case is other than "suiwer psiglese of morele oorweginge" - that is, unless it is accepted that animals have rights.

bykans nie betwis sou kon word nie." 154 The often artificial distinctions between those interests that can be protected placed on on the basis of necessity and those that cannot, van have der prompted a number of writers to propose that no restrictions should be the nature of the interests protected. Johann 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

154 155

Labuschagne Acta Juridica 1974 73 at 98.

See 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." See Burche11 et a1 South African criminal law and procedure vol 1 340.
157 156

Id 341.

not involved, this factual question was the crucial issue. 158 However, as has been pointed out, this element is not seen as particularly problematic for the justification of civil disobedience in American law. (e) Duty to face the danger

The defence of necessity is not available to those who are specifically required by law to suffer a certain danger or hardship. One may not, for example, escape from a prison following one's lawful incarceration and then invoke the defence of necessity. 159 The same does not apply in cases where a general duty of obedience is imposed. To some extent, this corresponds with the position in respect of pre-emption in United States law. This requirement might be interpreted to exclude the availability of the necessity defence in at least that limited range of cases where the act of civil disobedience is constituted by transgression of a statute which directly prohibits a certain kind of protest; for example, as is the case with demonstrations near a court building or parliament. Given the above overview, could this defence succeed in respect of acts of civil disobedience in South Africa? The Appellate Division has cautioned that the exemptions from liability on the ground of necessity "must be confined within the strictest and narrowest limits because of the danger attendant
160

upon

allowing

plea

of

necessity

to

excuse

criminal acts."

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

See 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. Van der Westhuizen Noodtoestand as regverdigingsgrond in die strafreg 603.
160 161 159

158

R v Mahomed & another 1938 AD 30 at 36.

As 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. 1972 3 SA 1 (A). In this case the Appellate Division held that the killing of an innocent person can be justified by necessity.
162

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
164

far

as

it

would

like

if

it

recognizes the rights of individuals.

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 The integrity-based, imminent harm defensive of civil disobedience, the law if is justified in terms of the standards posed earlier, should be viewed favourably. compliance with 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 Amendments 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

Van der Westhuizen Noodtoestand as regverdigingsgrond In die strafreg 690.

164 165

163

Dworkin Taking rights seriously 204. US in 131 (1966), for a library which example, the was racially

In Brown v Louisiana 383 appellants held a brief sit-in

However, there is also a more direct way in which those who practise and preach civil disobedience In can some claim cases, that their actions can are be constitutionally protected. their conduct

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 no States ... Constitution abridging the provides freedom as of

follows:

"Congress

shall

make

law

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. One 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."
167 166

Clause 1. This provision is specifically made subject, inter

of Rights for a new South Africa", included the following provisions: "There shall be freedom of thought, speech, expression of opinion, including a free press which shall respect the right to reply; 168 and "All men and women shall have the right to assemble peacefully and without arms, and to submit petitions for the redress of grievances and injustices. 169 In 1989 the South African Law Commission 170 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 selfgovernment, 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. Article 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.
169 170 171 168

Article 4(2). South African Law Commission Group and human rights.

Article 8. It is also provided that "there shall be no discrimination on the ground of ... religion ... political or other views" (art 2); the "right to spiritual ... integrity" 1s guaranteed (art 4); as well as the "right of every person to be safeguarded from discrimination against his ... religion" (art 22). Other provisions also demonstrate a strong commitment to the protection of spiritual Integrity (art 23) and religious convictions (arts 21 & 29). Provision is made, however, that the rights granted by the proposed Bill of Rights "may by legislation be limited to the extent that is reasonable necessary in the interests of the security of the state" (art 30). It is explicitly recognised that the state can provide for "such compulsory military service as may reasonably be acceptable 1n a democratic state" (art 7)

open. Perhaps the most often quoted rationale of free expression is its utility in promoting the
172

search

for

knowledge

and

"truth"

in

the

"market-place of ideas".

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 of

that

freedom

of

expression own

is

of of

the

essence on

of its

democracy as defined earlier. A government which does not recognise freedom speech, imposes its perception values 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
175

"speech"

can

be

protected or enjoy the same degree of protection.

"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

For 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.
173 174

172

See Cheh SAJHR 1986 29 at 34. v Chicago 337 US 1 (1948) at 37. (Jackson J,

Terminello dissenting.)
175 176

See Stone et a1 Constitutional law 935ff. years become this concept in favour of & 8. On this

However, the concept of "balancing" has in recent controversial. Some, like Dworkin, argued that by using one already goes a long way toward resolving the issue the state. See Dworkin Taking rights seriously chaps 7

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 like restrictions (or "content advertising portrayed, only a control"), and a a

distinction is drawn between "low value" and "high value" speech. Low value other speech, obscenity, pertaining applied, for to commercial the false strict statements of fact receive little or no protection. With regard to restrictions test ideas is message that balancing dangerous "clear without and which entails be In substantial certain

governmental interest can justify such restrictions. The expression of might, example, standard. being curtailed respect of a under circumstances. This is often done in terms of a formula such as the present to danger" the content-neutral less demanding restrictions (or "indirect burdens" on speech), which limit expression regard idea
178

communicated,

balancing test is employed. its form. Civil fronts. Another disobedience

179

In general, then, restrictions on the

substance of speech is considered less acceptable than restrictions on

raises

First is as
180

Amendment to what

questions the of

on acts

different of civil is speech".

