THE STATE v. MANDELA AND OTHERS. HEADS OF ARGUMENT. 1. In Count 1 the accused are charged with being party to a common purpose in terms of which

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1 THE STATE v. MANDELA AND OTHERS. HEADS OF ARGUMENT Want of Particularity: Count 1 1. In Count 1 the accused are charged with being party to a common purpose in terms of which (i) (ii) Persons were recruited for instruction and training in the arts of sabotage and warfare; 153 acts of sabotage were committed. It is alleged that these acts of sabotage and recruitment were committed by agents and servants of the accused and the other parties to the common purpose. These other parties consisted of 193 persons whose names are given, 3 associations whose names are given, and other persons unknown to the prosecutor. 2. In view of the fact that the accused are being held liable for acts alleged to have been committed by other persons, the State case depends on the proof of the common purpose pursuant to which these offences are alleged to have been committed. This means that the / State

2 - 2 - State has to prove as part of its case, that there was an agreement between the accused and the other persons and associations to commit the acts mentioned in the charge. R. vs. Adams, 1959 (1) S.A. 646 (Spec. Crt.) at p In framing the charge the State has to inform the accused how they, and the other parties to the common purpose, are alleged to have entered into the agreement. Without this information it is impossible for the accused to prepare for trial. S. vs. National High Command, T.P.D R. vs. Bernstein, Special Criminal Court, April Similarly the accused are entitled to be informed of the way in which they and the other parties are alleged to have participated in the common purpose. R. vs. Andrews, 1948 (3) S.A. 577 (Spec. Crt.) at p Essop vs. Regional Magistrate, Western Transvaal, 1961 (1) P.H., H. 16. Cf. R. vs. Adams (supra) at p It is submitted that the indictment fails to inform the accused with sufficient particularity (a) how the parties to the common purpose are / alleged

3 - 3 - Alleged to have entered into the agreement; (b) How the various persons are alleged to have participated in the common purpose. 6. The alleged participants in the common purpose can conveniently be divided into five categories: (a) (b) (c) (d) (e) 122 agents who are alleged to have committed the acts of recruitment and sabotage; 3 associations which are alleged to have been parties to the common purpose; 24 persons who are not charged, but are referred to in the body of the indictment; 10 accused; 47 persons who are alleged to have been recruited for training and instruction. The Agents: 7. These are the persons who are alleged to have committed the acts for which the accused have been charged. 8. To enable the accused to prepare for their trial, it is essential that they be told how each of those persons was constituted their / agent

4 - 4 - agent. Without this information the accused do not know which of the 193 persons, 4 associations, or 10 accused is alleged to have bound them to a transaction for which they are now alleged to be liable. Having regard to the period covered by the charge, and the possible membership of the four associations, it is impossible to prepare for trial without this information. 9. The indictment did not inform the accused of these facts. See Page 2 of the indictment. Para. B.8 on page 6 of Annexure A. 10. As a result the State was asked in the request for further particulars to supply the necessary information. Its reply was that it was unable to do so. See Para. 7 (b) on page 6 of the Request for Further Particulars and the State s answer thereto on page 7 of the Reply. 11. In dealing with another question i.e. what was done by each of the agents the State in paragraph 7 (a) on page 7 of its Reply, alleges that the acts particularised in Annexure B to the indictment (i.e. the acts of sabotage) were / committed

5 - 5 - committed by the agents and servants in their respective areas pursuant to the advices, directions and instructions given to them. It does not allege, however, how, when, where or by whom such advices, directions and instructions were given, and it follows that this information does not cure the embarrassment. It is obvious that the agents must have been appointed or instructed by somebody on behalf of the accused. What the accused want to know is how and by whom the instruction or appointment was given. If the State is not in a position to establish the link between the agents and the accused, it should not be allowed to proceed with the charge; if it can establish the link, it must inform the accused how this is to be done. Cf. Lieberthal & Lieberthal vs. South British Insurance Co., 1959 (3) S.A. 81 (W) at p. 84. Van Biljoen vs. Botha, 1952 (3) S.A. 494 at pp Gove vs. Geary & Son, 1963 (4) S.A. 95 at p Apart from the actual appointment of the agents, the allegation of agency creates an embarrassment in another respect. This arises / from

6 - 6 - from the failure to inform the accused exactly what each of the agents is alleged to have done. 13. In Annexure A to the indictment some of the agents in respect of the acts of sabotage are identified. See Para. B.8 on page 6 of Annexure A. It is not indicated, however, precisely what acts are alleged to have been performed by each of the agents. 14. In paragraph 7 (a) of the Request for Particulars the State was asked to indicate what is alleged to have been done by each of the agents; its answer on page 7 of the Reply is that the acts particularised in Annexure B wee committed by the said agents and servants in their respective areas. This does not assist the accused to prepare for trial, and on the present frame of the indictment, it will be necessary to interview all the agents in each region and to canvass all the acts of sabotage with each of them. This could well result in unnecessary delays and expenses which can be avoided if the State informs the accused of the acts which it alleges were committed by known persons and in each instance who such persons are. / Cf.

