A JURISPRUDENTIAL ANALYSIS OF CIVIL DISOBEDIENCE IN SOUTH
AFRICA
by
CHRISTOFFEL HENDRIK HEYNS
MA LLB (Pret) LLM (Yale)
Thesis submitted for the degree Doctor of Philosophy
Faculty of Law
University of the Witwatersrand
Supervisor: Professor J D van der Vyver
B Com LLB BA Honns (PU for CHE) LLD (Pret)
Dip1 Int'1 s Comp L Hum Rts (Int'1 Inst Hum Rts, Strasbourg)
Pretoria, October 1991
ACKNOWLEDGMENTS
I wish to thank the following people and institutions for their support
in writing this thesis:
-
The Human Sciences Research Council, which provided financial
assistance.
-
My philosophy and law teachers at the University of Pretoria and
Yale Law School, who stirred and shaped my thoughts over the years.
-
My colleagues in the Faculty of Law, University of Pretoria, and
especially my departmental colleagues, who have contributed to the
eventual
product.
I
am
particularly
grateful
to
Johann
van
der
Westhuizen, for stimulating discussions, and Isabeau de Meyer, who
did most of the typing, as well as the assistants at the Centre for
Human Rights Studies, and especially Helen Fourie, Isiah Methlape,
Ellen
Nicol
and
Villiers
Terblanche,
who
helped
with
the
administrative aspects. The personnel at the Merensky Library also
provided a friendly and efficient service.
-
Professor
J
D
van
der
Vyver,
my
supervisor,
who,
with
his
encyclopedic knowledge of law, philosophy and politics, opened up
new avenues of research and saved me from more mistakes than I care
to remember, while still allowing me to take my own chances.
Ek wi1 ook my familie bedank: my pa, vir sy voorbeeld van kritiese
betrokkenheid, asook my vrou, kinders, ma, broers en skoonma, vir die
ryk en verweefde lewensomstandighede waarin iets soos die voltooiing
van ‘n proefskrif betekenis het. Aan hulle, en danksy hulle, kan ek nou
se: "Dit is klaar!"
Christof Heyns
CONTENTS
ACKNOWLEDGMENTS
2
CHAPTER ONE: INTRODUCTION
12
CHAPTER TWO: DEFINING CIVIL DISOBEDIENCE: ITS ELEMENTS AND MANIFESTATIONS
19
I.
22
THE ELEMENTS OF CIVIL DISOBEDIENCE
A.
ILLEGALITY
22
B.
NON-VIOLENCE
31
C.
OPENNESS
38
D.
MOTIVATED BY CONVICTION
40
E.
POLITICAL ACT
42
II.
COMBINATIONS OF THE DIFFERENT TYPES OF CIVIL DISOBEDIENCE
45
III.
CAN CIVIL DISOBEDIENCE HAVE REVOLUTIONARY OBJECTIVES?
47
IV.
DIRECT AND INDIRECT CIVIL DISOBEDIENCE
49
A.
CONSIDERATIONS RELATING TO THE LAWS OBJECTED AGAINST
49
B.
CONSIDERATIONS RELATING TO THE TARGET OF THE RESISTANCE
50
V.
THE TERM "CONSCIENTIOUS OBJECTION"
VI.
SCHEMATIC SUMMARY
52
54
CHAPTER THREE: HISTORICAL SURVEY OF THE DEVELOPMENT OF CIVIL DISOBEDIENCE
56
I.
56
THE ORIGINS OF ILLEGAL RESISTANCE TO AUTHORITY
II.
THE ORIGINS OF CIVIL DISOBEDIENCE
58
A.
AN INTERPRETIVE FRAMEWORK FOR THE HISTORY OF CIVIL DISOBEDIENCE
59
B.
DEFENSIVE CIVIL DISOBEDIENCE
63
C.
INDIVIDUAL, RESULT-ORIENTED CIVIL DISOBEDIENCE
64
D.
PLICATION
70
III.
A.
THE MODERN DEVELOPMENT OF MASS, RESULT-ORIENTED CIVIL DISOBEDIENCE
CIVIL DISOBEDIENCE IN SOUTH AFRICA
75
76
(1)
Early forerunners of civil disobedience
76
(2)
Gandhian civil disobedience in South Africa
78
(a)
Indians in South Africa in the late Nineteenth Century
79
(b)
Legal resistance 1894 - 1906
83
(c)
Illegal resistance 1907 - 1914
95
(i)
Phase one: Refusal to register (1)
(ii)
Phase two: Refusal to register (2)
(iii)
(iv)
(d)
(3)
95
97
Phase three: Unsuccessful negotiations
99
Phase four: Satyagraha on a grand scale
103
Evaluation
Civil disobedience in South Africa after Gandhi
105
107
(a)
Phase one: The period before World War II
108
(b)
Phase two: The 1940's
118
(c)
Phase three: The Defiance Campaign of the 1950's
124
(i)
Prelude to mass civil disobedience
(ii)
Rationale of the Campaign
(iii)
(iv)
Consequences of the Campaign
132
137
152
-
Reaction of the white establishment
152
-
Reaction of the black community
158
-
International consequences
163
Evaluation of the Defiance Campaign
166
-
Civil disobedience in the African context.
167
-
Weaknesses in the way in which the Campaign was conducted
167
-
Nature of the adversary
168
(v)
(vi)
(d)
The Defiance Campaign
125
Black politics in the wake of the Campaign
Phase four: The violent underground struggle starts
169
179
B.
(e)
Phase five: External and internal resistance
180
(f)
Phase six: Prospects of reconciliation and new resistance
186
GANDHIAN CIVIL DISOBEDIENCE IN INDIA
(1)
Campaigns conducted by Gandhi
Phase one: The Non-co-operation Campaign of the 1920’s
190
(b)
Phase two: The Salt Tax Campaign 1930
195
(c)
Phase three: The “Quit India” Campaign
198
Gandhi's philosophy of Satyagraha
201
(a)
The sources of Satyaqraha
203
(b)
Central features of Gandhi’s political thought
206
CIVIL DISOBEDIENCE IN THE UNITED STATES OF AMERICA
212
(1)
Civil disobedience by native Americans
212
(2)
Religious civil disobedience
212
(3)
Anti-slavery resistance
213
(4)
Henry David Thoreau
214
(5)
The Womens’ Rights Movement
216
(6)
The Civil Rights Movement
217
(7)
D.
189
(a)
(2)
C.
188
(a)
The Montgomery Bus Boycott 1955-1956
218
(b)
Little Rock 1957
220
(c)
The lunch-counter sit-ins 1960
220
(d)
The freedom rides 1961
221
(e)
Birmingham 1963
222
(f)
The March on Washington 1963
224
(g)
The Mississippi Summer Project 1964
224
(h)
The Civil Rights Act 1964
224
(i)
Martin Luther King
225
The anti-Vietnam protests of the 1960’s
SOME OTHER INSTANCES OF MASS, RESULT-ORIENTED CIVIL DISOBEDIENCE
CHAPTER FOUR: CIVIL DISOBEDIENCE UNDER THE SOUTH AFRICAN POSITIVE LAW
228
232
235
I.
IMPLICATIONS OF THE CRIMINAL LAW FOR CIVIL DISOBEDIENCE
235
A.
THE “PRIMARY OFFENCE”
236
B.
SECONDARY IMPLICATIONS OF THE CRIMINAL LAW
237
(1)
Sentences imposed for crimes of protest
(a)
Statutory provisions for increased penalties
237
(b)
The sentencing policy of the courts
240
(i)
The era of white against white conflict
(ii)
C.
254
(3)
Civil disobedience as a substantive crime
254
TERTIARY IMPLICATIONS OF THE CRIMINAL LAW
Incitement of civil disobedience
256
257
(a)
Incitement to commit any offence
257
(b)
Incitement to commit a political offence
258
(c)
Proclamations prohibiting the incitement of “natives”
265
Assistance of those engaged in civil disobedience
OTHER CRIMES
265
269
(1)
Treason
270
(2)
Sedition
284
(3)
Terrorism
288
(4)
Subversion
289
(5)
Sabotage
291
(6)
Defeating or obstructing the course of justice
291
EXECUTIVE POWERS AND CIVIL DISOBEDIENCE
A.
243
Attempt to commit an act of civil disobedience
(2)
II.
The era of black against white conflict
241
(2)
(1)
D.
237
EXECUTIVE POWERS RELATING TO STATE SECURITY
(1)
Non-emergency powers
(d)
Detention
(i)
(ii)
292
292
292
293
"Banning" of organizations
294
"Banning" of -individuals
294
(iii)
(2)
"Banning" of meetings
Emergency powers
294
295
(e)
"Macro emergencies"
295
(f)
"Micro emergencies"
296
B.
CENSORSHIP AND STATE SECURITY
297
C.
EXECUTIVE LENIENCY FOR POLITICAL OFFENDERS
301
III.
CIVIL DISOBEDIENCE OF MEMBERS OF THE LEGAL PROFESSION
305
A.
THE GENERAL IMPLICATIONS FOR LEGAL PRACTICE OF EARLIER CONVICTIONS
306
B.
CONVICTIONS FOR POLITICAL OFFENCES
310
(1)
(2)
IV.
Political crimes in general
311
(g)
The era of white against white conflict
311
(h)
The era of black against white conflict
313
Civil disobedience
CONSCIENTIOUS OBJECTION TO MILITARY SERVICE
315
324
A.
THE LEGAL SANCTION OF COMPULSORY MILITARY SERVICE
327
B.
ILLEGAL CONSCIENTIOUS OBJECTION
328
C.
LEGAL CONSCIENTIOUS OBJECTION
331
D.
EVALUATION
340
CHAPTER FIVE: CLASSICAL VIEWS ON POLITICAL AND LEGAL OBLIGATION AND RESISTANCE
343
I.
344
WESTERN POLITICAL THOUGHT
A.
B.
C.
THE BIBLE
346
(1)
The Old Testament
347
(2)
The New Testament
347
GREEK PHILOSOPHY
352
(1)
Socrates and Plato
352
(2)
Aristotle
358
(3)
Stoicism
362
ROMAN JURISPRUDENCE
364
D.
GERMANIC JURISPRUDENCE
373
E.
AURELIUS AUGUSTINE
374
F.
JOHN OF SALISBURY
378
G.
THE RE-EMERGENCE OF ROMAN LAW AND THE GLOSSATORS
381
H.
THOMAS AQUINAS
383
I.
CANON LAW
387
J.
PHILIP OF LEYDEN
388
K.
BARTOLUS OF SASSOFERRATO
388
L.
THE PROTESTANT REFORMATION
392
(1)
Martin Luther
393
(2)
Jean Calvin
396
(3)
The Vindiciae contra tyrannos
401
M.
THE REVIVAL OF THOMISM
402
N.
JEAN BODIN
404
O.
GROTIUS
405
P.
THOMAS HOBBES
410
Q.
SAMUEL PUFENDORF
416
R.
JOHN LOCKE
420
S.
ULRICH HUBER
425
T.
GERARD NOODT
426
U.
CHRISTIAN WOLFF
426
V.
JEAN-JACQUES ROUSSEAU
427
W.
WILLIAM BLACKSTONE
431
X.
IMMANUEL KANT
433
Y.
JEREMY BENTHAM
437
Z.
GEORG W F HEGEL
438
AA.
ANARCHISM
439
(1)
William Godwin
441
(2)
Pierre-Joseph Proudhon
442
(3)
Michael Bakunin
442
(4)
Peter Kropotkin
442
(5)
Leo Tolstóy
443
BB.
MARXISM
443
CC.
THE AGE OF REVOLUTIONS
445
DD.
THE NATURAL LAW - POSITIVE LAW DEBATE
448
EE.
CONTEMPORARY POLITICAL THEORY
451
II.
(1)
The social contract
452
(2)
Utilitarianism
454
(3)
The "duty of fair play"
456
(4)
The "natural duty to obey the law"
457
(a)
The "natural duty to support just institutions"
457
(b)
Obedience based on necessity
459
(c)
Respect for officials exercising authority
459
(d)
An underived obligation to obey the law
460
THE CHRISTIAN CHURCHES IN SOUTH AFRICA
460
A.
THE 1914 REBELLION
461
B.
APARTHEID
462
III.
TRADITIONAL AFRICAN SOCIETIES
471
A.
THE "RITUALS OF REBELLION"
474
B.
REBELLION AND REVOLUTION
475
IV.
CONCLUSION
479
CHAPTER SIX: THE STATE AND CIVIL DISOBEDIENCE
482
I.
482
INTRODUCTION
A.
THE TERM "DEMOCRACY"
483
B.
THE "ORIGINAL POSITION"
486
II.
THE RECOGNITION IN PRINCIPLE OF A STRONG RIGHT OF RESISTANCE
488
III.
THE CONDITIONS OF LEGITIMATE CIVIL DISOBEDIENCE
502
THE SUBSTANTIVE STANDARD: BASIC HUMAN RIGHTS
504
A.
(1)
The primary criterion: the boni mores
504
(2)
The secondary, alternative criterion: The types of convictions involved
506
(a)
Integrity-based civil disobedience
507
(b)
Anti-exploitation civil disobedience
509
(c)
Policy-based civil disobedience
511
(3)
B.
C.
IV.
Application
515
FORMAL CONSIDERATIONS
517
(1)
The question whether other reasonable alternatives have been exhausted
517
(2)
The extent of political participation
518
(3)
Proportionality of means and ends
519
(4)
The chances that civil disobedience might worsen the situation
520
(5)
State security
520
(6)
Approach of the protesters regarding punishment
524
(7)
The level of coercion involved
526
(8)
Repetition of acts of civil disobedience
526
(9)
The question whether or not the protesters are members of a well-established
social group
527
CONCLUSION
527
THE LAW AND LEGITIMATE CIVIL DISOBEDIENCE
A.
THE NECESSITY DEFENCE AND CIVIL DISOBEDIENCE
(1)
United States law
528
532
533
(a)
Relative severity of harm
534
(b)
Reasonable alternatives
535
(c)
Imminent harm
535
(d)
Direct causal relationship
536
(2)
South African law
(a)
Legal interest endangered
538
538
B.
(b)
Threat commenced or imminent
540
(c)
Necessary for the accused to avert the danger
540
(d)
Proportionality of means and ends
540
(e)
Duty to face the danger
541
CONSTITUTIONAL PROTECTION OF FREEDOM OF SPEECH
542
(1)
Civil disobedience as a form of "symbolic speech"
547
(2)
Advocacy of civil disobedience
552
CHAPTER SEVEN: CONCLUSION
559
BIBLIOGRAPHY
565
SYNOPSIS
600
SAMEVATTING
602
CHAPTER ONE:
INTRODUCTION
There
is
a
apartheid,
certain
but
dialectical
also
civil
logic
in
disobedience
the
as
fact
an
that
not
only
of
mass
instrument
political mobilization, originated in South Africa. It was here, at the
beginning
of
the
century,
that
a
pervasive
and
perverse
system
of
racial domination gave rise to the emergence of a new and powerful tool
of political resistance, when Mohandas Gandhi led the first campaign of
mass
civil
disobedience
in
history
against
the
South
African
government. Eventually, civil disobedience would prove itself to be one
of the major forces responsible for the demise of apartheid.