One

such are is

question whether

extent of

disobedience

protected

manifestations advocacy

"symbolic

question

the

civil

disobedience

protected under this clause.

debate, see Aleinikoff The Yale Law Journal 1987 943.

177 178 179

See Stone et a1 Constitutional law 925ff. Id 1175ff.

For 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. Other 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.
180

(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 by classicus the in on civil United of did He disobedience States his this v in as a
182

possible dealt

form with war

of the in

"symbolic burning

expression". public.

0Brien. protest

appellant

selective

service against

registration the

certificate

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 by the First

certificate

constituted

"symbolic

speech",

protected

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

See 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 ones religious beliefs was protected "speech". See supra chap three III C (2). 391 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).
183 182

181

Section 462(b)(3).

conduct intends thereby to express an idea." 184 However, even on the assumption that the appellant's action, because of its "alleged communicative element", brought the First Amendment into play, the Court of a held that it does not necessarily is a follow that destruction 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 registration certificate constitutionally

protected activity. In an often-quoted passage, the Court stated as

The Court held that the 1965 Amendment complied with these criteria. The Court's to in so-called between above, question "two track" approach and would to
186

have

it

that

the with less the of

distinction alluded the law

content-neutral was was of made

content-based cases meant

restrictions, dealing that a of

applicable

restrictions pertaining to symbolic speech. content-neutral, promoting it was the held

The Court accepted that

which

demanding means-ends analysis was employed. Because the law served the important Selective objective Services effective not to operation System, restrict freedom

speech excessively. OBrien 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 speech, was content-neutral. have meant An inquiry they into had the congressional the more intent might have revealed that the law was based on the content of the which would that to apply 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

184 185 186

At 376. At 377. See Gunther Constitutional law 1174.

incremental advantages gained by the 1965 amendment was not worth the added burden on First Amendment rights. OBrien 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 First pure that students' rights to wear wearing could black of armbands armbands a to was school to publicise their objection to the Vietnam War were protected by the Amendment. speech". Although Such the "conduct". but "our Justice Fortas, for the majority, held that it "was closely akin to conduct cause disturbance, 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

For a discussion of these points of critique, see Gunther Constitutional law 1175ff and Stone et a1 Constitutional law l207ff.
188 189 190 191

187

Katz UCLA Law Review 1985 904 at 909. 393 US 503 (1969). At 508.

394 US 576 (1969). See also Smith v Goguen 415 US 566 (1974). As to a more recent flag-burning case, see Levin Maryland Bar Journal 1989 6 at 6.

the fact that Meredith was not properly protected. He told bystanders: "We don't need no damn flag", and used other words to the same effect. It appeared from the record that a reasonable possibility existed that the appellant was convicted because of his words and not because of his conduct. That was held to be a violation of his freedom of speech. In Spence v Washington, 192 the appellant had displayed a flag on which a peace symbol was fashioned upside down, in protest, inter alia, against the invasion of Cambodia by American troops. The Court held that it was a form of communication which was protected under the First Amendment. Hence, a conviction for, what a Washington statute described as "improper use" of the flag, was reversed. In this case, the Court regarded the conduct in question as "speech", because "[a]n intent to convey a particularized message was present, and in the surrounding circumstances the likelihood was great
193

that

the

message

would

be

understood by those who viewed it."

The issue of symbolic conduct again came up for decision in dark v Community regulation, prohibit With for Creative Non-violence. 194 camping from in sleeping the Court in A a National parks, park that as the Park part Service to a of prohibiting certain was applied

demonstrators to

demonstration intended to call attention to the plight of the homeless. reference OBrien, held 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 Johnson 195 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

192 193 194

418 US 405 (1974). At 410.

468 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.
195

491 US 397 (1989).

administration and of certain Dallas-based corporations. As an act of protest, he burned an American flag. He was subsequently convicted of desecrating an American flag, in terms of the Texas Penal Code. The Court had to decide whether the Texas law, and Johnsons 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 Johnsons 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 states regulation related to free expression. If it was not so related, the less stringent OBrien standard for noncommunicative conduct control could be used. If it was so related, the states 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 flag as order a the of state already had a to statute specifically and to was be prohibiting breaches of the peace. Since the interest in preserving the symbol nationhood the related expression, test
197

consequently

content-based,

stringent

balancing

had

applied. Did this interest justify the conviction?