7 - 7 - R. v. National High Command (supra) Cf. R. vs. SMITH, 1960 (4) S.A. 364 (O) at pp In regard to the recruitment, the State alleges that all the accused, and the other persons and associations who joined in the common purpose, assisted in the recruiting of between 200 and 300 persons, 47 of whom were identified by name. (See Paragraph 5 (a) (iv) on Page 4 of the Request, and the answer on Page 6 of the Reply, which enlarges the allegations in paragraphs B.2 and B.3 (d) of Annexure A to the indictment). 16. The State has supplied the names of the known recruits Paragraph B.9 of Annexure A and the places at which recruiting took place see Paragraph 1 of the State s Further Particulars but has done so in general terms and has given no information as to how, when, where and by whom each of the persons wee recruited. See Paragraph 3 (c) (ii) on page 3 of the Request, and the State s answer on page 4 of the Reply. Paragraph 5 (a) on page 4 of the Request, and the State s answer on page 6. / 17.

8 In the result the accused are called upon to meet an allegation that they committed certain specified acts through the medium of agents, without being told how the persons became their agents, what was done by each of the agents, and in the case of recruitment, who the agents were that represented them in recruiting the forty-seven persons who have been identified. It is submitted that this information is necessary to enable the accused to prepare for trial, and that without it, the charge is embarrassing for want of particularity. The Associations: 18. The State alleges that the South African Communist Party, the African National Congress, and the Umkonto We Sizwe were parties to the conspiracy. It does not know when, where and in what manner the associations decided to participate in the concerted action, or who represented them in entering into the agreement see Paragraphs B.5 and 6 on pages 5-6 of Annexure A to the indictment. It alleges, however, that the complicity of each of the associations will be established from the following facts: (a) Members of the associations acted as such in furthering the interests of the associations and in execution of the common / purpose;

9 - 9 - purpose; and (b) Booklets, circulars, leaflets, pamphlets, posters and other documents were issued by and in the name of the said associations in furtherance of their interests and in the execution of the common purpose. See Para. B.4 on page 5 of Annexure A to the Indictment. 19. The accused asked for particulars of these general allegations see Para. 6 (a) and (b)para. 6 (a) and (b) on pages 5 6 of the Request for Particulars but the State failed to furnish any information which enables the accused to know how the associations are alleged to have adhered to the conspiracy. See Para. 6 (a) and (b) on pages 6 7 of the State s Reply. 20. The alleged participation o the various associations is of great importance, because on the form of the charge all acts and statements of members of the associations, as well as acts and statements of the association themselves, are relevant. The accused are entitled to know how the associations are alleged to have adhered to the concerted action, and since the State is in a position to furnish a substantial / part

10 part of the information requested, it should have done so. R. vs. Adams (supra) at pp Without such information the accused are not in a position to prepare for that portion of the case which involves the allegation that the organisations were party to the common purpose. The 24 other Persons : 22. The basis of the alleged participation of these persons in the common purpose is dealt within paragraph B.3 on page 5 of Annexure A. The allegations are in general terms and do not assist the accused to prepare their defence on this aspect of the case. Particulars were asked for see paragraph 5 (a) on pages 4-5 of the Request but the State was unable to answer the question see paragraph 5 (a) on page 65 of the Reply. If the State really does not know what these persons did, it should not join them as parties to the common purpose; if it does know then it must say so. 23. The vagueness of the alleged participation of these persons is increased by the allegations made in paragraph 5 (b) of the Reply to the Request for Particulars (page 6), in which the / State,

11 State, in answer to paragraph 5 (b) of the Request (page 6), avers that they personally committed all the acts set out in paragraphs A.2, B.2 and B.4 of Annexure A. In the absence of further particularity indicating exactly what was done by each of the persons, this allegation is embarrassing. The Accused: 24. The same type of generalities are repeated in regard to the alleged adherence of the accused to the conspiracy see Paragraph B.1, read with Paragraph A.2 of Annexure A ; Paragraphs 1, 2 and 3 of the Request and the replies thereto. 25. On the present form of the indictment the accused do not know what specific acts are attributed to them. The Recruits: 26. How, when, and where they joined the common purpose and what they did in execution thereof is set out in the indictment or particulars. Yet these persons are alleged to be parties to the joint action, and all their statements and acts will be relevant in evidence. The Common Purpose: 27. The State relies on a common purpose between / the