As the century is drawing to a close, it is dear that mass civil
disobedience has become a global phenomenon. It has been widely applied
in liberation and civil rights struggles, and to exert leverage in
respect of issues as diverse as the environment, the military and 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, Gandhi’s main political rival in
South
Africa,
Jan
Smuts,
described
how
Gandhi
had
achieved
"a
successful coup" against the South African government with a method
that was "novel ... in political warfare". Smuts went on to say: "I
think the phenomenon is deserving of careful study." 1 However, virtually
no serious attempt has been made to provide a conceptual framework
within
which
civil
2
is
evaluated.
It
disobedience
in
this
in
regard
South
that
Africa
this
can
thesis
be
aims
placed
to
and
make
a
contribution.
Political resistance and its concomitant, political obligation, raises
fundamental
1
and
universal
issues.
Human
J C Smuts "Gandhi's political
Archives, J D Pohl Collection 3.
2
life
method"
reflects
University
the
tension
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
disciplined
from
discourse
the
South
which
will
African
place
perspective
civil
is
a
disobedience,
multias
it
manifests itself here, in this bigger context. No single study can of
course hope to achieve this. This thesis will attempt to establish the
outlines of the relevant wider considerations, but will do so primarily
with a view to the jurisprudential perspective in the South African
context. The central question is: How should the South African state
and more particularly the South African law treat civil disobedience?
In addressing this question, however, the ultimate aim is not only to
arrive
at
some
conclusions
regarding
civil
disobedience
in
South
Africa, but also to gain a better understanding of civil disobedience
as such. In fact, it could be argued that in order to understand the
phenomenon of civil disobedience, an understanding of its role in South
Africa is indispensable.
There can be little doubt that the most developed body of jurisprudence
on the topic of civil disobedience can be found in American literature.
The
method established by Gandhi in South Africa and India was soon
taken up in other countries, but nowhere can his legacy be seen more
clearly than in the United States of America, where Martin Luther King
modeled
the
Civil
Rights
Movement
on
the
Gandhian
example.
This
campaign and others prompted a deep and sustained national debate, in
which lawyers and philosophers played a leading role.
The question should, however, be posed as to the extent to which the
circle can be completed - that is, the circle from South Africa to
India; from there to the United States and then back to South Africa.
Can
American
jurisprudence
provide
the
necessary
insights
in
understanding and evaluating civil disobedience in South Africa? It
will be submitted that in significant respects it can not. American
thinking on the subject was developed in a largely democratic society,
where
the
rule
of
law
is
respected,
and
to
a
significant
extent
American perspectives are applicable to those conditions only. If South
Africa is going to be a thriving democracy where people are to be ruled
by the law and by the law only, direct comparisons with the United
States might be appropriate. However, realism cautions that for a long
time to come our society might still be one in which an ebb and flow of
freedom and oppression will prevail.
A more open approach to the - issue is needed. A "flexible" theory of
civil
disobedience
must
be
developed
which
can
be
applied
to
less
democratic as well as more democratic societies. In this regard it
should be noted that the conventional wisdom that a right to resist
exists in an undemocratic society, but not in a democratic setting,
might
be
correct
in
abstracto,
but
it
has
little
practical
value
because it is such a gross oversimplification. It will be argued that
democracy entails two elements: universal franchise and the protection
of individual rights. Because these elements are often contradictory,
no society can be entirely democratic. At the same time it will be very
difficult
to
find
a
state
which
is
completely
undemocratic.
The
American situation, consequently, represents only one point in this
spectrum. A flexible theory of civil disobedience should make allowance
for the whole range of possibilities.
Any theory of civil disobedience has to address at least two questions:
in the first place, what the definition of civil disobedience is, and
in
the
second,
under
what
circumstance
civil
disobedience
can
be
justified: When does one have "a right to resist" by means of civil
disobedience? Before these questions can be considered, however, the
term, a "right to resist", requires clarification.
A distinction may be drawn between having a "right to resist" in the
weak and the strong sense of the word. 3 One has a right to resist in the
weak sense when, given one's position, a certain protest action is "the
right
thing
to
do"
but
there
is
no
corresponding
duty
on
one's
adversary to recognise and give effect to that right. One might think,
for example, that it is "the right thing to do" for a prisoner of war
to try to escape, but there is no duty on the warders to allow him to
3
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
if
one
approaches
the
issue
of
civil
disobedience
from
the
perspective of the agent - the person who has to decide whether or not
to
engage
in
this
form
of
resistance.
Our
perspective
will
be
different. Civil disobedience will - instead be seen primarily from the
perspective
of
state
officials
who
have
to
evaluate
such
acts
and
determine what the response of the state should be. Our concern will be
to establish the circumstances in which one has a right in the strong
sense of the word to engage in civil disobedience. The recognition of
such a right of resistance implies that there is a corresponding duty it will be called a "duty of leniency" - of the authorities to allow
that resistance or at least to tolerate it to some extent. The aim is
to establish some guidelines which will enable legal decision-makers the legislature and judicial officers who shape and administer the law
- to evaluate acts of civil disobedience and help them to determine how
lenient or severe their response should be.
The present situation in South Africa is particularly conducive to an
investigation
into
the
legitimacy
of
political
resistance.
In
most
instances when this issue is considered, there is a natural inclination
to make one's conclusions dependent on one's own particular interests.
Almost inevitably people endorse a wide right of resistance if their
own views are in opposition to those of the government, while those who
in general benefit from the status quo entertain a restrictive view in
this regard. At the moment, however, South Africa is almost in, what
might be called, a Rawlsian "original position" - no one knows who is
going to rule in five years' time, and whether he or she will be in the
camp of the resistors or the resisted. In considering the question of
justified resistance, one is therefore forced into the (in some ways
unenviable) position where one cannot hold a brief for anyone, and, as
far as this is possible, cannot help but to be "objective".
And indeed, that win be the central point of departure of the present
analysis: It will be argued that in order to arrive at a fair and just
notion of what the nature and limits of political obligation are - and
by implication when resistance would be justified - one has to ask what
the view of rational agents should be if they had to answer that
question from behind a "veil of ignorance", shrouding from them their
own special interest in the matter.
It will be argued that people in such a situation will not require
blind
obedience
to
all
political
sovereigns.
Participants
in
the
original position would insist on some aspects of their lives being
placed beyond the reach of government - for example, they would insist
on a high degree of autonomy in respect of their religious convictions.
On the other hand, it should be equally obvious that not everyone
should be allowed to break the law whenever he wants to, even if he
passionately believes that his conduct is justified ": at least not in
a society as divided as our own. Those in the] original position would
not want to live in an ungovernable society. How should the balance
then be struck between anarchy and state absolutism?
Evidently no rules of thumb can be given for answering such a complex
question. There are simply too many variables which are impossible to
quantify with any degree of precision. What is the level of respect for
law
in
the
particular
society?
How
much
individual
autonomy
and
disobedience can the social fibre accommodate without suffering serious
deterioration? What is the level of injustice of the prevailing system
-that is, how deserving is the legal system of respect? At most one can
hope
to
develop
distinctions
provide
the
between
some
conceptual
different
general
tools
kinds
guidelines
necessary
of
on
civil
how
to
make
useful
disobedience,
those
kinds
and
of
to
civil
disobedience, comparatively speaking, should be evaluated.
There can be little doubt as to the relevance of such an inquiry for
South Africa. We live in a society which is likely to remain divided
for many more years to come. Divergent interests, and consequently also
different values, frames of reference and indeed different realities,
are
bound
to
clash.
Irrespective
of
who
will
be
in
power,
it
is
inevitable that a large percentage of the population is going to be
politically
frustrated.
It
is
a
sad
prospect
that
much
of
the
resistance against the state might be violent. But, if the country can
manage to avoid an all-out state of anarchy and civil war, it seems
clear
that
civil
disobedience
will
be
a
permanent
feature
of
the
political processes. It is no exaggeration to say that the future of
the country will to a significant degree depend on the ability of those
in
power
to
find
legitimate
ways
of
managing
dissent,
expressed,
interalia, through acts of civil disobedience.
The
inquiry
chapter,
the
will
proceed
term
"civil
along
the
following
disobedience"
will
lines:
be
In
the
defined
second
and
its
essential elements win be set out. Aspects that are not essential but
which are often associated with that form of protest will also be
discussed. Different manifestations or forms of civil disobedience will
be
identified.
disobedience”
The
and
relationship
between
"conscientious
the
objection”
notions
will
of
also
"civil
receive
attention. The purpose of this chapter is by and large to develop the
vocabulary necessary for a nuanced view of civil disobedience.
The third chapter contains a fairly detailed overview of the historical
development
regarding
of
the
civil
way
disobedience
in
which
civil
with
a
view
disobedience
to
bringing
manifests
clarity
itself
in
practice. The different uses to which civil disobedience has been put
since its earliest inception are considered, and an attempt is made to
establish what the most pertinent developments reveal about the nature
of this form of protest. The question is posed why certain types of
civil
disobedience
were
practised
under
some
circumstances
but
not
under others. Particular attention is paid to the question why mass
civil disobedience only developed as a political tool in this century,
in South Africa.
The campaigns conducted in South Africa, India and the United States,
and especially their legal implications, are discussed. As far as could
be
established,
this
chapter
contains
the
first
comprehensive
historical account of civil disobedience in South Africa. The South
African campaigns of Gandhi, as well as the later campaigns of the
liberation movements, are recounted in some detail, especially with a
view
to
their
legal
ramifications.
Extensive
use
has
been
made
of
newspaper clippings of the time, since such clippings are often the
only
available
source
of
information
on
the
particular
periods
of
history under consideration. The lengthy historical survey might seem
disproportionate in a jurisprudential inquiry, but it is considered
necessary
to
fully
canvass
the
"raw
material"
basic
to
the
philosophical investigation into the present subject matter.
In the fourth chapter the South African positive law relating to civil
disobedience comes into the spotlight. The implications in respect of
acts of civil disobedience of the criminal law and the powers of the
executive are considered, as well as the effect of participation in
acts of civil disobedience on a person's legal competence to practice
law.
The
legal
provisions
relating
to
conscientious
objection
to
compulsory military service are also discussed.
Chapter five deals with the perceptions regarding political obligation
and resistance of some of the most important contributors toward the
shaping of Western and South
from the
African culture. The
message emanating
Bible, some perspectives from the Roman and Roman-Dutch law,
the views of the great philosophers - political and otherwise - and of
religious
leaders,
the
approach
scientists
and
main
South
the
of
some
African
contemporary
churches,
and
political
some
of
the
practices of traditional African society in this respect, will receive
attention.
In
chapter
six
the
question
how
law
should
respond
to
civil
disobedience is directly addressed. This inquiry comprises three parts.
In the first place the question is considered whether, and if so on
what
basis,
recognised.
a
strong
Assuming
circumstances,
the
right
that
crucial
of
resistance
there
is
question
such
is
should
a
in
right
then
principle
under
asked
be
certain
what
those
circumstances are. On the basis of a critical appraisal of some ideas
of Ronald Dworkin, a model is proposed which, it is believed, is more
flexible and intuitively more acceptable than most other approaches.
Thirdly, the issue is addressed what mechanisms legal decision-makers
can
use
to
bring
relief
to
those
who
have
engaged
in
civil
disobedience, in cases where it has been established that a strong
right to engage in civil disobedience should be recognised.
In chapter seven a summary of the most important conclusions is given
and their interrelationship and wider implications are considered.
CHAPTER TWO:
DEFINING CIVIL DISOBEDIENCE:
ITS ELEMENTS AND MANIFESTATIONS
Some of the many activities loosely referred to as civil disobedience,
have been practised for many centuries. However, it is only since the
last century that the term "civil disobedience” has come to be used. 1
Although there might be an intuitive understanding of what the term
implies, no general consensus exists amongst persons usually regarded
as
practitioners
of
civil
disobedience, 2
political
philosophers, 3
1
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.
2
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).
3
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
sociologists 4 and jurisprudes 5 who considered the issue as to what the
essential
elements
necessary
to
give
of
civil
definition
disobedience
of
what
is
are.
It
is
consequently
meant
by
the
term
"civil
disobedience". What are the necessary elements which, taken together,
give sufficient description of the phenomenon?
However,
a
clear
definition
of
the
general
concept
of
civil
disobedience is not the only tool needed in order to be in position to
evaluate individual cases of civil disobedience.
There are many different manifestations of civil disobedience, each
with its own characteristics that might affect the acceptability of the
conduct
in
question.
various
kinds
of
The
civil
terminology
disobedience
necessary
will
to
distinguish
consequently
have
to
the
be
developed.
This
chapter,
then,
will
aim
at
defining
civil
disobedience
and
handeling gewetensvol 3) er is betekenissamenhang tussen bekritiseerd
object gekozen handelwijze 4) de handeling is weloverwogen 5) de
handeling geschied openlijk 6) men werkt vrljwillig men aan arrestasie
vervolging 7) men aanvaardt net risiko van een straf 8) men heeft te
voren lega1e midelen geprobeerd 9) geweldloosheid 10) rechten van
andti worden zoveel mogelljk in acht genomen." Closer to home,
according Esterhuyse Broers buite hoorafstand 22, civil disobedience
is”
nie-gewelddadige
protesstrategie
op
morele
gronde,
en
verteenwoordig ‘n vorm van doelbewuste wetsoortreding."
4
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.”
5
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.
identifying its different manifestations. A later chapter will deal
with the question as to the possible justification of acts of civil
disobedience.
It
is
justification,
as
decision-maker
must
important
far
as
in
that
possible,
the
first
the
be
place
issues
dealt
be
of
with
able
definition
and
separately.
The
to
identify
in
as
neutral a manner as possible which form of protest is at stake, and
then, secondly, proceed to evaluate it. If definition and justification
are
conflated,
one
is
forced
to
make
an
evaluation
without
being
granted the opportunity of independently considering with an open mind
the merits of the case in question. 6 Consequently we shall attempt to
establish,
what
disobedience;
7
is
called,
a
"minimal"
definition
of
civil
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
6
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,
without
rendering
that
concept
too
isoteric. At the same time, the technical meaning of the term civil
disobedience
should
as
far
as
is
possible
accord
with
the
popular
understanding of the term.
It was stated earlier that an objective of this study is b develop a
"flexible theory" of civil disobedience, in the sense of rendering the
concept
useful
in
more
and
less
democratic
situations.
It
will
be
argued that the definition of civil disobedience which finds support in
the main stream of American jurisprudence is in a number of respects
only applicable under American conditions. In order to be relevant in a
wider range of social settings, a number of important adjustments or
modifications need to be made, and it will be argued that at least in
one
respect
American
jurisprudence
is
misguided,
even
for
American
purposes.