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
198

because

society

finds

the

idea

itself

offensive

or

disagreeable."

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 flags 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

196 197 198 199

At 403. See 410. At 414. At 416.

In

the

view

of

the

court,

the

decision

could

even

strengthen

the

reverence in which the flag is held: Our decision is a reaffirmation of the principles of freedom and inclusiveness that the flag best reflects, and of the conviction that our toleration of criticism such as Johnson's is a sign and source of our strength ... It is the nations 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 and, consequently, they do not subject such content-neutral,

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
203

incitement

were

involved, irrespective of the perpetrator's intention. The "clear and present danger" test was

introduced

into

American

jurisprudence by Mr Justice Holmes during the

First World War in the

200 201

At 419.

For a discussion of the early history, see Bloustein Rutgers Law Review 1988 283 at 292.
202 203

Schaffer v United States 255 US 886 (9th Cir 1919). Masses Publishing Co v Patten 244 F 535 (SDNY 1917).

case

of

Schenck many

United

States. 204

This

controversial has been

205

test adapted

has in

undergone

different

interpretations

and

material respects, but it has never been entirely abandoned.

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

249 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. For a fuller discussion, see Sier The National Lawyers Guild Practitioner 1985 18 at 22ff.
206 205

204

At 115.

Court was in fact still applying the "bad tendency" model, and the convictions were confirmed. It was only in his opinion in Abrams v United States 207 that Holmes J began developing the "clear and present danger" doctrine in its modern form. In this case, the appellants to were convicted provoke of writing and publishing language "intended incite, 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 of a is "market-place the of power the of of ideas" thought
208

as to

the get

basic itself

rationale accepted

for in

permissive approach in respect to speech. He stated "that the best test truth the and more competition banned, he market." the By and requiring present actual danger intent

emphasising the need for immediacy of a danger before speech could be rendered
209

clear

doctrine

protective of speech.

In the 1920s and 30s, 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 of it those with used a by "revolutionary Marx and dictatorship in the of the proletariat". The article concluded with a call to action, in words reminiscent Engels concluding paragraphs of the Communist Party Manifesto. Justice Stafford, speaking for a majority of the Supreme Court,

207 208 209

250 US 616 (1919). He was joined by Brandeis J. At 630. For a discussion, see Bloustein Rutgers Law Review 1988 283 at 268 US 652 (1925).

297.
210

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 expression. In another
212

use

of

state

power"

that

it

would

violate

freedom

of

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 speakers 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 law what California, 215 which was called, ... the the appellant membership commission was of of an convicted under as a a

Californian propagated, doctrine

outlawed

organization defined sabotage

that [or]

"criminal

syndicalism", crime,

"advocating

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

211 212 213 214 215

At 668. At 670. At 673. Ibid.

274 US 357 (1927). For detailed discussion of this case, see B1asi William and Mary Law Review 1988 653.

agreed,

stated

that

"assembling

with

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 There For the a government to suppress speech, "[t]here must be reasonable ground to believe the danger apprehended is imminent.
217

must

be

probability of serious

danger to the state."

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 by Smith force Act or
220

of

1940 219 or

made to of

it be a

crime member

to of of

"advocate a group

... with

the such

desirability .. of overthrowing ... any government in the United States violence" In a purposes. number cases, members 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

216 217 218

At 379. At 376.

See also Fiske v Kansas 274 US 380 (1927); De Jonge v Oregon 299 US 353 (1937) and Herndon v Lowry 301 US 242 (1937).
219 220 221 222 223

54 Stat 670 (see presently, 18 USC para 2385). Section 2(a)(1) 341 US 494 (1951). At 507.

At 510. For a discussion of an economic, cost-benefit analysis of this formula, see Hammer Michigan Law Review 1988 499 at 501.

differed

substantially

from

the

approach

proposed

by

Holmes

and

Brandeis. Vinson C J held that the validity of governmental action is not determined by the success or probability of success. A conspiracy to advocate the overthrow already constituted the necessary danger, even in the absence of actual advocacy. It was held that the doctrine of the Communist Party constituted such a danger. According to this approach, the greater the danger, the more remote it could be to justify suppression of free speech. On this basis, radical doctrines would receive little or no protection. 224 In another case brought under the Smith Act, this broad balancing

approach was sharply criticised and to some extent avoided. In Yeats v United States, 225 decided at a time when McCarthyism was losing its support, it was held that mere advocacy of a forcible overthrow of the government as an abstract doctrine must be distinguished from advocacy of some immediate action. Only speech in the latter category could be prohibited. Nevertheless, the Holmes-Brandeis approach was still not followed, in the sense that imminence and probability of success was not taken into account. The current formulation of the limits of free speech, which would come closer to this initial ideal, was set out by the Warren Court in Brandenburg v Ohio. 226 The appellant, a leader of the Ku Klux Clan, was convicted under an Ohio statute for "advocat[ing] the duty, necessity, or propriety of crime, sabotage [or] violence ... as a means of accomplishing industrial or political reform." At a rally where some members carried fire-arms, which the Clan had arranged to be televised, the appellant sounded a warning of possible revenge, because of suppression of white interests by the United States government, and announced a march on Congress. The appellant argued that the law under which he was convicted violated of First Amendment. The Court required the co-existence of three elements before the speech could be banned: the speech must be (i) intended and (ii) likely to