12 the 193 persons and 3 associations. It does not know: (a) (b) (c) When, where, or how the common purpose was formed; Whether the common purpose was based on an express or implied agreement; How the accused and the other persons and associations joined in the concerted action. But seeks to establish the existence of the common purpose and the adherence of the accused and the other persons and associations inferentially. However, it has failed to inform the accused of ANY specific act alleged to have been performed personally by any one of them, or by any of the other persons and associations. This results in considerable embarrassment to the accused. 28. The problem facing the accused is accentuated by the fact that Accused nos. 1 to 7 are alleged to have incurred vicarious liability as members of the National High Command. Cf. R. vs. Smith (supra) at p The accused have to speculate as to the specific acts which will be investigated at the trial. They are not in a position to determine exactly what conduct on their part is alleged / to

13 to constitute an instruction or advice which is relevant to the charge; what is alleged to constitute the compiling of data and information; what is alleged to amount to assistance in the affairs of the National High Command etc. It follows from this that the accused cannot know exactly what conduct on their part requires explanation, and a fortiori, what conduct on the part of others will have to be explained or rebutted. The result is that the accused are unable, on the present form of the indictment, to instruct their legal representatives properly, and are unable to make adequate preparation for their defence. S. vs. National High Command (supra). R. vs. D Arcy, 1934 G.W.L.D. 8. Essop vs. Regional Magistrate, Western Transvaal (supra). Behrman vs. Regional Magistrate, Southern Transvaal,1956 (1) S.A R. vs Meintjies, 1912 T.P.D. 773 at p Want of Particularity: Count In count 2 the accused are charged with conspiring to procure the commission of certain unlawful acts; (i) The further recruitment of persons for instruction and training in the arts of / sabotage

14 sabotage and warfare. (ii) (iii) (iv) (v) Further acts of sabotage; Acts of guerrilla warfare; Acts of assistance to foreign invading military units; Acts of revolution. 31. Presumably this Count refers to acts to be committed at some future unspecified time outside of the period alleged in Count In order to establish this conspiracy, however, and the complicity of the accused, the coconspirators, the associations, the agents and the recruits, the indictment relies on allegations identical with those relied upon in Count 1 save that reliance is not placed on paragraphs B.5, 6 and 7 of Annexure A. 33. If the argument relating to lack of particularity in regard to Count 1 (supra, paragraphs 1 27) is correct then Count 2 is also defective. Further Prejudice and Embarrassment: Count Moreover no attempt has been made to / explain

15 explain how two apparently differing conspiracies are to be inferred from the same allegations. Want of Particularity: Count The argument set out in paragraphs 32, 33 and 34 above apply equally to this Count. In addition the conspiracy here alleged differs from that in Count 1 in that it covers a different period, viz., 1 st July 1961 to 11 th July Want of Particularity: Count Here again the same arguments apply. Embarrassment and Prejudice: Count The argument raised in relation to Count 3, is equally applicable to this case. 38. The State refers to specific sums of money as having been solicited, accepted and received, and yet avers that it will not rely on any specific act of soliciting, accepting or receiving. 39. Finally the State has failed to furnish any particularity: (i) of the details of the alleged soliciting, accepting, receiving, and giving of / money;

16 money; (ii) (iii) (iv) of the agents who are alleged to have represented them in the transactions; of the acts alleged to have been performed by them personally in terms of the common purpose; of the acts alleged to have been performed by the parties to the common purpose. Embarrassment and Prejudice to Accused Nos. 1 to The indictment is embarrassing in that it charges the accused Nos. 1 to 7 with being members of the National High Command and as such vicariously liable for the acts of the said association, and avers that it will prove the membership of those Accused from facts and circumstances which are common to all the Accused and co-conspirators, and are not, ex facie the indictment and particulars, confined only to those persons who are alleged to have been members of the National High Command. COLLECTION NAME: Rivonia Trial Collection COLLECTION NUMBER: AD1844 ITEM NUMBER: A2.6 DOCUMENT: Heads of argument LEGAL NOTICES This document is part of a private collection, the Rivonia Trial Collection, donated to Historical Papers at The University of the Witwatersrand, Johannesburg. Copyright Notice: All materials on the Historical Papers website are protected by South African copyright law and may not be reproduced, distributed, transmitted, displayed, or otherwise published in any format, without the prior written permission of the copyright owner. Disclaimer and Terms of Use: Provided that you maintain all copyright and other notices contained therein, you may download material (one machine readable copy and one print copy per page) for your personal and/or educational non-commercial use only. Because of the possibility of human and mechanical error as well as other factors, the University is not responsible for any errors or omissions and excludes any and all liability for any errors in or omissions from the information on the website or any related information on third party websites accessible from this website.