I.
THE ELEMENTS OF CIVIL DISOBEDIENCE
In this study conduct will be regarded as civil disobedience if it is:
-
illegal (in the wide sense of the word, as will be explained
later on),
-
non-violent (or at least not highly coercive),
-
open,
-
motivated by conviction, and
-
political.
The significance and meaning of these elements will next be considered.
A.
ILLEGALITY
The first element of civil disobedience which writers usually emphasise
is the fact that only wrongful actions can qualify for this kind of
resistance. 9
Civil
disobedience
involves
a
special
kind
of
“disobedience” to the state. The civil disobedient acts outside the
scope not only of what the authorities consider acceptable but also of
what they regard as tolerable behaviour. Actions which might be deeply
resented by the state, such as demonstrations, strikes and picketing,
... from typical acts of law-breaking ... which pose very peculiar
problems about justification."
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 one’s act offends a social taboo is not sufficient - the civil
disobedient must also render himself liable to the wrath of the powers
that be.
Terms such as "passive resistance", "non-cooperation" and the Afrikaans
notion
of
violent
"lydelike
methods
of
verset",
protest,
which
are
should
often
be
used
to
signify
non-
from
civil
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", one’s conduct has to constitute a
crime before it can be considered an act of civil disobedience. 10
Insofar as the rule of law is observed in a particular society, there
can be no problems with this approach. The argument can be explained in
the form of a syllogism: Civil disobedience involves subjecting oneself
to the wrath of the state. Where the rule of law pertains, one can only
be subjected to the wrath of the state if one has committed a crime.
Consequently, in such a society the commission of a crime must be an
essential element of civil disobedience.
It should be evident that a narrow interpretation of the requirement
that conduct must be "illegal" in order to qualify as an act of civil
10
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.
disobedience
serves
societies
where
the
rule
of
law
is
being
well
observed. It is therefore not surprising that American authors find
this approach acceptable.
We
are,
however,
interested
in
a
more
flexible
theory
of
civil
disobedience, which applies not only to societies in which the rule of
law obtains. The question must accordingly be asked what the position
would be in a society where the rule of law is not observed.
The fact that the rule of law is not upheld means that the coercive
power of the state may be unleashed on a subject even if he does not,
in the technical sense of the word, act illegally. This may occur in
primitive societies where law, morality and religion are fused, as well
as
in
more
modern
societies
where
the
executive
has
far-reaching
discretionary powers. In such cases the question whether someone has
subjected
himself
to
the
coercive
powers
of
the
state
cannot
be
answered simply by asking whether he has technically broken the law.
Someone who sets out to participate in a demonstration against the
government, knowing that the police will in all likelihood arrest and
detain him indefinitely without trial, clearly challenges the state at
least as fundamentally as someone who does the same under circumstances
where his conduct constitutes a crime.
It is consequently submitted that inasmuch as the rule of law does not
obtain,
a
wide
interpretation
should
be
attached
to
the
term
"illegality". All actions that are likely to provoke use of the state’s
coercive powers, whether it technically constitutes a crime or not,
should be regarded as "illegal" for the purposes of defining civil
disobedience.
This brings us to the second problem concerning the interpretation of
the term "illegal". In situations where the rule of law - is observed
and
the
identify
technical
civil
-
interpretation
disobedience
the
the
question
term
"i1legal"
arises
how
is
used
narrowly
to
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
11
12
this
perspective,
the
idea
of
"legally
justified
civil
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 one’s conduct is sanctioned by more basic
norms of the legal system, that conduct is ultimately legal. Civil
disobedience cannot be lawful, because “the law logically cannot permit
law-breaking." 13
To
state
the
same
proposition
in
different
terms:
whenever an act of protest which seems illegal turns out in fact to be
legal, it can no longer be regarded as an act of civil disobedience.
Obviously this approach has far-reaching consequences regarding the way
in which a campaign of civil disobedience, such as the Civil Rights
Movement, should be seen. In that particular campaign nearly all the
infringements of local and state segregation laws were justified on the
basis
that
those
laws
violated
the
federal
constitution,
and
in
particular the Bill of Rights. It may consequently be argued that these
protests should not be regarded as acts of civil disobedience properly
so-called, but rather as "assertions of rights". 14 Instead of dealing
with civil disobedience, we are here concerned with civil obedience
since the disobedience to the weaker law is, as it were, trumped by
obedience to the stronger law. 15
Following this line of argument. Burke Marshall posed the question
whether "the federal system does not in effect make the theory of civil
disobedience
movement."
wholly
inapplicable
to
the
efforts
of
the
protest
16
Martin Luther King needed only to appeal to the law: He should not have
saddled himself with the difficult task of proving that an appeal to
13
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
See Black Texas Law Review 1965 492 at 496.
15
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
evidently appeared from the constitution, "the
of
the
ordinances
defiance of law was all
on the other side." According to him the leaders of the Civil Rights
Movement
preaching
were
and
too
"engaged
practising
and
was
busy"
not
to
civil
note
that
disobedience
what
at
they
all.
were
Black
maintained that if at any given time doubt prevails as to the legality
of certain actions and as long as "there is an element of claimed legal
right", there would be "an implied submission to, rather than defiance
of, the order of law." 17
The views of these authors regarding the element of illegality can be
interpreted and applied in two different ways. The first possibility is
that the question as to the illegality of certain conduct should be
answered from an objective, ex post facto perspective. Only after an
authoritative, final verdict has been given by the highest possible
court declaring that the conduct in question was in fact illegal, can
it be stated with certainty that the act of protest was in fact a
matter of civil disobedience.
This approach conflates the issues of definition and justification,
since identification of certain conduct as a manifestation of civil
disobedience would in this instance require an authoritative verdict
concerning its legality. This approach also proceeds from the mistaken
assumption that one can arrive at a final authoritative judgment as to
the precise legal position. In reality a lower court can be overruled
by a higher court, or a court may in future overrule its own earlier
judgments. 18 To make the question whether one is dealing with civil
disobedience
dependent
on
an
authoritative
judgement
regarding
the
legality of the conduct in question, could therefore mean that the
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
as
whether
the
or
decisive
factor.
This
not
certain
conduct
is
entirely
to
disobedience"
would
in
bi
mean
fact
that
the
qualifies
determined
with
a
as
view
question
"civil
to
the
understanding of the people concerned of their legal position. If they
themselves were to justify their prima facie illegal actions on the
basis that those actions are sanctioned by law they would not commit
civil disobedience; if they seek to legitimise their action on moral
grounds only, those actions can properly be defined as instances of
civil disobedience. The eventual finding of the courts would then be
irrelevant. Judging from the remarks of Charles Black quoted above;
this appears to be his view.
The problem with this approach is that in the heat of the battle,
people
seldom
juridical
justified
clearly
legality.
by
additional
some
problem
distinguish
They
higher
that
simply
believe
principle
might
between
-
arise
be
moral
that
it
from
their
legal
an
legitimacy
and
actions
or
entirely
moral.
are
19
An
subjective
approach, is that people’s beliefs concerning the legality of their
actions
are
often
highly
unreasonable.
Why
should
the
conduct
of
someone who holds the mistaken belief that he is acting illegally be
regarded as an act of civil disobedience, while that of another person
who holds the totally unwarranted belief that he is acting legally
would not qualify as civil disobedience? All manifestations of the
narrow approach consequently seem unacceptable.
It is consequently submitted that the narrow interpretation of the term
19
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.
“illegal” is wrong. In order to avoid the above-mentioned problems, a
wider interpretation of the term "illegality" should be followed. All
acts of protest ought to be regarded as illegal if juridical provisions
officially
in
force
at
the
critical
time
have
been
violated,
irrespective of whether, subsequently, those provisions are likely to
be
declared
disobedience
invalid
one's
or
inoperative.
conduct
must
be
In
order
"illegal"
constituted transgression of a legal provision
to
in
qualify
the
as
sense
civil
that
it
which at the time of
the conduct was clearly valid or at least not clearly invalid; that is,
where at the critical time it has not been revoked or declared invalid.
The possibility, or rather the "risk", of illegality, the breaking of a
legal proscription, would suffice to constitute civil disobedience. The
point
is
subjects
state.
that
a
himself
protester
to
the
who
runs
possibility
the
of
risk
of
provoking
breaking
the
wrath
the
law
of
the
20
When this wider approach is followed, it becomes clear that one is not
making a self-contradictory claim when stating that civil disobedience
can be legally justified. From an ex ante perspective, such a claim
boils down to the assertion that a possibility
exists
that, what now
appears to be illegal, might in future be declared legal. From the ex
post facto perspective it means that, even if the conduct is now viewed
as legal, there was a risk at the critical time that it was not. To
argue that the fact of prima facie illegal conduct eventually being
vindicated in court implies that we were all along not dealing with
civil
disobedience,
is
similar
to
arguing
that
because
Sir
Edmund
Hilary returned safely from Mount Everest his journey was in reality
not dangerous.
Although the narrower approach should consequently not be followed as
far
as
the
definition
of
civil
disobedience
is
concerned,
it
is
nevertheless useful to recognise that two different manifestations of
civil disobedience can be identified on the basis of the distinction
outlined above:
-
Legality-based civil disobedience, or acts of civic disobedience
in respect of which the claim is made that they are legally
justified.
20
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.
appeal is made to the highest norms of the positive law. These
are
the
"assertion
of
rights"-cases,
prevalent
in
the
Civil
Rights Movement and which some American commentators now deny the
status
of
acts
of
disobedience. 21
civil
This
type
of
civil
disobedience will probably become more evident in South Africa
once a Bill of Rights has been introduced. It may, of course, in
principle already occur in South Africa, insofar as it might be
claimed that the grounds of justification of the criminal law
apply, or that subordinate legislation is invalid in terms of the
provisions of administrative law.
Legitimacy-based
-
civil
disobedience
or
those
cases
of
civil
disobedience where only the claim of its moral justification is
made. Here an appeal is made not to the positive law, but to the
conscience of the nation or the world, to reason, to natural law,
or to God himself. This is the traditional form in which civil
disobedience
occurred
in
countries
such
as
South
Africa
and
India. According to the American writers referred to above, this
is the only form which, in reality, civil disobedience can take.
There are instances in which these two types of conduct overlap. The
important point for the moment is, however, that both these types of
action should be regarded as “illegal" for purposes of the definition
of civil disobedience.
Having completed the discussion on how wide or how narrow the term
"illegal" should be interpreted, it remains to allude to the different
ways
in
which
illegal
acts
can
manifest
themselves.
An
important
distinction between different types of civil disobedience can be drawn
on the basis of the type of actus reus involved 22 - the distinction
between,
what
disobedience.
might
be
called,
positive
and
negative
civil
23
21
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.
22
See also the distinction made by Bedau The Journal of Philosophy
1961 653 at 654.
23
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
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.
24
On the reasons why law is normally obeyed in society, apart from
compulsion, see Sharp Power and struggle 8ff.
25
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
See also Cohen Rutgers Law Review 1966 1 at 3.
difference
between
the
two
cases
that
a
further
subdivision
seems
imperative. If the term "civil disobedience" is not to be used to
denote the less coercive category of conduct, then another term will
have to be found to distinguish that conduct from the category of more
violent acts. These two categories of conduct clearly involve different
consideration pertaining to their possible justification.
On what basis, exactly, should the distinction between the different
types of conduct described above be made? Various possibilities present
themselves in this regard; most notably the coercion/non-coercion and
the violence/non-violence distinctions. In order to establish which one
of these distinctions will best serve our purposes, the terms involved
must be circumscribed.
A political act can be seen as "coercive” if it involves changing the
incentives of the adversary to the extent that he has no choice but to
change his behaviour. The opposite is "non-coercive" or "persuasive"
action, whereby the opponent is brought to see for himself that he
should mend his ways. 27 "Violence" involves the use or the threat of
physical force against the person or property of one’s adversary; "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 someone’s office is not using violence, but
his actions can nevertheless be highly coercive. 30 Non-coercion, on the
other hand, necessarily involves the absence of violence.
Should,
then,
"non-coercion"
or
"non-violence"
be
regarded
as
an
element of civil disobedience? The distinction coercion/non-coercion
27
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.
28
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
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
purist’s point of view, it would probably be correct to say that, if
one intends isolating a completely unique form of political resistance
under the name of civil disobedience, non-coercion should be regarded
as an essential element. Civil disobedience, so defined, would then
entirely
be
compulsion
aimed
present,
at
persuasion;
one
would
no
and
if
longer
there
be
is
any
dealing
element
with
of
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
31
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".
32
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.
more intense. By voluntarily undergoing suffering, one might not change
the physical incentives of the opponent, but the moral manipulation
could be hard to resist. 33 Gandhi, near the end of his life, expressed
his regret at having coerced people through his fasts. 34
What is more (as will be demonstrated in the historical overview), acts
of political resistance that involve no direct coercion almost always
indirectly entail coercion. Civil disobedience in most cases is not
directly aimed at bringing about a change of heart in the opponent
himself. Invariably the target is, what win be called, a "benevolent
background force" - a third party (for example another country or the
United Nations) which may use its leverage to change the opponent’s
behaviour.
Inciting
such
indirect
pressure,
which
can
be
highly
coercive, was the preferred strategy of most of the people regarded as
classic proponents of civil disobedience, including Gandhi. 35 The moral
component of civil disobedience should consequently not be overrated.
If all cases where an element of coercion is involved either physical
or
moral,
direct
or
indirect
-
had
to
be
disqualified
as
civil
disobedience, this category of protest would be so small as to render
it
insignificant.
Moreover,
it
might
be
true
that
the
difference
between "blocking the way" and "throwing a bomb" is one of degree (both
involve coercing the opponent). However, it should also be noted that
this difference in degree is nevertheless extremely significant. In
practice, it seems appropriate to speak of a "blocking of the way" and
an "illegal, peaceful demonstration" in the same breath; more so than
33
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
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
material
spiritual
that
history
conditions
aspects
of
of
is
driven
living.
living
is
The
by
the
base-structure
super-structure
entirely
determined
or
by
or
the
the
more
the
base-
structure. Civil disobedience in its purest form proceeds from exactly
the
opposite
premise,
namely
the
belief
significantly influence the material.
that
the
spiritual
can
36
It is therefore submitted that civil disobedience involves little or no
coercion. As a practical measure, the category of actions on the one
side of the spectrum can be described with reasonable accuracy by using
the term “non-violence", and indeed, as has been mentioned earlier,
most commentators on civil disobedience use this criterion.
Whether the coercive as opposed to the persuasive element of protest
strategies is in fact predominant in a given case is a matter to be
determined realistically and with practical wisdom. If someone sails
into a certain area to protest against nuclear testing that is about to
take place, his actions might be coercive in the
able
to
cause
Nevertheless,
the
if
his
postponement
actions
in
of
the
test
practical
sense of him being
for
terms
a
still
few
hours.
leave
those
engaged in the testing free to choose whether or not to continue with
their
business
after
the
protester
has
been
removed,
it
can
practical purposes be regarded as an act of civil disobedience.
primary
aim
of
such
conduct
is
what
Bertrand
Russell
36
See infra chap five I BB.