See 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.
225 226

224

354 US 298 (1957).

395 US 444 (1969). For a discussion of this case, see Stone et a1 Constitutional law 989ff.

produce

(iii)

imminent

unlawful

activity.
227

To

this

could

be

added,

having regard to the context of the case, that the activity must be of a serious nature. mere advocacy punishable, the Court held that it

envisaged unlawful fell within the

Because the Ohio statute made

condemnation of the First and Fourteenth Amendments. The conviction was accordingly set aside. The Supreme
228

Court In the While

reiterated latter the

the

Brandenburg the

approach was

in

Hess

v of the

Indiana. Vietnam

case,

appellant

convicted in

disorderly conduct after participation in a demonstration against the War. police were arresting demonstrators 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.

The 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.
228 229 230 231

227

414 US 105 (1973). At 109. At 108. 416 F 2d 165 (1st Cir 1969).

CHAPTER SEVEN: CONCLUSION It was stated at the outset that the aim of this study was to establish how state officials should was evaluate and acts of civil in disobedience its in societies where the level of democracy fluctuate. For this purpose civil disobedience defined considered 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 officials the should considerations take into which democratically-minded when they evaluate state of account acts

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 conviction motivated involved, by conviction. types On the basis of the type of different of civil disobedience were

distinguished. Integrity-based civil disobedience is motivated by the conviction that it is necessary to protect one's "ultimate concerns". Anti-exploitation civil disobedience is premised on the belief that one part of the population is benefitted to the detriment of others. In the case of policy-based civil disobedience, the above does not apply, but the resister is nevertheless of the opinion that those in power are misguided in important respects. Finally, as far as the definition is concerned, acts of civil

disobedience are political in that they challenge the authority of the government in a way which is likely to provoke retaliation. Such acts are result-oriented if they are aimed at bringing about social change, or defensive if the intention of the person involved is simply to avoid personal participation in that which she considers to be wrong. Insofar as an act of civil disobedience depends for its effectiveness on

martyrdom, it was called sacrificial; to the extent that the intention is merely to show to the opponent that one no longer considers oneself bound by his rules, it was called non-sacrificial civil disobedience. Distinctions disobedience manifestation background adversary. The historical survey roots. It often revealed that civil disobedience has ancient a vital role in human development, in were and of also drawn between direct individual civil and mass where the civil One the

indirect indirect which in

and civil turn

disobedience. occurs on

disobedience exercises

disobedience is aimed at a congenial third party (called a "benevolent force") pressure direct

played

relativising older, more exclusive, orders and legitimising new, more inclusive, orders. In most of the earlier cases civil disobedience was individual and sacrificial. The chances of success were low and the personal risk high, because rulers inevitably viewed any resistance as tantamount to treason. Indirect disobedience aimed at a "benevolent background force" was also not feasible, because nations took little interest in each other's domestic affairs. Not surprisingly, only a small number of exceptional individuals practiced this form of resistance. New possibilities arose in the Twentieth Century. Domestic issues now became international concerns. The emergence of the international community, willing to concern itself with the human rights practices of individual countries, would encourage the practice of indirect civil disobedience. The same applied to the major colonising power, Britain, with its commitment to "fair play". The possibility of the imposition of a wide variety of sanctions on governments offending internationally accepted human rights norms, gave the assurance to protesters in a number of countries that their chances of success were relatively high and the personal risk low. Civil disobedience now became a viable option to ordinary people. The increasing rejection of racism during this century, and the

vulnerability of South Africa to outside pressure - first from Britain and later from the organised international community - enabled Gandhi to launch the first campaign in history of mass civil disobedience in that country. Gandhi's unique contribution was that he was the first to perceive and to use the newly emerging opportunity to rally people under the banner of non-violent resistance. A realistic, new option for those opposed to the state, between legal protest and violent

resistance, came into being. The survey of civil disobedience for the under South of also African positive law was as

covered four main areas. The effect of the criminal law as well as executive one's prerogatives for practice were civil disobedience as well considered. The implications of a conviction for a political offence on capacity legal practice canvassed, 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 for suggest the the absence of of a of coherent jurisprudential framework evaluation acts

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 notion those of of cases his own soul, the foundation defensive wished to was laid for was the the idea of A its inalienable human rights. During the pre-modern era, however, only the integrity-based, where the state resistance regulate accepted. lives of stringent duty of obedience was posed in respect of other issues, in 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 be like Locke The and Kant, of a much larger human personal sphere would claimed. notion inalienable

rights was developed, which covered not only the right to freedom of spiritual integrity, but also a variety of political and other rights, on the basis of which at least anti-exploitation, result-oriented civil disobedience could be justified. The question how democratically-minded state officials, in more and less democratic systems, should regard acts of civil disobedience was thereupon addressed. Reasons were advanced why at least some acts of civil disobedience should be tolerated the most important being that it might be necessary in order to retain the legitimacy of the legal system to demonstrate its commitment to justice. The notion of inalienable rights also make sense only if it is accepted that the violation of basic rights could in some cases justify disobedience.

Some commentators make the recognition of a right to resist entirely dependent on the question of franchise. Where one has participated in the political processes, there is an absolute duty of obedience; where there was no such participation, no duty of obedience arises. It is submitted obedience that to both at conclusions some are of wrong. the Even a majority of is an constrained by the rights of individuals, while public order demands least policy-decisions unrepresentative government. Instead, the recognition of a right to resist should turn on the

question whether basic human rights are being violated by the laws objected against and on the question whether certain formal conditions are being met. The touchstone of the right to resist is the recognition of inalienable human rights, because this concept suggests that certain interests of the individual may not be violated by the state. This approach can underline a flexible theory of civil disobedience, applicable in more and less democratic societies. In order to determine whether a particular law violates basic human rights, it should first be established what the broad national and international consensus is in this regard. Where there is no such consensus, the question should be asked whether the conviction that motivates the resistance can underlie fundamental human rights. It was submitted that the protection of integrity underlies the most basic human rights, while the need to protect people against exploitation can also form the basis of fundamental rights. However, the same does not apply to issues of policy. Consequently, integrity-based civil disobedience deserves the most tolerance and some leniency is due to anti-exploitation civil disobedience. As a general rule, policy-based civil disobedience cannot be justified. The question was posed whether the wide recognition which environmental rights receive at the moment constitutes an exception to the above rule. On the face of it, pro-environment resistance deals with matters of policy. It was submitted that pro-environment resistance should in fact be seen as anti-exploitation. The parties exploited are future generations and, if it is accepted that they have rights, animals and plants. By going to and fro between the boni mores and an inquiry into the type of conviction involved, some idea could be formed of how a particular act of disobedience compares with other other acts of disobedience in terms of its acceptability.

Where leniency on the part of decision-makers is due it could manifest itself in a variety of ways: for example in an interpretation of the relevant laws in a way which favours the accused, the expression of support for the disobedient, the imposition of a light sentence, judicial lying and resignation. It was concluded that the application of the necessity defence and the constitutional protection of freedom of speech could, in appropriate cases, result in the discharge of a protester. Having completed greatly the study, the where need does for it leave us? The to proposed rely on

approach

reduces

decision-makers

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, most the emerging, although of the by no means which the precise, those in of international the many original years of consensus on what should be regarded as basic human rights provides the reliable indication for view position would have taken of the matter. The values adhered to by the United Nations, example, reflect outcome deliberation and struggle in which the powerless and the powerful have participated and in which they have often also changed roles. In the creative process of interpreting the moral and legal convictions of their communities, decision-makers would do well to keep in mind the question of what would be internationally acceptable. However, unless one accepts that we have indeed arrived at the end of history, and that the present boni mores represent the pinnacle of

human

achievement,

it

is

clear

that

even

the

broad

international

consensus which now prevails will still undergo significant changes and be transformed in ways not yet conceivable. This means that certain acts of resistance may now be condemned by nearly universal agreement, which in future, with the benefit of hindsight, could be regarded as the forerunners of a new and more enlightened, less repressive era. The approach proposed in this thesis, based as it is on the prevailing boni mores, provides no safeguards against such an occurrence. The truth is that no theory of civil disobedience can provide an

Archemedian point, outside of history and factuality, as a point of departure for the evaluation of acts of disobedience. To some extent human progress depends on the willingness and determination of those who see the need for change before the rest of us, to persevere and to defy, 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. even though they know that it might cost them dearly. synthesis Only be through their willingness to be crucified can a new

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 JCRDL The Comparative and International Law Journal of South Africa Journal of Contemporary Roman-Dutch Law("Tydskrif vir

Hedendaagse Romeins-Hollandse Reg") JJS JSAL Journal for Juridical Science ("Tydskrif vir Regswetenskap")

Journal of South African Law ("Tydskrif vir die Suid-Afrikaanse Reg")