37
See Bedau The Journal of Philosophy 1961 653 at 657.
37
for
The
calls
"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
unforeseen
transform
although
are
incidents
an
act
subdued
of
of
by
violence
civil
force.
or
The
coercion
disobedience
outbreak
does
into
a
not
of
minor
necessarily
violent
uprising,
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
violence
of
the
perpetrated
by
protesters
the
-
state.
the
The
foreseen
violence
requirement
of
is
then
non-violence
applies only to the conduct of the protesters and to acts of those whom
the protesters can reasonably expect to side with them.
Another
factor
actions
might
worth
not
considering
involve
actual
is
the
fact
violence.
that
For
highly
example,
coercive
the
(non-
violent) blocking of a city’s highways might disrupt the community more
than would the (violent) sabotage of the city’s electric lines. At a
certain point such conduct should no longer be regarded as acts of
civil
disobedience,
consequently
remain
although
sensitive
no
to
violence
the
fact
is
that
used.
if
One
the
should
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
38
of
the
protesters
themselves
(or
was
issued
to
them
See Russell "Civil disobedience" in The New Statesman Feb 1961
245.
39
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.
40
See the discussion of the campaign at the salt-works in India,
infra chap three III B (1)(b).
personally) the person or property of the adversary was not attacked,
and such acts should, for practical purposes, be treated as acts of
non-violent resistance.
Given these provisos, however, it is submitted that the requirement of
non-violence generally provides the most workable criterion.
The implications of the requirement of non-violence (or a low level of
coercion) are far-reaching. By putting the conflict on this footing,
the protesters can effectively disarm the government or render its
superior forces useless. Effective government depends upon a mixture of
control
(or
authority
protesters
compulsion,
(or
inter
legitimacy).
can
in
a
very
By
alia
through
acting
dramatic
the
use
non-violently
way
raise
of
force)
and
themselves,
the
questions
about
the
authority or legitimacy of the conduct of the opponent. In the case of
a government which is largely dependent on control, the direct effect
might
be
small,
but
where
authority
plays
a
meaningful
role,
the
legitimacy of the government (both in its own eyes and in the eyes of
the public) can be seriously threatened if the government is seen to
respond excessively on the level of control. Civil disobedience, as one
protester
according
to
evidence
in
a
court
case
during
the
1952
Defiance Campaign in South Africa stated, can be very effective to put
the government in a position where it either has to change or expose
itself
as
a
dictatorship. 41
Through
the
non-violent
actions
of
the
protester, such a government is compelled to respond on the level on
which - it might be the weakest, namely that of morality. 42
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
the
discussion,
it
should
be
noted
that
someone like Thoreau was often said not truly to have been a civil
disobedient,
violence.
because
43
in
certain
cases
he
propagated
the
use
of
It is true that he did not consistently propagate non-
violence. This, however, does not detract from the fact that what he
propagated
in
other
cases
was
the
method
of
civil
disobedience.
A
distinction should be drawn between those, like Gandhi, who propagate
civil disobedience as an article of faith, 44 and others - like Thoreau
and the leaders of the Defiance Campaign - who use civil disobedience
as one of several strategies. Insofar as their actions are non-violent
and
meet
the
other
requirements,
they
are
practising
civil
disobedience. Rawls noted that "by taking part in civilly disobedient
acts
one
does
resistance."
45
not
foreswear
indefinitely
the
idea
of
forceful
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
See Infra chap three III C (4).
44
See Gandhi Non-violent resistance 223.
45
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
morality.
The
-with
an
incentive
not
to
abandon
the
dictates
of
48
element
of
openness
helps
to
ensure
that
civil
acquires the disposition of a two-sided communication act.
disobedience
49
Of course,
clandestine acts of terror also convey a message, but in such cases the
"communication" is intended to be mainly one-sided. It is the openness
of
civil
disobedience
that
makes
it
a
civic
becomes part of the community’s public life.
50
act,
something
which
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,
46
it
will
be
argued,
gives
civil
disobedience
a
basically
See Alien University of Cincinnati Law Review 1967 1 at 5.
47
Cheating with taxes because one disagrees with its application
can consequently not constitute civil disobedience.
48
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.
49
As to the communicative aspect of civil disobedience, see HA
Bailey "Confrontation as an extension of communication" in Bosmajian
Dissent 181.
50
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.
democratic character, in the sense that an appeal is made to the body
politic to reconsider its position.
The
self-imposed
adversary
to
vulnerability
elevate
consciousness.
The
of
their
question
the
civil
conflict
here
is
disobedient
to
not
the
who
forces
level
is
of
his
moral
physically
the
strongest, but instead who is morally more powerful. Hence Rawls saw
civil disobedience as "a political action which addresses the sense of
justice
of
measures
majority
protested
dissenters
honored."
The
the
the
and
in
to
conditions
order
warn
of
to
urge
that
in
social
reconsideration
the
firm
opinion
co-operation
are
of
the
of
the
not
being
51
element
disobedience
of
openness
that
the
makes
it
protester
part
should
of
the
not
definition
actively
try
of
civil
to
evade
punishment, at least not through illegal means such as escaping or
concealing evidence. This does not mean, however, that he must insist
on
being
punished.
It
win
later
be
argued
that
behaviour
such
as
pleading guilty and asking for the maximum sentence to be imposed could
enhance the justification of civil disobedience and might also make
civil disobedience more effective. That, however, does not affect the
definition of civil disobedience. 52
D.
MOTIVATED BY CONVICTION
The interest which the civil disobedient attempts to advance through
his
actions
are
his
convictions.
An
act
of
civil
disobedience
is
consequently not simply motivated by narrow self-interest or by cruelty
or other similar manifestations of spiritual deformity, as is the case
as far as the conduct of the common criminal is concerned. The term
"conviction" carries a wide and not necessarily a precise meaning. In
essence it involves convictions concerning the way the world is seen to
be or evaluated, as opposed to more mundane personal aspirations. 53
One’s
convictions
greater
or
lesser
are,
of
extent
course,
often
determined,
influenced,
by
one’s
or
own
even
to
a
self-centred
interests. In fact, most of the participants in the classic examples of
51
J Raw1s "The justification of civil disobedience" in Beauchamp
Ethics and public policy 132 at 132.
52
See also Dworkin A matter of principle 115.
53
On the meaning of the term "conscience", see Burger JCRDL 1991
512.
civil disobedience that will be considered in the historical section,
had a personal interest in the positive outcome of their respective
campaigns.
Nevertheless,
as
civil
disobedients
they
also
maintained
that their aims were objectively and morally justified, and not merely
subjectively
convenient
or
desirable.
disobedient to act on behalf of a group.
It
is
typical
of
the
civil
54
The fact that conduct is motivated by conviction does not, of course,
carry with it any guarantees of its acceptability. Convictions that
lead to breaking of the law can be good or evil. It will be argued
later on that it might in many cases be extremely difficult to find an
acceptable
criterion
for
distinguishing
the
"good"
from
"bad"
convictions, precisely because one is here dealing with basic values.
In such cases it might be more feasible to distinguish different acts
of disobedience on the basis of the type of conviction involved. 55
With
a
view
to
a
sliding
scale
of
importance
to
the
individual
concerned, one could distinguish convictions which form part of one’s
i)
integrity;
ii)
opinion
on
the
question
whether
those
in
power
exploit those without power, and iii) convictions in respect of matters
of policy. 56 On basis of his distinction three different types of civil
disobedience can be identified:
-
Integrity-based
civil
disobedience,
which
is
motivated
by
the
belief that compliance with a particular law or system of laws
would seriously damage or even destroy what one might call one’s
"moral wholeness", for example by requiring one to commit sin or
to be an instrument of injustice. Disobedience in this case is
regarded as the only means of preventing the moral catastrophe
which compliance would entail. This is the category of one's most
deeply
held
beliefs
"ultimate concerns".
57
-
conscience
par
excellence
or
one’s
As will be demonstrated hereafter. Western
thinking for a very long
time professed that only religious
values could be of such importance in people’s lives. However,
the modern understanding of freedom of conscience brought with it
54
See Weingartner Columbia University
Arendt Crises of the republic 76.
55
See infra chap six III A.
56
See Dworkin A matter of principle 102.
57
See infra chap four IV C.
Forum
1966
38
at
39
and
greater recognition of the basic role which secular beliefs can
play in people’s lives. On this basis we can further distinguish
between religious and secular integrity-based civil disobedience.
As
will
be
demonstrated
later
on,
this
distinction
is
of
particular importance in the field of conscientious objection to
military service. 58
Insofar as the beliefs that prompted acts of civil disobedience have
not
acquired
the
status
of
an
"ultimate
concern",
one
can
also
distinguish justice-and policy-based civil disobedience:
-
Anti-exploitation civil disobedience is premised on the belief
that those who rule are oppressing or exploiting those subject to
their rule. The claim is made that those in power are benefiting
themselves at the expense of the powerless.
The exploitation that may occasion this kind of disobedience can
take on one of two possible forms:
-
It can involve suppression of the majority by the minority
(as in apartheid South Africa), or
-
it can involve suppression of the minority by the majority
(as
in
the
United
States
as
far
as
the
Civil
Rights
Movement was concerned).
-
Policy-based civil disobedience does not involve the claims that
the
government
is
compromising
integrity,
or
that
it
is
exploiting those who are ruled. Instead, it is alleged that those
who are in power are misguided in acting in a certain way.
E.
POLITICAL ACT
Certain acts of protest are illegal, non-violent, open and motivated by
conviction, but, nevertheless, can not be described as instances of
civil disobedience in the ordinary meaning of the word. A case in point
would be that of someone who breaks the speed limit to take an injured
person to hospital. 59 What is lacking in that case, and in many others
where the traditional grounds of justification of criminal law apply,
is a political dimension. An act of civil disobedience is political in
the sense that it challenges the authority of the government - either
58
See infra chap four IV.
59
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 person’s objectives are, so to speak,
"private" or "internal"; in the second they are "public" or "external".
On basis of this distinction one can differentiate between, what may be
called, defensive and result-oriented civil disobedience.
In the case of defensive civil disobedience there is no intention to
confront the authorities (even if that is the eventual consequence of
one’s act). 61 The perpetrator does not "go out of his way" to break the
law and to seek confrontation. The motivation is deontological, in the
sense that the person who acts illegally does so irrespective of any
possible consequences. 62 He simply wants to avoid the moral debasement
of compliance. A good example in this regard is the position taken by
the Jehova’s Witnesses in respect of military service, which has been
characterised as follows: "Ons neem niemand kwalik wat wel mititere
diens doen nie; ons opponeer ook geen regering se militere aktiwiteite
nie; ons wil ook niemand afraai om militere diens te doen nie - maar
vir ons is dit sonde." 63 This type of civil disobedience can also be
called "non-cooperational".
In the case of result-oriented civil disobedience, the illegal action
involves a deliberate choice on the part of the protester to break the
60
See Smith Fordham Law Review 1968 707 at 719. Gandhi used the
terms "defensive" and "aggressive" civil disobedience. See Gandhi Nonviolent resistance 175.
61
There is, so to speak, at the most dolus indirectus to confront
the authorities.
62
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
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
His
civil
disobedience
was
consequently
result-
oriented.
Two types of result-oriented civil disobedience may be distinguished on
the basis of the mechanism through which change is primarily affected:
sacrificial
and
symbolic
civil
disobedience.
Sacrificial
civil
disobedience depends for its effectiveness on martyrdom. By willingly
placing his life, freedom or possessions on the line, the protester
legitimises his cause as something which is worth such a sacrifice.
Traditionally most instances of civil disobedience took
this form. To
Gandhi, for example, civil disobedience was "a terrifying synonym for
suffering". 66
Civil disobedience can also challenge and change the system simply
because
the
person
who
defies
the
state
is
seen
as
a
normal
and
respected member of society - he is "one of us". The ritual of the
criminal trial is designed to bring
about "reality reparation" - that
is, to reconfirm to society what its values are. 67 It identifies to the
dominant group who the "good guys" and the "bad guys" are. In this
sense the criminal trial reveals more about those who conduct it than
about those who are being tried. If a normal member of society is
branded
as
an
outlaw,
the
security
which
this
mechanism
normally
provides is undermined. If such a person is on the other side of the
64
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.
65
See Gandhi "The theory and practice of passive resistance" in
Golden number of "Indian Opinion" 1914 9.
66
67
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
disobedience, on the other
it
is
prohibited).
Negative
civil
hand, will mostly be defensive (as
was
the case with Daniel's friends who refused to bow to strange gods when
ordered to do so), but it can also
be result-oriented (as in the
Defiance Campaign of 1952, when black South Africans refused to carry
passes as prescribed by law).
Although it is not entirely clear, since there is no generally accepted
terminology in this regard, it seems that a number of writers (i) only
regard,
what
we
have
called,
positive
civil
disobedience
as
disobedience proper, while others (ii) confine its meaning to what was
termed
neither
result-oriented
of
these
civil
limitations
disobedience. 68
of
the
It
meaning
is
of
submitted
the
term
that
"civil
disobedience" should be applied.
Limiting the definition of civil disobedience to those cases where one
positively
does
impracticable
and
something
which
unwarranted.
It
is
prohibited
by
is
impracticable
law
is
because,
both
as
is
generally accepted in criminal law and the law of delict, a watertight
distinction between a positive and a negative act cannot always be
68
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.
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
disobedience can qualify as civil disobedience?
70
acts
of
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
state
with
to
justify
essentially
the
such
a
distinction.
same
problem,
They
namely
open
defiance state with the problem of a breach of its laws whereby its
authority is challenged, irrespective of whether or not that was in
fact the intention.
It is consequently submitted that, while it is useful to make a loose
distinction
between
positive
and
negative
civil
disobedience,
and
between result-oriented and defensive civil disobedience, the basis of
these distinctions cannot be used to define civil disobedience as such.
These
distinctions
differentiation
should
between
rather
different
be
types
regarded
or
as
the
manifestations
basis
of
of
civil
disobedience.
69
See Snyman Criminal law 42. See also, in respect of delict. Van
der Merwe & 01ivier Die onregmatige daad in die Suid-Afrikaanse reg
29.
70
See eg Raz The authority of law 264, who claimed that civil
disobedience must be "designed to have a public effect".
In conclusion it should also be noted that all these different types of
civil disobedience can be practised either by individuals, in which
case it will be called individual civil disobedience, or by groups, in
which case it will be called mass civil disobedience.
III.
CAN CIVIL DISOBEDIENCE HAVE REVOLUTIONARY OBJECTIVES?
Up to this point, the elements included in the definition of civil
disobedience have been discussed. It is now necessary to highlight a
possible element which thus far has not been considered.