SAJHR SALJ

South African Journal on Human Rights 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 ----Adam H (ed) "Die begrip wet en orde" JSAL 1978 124 Die reg insake openbare orde en staatsvei1ig-heid Durban, Butterworth 1984 South Africa: Sociological perspectives Cape Town, Oxford University Press 1971 [F Meer "African nationalism - some inhibiting factors" 121] Aeschylus Aleimkoff TA Prometheus bound (transi G Murray) London, George Alien 1931 "Constitutional law in the age of balancing" The Yale Law Journal 1987 vol 96 943 Alexandrowicz CH 52] Allan TRS "Disclosure of journalistic sources, civil disobedience and the rule of law" Cambridge Law Journal 1991 vol 50 131 (ed) Grotian society papers 1968 The Hague, Martinus Nijhoff 1970

[D Lumb "Legality and legitimacy : The limits of obedience to the state"

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"Civil

disobedience

and

the

legal

order"

parts

1,

University

of

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1967 vol 36 1, 175

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 ------Aristotle ------Augustine A ------Crises of the republic New York, Harcourt 1972 ["Civil disobedience" 51] The origins of total itananiam London, Alien 1967 Nicomachean ethics (transi from Greek by R Williams) London, Longmans 1869 The politics (transi from Greek by JEC Well don) London, Macmillan 1888 Confessions New York, Penguin 1979 Letters vol 1 (1-82) (transi from Latin by W Parsons) in The fathers of our church vol 12 (ed H Dressier) Washington DC, Catholic University Press, 1951 ------------Opera omnia vo1 5/1 Patrologia Latina Paris, no publisher given 1841 The city of God against the pagans in seven volumes (original & transi from Latin) London, Wi11iam Heinemann vo1 2 Books 4-7 (transi WM Green) 1963 vol 3 Books 8-11 (transi DS Wiesen) 1968 vo1 4 Books 12-15 (transi P Levine) 1966 vo1 6 Books 18-20 (transi WC Green) 1960 ------The free choice of the will (transi from Latin by RP Russell) in The

fathers of our church vo1 59 (ed RJ Deferrari) Washington DC, Catholic University Press, 1967 Axelrod R Bakker R Bakshi SR Bakunin M SRThe evolution of cooperation New York, Basic Books 1984 Albert Camus Baarn, Wereldvenster 1966 Gandhi and [the] civil disobedience movement New Delhi, Gitanjali 1985 Bakunin on anarchy: Selected works by the activist-founder of world

anarchism (ed S Dolgoff) London, George Alien 1971 ------Ball MS God and the state New York, Dover 1970 "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, 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 New Jersey, Rutgers University

Bauer SM & PJ Eckerstrom "The state made me do it: The applicability of the necessity defense to civil disobedience" Stanford Bauman RA The crimen maiestatis in the Roman Law Review Republic 1987 vo1 39 1173 Augustan Principate

and

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 ------Benson M ------"On civil disobedience" The Journal of Philosophy 1961 vol 58 653 South Africa: The struggle for a birthright London, Penguin 1966 The African patriots : The story of the African National Congress of South Africa London, Faber 1963

Bentham J

An introduction to the principles of morals and legislation (eds JH Burns & HLA Hart) London, Athlone 1970

-------

A fragment on government (ed FC Montague) London, Oxford University Press 1891

-------

Deontology together with A table of the springs of action and The article on utilitarianism (ed A Goldworth) in The collected works of Jeremy Bentham (ed JR Dinwiddy) Oxford, Clarendon 1983

Berat L

"Conscientious objection in South Africa: Governmental paranoia and the law of conscription" Vanderbilt Journal of Transnational Law 1989 vol 22 127

Berger FR

Obligation

and

disobedience:

study

of

the

justification

of

civil

disobedience in the democratic state unpublished PhD thesis, University of California, Berkeley 1969 Bergman G Berman HJ "Nonviolent resistance wins in Bolivia" The Christian Century May 1978 567 Law and revolution : The formation of the Western legal tradition

Cambridge, Massachusetts, Harvard University Press 1983 Bernstein H Beukes P The world that was ours: The story of the Rivonia trial London, SAW 1989 The holistic Smuts: A study in personality Cape Town, Human & Rousseau 1989 Beza T Concerning 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 595 Bisbee GA Bishop PD Pre-Decian acts of martyrs and commentarii Philadelphia, Fortress 1988 A technique for loving: Non-violence in Indian and London, SCM 1981 Bickel AM The Supreme Court and the idea of progress New Haven, Yale University Press 1978 Bizos G Black CL (jr) "Political trials and human rights" Oe Jure 1988 vol 21 136 "The problem of the compatibility of civil disobedience with American Christian traditions Africa" SALJ 1989 vol 106 the rights of rulers over their subjects and the duty of

subjects towards their rulers (transi from

Latin by HL Gonin) Cape Town,

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Corder H

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Corder H (ed) -------

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Cover RM

Justice

accused:

Antislavery

and

the

judicial

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Zambia:

historical

comparative

unpublished

thesis,

University of London 1979 Zinn H Disobedience and democracy: Nine fallacies on law and order New York, Vintage 1968 Cambridge Zwiebach B Civility and disobedience London, University Press 1975

REPORTS AND OTHER DOCUMENTS African National Congress A Bill of Rights for a new South Africa: A working document by the ANC Constitutional Committee Belville CDS 1990 ------Constitutional guidelines for a democratic South Africa published in SAJHR 1989 vol 5 129 Agenda vir die sesde vergadering van die Algemene Sinode van die Nederduitse

Gereformeerde Kerk Pretoria vanaf Dinsdag 12 Oktober 1982 Amnesty International Death in Beijing London, Ace 1989 Catholic Institute for Race Relations Out of step War resistance in South Africa London, CIIR 1989 Dutch Reformed Church "Bree Moderatuur" Geloofsbesware teen diensplig en verbandhoudende sake Pretoria, NGKB 1980 Golden number of "Indian opinion" 1914: Souvenir of the Passive Resistance Movement in South Africa 1906-1914 (facsimile edition) Pietermantz-burg, Africana Book Collectors 1990 Handelingen van eene buitengewone vergadering van den Raad der Ned Ger Kerken in Zuid Afrika: Gehouden te Bloenrfontein in konferentie met daartoe uitgenodigde predikanten, op Woensdag, 27 Jan, 1915, en volgende dagen. Paarl, Paarl Drukpers 1915 Human Rights: A compilation of international instruments New York, United Nations 1988 Human into Sciences intergroup Research relations Council: The Report of the HSRC

investigation

South

African

society:

Realities and future prospects Pretoria, Government Printer 1985 Kairos document, The: Challenge to the church (revised 2 ed) Johannesburg, Skotaville 1986 Kerk en sametewing: 'n Getuienis van die Ned Geref Kerk soos aanvaar deur die Algemene Sinode van die Ned Geref Kerk. Oktober 1986 Bloemfontein, NG Sendingpers 1986 National Commission on the Causes and Prevention of Violence, final report To establish justice, and to insure domestic tranquility New York, Award 1969

Ras, volk en nasie en volkereverhoudinge in die lig van die skrif: Goedgekeur en aanvaar deur die Algemene Sinode van die Nederduitse Gereformeerde Kerk Oktober 1974 Cape Town, NG Kerk Uitgewers 1977 Official translation: "Human relations and the South African scene in the light of scripture" Cape Town, NG Kerk Uitgewers 1976 Report of the commission of inquiry into matters relating to the security of the state (Abridged) ["Potgieter Report"] Report of the Commission of inquiry into security legislation. The RP 90/1981 ["Rabie Report"] Report of the Commission of inquiry into [the] South African Council of Churches RP 74/1983 ["Eloff Report"] South African Defence Force National Service Information booklet Directorate Public

Relations 1990 South .African Institute of Race Relations A Survey of Race Relations in South Africa (ed M ------Horrell) 1956/57, 1958/59, 1959/60 & 1961

Security and related trials in South Africa, July 1976-May 1977 1977

South African Law Commission Group and human rights working paper 25, project 58 Suid-Afrikaanse Regskommissie Verslag betreffende die kodifikasie van die gemene reg met betrekking tot die misdade teen die staat 1976 Synod of Bishops, Church of the Province of South Africa "Christian obedience and unjust law" Grace and Truth 1988 vol 8 no 4 194 United States Riot Commission Report Report of the national advisory commission of civil disorders New York, Bentam Books 1968 ARCHIVES USED: University of Pretoria Africana collection University of South Africa, United Party collection State Archives, Pretoria

SYNOPSIS
of the thesis entitled A JURISPRUOENTIAL ANALYSIS OF CIVIL DISOBEDIENCE IN SOUTH AFRICA By CHRISTOFFEL HENDRIK HEYNS for the degree DOCTOR OF PHILOSOPHY in the FACULTY OF LAW of the UNIVERSITY OF THE WITWATERSRAND the supervisor being PROP J D VAN DER VYVER Civil disobedience, in its modern form, originated in South Africa at the beginning difficult of the century. to Today it is a global have phenomenon to which presents proper problems decision-makers, who determine the

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 African done into the use made of this form of protest, in its country of Congress. Attention is also drawn to the present civil origin, first by Gandhi and later by the liberation movements such as the National disobedience practices of right-wing organizations. The far-reaching implications for civil disobedience of various aspects of the South African positive by law, legal both past and present, are considered. objection An to investigation is done into aspects of the criminal law, executive prerogatives, political offences practitioners and conscientious military service.