A considerable number of writers, especially in the American tradition,
has argued that civil disobedience as a matter of definition must have
the limited aim of only protesting against a certain law or laws.
According to, what can for the sake of convenience be called, the
American
approach,
protest
directed
against
the
legitimacy
of
"the
existing system as a whole" cannot be civil disobedience, and, because
it is revolutionary, should instead be regarded as a different type of
political action. 71 Civil disobedience cannot be aimed at, what Thoreau
called,
a
"peaceable
revolution"; 72
that
is,
insofar
"revolution" is used to signify qualitative change.
as
the
term
73
If the American approach is correct and applied uncritically to other
societies, it would mean that neither Gandhi in his protest against the
British
Raj
in
India,
nor
those
engaged
in
the
struggle
against
apartheid in South Africa, or those who practised civil disobedience
against Hitler, would qualify as civil disobedients, because in all
these cases defiance of the law was aimed at protesting the existing
system as a whole. 74 It would be strange, however, if a form of protest
71
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
See infra chap three III C (4).
73
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 opponent’s rule. That is clearly absurd.
It
is
submitted
that
such
conclusions
would
reflect
a
confusion
regarding the meaning attached by the American writers to the term "the
existing
system"
transferred
as
a
uncritically
whole.
to
American
other
jurisprudence
jurisdictions
where
cannot
be
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
disobedience,
which
is
aimed
against
a
particular law or laws or an aspect of the social system. The
Civil
Rights
Movement
is
an
example
of
this
type
of
civil
Gandhi accepted the basic legitimacy of the system of white
domination. See chap three infra III A (2)(b). Later he saw civil
disobedience as "a symbol of revolt against the state". See Gandhi
Non-violent resistance 175.
75
See Arendt Crises of the republic 77.
76
See
A
Cox
"Direct
action,
civil
disobedience,
and
the
constitution" in Cox et al Civil rights, the constitution and the
courts 2 at 12.
77
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.
disobedience, as well as Gandhi’s campaigns in South Africa. The
changes envisaged in this instance might even include a change in
government if the basic structure which upholds that government
is accepted.
-
Revolutionary civil disobedience, which is directed at the basic
structure
and
laws
of
the
existing
political
dispensation.
Gandhi’s campaigns in India, and the Defiance Campaign of 1952 as
well as the Positive Action Campaign of 1960 in South Africa, are
examples of this type of civil disobedience.
Two
types
of
revolutionary
civil
disobedience
can
be
distinguished:
Anarchistic
-
civil
disobedience,
which
rejects
the
legitimacy of all laws, or the idea of law itself.
-
Non-anarchistic civil disobedience, which aims at replacing
the
existing
structure
with
another
system
of
law
and
government.
As
will be pointed out later on, the occurrence of anarchistic civil
disobedience would be very rare - logically there seems to be little
reason for someone committed to anarchy to act openly, since he rejects
the legitimacy of anything that might, as a result of his actions, be
done to him.
Whether any of these types of civil disobedience is justified in a
particular case, is an entirely different matter and will be addressed
later.
IV.
DIRECT AND INDIRECT CIVIL DISOBEDIENCE
Civil disobedience can be used either as a direct or as an indirect
tool of political resistance in two different ways.
A.
CONSIDERATIONS RELATING TO THE LAWS OBJECTED AGAINST
Direct civil
disobedience in the first sense of the word occurs when
the agent violates a law because he believes that particular law to be
unjust. Such civil disobedience can either be positive or negative,
defensive or result-oriented.
Indirect civil disobedience,
on the contrary, takes place when the
agent breaks a law, not because he believes that particular law to be
unjust, but because by doing so he objects against another aspect of
political
life,
such
as
another
law
or
laws,
certain
governmental
policies, the entire governmental structure, etc.
Indirect civil disobedience requires "going out of one’s way" and will
inevitably be result-oriented. It can take the form of either negative
civil disobedience (for
example if one refuses to pay tax in protest
against a non-related aspect of government policy) or positive civil
disobedience (for example if one takes part in an illegal demonstration
aimed at a bill pending in parliament). Indirect civil disobedience in
this sense of the word is the only type available when the wrong being
protested is the absence of governmental action. 78
As far as the definition of civil disobedience is concerned, there need
not
be
a
relationship
between
the
issue
giving
rise
to
the
civil
disobedience and the illegal act itself.
This issue will again be addressed when the justification of civil
disobedience is considered. 79
B.
CONSIDERATIONS RELATING TO THE TARGET OF THE RESISTANCE
Civil disobedience can also be direct or indirect in another respect,
to which brief reference has already been made. Firstly, however, the
dramatis
personae
disobedience
will
"disobedient"
disobedience
"target".
or
her
The
should
be
be
called
explained.
the
"protester".
conduct
target
can
is
be
The
"civil
In
person
practising
disobedient"
the
case
directed
at,
what
either
(i)
the
of
or
civil
simply
the
result-oriented
we
will
direct
call,
her
adversary
or
"opponent"; the person, people or institution whose behaviour in the
first place caused the civil disobedience, (ii) the potential followers
of the protester, whose support she wants to mobilize, or (iii) it
could be a congenial third party which is in a position to change the
behaviour
of
the
adversary.
Such
a
third
party
may
be
called
a
"benevolent background force".
The civil disobedient can address his adversary directly or indirectly
in the following way: directly addressing the opponent occurs when the
78
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
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
background
force,
operate
a
imminent
success,
as
on
form
of
exposing
the
because
civil
critique:
difference
it
between
disobedience
is
can
dependent,
pretense
only
for
and
its
reality,
between the values the target professes to adhere to and his actual
deeds. Civil disobedience works like Plato’s idea of education - it can
only awake and arouse that which is, at least latently, already there.
It
cannot
create
humanity
in
an
opponent
where
there
none. 81
is
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
electorate
India);
against
it
his
can
be
direct
Thoreau
who
opponent,
wishes
the
to
American
government, or it can be Martin Luther King attempting to activate
public opinion and the federal government against his opponents, the
Southern
local
authorities.
It
will
be
argued
that
mass
civil
disobedience in this century was in most cases also aimed at mobilising
the world community, as a type of global "benevolent background force",
against the more direct opponents, namely the national governments.
Although the third party might ultimately act coercively against the
direct opponent, the protester’s actions essentially remain persuasive
in the sense that the third party is persuaded and not coerced into
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.
THE TERM "CONSCIENTIOUS OBJECTION"
To
conclude
this
chapter,
the
meaning
of
the
term
"conscientious
objection" and the way in which it is related to "civil disobedience"
will be considered.
In some cases where people are placed under a positive legal duty to do
something which some of them might find particularly objectionable,
provision is made for exceptions from direct compliance. This normally
takes the form of an alternative way of complying with that particular
law. The most obvious example in this regard is the provision made in
many societies for alternatives to mandatory military service. 82 In such
cases
those
who
qualify
for
exceptional
treatment
have
a
legal
alternative to civil disobedience.
Often, however, only a limited number of those who find compliance with
the law unacceptable qualify for alternative service. The alternative
option provided for by law is consequently not open to them. They have
to choose between compliance and civil disobedience. The question then
arises in respect of which category of persons refusing to comply the
term “conscientious objection” be applied.
A
variety
of
different
approaches
are
proposed
by
writers
on
the
subject.
-
Some commentators restrict the term "conscientious objection" to
the actions of those who do qualify for exemption - that is, in
the
case
of
military
alternative service.
83
conscription,
those
who
qualify
for
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
82
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.
83
Cohen Civil
disobedience
41
regarded
the
term
"conscientious objection" as a special expression, generally observed
for "acts entirely within the protection of the law".
conscription - end up in prison. 84 If this approach were to be
followed, "conscientious objection"
would be a form of civil
disobedience. Conscientious objection would then in fact simply
be another name for negative civil disobedience.
-
The
third
approach
is
to
distinguish
civil
disobedience
and
conscientious objection on the basis that, while both involve
illegal
action,
civil
disobedience
is
always
result-oriented
while conscientious objection is defensive. If this approach were
to be followed, civil disobedience and conscientious objection
would be parallel and mutually exclusive terms. The term "civil
disobedience" would then be used to refer to, what was termed,
"result-oriented
"conscientious
civil
objection"
disobedience"
would
"defensive civil disobedience".
then
only,
cover,
and
what
reflect
objection".
In
the
common
ordinary
was
term
called,
85
It is submitted that all three approaches are too narrow
properly
the
usage
of
the
term
discussions
we
regard
and do
not
"conscientious
as
conscientious
objectors those who qualify for alternative military service (who are
excluded by the first view) as well as those who do not
qualify for
alternative service and are imprisoned or otherwise punished (who are
excluded by the second view). It also seems strange (as is done by
those
who adhere to the third view)
not to regard someone who refuses
to do military service for reasons of conscience as a conscientious
objector on the grounds that his intention is to make a political
statement and to put the government under pressure.
In this study the term "conscientious objection" will be used to refer
both to those objectors who qualify and those who do not qualify for
exemption, irrespective of the question whether they intend through
their actions to have a political effect. The actions of those who
qualify
for
exemption
win
be
referred
to
as
"legal
conscientious
objection", while the actions of those who do not qualify win be called
"illegal conscientious objection". Only the last category qualifies as
civil disobedience proper, but, for reasons which will appear in due
course, both categories of conscientious objection will be considered
in this study.
84
See Bedau The Journal of Philosophy 1972 179 at 181 n 3.
85
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
sacrificial
Result-oriented cd
Non-sacrificial
Other manifestations of cd
Reformatory cd
Anarchic cd
Revolutionary cd
Non-anarchic cd
Direct and indirect cd:
Direct cd, which involves a
direct breach of the laws
objected against
Consinderations regarding
the laws objected against
Indirect
cd,
objection
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
adversary
indirectly,
by
mobilizing
one’s
own
constituency
through
or
a
background force”
CONSCIENTIOUS OBJECTION (“co”)
Illegal co (a form of cd)
Legal co (not a form of cd)
the
by
working
“benevolent
CHAPTER THREE:
HISTORICAL SURVEY OF THE DEVELOPMENT OF CIVIL
DISOBEDIENCE
In this chapter the historical development of
against
the
background
of
the
origins
civil disobedience, seen
of
illegal
resistance
to
authority, will be considered. In accordance with the general focus of
this
study,
the
emphasis
will
be
on
the
development
of
civil
disobedience as an instrument of mass political mobilisation during
this century.
I.
THE ORIGINS OF ILLEGAL RESISTANCE TO AUTHORITY
The origins of illegal resistance to authority can be traced to our
constitutive
represents
myths
our
-
the
entangled
understanding
of
web
our
of
fact
origin.
and
fiction
Irrespective
which
of
the
question of their objective validity, these myths, because they reflect
the workings of the human spirit in an uninhibited setting, should be
taken seriously. They reveal much about the way in which we understand
our world and consequently about our deepest nature. 1
Myths
have
been
described
as
"the
common
source
of
morality
and
religion"; "the most powerful statement of values to which any society
commits itself" 2 and "nothing less than a cloak for abstract thought." 3
In many ways myth is the early manifestation of ideology.
"Illegality" was earlier defined
as attending conduct which is likely
to provoke the wrath of the state or the ruler. ancient times, when
law, morality, custom and religion were largely fused, transgression of
most of the taboos of society was likely to have this effect. It is
consequently
the
myths
regarding
such
actions
that
are
the
most
pertinent to our inquiry.
1
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 humankind’s relationship to it. 4 Obedience and resistance
are, for example, the central themes of both religion and politics; the
one on a divine and the other on a secular level. It is therefore only
to be expected that our most important constitutive myths would centre
upon this theme. And indeed, the myth of the disobedient representative
human being plays a pivoted role in Christian and Greek portrayals of
the
sources
of
human
civilization.
According
to
the
Christian
tradition, human civilization as we know it today started with an act
of defiance of God himself, when .humanity’s earliest ancestors broke
God’s command not to eat from the tree of the knowledge of good and
evil. As punishment for having transgressed this commandment and having
attained this knowledge, human beings, according to the Bible, were
banished to a life of toil, misery, and eventually death. 5 Similarly, in
Greek
mythology,
civilization,
Prometheus
from
Zeus,
stole
the
fire,
supreme
the
god.
basic
For
Prometheus was subjected to the most severe pain.
requirement
having
done
for
this,
6
Several observations flow from a consideration of the
above. In the
first place, both traditions recognise the crucial role that resistance
plays in our earthly existence. According to these myths, resistance
coincides
conceptually,
if
not
chronologically,
with
authority.
Resistance must play a central role in the earthly life of humans, if
the archetypical human being will defy what he perceives as the highest
authority, namely God, even though this subjects him to the imposition
of the highest penalty, namely death.
There
can
be
little
doubt
that
a
very
powerful
message
about
the
consequences of disobedience is being portrayed. At the same time, one
should be careful not to deduce from the Bible’s portrayal of the
events in paradise that any resistance to authority should be seen as
"wrong" or "sinful". It is resistance to God which is cast in this
light. In paradise God was the only authority, but it belongs to the
essence of human life as we now know it that we are subjected to a wide
4For an in-depth discussion of the psychological dimensions of
obedience and resistance, see Mitscherlich Society without the father.
On the famous Milgram experiments, see migrant Obedience to authority.
5
Genesis 2 & 3.
6
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
"moral"
seems
to
be
that
it
is
possible
to
make
progress
by
deviating from the established norm, but only if one is willing to "pay
the
price".
In
the
dialectical
process
which
characterises
human
development, disobedience to a particular order can have a charismatic
effect, in the sense that the old order can be relativised and a new
order can be legitimised. A new right and a new wrong can be created.
The precondition for this, however, is suffering. 7
The notion of the creative force of suffering, which lies at the heart
of the most common manifestation of civil disobedience as a political
instrument,
will
namely
presently
be
sacrificial,
discussed
in
result-oriented
more
detail.
civil
For
the
disobedience,
moment
it
is
intended merely to point out that this notion can be traced to our most
fundamental understanding of human origin.
II.
THE ORIGINS OF CIVIL DISOBEDIENCE
It was argued earlier that two main types of civil disobedience should
be distinguished: defensive and result-oriented civil disobedience. As
will be demonstrated in this chapter, defensive civil disobedience has
been practised by individuals and groups throughout history. Resultoriented civil disobedience has a much shorter history and was practised
initially only by a small number of extraordinary individuals. It was
7
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
mobilised
beginning
to
engage
of
in
this
century
that
result-oriented
the
civil
masses
could
disobedience.
be
These
historical developments will now be traced. It will be argued that the
differences
in
the
developmental
patterns
of
defensive
and
result-
oriented civil disobedience, as far as the numbers of people who were
willing to engage in these different forms of protest are concerned,
can largely be explained in terms of differences between these forms of
resistance.
A.
AN INTERPRETIVE FRAMEWORK FOR THE HISTORY OF CIVIL DISOBEDIENCE
From our ex post facto perspective on history, events from the past
often seem either inevitable or wholly contingent; the result either as
a
manifestation
of
a
predestined
master
plan
for
the
universe,
or
simply the outcome of the contingent passions of the moment. The extent
to which much of history is the result of rational choices by the
individuals involved at the time, based on the facts of the situation
as they saw them, is not always taken into consideration. "Rational
choices” in this context mean choices which are calculated to attain
the
maximum
fulfilment
of
the
agent's
objectives
at
the
minimum
personal cost. These choices can still make sense if the conditions
under which they were made are properly taken into account.
The
historical
patterns
according
to
which
individuals
or
groups
adhered to defensive or result-oriented civil disobedience, when and
where they did, can largely be explained in terms of such rational
choices, made by people
throughout history who had to establish the
feasibility of particular forms of protest in their circumstances.
The two crucial factors which affect people’s willingness to engage in
certain types of resistance are the personal risk to which such actions
expose the resister and the likelihood of success. The higher the risk
and the lower the prospects of achieving one’s goals, associated with a
particular form of protest, the less attractive such protest becomes.
The
fact
that
defensive
civil
disobedience
has
been
practised
throughout history by groups and individuals, but mass result-oriented
civil disobedience was practised in this century for the first time,
can be explained in terms of this truism.
It was noted earlier that civil disobedience is a form of immanent
critique
which
can
only
be
effective
against
a
morally
sensitive
target. Insofar as the objective is to change the behaviour of the
adversary, it follows that practising this form of protest only makes
sense in a situation where the target is susceptible to moral pressure.
Defensive civil disobedience is mostly encountered where the objective
is to preserve one’s “ultimate concerns" or integrity. The fundamental
nature of this concern implies that the issue of personal risk is often
considered to be of secondary importance. In order not to betray their
deepest convictions, people are often even prepared to die. Moreover,
since
the
resistor’s
goal
is
not
to
change
the
prevailing
social
circumstances, but merely to avoid the moral pollution of compliance,
the moral sensitivity - or lack of such sensitivity - is irrelevant.
"Success" for the resister lies simply in saving his own integrity
through non-compliance.
The conduct of the defensive resister is consequently not as dependent
on the response which it is likely to provoke as is the case with the
result-oriented resister. In this sense defensive civil disobedience is
ahistorical. It
could be expected to be engaged in throughout history,
by any number of people who consider their
basic convictions to be
sufficiently threatened.
Different
considerations
arise
in
respect
of
result-oriented
civil
disobedience. The objective of this form of disobedience is typically
to protest against alleged exploitation and policy decisions of the
government. Because the objectives pursued are not as fundamental as is
the case with integrity-based disobedience, personal risk becomes more
relevant.
But
perhaps
more
importantly,
the
intention
with
result-
oriented disobedience is indeed to bring about social change, which
means that the political circumstances in which this type of civil
disobedience is practised could become highly relevant to the rational
agent concerned with a view to his prospects of success. The use of
result-oriented
civil
disobedience
would
to
a
large
extent
be
determined by prevailing political circumstances, and particularly by
the question how morally sensitive the target is.
If the target is perceived to be susceptible to moral appeals, 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
of
the
disobedient
was
also
unlikely
to
exercise
a
positive
influence on the opponent, either immediately or later. The rulers of
the
time
were
ruthless
and
insensitive
to
outside
moderating
influences. Because of their likely reaction, they were either resisted
by the use of force or disobeyed in secret, or both.
Only when visionary individuals at the beginning of our year count
perceived the emergence of a new, kinder order, would they engage in
result-oriented
civil
disobedience.
The
isolated
instances
of
disobedience, exemplified by the actions of a Socrates or the heroes of
Christianity, indicates that such conduct must have been rare indeed.
Such persons often had to pay the highest toll without witnessing the
eventual success of their ideals. Not surprisingly, the masses could
not
be
persuaded
to
do
the
same.
Given
the
strength
of
their
convictions, it was “rational" for these individuals to engage in civil
disobedience, even if they were to pay the highest price. To the less
idealistic masses the chances of success, measured against the likely
punishment to be imposed, were still too remote.
Result-oriented civil disobedience became a realistic option to the
proverbial
person
in
the
street
in
the
Twentieth
Century.
It
is
submitted that only in this century people like Gandhi and King could
mobilise ordinary people with family and other commitments to engage in
non-violent protest, because, due to the new emphasis on human rights
and the development of enforcement mechanisms, the prospects of success
of civil disobedience became significantly higher, and the probable
punishment less extreme.
At least in two respects there was a dramatic increase in the global
human rights culture and the level of moral activism in the Twentieth
Century.
In
universal
the
first
franchise
place,
and
this
century
meaningful
saw
the
introduction
of
protection
of
institutional
individual rights. Inevitably, the more liberal governments were the
ones
confronted
sufficiently
with
morally
civil
disobedience
sensitive
to
render
campaigns.
the
They
practice
of
were
result-
oriented civil disobedience feasible.
At the same time, important events also occurred on the international
front.
In
village"
this
or
century,
for
international
the
first
community
time
was
in
history,
established.
a
"global
This
was
manifested in the emergence of structures such as the United Nations
Organization. In
an increasingly interdependent world, it would become
more necessary as well as easier for the international community to
involve itself in what was traditionally considered to be the domestic
affairs of nations, namely their human rights practices. This process
was greatly assisted by the powerful role which the international media
started to play. Injustice now started to lose its localized nature and
the adagium became popular that "human rights know no boundaries". It
is only natural that, once the world was locked into a single moral
unit, norms could be established that would aim at some consistency and
hence
equality
in
the
way
in
which
people
were
treated,
and
that
international pressure would be exercised in that direction.
Although often hesitatingly, the emergent world community itself would
act
as
a
type
of
universal
benevolent
background
force
to
which
protesters who were not likely to succeed on a national level could
appeal. Only in this century would indirect civil disobedience, whereby
a protester aims his civil disobedience at the international community
who
in
turn
then
pressurises
the
direct
opponent
or
national
government, have the prospect of success.
Of course, injustice remains rife. Many conflicts exist in which the
use
of
civil
misplaced.
widespread
disobedience
Nevertheless,
goodwill
exists
would
at
to
probably
least
in
make
civil
be
some
naive
cases,
disobedience
and
totally
sufficiently
on
a
fairly
widespread level feasible and likely to obtain results. As win
be
illustrated, it was only when the opportunities offered by these new
developments were pointed out to the masses by people like Gandhi, that
mass civil disobedience was practised.
With
this
overview
interpretative
of
the
framework
development
of
in
mind,
the
a
general
different
historical
types
of
civil
disobedience will next follow.
B.
DEFENSIVE CIVIL DISOBEDIENCE
Although
illegal
political
resistance
in
antiquity
(and
in
fact
throughout history) was often violent and motivated by narrow selfinterest,
it
is
interesting
to
note
that
the
oldest
example
of
resistance to secular authority known to us, which comes from Judaism,
was non-violent and motivated by conviction. 8 Pharaoh, during the time
of the Diasphora, ordered the Hebrew midwifes to kill all the Jewish
male newborns immediately on delivery. According to the Bible "the
midwifes, however, feared God and did not do what the king of Egypt had
told them to do." 9 When asked about the boys who lived, the midwifes
lied to Pharaoh and their fives were saved. 10
As was the case when the first acts of resistance were considered, a
parallel may again be found in the Hellenistic tradition. In the Fifth
Century, Sophocle’s Antigone -considered by many to be the archetype of
civil disobedience
11
- defied King Creon’s prohibition on the burial of
her brother, whom Creon regarded as a traitor. In the dark she threw
sand on the body of her brother. Antigone, however, was caught and
brought
before
Creon.
She
showed
few
signs
of
repentance
and
told
Creon:
I didn’t suppose your decree had strength enough,
or you, who are human,
to violate the lawful traditions
the gods have not written merely, but made infallible.
These laws are not for now or for yesterday,
they are alive forever;
and no one knows when they were shown to us first. 12
8
For an account of the origins of political revolution in Egypt,
see Calvert Revolution 16ff.
9
Exodus 1.17.
10
Exodus 1.19.
11
See eg Cover Justice accused 1.
12
Sophocles Antigone lines 555-561.
In these acts of non-violent political resistance we have, in embreotic
form, the origins of civil disobedience in both the Judaist and in the
Hellenistic
traditions.
These
myths,
however,
portray
instances
of
defensive rather than result-oriented resistance. Result-oriented civil
disobedience would involve the introduction of an additional element,
namely open confrontation.
C.
INDIVIDUAL, RESULT-ORIENTED CIVIL DISOBEDIENCE
The non-violent actions of the midwives and of Antigone would later be
echoed, in their respective traditions, in the conduct of persons such
as Daniel and his friends and the heroes of the New Testament on the
one hand, and events surrounding the death of Socrates on the other.
What was new in this development was the introduction of the element of
deliberate and open confrontation, aimed at bringing about a new order.
In essence the idea was now introduced that martyrdom - which more
often than not was the inevitable result of open confrontation - could
be used to bring about social change. 13 This idea was described earlier
as the core idea of sacrificial result-oriented civil disobedience.
The effect which acts of civil disobedience that resulted in martyrdom
played in the development of Western civilization is indeed remarkable,
as is the extent to which those who engaged in it were "successful" in
promoting their persuasions. Civil disobedience is often seen as a form
of
destructive
protest
established legal and
which
only
serves
to
undermine
respect
for
political institutions, while its role can in
fact be highly constructive. Sacrificial civil disobedience, involving
martyrdom, has served to establish some of the most crucial pillars of
the modern world order.
Martyrdom
entails
the
normally
regarded
as
sacrifice
an
for
unqualified
a
certain
human
cause
good,
such
of
as
something
liberty,
freedom, health or life itself. The fact that someone is willing to
"pay the highest price" - to sacrifice his life - in the pursuit of a
certain ideal, affords to that ideal the quality of highest value. The
sight of blood that is spilled for a certain cause affects the human
mind
at
its
deepest
levels
of
consciousness. 14
It
is
difficult
to
13
In Greek "martyr" means "witness". For a discussion of the proper
translation, see Vivian St Peter of Alexandria 216.
14
See Reisman Emory Law Journal
Weisstub The Western idea of law 129.
1983
499
at
519
and
Smith
&
discard
a
cause
for
which
someone
died,
for
to
tantamount to discarding the value of life itself.
do
so
could
be
15
Two types of martyrs and martyrdom should be distinguished. In the
first place there are those who do not take the final decision to bring
the ultimate sacrifice themselves. Although such an
occurrence can
make a great contribution toward mobilising loyalty for their cause
among their followers, they should, to the extent that they declined to
take a final decision to make the sacrifice themselves, be regarded as
victims rather than true martyrs. 16 The true martyr is the person, like
Socrates or Christ, who takes the final decision to pay the highest
price himself. It is to this second category that the sacrificial civil
disobedient, who decides to break the law knowing that the consequences
to himself would be serious, belongs.
At crucial junctures in the history of Western civilization, prophets
of a new order peacefully, but also openly and deliberately, defied the
demands of older, more exclusive orders to which they were subjected,
in obedience to new, more inclusive orders, fully realising that they
will
pay
with
their
blood
for
such
defiance.
By
bringing
this
sacrifice, they relativised the older orders and legitimised the new
orders which they propagated. Through their defiance they created a new
right and a new wrong.
Seen on a purely secular level, the phenomenon of result-oriented,
sacrificial civil disobedience is particularly visible in the 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
bring the sacrifice. The point had been
made - the supreme position of the God that would unify Israel had been
established.
Throughout
Jewish
history,
Abraham
served
as
an
inspiration and a reminder that one’s ultimate loyalty should be to
15
See Heyns Die Suid-Afrikaan April 1989 43 at 43.
16
In the South African
context people like
Steve Biko were victims rather than martyrs.
17
See Genesis 22.
Jop1e Fourie and
that which unifies the group and not to one’s own parochial interests. 18
In time, as the world developed and became more populated, the order of
Israel would in turn become too restrictive and exclusive. The time had
arrived for a new world order which would transcend existing barriers.
This most inclusive order would be brought into existence through the
greatest
possible
sacrifice:
a
double,
divine
sacrifice.
Through
Christ’s defiance of the dictates of the church and the establishment
of his time, and his consequent death on the cross. God the Father
would sacrifice his Son, and God the Son would sacrifice himself in
pursuit of such a new world.
This most dramatic event in Western spiritual life would inspire much
of the world with a world-view in which all people are linked to each
other as the children of one God. This new world order would be founded
on
the
idea
of
love
that
transcends
all
differences
-
also
the
distinction between Jew and Muslim, freeman and slave - now and to
eternity. That is, after all, the ideal for which Jesus died. The
disobedience of Christ to the dictates of the more restrictive order in
obedience to a higher order, and his subsequent martyrdom on the cross,
is the central pillar of strength of the Christian faith and Christian
values. 19
The
Judeo-Christian
tradition
constitutes
what
is
traditionally
considered to be the more mystical side of Western civilization, which
to some extent might explain the role which martyrdom played in this
tradition. What is remarkable, though, is that the same phenomenon also
played
a
crucial
role
in
the
legitimation
of
new
orders
in
the
Hellenistic tradition, which is normally considered the more rational
side of Western civilization.
One of the most influential aspects of the legacy of Greek philosophy
is Plato’s account of the events surrounding the death of Socrates, as
portrayed in the "Apology", "Crito" and "Phaedo". 20 In "Crito" the scene
is described where Socrates, having been sentenced to death, is visited
18
See Reisman Emory Law Journal 1983 499 at 517.
19
For interpretations of the meaning of the martyrdom of Christ,
see Horbury & McNeil Suffering and martyrdom in the New Testament 9,
70, 118.
20
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.
by one of his best friends, Crito. Although he was charged with crimes
such as corrupting the youth, it is widely agreed that Socrates was
convicted and sentenced to death because of his political unpopularity,
which was the result of his relentless examination of all aspects of
life and his exposure of what he considered to be false certitudes.
Crito begged Socrates to escape from prison and from Athens - something
that could be arranged and which apparently would not be against the
wishes of the authorities, who simply wanted to get Socrates out of the
way.
Crito argued that Socrates owed it both to his family and his friends
to escape. Crito reminded Socrates of the opportunities he had missed
to avoid his eventual predicament. The first possibility had been to
escape from the city before the trial (as many people who faced the
prospects of
a similar fate had done 21); the second possibility had
been
conducted
to
have
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
living." 23
worth
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
laws,
argued
since
that
"any
one
owes
Athenian,
on
21
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.
22
See Plato's
Socrates 44 B.
23
"Crito",
reprinted
See Plato's "Apology",
Socrates 71 at 72.