An overview is given of classical views on political and legal obligation and its concomitant, the right to resist. The most Important ideas emanating from the following sources are considered: the Bible and the wider Judeo-Christian tradition, including the major South African churches. Western political philosophy and traditional African jurisprudence. The development of the StoicChristian 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, both merely on the and question of political are participation. constrained by Governments, majoritarian non-majoritarian,

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 decisionmakers. The content to and the scope of basic and human rights should boni be ascertained with with

reference

national

international

mores,

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, and a distinction civil is drawn between and integrity-based, anti-exploitation policy-based disobedience

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 proenvironment disobedience can be justified. Where a strong right to resist is recognised, it might be appropriate for a judge to impose a light sentence, or to acquit the resister altogether, on the basis inter alia of the defence of necessity or constitutional protection of free speech.

SAMEVATTING
van die proefskrif getitel N REGSFILOSOFIESE STUDIE VAN BURGERLIKE ONGEHOORSAAMHEID IN SUID-AFRIKA deur CHRISTOFFEL HENDRIK HEYNS vir die graad DOKTOR IN DIE REGTE in die FAKULTEIT REGSGELEERDHEID van die UNIVERSITEIT VAN DIE WITWATERSRAND met as promoter PROF J D VAN DER VYVER Burgerlike ongehoorsaamheid, in sy moderne vorm, het in Suid-Afrika ontstaan aan die begin van die eeu. Dit is vandag 'n wereldwye alle verskynsel aanduidings wat gaan besluitnemers met moeilike vrae konfronteer. Volgens

burgerlike ongehoorsaamheid steeds 'n probleem in die nuwe Suid-Afrika, en in die oorgangsproses 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 daarna, wees. Terselfdertyd hang die toekoms van die land grootliks daarvan af of aanvaarbare maniere gevind sal word om politieke verset

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 niegewelddadige verset van Gandhi en van die bevrydingsbewegings soos die "African National Congress". Die verreikende gekyk na die relevante die fasette pleeg van implikasies die van verskeie aspekte van die die bevoegdhede van die en Suid-Afrikaanse positiewe reg, tans en in die verlede, word ondersoek. So word strafreg, misdade uitvoerende gesag, van politieke deur regspraktisyns

gewetensbesware teen diensplig. 'n Oorsig word ook gegee oor 'n aantal belangrike klassieke beskouings oor die verpligting om die reg en die staat te gehoorsaam, asook die teenkant hiervan,

naamlik die reg van verset. Die belangrikste idees oor hierdie onderwerp wat uit die volgende bronne gespruit het, word bespreek: die Bybel en die breer Joods-Christelike tradisie, insluitende die Suid-Afrikaanse kerke, Westerse politieke filosofie en tradisionele regstelsels in Afrika. Die ontwikkeling van die Stoi'syns-Christelikeidee dat sekere aspekte van die menslike bestaan buite die beheer van die staat is, word ondersoek. Sekere riglyne rakende die eva1uering, deur staatsamptenare, van dade van

burgerlike ongehoorsaamheid word dan aan die hand gedoen. Die kwessie van die regverdiging van burgerlike ongehoorsaamheid word beskou vanuit die perspektief van John Rawls se "original position". Dit word aan die hand gedoen dat die erkenning van 'n reg van verset onlosmaakiik verbonde is aan die idee van basiese menseregte in die algemeen. Die toetssteen van die verpligting oni te gehoorsaam is nie, soos sommige skrywers beweer, bloot die vraag of daar politieke deelname is nie. Regerings wat deur die meerderheid verkies word, sowel as regerings wat nie so vekies word nie, word aan bande gele deur die fundamentele regte van die burgers, "n Reg van verset ontstaan wanneer 'n regering poog om onvervreembare regte te vervreem. Daar word egter van el keen verwag om 'n sekere mate van ongeregtigheid te verduur. Ten einde te verseker dat die weg van verset gekies word s1egs in gevalle wat ernstig genoeg is, word sekere formele vereistes ook vir geregverdigde burgerlike ongehoorsaamheid gestel. Waar 'n basiese mensereg

geskend word, en daar word aan hierdie vereistes voldoen, kan aangevoer word dat 'n "sterk reg" van verset ontstaan, wat 'n verpligting op die owerheid plaas om 'n tolerante benadering ten opsigte van die burgerlik ongehoorsame te volg. Die kwessie van wat presies gesien moet word as basiese regte, moet bepaal word aan die hand van die nasionale en internasionale boni mores, met spesifieke verwysing na bepalings van die internasionale dokunnente in hierdie verband. Laasgenoemde gee waarskynlik die mees akkurate beskrywing van 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 Daar is moet dit die geval word of moet die 'n alternatiewe kriterium gebruik word. gevra tipe die basis van

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 proomgewing verset wel geregverdig kan word.

Waar 'n sterk reg van

verset erken word, en daar 'n verpligting op die regter gee tot die opiegging van 'n 1igte

is om tolerant te wees, kan dit aanleiding

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.