24
Id 48 E.
in
reprinted
Plato
in
The
Plato
last
The
days
last
days
of
of
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
disadvantage.
laws,
even
when
occasionally
they
work
to
one’s
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
nullified and destroyed by private persons?"
no
force
but
are
26
In a scene, the drama an ethos of which is surpassed only by that of
the cross, Socrates, surrounded by his friends, then drank the hemlock
and died. 27
This portrayal of the last hours of Socrates has become one of the most
important images of Western civilization. Socrates has become the doyen
of both obedience to the law and civil disobedience. 28 The crucial
factor which makes this seemingly impossible combination tenable to
many, was Socrates’ willing acceptance of the punishment meted out to
him. It was through his willing acceptance of martyrdom that he managed
to preserve not only his own convictions but also the idea that law
should be respected. By "paying the price" for disobedience Socrates
reaffirmed his respect for the law.
Socrates looms large as the archetype of the Western concept of the
citizen. In Socrates’ refusal to deny his conscience on the one hand
25
Id 51 D.
26
Id 89.
27
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.
28
See also, however, Du Plessis SALJ 1980 423 and Olsen Georgia Law
Review 1984 929 for more critical views.
and his decision to drink the hemlock on the other, the two spheres of
political life are portrayed: the private sphere of conscience, which
is beyond the control of the state, as well as the public realm, which
recognises the binding power of political obligation.
The way in which Socrates’ death was portrayed has in an especially
powerful way legitimised the idea of obedience to the state. As Michael
Reisman
observed,
Plato’s
description
of
Socrates’
death
is
an
outstanding example of political propaganda, which operates primarily
on the emotional level. 29 If subjected to analysis, Socrates’ arguments
are less than compelling.
In the first place, continued residence in the country of one’s birth
seems to be flimsy ground on which to base an obligation to obey all
its laws. As Adam Smith observed:
To say that by staying in a country
obedience to government is just the
ship and after he is at a distance
being in the ship he had contracted
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
Moreover, a single instance in which the legal system is circumvented
is
hardly
likely
to
bring
about
the
downfall
of
the
entire
legal
system. According to Michael Reisman, that idea "seems to be animated
by the primitive notion that infraction of sacred rites even by a mild
deviation
will
consequences."
31
anger
the
gods
who
will
let
loose
the
gravest
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
See Reisman Emory Law Journal 1983 499 at 509.
30
Quoted id 514 n 18.
31
Id 515.
community should be the object of one’s highest and ultimate earthly
loyalty.
Socrates
lived
institution
and
was
Plato
still
in
wrote
at
strong
a
time
when
competition,
the
for
the
state
as
an
individual's
highest loyalty, with smaller social units to which the individual
belonged, such as the family and the tribe. Plato’s political objective
was to assure the position of dominance for the state. As Reisman put
it:
Could this be made more dramatic than by having the wisest of men
sacrifice himself to vindicate the authority of [the] state and
the effectiveness of its laws even when they are wrong? Plato,
who was committed to this super-ordination of the state over the
older formations, thus uses the dialogue as political art to
reinforce commitments to the city-state. 32
Consequently, the death of Socrates served to promote the idea of the
legitimacy of the state as a more inclusive order vis-a-vis the older,
more
restricted
social
groupings.
Socrates’
self-sacrifice
was
transformed by Plato into one of the most powerful instances in history
where disobedience and consequent martyrdom was used to bring about
social change.
Given the circumstances of the era (and his own political biases), it
is perhaps understandable that Plato chose to convey the message of the
need for obedience in such strong terms. The enormous scale and impact
of the idea he tried to establish could have necessitated the device of
martyrdom in order to be effective. However, it will later be argued
that
martyrdom
is
by
no
means
a
requirement
for
legitimate
civil
disobedience.
D.
PLICATION
The above sets out, by means of the most dramatic examples available,
the role which acts of sacrificial, result-oriented civil disobedience
played in shaping history and legitimising new orders. It remains to
account for the absence of the element of open confrontation in the
early cases of the Hebrew midwives and Antigone, and its presence in
the later cases of Christ and Socrates. What prompted the switch from
defensive to result-oriented civil disobedience?
According to Daube, a pattern can be identified in the instances of the
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 one’s conscience as essentially female. They are anticonfrontational,
anti-war,
life-preserving. 34
and
In
short,
the
contention is that the midwives and Antigone avoided open confrontation
because they were women.
Conversely, the main actors in the later introduction of the element of
open
confrontation
-
Socrates
and
Christ
-
were
males,
and
confrontation and martyrdom is seen as typically male pursuits. If this
is
correct,
synthesis
result-oriented
of
suppression.
civil
characteristically
The
element
of
disobedience
female
and
non-coercion
can
male
is
be
seen
as
responses
female,
a
to
that
of
confrontation is male.
The idea of there being an essentially female element at the heart of
civil
disobedience
someone
like
perceived
a
resistance.
35
does
find
Gandhi,
who
more
female
component
some
than
in
support
two
his
in
the
thousand
own
observations
years
non-violent
later
of
also
political
At the same time, Gandhian civil disobedience was largely
rejected in the male dominated African society, in favour of a more
33
Daube Civil disobedience in antiquity 5.
34
Id 18.
35
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
Gandhi’s desire to find a way to express motherly love, see Chatterjee
Gandhi's religious thought 89. See also Gandhi Non-violent resistance
325. Martin Luther King's father told him: "Well you didn't get this
non-violence from me, you must have got it from your mama." See "The
Martin Luther King no one knows" The Washington Monthly October 1988.
As win be Indicated later, the Civil Rights Movement in the United
States was introduced by a woman and the first Instance of African
mass civil disobedience in South Africa occurred when women protested
against the pass laws in 1913.
militant approach. 36
Although there is a certain intuitive plausibility in this view, the
stereotype of female passivity versus male aggression and inclination
towards martyrdom seems too crude, without further unpacking, to carry
the full weight of what it tries to explain. Why, as rational actors,
would the women concerned have preferred not to act confrontational,
while the men were willing to do so and engage in martyrdom? Perhaps
some cue can be gained by asking whether this difference of approach
can be identified only by comparing the conduct of men and women, or
can it also be accounted for in other contexts?
It should be noted that a marked difference of approach in this regard
also
exists
between
the
people
of
the
Old
and
the
New
Testament;
between Judaism and Christianity. As a general rule, open, non-violent
confrontation and consequently martyrdom is much more prominent and
acceptable in the New Testament than is the case in the Old Testament. 37
Judaism is a martyr-religion only in the limited sense of the word of
its inspiring its adherents to engage, where necessary, in bearing
witness to their faith in what we have described as defensive civil
disobedience. To Christianity, martyrdom, however, is also a way to do
missionary
adherents.
work
38
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
See Infra chap three III A (3)(c)(ii).
37
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.
38
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
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
his
willingness
to
die
changed
the
heart
of
his
opponent, but occurred only through a deus ex machina. Judaism also
rejected
Christ
the
martyr.
Judaism
avoided
martyrdom
as
far
as
possible, and was not premised on the idea of the creative force of
suffering
-
or
at
least
not
to
the
same
extent
as
Christianity.
Consequently, the figures of the Old Testament either acted illegally
in secret, or resorted to violence.
The traditional heroes of Christianity, on the other hand, with its
strong emphasis on the spirit, were martyrs who sacrificed the flesh.
This
was
the
Christians.
41
case
not
only
with
Christ,
but
also
with
the
first
Christianity had drawn heavily on the Greek tradition,
where the voluntary death of Socrates served as the ultimate model of
the price a citizen had to pay if he wanted to bring about change in
his society.
How
should
it
be
understood,
then,
that
result-oriented
civil
disobedience is traditionally uncommon amongst women and Jews? Is there
a mean denominator between the circumstances of these two groups which
can provide a rational answer to this question?
It
was
suggested
earlier
disobedience
throughout
reference
the
to
that
the
history
prospects
of
can
use
of
result-oriented
largely
success.
It
is
be
civil
understood
submitted
that
with
the
explanation of why women and Jews in antiquity largely eschewed resultoriented
or
confrontational
civil
disobedience,
lies
in
the
ruthlessness of their traditional enemies, who were unlikely to be
moved by
their martyrdom. The Hebrew midwives stood very little chance
of shaking the absolutism of the Pharaohnic regime; hence they lied
when detected. For her part, Antigone, as a woman, was an unlikely
counter for Creon, whom she defied in secret. Similarly, the world of
the Old Testament was one of an eye for an eye in the Pythagorean
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
movement in the West.
represented
43
the
first
mass
civil
disobedience
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
religion,
Catholic
dominated
Church,
the
after
Western
Christianity
spiritual
and,
became
to
a
the
state
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.
42
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
43
See C Bay "Civil disobedience" in International Encyclopedia of
the Social Sciences vol 2 473 at 473.
The emergence of the powerful understanding of the world which modern
science, that came with the Renaissance, offered, would fundamentally
challenge traditional religious notions, and in a sense became the new
religion. New perceptions of reality were established, and, even though
some scientists like Galileo were prepared to retract their views when
they came into conflict with the prevailing ideas of the time, others,
like
Bruno,
were
prepared
to
die
for
their
convictions. 44
Civil
disobedience, however, insofar as it was practised, was still confined
to a small number of brave individuals.
III.
THE
MODERN
DEVELOPMENT
OF
MASS,
RESULT-ORIENTED
CIVIL
DISOBEDIENCE
The first indication of a new era where not only individual but also
mass civil disobedience would be viable was the work of Henry David
Thoreau. Writing in Nineteenth Century America, the pioneer of modern
democracy, Thoreau saw the possibilities which this new commitment to
the value of freedom offered. Calling for mass jail-going by "all just
men", he was perhaps the first to express the belief that people could
be
persuaded on a wide scale to confront the government peacefully and
openly in order to secure change. 45 Nevertheless, it seems that the
circumstances were not yet conducive to mass protest. Thoreau's appeal
would remain a call in the wild. It did not change the present, but it
did herald the future. It would only be in the next century that this
new approach to the problems of mankind would be followed on a wide
scale.
Thoreau’s conduct signalled a very important and closely related change
which was taking place. Whereas the outstanding earlier examples of
civil
disobedience
almost
without
exception
constituted
acts
of
sacrificial civil disobedience, Thoreau’s conduct can best be described
as an example of non-sacrificial civil disobedience. His real impact
did
not
lie
in
his
“suffering"
-
he
spend
only
one
reasonably
comfortable night in jail. The force of his conduct lay rather in his
message that the decent place to be when the government had passed a
certain threshold of unacceptabi1ity, was in prison - and that under
44
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
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
will
be
considered
more
superficial1y.
Particular
emphasis will be placed on the conditions which made this development
possible
-
the
role
of
the
international
community
and
of
morally
sensitive targets.
A.
CIVIL DISOBEDIENCE IN SOUTH AFRICA
Three different periods in the history of civil disobedience in South
Africa may be distinguished: pre-Gandhian, Gandhian and post-Gandhian.
(1)
Early forerunners of civil disobedience
The Bantu-speaking peoples migrated to the southern part of Africa
somewhere between ten and fifteen centuries ago. 46 A great number of
separate political societies developed, some of whom had sophisticated
social structures and powerful rulers who built vast empires. 47 From the
middle of the Seventeenth Century colonists from Europe settled in the
southern part of Africa. Through access to superior weapons, effective
white control over the area now known as South Africa was established
two centuries later, and has been maintained to this day, although
there is every reason to believe that major change is now under way. 48
African political resistance, both against black and white rule, has
46
See Davenport South Africa 3ff.
47
Id 57.
48
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
to
traditional
political
African
authority
society.
voluntary
acceptance
underlies
the
of
important
50
is
But
suffering
category
to
what
ensures
of
some
about
extent
the
ultimate
sacrificial
accepted
idea
that
salvation,
civil
in
the
which
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
49
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
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
this fact
more than any other explains the popularity of the method which Gandhi
used
with
so
much
success
against
Smuts
in
the
later
liberation
struggle in South Africa.
(2)
Gandhian civil disobedience in South Africa
In 1893 Mohandas Gandhi, aged 23, arrived in Durban, in what was then
the British colony of Natal. 53 Having studied Roman law and Common law
in London, Gandhi was called to the bar in the Inner Temple. His
exposure to British life, institutions and values made a lasting and
largely favourable impression on Gandhi. 54
Gandhi failed at legal practice both in Rajkot and Bombay in India. 55
Hired initially as counsel of an Indian firm in a civil suit in South
51
See Roux Time longer than rope 16ff.
52
Id 47ff.
53
On Gandhi's earlier history, see Gandhi An autobiography 3ff and
Kytle Gandhi 18.
54
See Hancock Smuts 323.
55
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
personally
end
of
subjected
what
to
became
racial
known
as
humiliation,
57
apartheid
Gandhi
and
often
developed
a
powerful new way of confronting the country’s harsh injustices.
It
must
be
noted,
however,
that
during
his
career
as
lawyer
cum
politician in South Africa, Gandhi was a reformer, not a revolutionary.
His quarrel was not with the system of racial discrimination: at this
stage he still accepted and in fact advocated its legitimacy. What he
objected to was the position which the Indian community occupied on the
social ladder. In fact, Maureen Swan’s probing study suggests that his
loyalties were even more limited and were for the main part of his
career in South Africa not aimed primarily at improving the position of
the Indian community as a whole, but were designed to do so only
insofar as this was in the interests of the elite - the merchants and
the traders. 58 What can be described as Gandhi’s revolutionary phase
would commence after he had returned to India, when he rejected the
system
of
British
domination
in
toto
and
in
fact
also
eventually
rejected racism and other forms of elitism.
(a)
Indians in South Africa in the late Nineteenth Century
When
Gandhi
arrived
in
Durban,
immigrants
from
India
-indentured
labourers and later merchants - had settled and were settling mainly in
56
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.
57
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
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
prohibited from owning land in that republic.
61
State 60
and
were
In the Cape Colony,
traditionally more liberal in racial matters, Indians, at least in
theory, had the franchise. 62 The major events concerning the development
of Gandhi’s peculiar form of protest occurred in the Transvaal and in
Natal, and consequently the discussion will centre upon the situation
in these two territories.
Indians
living
themselves
in
Natal
subjected
to
at
the
time
extensive
de
of
Gandhi’s
facto
arrival
found
discrimination.
63
The
indentured labourers lived in conditions which can only be described as
slavery, while, at the same time, some merchants had vast economic
interests.
Indians
There
before
was
little
responsible
legislation
government,
dealing
and
specifically
Indians,
as
with
British
citizens, in theory qualified for the franchise if they met the wealth
requirement. 64
However,
the
tide
started
turning
against
them
when
responsible government was granted in 1893 - thirty-three years after
the first indentured Indians had arrived in South Africa.
59
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.
60
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.
61
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.
62
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
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
after
Franchise
Indians
Amendment
to
Parliament.
symbolic,
responsible
66
the
65
Bill,
government
aimed
parliamentary
at
was
the
granted
abolition
franchise,
was
to
of
Natal,
the
introduced
right
in
the
the
of
new
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
Gandhi’s
arrival
in
the
country,
the
acceptance
of
the
Franchise
Amendment Act was still pending.
In
the
ZAR,
behoorende
rights
of
Law
tot
3
een
of
der
citizenship
69
1885 68
provided,
inter
inboorlingrassen
(including
the
van
alia.
Azie"
franchise)
that
were
and
"personen,
denied
the
right
the
to
acquire land (although this provision did not have retroactive force). 70
Law 3 provided that all Asians who wished to reside in the Transvaal
had to register and upon registration had to pay £3. 71 This law also
gave the government the power to determine that Indians had to reside
65
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.
66
Less than 300 Indians exercised the right to vote in 1894. Swan
Gandhi 45.
67
Quoted in Pachai The International aspects of the South African
Indian question 11.
68
"Omtrent Koelies, Arabieren en andere Aziaten", as ammended by
Volksraadsbesluit art 1419 of 12 Aug 1886, published in the Bijvoegsel
tot de Staats-Courant der Zuid-Afrikaansche Republiek 2 Feb 1887. For
a discussion of Law 3 and its effects, see Pillay British Indians In
the Transvaal 1ff.
69
Section 2(a).
70
Section 2(b).
71
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 Transvaal’s jurisdiction over its
own affairs. British subjects - including Indians - could gain entry
into Transvaal. The British government would in later years base much
of its claim to protect the rights of Indians on its position as
suzerain in terms of the Pretoria Convention. However, on the basis
that
no
mention
was
made
in
the
London
Convention
of
British
suzerainty, the ZAR claimed that it no longer applied.
Even if it did not, however, both conventions stipulated that "all
persons other than natives, conforming themselves to the laws of the
South African Republic" had the right to reside in any part of the
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."
hun
bepaalde
72
73
Swan Gandhi 39. See also Huttenback Gandhi 102 and Pi11ay British
Indians in the Transvaal 2ff.
74
the
London
Convention
and
a
22(a)
of
the
75
the
London
Convention
and
a
22(c)
of
the
Article 14(a) of
Pretoria Convention.
Article 14(c) of
Pretoria Convention.
76
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
were
in
practice
not
always
enforced,
the
situation
for
Indians in the Transvaal was increasingly uncertain when Gandhi arrived
in Natal.
Gandhi’s political career can be divided into two distinct phases. From
1894
to
1906
he
participated
in
and
eventually
became
the
most
prominent leader of legal protest against measures adversely affecting
the
Indians
in
South
Africa.
During
the
period
1907
to
1914
he
supplemented legal protest with campaigns of illegal protest. Since the
issues at stake during this latter period - the period most pertinent
to our inquiry - developed during the time of legal protest, a brief
overview of this phase will first be given.
(b)
Legal resistance 1894 - 1906
The phase of legal resistance can be subdivided into the period 1894 to
1897, when Gandhi’s energies were directed at an unsuccessful attempt
to block the imposition of detrimental laws proposed in both Natal and
in the Transvaal, and the period 1897 to 1906, when attempts were
made
to mitigate the effects of these laws.
The anti-Indian measures in Natal and Transvaal can be classified into
two main categories: those directed against the interests of Indians
already in the particular territory (the removal of Indian franchise,
requirements
77
78
for
registration,
the
imposition
of
taxes,
etc)
and
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
territory
(immigration laws).
In Natal the initial protest against the proposed Franchise Amendment
Act took the form of a petition signed by 9 000 people, which Gandhi
presented to the Colonial Secretary in 1894. 79 He further wrote letters
of protest to political figures and newspapers in South Africa, Britain
and India, and also drew attention to the plight of Indians in South
Africa during a 1896 visit to India. Gandhi was instrumental in the
formation of the Natal Indian Congress ("NIC") 80 in 1894, of which he
was elected the first Honorary Secretary. 81 "Congress", as this body was
called, was to co-ordinate much of the Indian protest in Natal in the
years to come.
At this stage the political activities of Gandhi and of the NIC were
directed only at furthering the limited cause of the merchant classes
in the Indian community. 82 On the one hand, he based his claim to equal
rights for Indians on the fact that they were British subjects in terms
of the Royal Proclamation which followed the usurpation of crown rule
in India in 1858. On the other hand, while not expecting all Indians to
be granted the full rights and privileges of citizenship by the Natal
government, he pleaded on behalf of those "respectable" Indians who
deserved "the just place of the better class". He made it clear that he
did not intend to pave the way for "coolies” (meaning the working
class)
to
vote.
What
was
at
stake,
Gandhi
explained,
was
not
the
political power of the Indian people but protection of this "better
class." 83
In 1896 the Colonial Office approved what became known as the Franchise
Amendment Act 8 of 1896, 84 which was more in line with the British
policy of the time and was a little more subtly worded than the 1894
version. Only people not of European origin who came from a country in
79
Swan Gandhi 61.
80
See Id 49ff, where the romanticised picture often painted of
Gandhi at this early stage of his career is placed into perspective.
81
See Gandhi Satyagraha
autobiography 148ff.
in
South
Africa
82
See Swan Gandhi 50.
83
Id 63.
84
"To amend the law relating to the franchise."
46
and
Gandhi
An
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
Section 2.
86
Section 6. This Act was approved of, however, by the Indian
government of the time. See Huttenback Gandhi 45.
87
“To place certain restrictions on immigration."
88
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.
89
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
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
ZAR’s anti-Indian stance. 92
Gandhi led the protest against the "Bloemfontein award", as the outcome
of the arbitration came to be called. The validity of the finding was
challenged by the Indian community, inter alia through petition. As in
Natal, Gandhi claimed equal rights for Transvaal Indians on the basis
that they were British subjects. In the ZAR, however, because Indians
were discriminated against eo nomine, he did not attempt to dissociate
the elite as a class from the workers. Instead he sought to dissociate
Indians as a race from the "natives". Gandhi expressed himself on the
matter of Indians and blacks staying in the same residential area in no
uncertain terms: "About this mixing of the Kaffirs with the Indians, I
confess I feel most strongly. I think it is very unfair to the Indian
population and it is an undue tax on even the proverbial patience of my
countrymen"; and on another occasion he said: "If there is one thing
which the Indian cherishes more than any other, it is the purity of the
type." 93
Gandhi indicated his acceptance of the broad legitimacy of the system
91
See Swan Gandhi 68.
92
For a full discussion, see Pillay
Transvaal 25. See also Swan Gandhi 81.
93
Quoted in Swan Gandhi 112, 113.
British
Indians
in
the
of white domination in so many words in a remark made in 1903: "We
believe
also
that
the
predominating race."
In
spite
of
white
race
in
South
Africa
should
be
the
provisions
and
94
extensive
Indian
protest
against
the
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
94
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.
95
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.)
96
Pachai The International aspects of the South African Indian
question 18.
97
He did the same during the "Zulu uprising" in 1906. See Gandhi An
autobiography 214ff, 313ff. See also Marks Reluctant rebellion 214,
239.
of the pro-British stance of the Indians during the War. 98 In reality
the situation of Indians would further deteriorate.
As mentioned earlier, the period immediately following the War found
Gandhi
settled
in
the
Transvaal,
where
he
established
the
British
Indian Association ("BIA") early in 1903, which in many respects was to
be the Transvaal equivalent of the NIC. The new High Commissioner for
South Africa and Governor of what was now the Crown Colony of the
Transvaal, Milner, who had supported Indian rights in the ZAR as far as
possible in order to assert British authority over the region, now
favoured
implementing
of
as
much
of
the
legislation
of
the
former
Republic as was possible, in pursuit of the ideal of reconciliation
with the Transvaal whites. 99 In fact, in one of its first major acts
after the War, the British Government gave notice that Law 3 of 1885
would be used to restrict Indian trade to Indian locations, now called
"bazaars". The new government adopted an even more aggressive policy of
restricting both the residential and the trading rights of Indians to
these "bazaars". 100
Gandhi tentatively started mooting the idea of civil disobedience in
The Indian Opinion in 1904. He stressed the important role of suffering
in the course of human progress, and cited the examples of Christ and
Joan
of
Arc.
He
propagated
the
idea
that
the
suffering
which
was
required of Indians to improve their situation in South Africa would
not be excessive because of the benevolent role which Britain played in
South African affairs: "We have given these illustrations [of Christ
and Joan of Arc] to draw a contrast between the very little that the
Indians as individuals
have to sacrifice so that the community may
gain a great deal, and the much that had to be sacrificed in the
instances
quoted
required by
to
us";
and:
"Nor
is
there
any
heroic
the communities living under the British rule."
98
See Gandhi Satyagraha in South Africa 81.
99
Swan Gandhi 94.
100
sacrifice
101
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
“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
option.
result-oriented
civil
disobedience
had
become
a
rational
102
In Britain the Colonial Office found miner’s new approach increasingly
difficult to justify to the British parliament and to the government of
India. Especially the reversal of British policy regarding the trading
rights of Indians caused controversy. It became even more of a problem
when, in a test case brought in the Transvaal Supreme Court in 1904, 103
Milner’s
1903
instructions
were
in
fact
declared
illegal.
In
his
judgment the Chief Justice, Sir James Rose-Innes, said that "it does
strike one as remarkable that, without fresh legislation, the officials
of the Crown in the Transvaal should put forward a claim which the
Government of the Crown in England has always contended was illegal
under
the
statute,
and
which
in
the
past
it
has
strenuously
resisted." 104 This decision, while bringing clarity as to the question
of trading rights, placed further pressure on Britain to reassess its
general position on Indians in the Transvaal. It also vindicated the
Indian community’s earlier claims.
As a direct consequence of the Court's decision, the field was left
open for Indian merchants to enter into competition with white business
people - a fact which caused much agitation from the colony’s white
population. Various fresh attempts from the Transvaal authorities to
limit the number of Indian licences to trade, however, now failed to
receive the sanction of the Colonial Office. 105
In 1904 the Colonial Secretary, Lyttelton, formulated a new policy, in
line with the one followed in Natal, for the Transvaal. An immigration
act would block further Indian immigration into the Transvaal while, in
return for this, the vested commercial and other interests of Indians
in the colony would be protected. This policy was not acceptable to the
white colonists. They agreed with the restrictions on immigration but
were not willing to ease the other restrictions - in fact they wanted
102
See supra chap three II D.
103
Habib Hotan v Transvaal Government 1904 TS 404. The earlier
decisions in Suleiman and Tayob were disapproved.
104
At 412.
105
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
agreed
to
and
did
voluntarily. 107
re-register
Nevertheless, unauthorized entry into the Colony took place on a large
scale
and
the
Ordinance
was
considered
inadequate
by
many
white
Transvalers, who believed that the concession that ex-residents could
return after the War was being abused.
In
1905
the
"Lyttelton
Constitution",
which
provided
for
the
establishment in Transvaal of an elective legislative assembly, was
promulgated. 108
government.
solution
Soon
With
which
the
the
would
Transvaal
intention
allow
the
of
would
be
providing
British
awarded
at
responsible
least
a
to
ride
government
temporary
out
the
remainder of Crown rule, Lord Selbourne, Milner’s successor, introduced
two
draft
ordinances. 109
It
provided
for
the
compulsory
(re-
)registration of all Indians lawfully resident in the colony by means
of
fingerprinting.
Further
immigration
into
the
Transvaal
would
be
prohibited - only temporary permits would be made available for Indians
to visit the Transvaal. Failure to (re-)register would constitute a
crime. However, at least the £3 tax would be scrapped.
Gandhi
and
the
unfavourably
rest
to
of
these
the
Indian
developments,
leadership
which
reacted
amounted
to
strongly
the
and
proposed
introduction of a "pass" system for Indians. They set themselves the
task
of
measures
persuading
and
the
the
Transvaal
British
legislature
Government
to
not
to
withhold
accept
Royal
these
assent.
106
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
See Gandhi Satyagraha in South Africa 94 and Huttenback Gandhi
158.
108
Letters patent providing for the constitution of a legislative
assembly in the Transvaal, and the Transvaal Constitution Order in
Council, 1905."
109
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 Gandhi’s
description of the events:
The old Empire Theatre was packed from floor to ceiling. I could
read in every face the expectation of something strange to be
done or to happen ... The most important among the resolutions
passed by the meeting was the famous Fourth Resolution, by which
the Indians solemnly determined not to submit to the Ordinance in
the event of its becoming law in the teeth of their opposition
and to suffer all the penalties attaching to such non-submission.
I fully explained this resolution to the meeting and received a
patient hearing ... The resolution was duly proposed, seconded
and supported by several speakers one of whom was Sheth Haji
Habib. He ... was a very old and-experienced resident of South
Africa and made an impassioned speech. He was deeply moved and
went so far as to say that we must pass this resolution with God
as witness and must never yield a cowardly submission to such
degrading legislation. He then went on solemnly to declare in the
name of God that he would never submit to that law, and advised
all present to do likewise. Others also delivered powerful and
angry speeches in supporting the resolution. When in the course
of his speech Sheth Haji Habib came to the solemn declaration, I
was at once startled and put on my guard. Only then did I fully
realize my own responsibility and the responsibility of the
community. The community had passed many a resolution before and
amended such resolutions in the light of further reflection or
fresh experience ... Amendments in resolutions and failure to
observe resolutions on the part of persons agreeing thereto are
ordinary experiences of public life all the world over. But no
one ever imports the name of God into such resolutions...
Full
110
of
these
thoughts
as
I
was,
possessing
as
I
did
much
Oct 1906.
111
See Swan Gandhi 102 and Pachai The international aspects of the
South African Indian question 33.
112
See Anonymous The Round Table 1952 130 and Meer Africa South
1959 21.
experience of solemn pledges, having profited by them, I was
taken aback by Sheth Haji Habib’s suggestion of an oath. I
thought out the possible consequences of it in a moment. My
perplexity gave place to enthusiasm.
I [explained the consequences of the suggestion to the audience]
and resumed my seat. The meeting heard me word by word in perfect
quiet. Other leaders too spoke. All dwelt upon their own
responsibility and the responsibility of the audience. The
president rose. He too made the situation clear, and at last all
present, standing with upraised hands, took an oath with God as
witness not to submit to the Ordinance if it became law. I can
never forget the scene, which is present before my mind's eye as
I write. 113
It seems that by making a pledge two objectives were achieved. In the
first
place,
divine
authority,
which
is
often
seen
to
support
governmental authority, was invoked on the side of those who resisted
government.
In
the
second
place,
the
disobedience,
which
was
essentially anti-exploitation, through the pledge assumed the status of
being integrity-based.
The terms used in the Fourth Resolution accepted at the meeting are
interesting - the new measures were called "gulling, tyrannous, and 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
opportunity to mobilise mass support.
117
provided
the
first
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
Gandhi Satyagraha in South Africa 102-107.
114
Quoted in Huttenback Gandhi 166. (Emphasis added.)
115
Section 3(1).
116
Section 3(2).
117
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
anticipation
of
withheld
the
their
introduction
acceptance
of
of
responsible
the
proposals
government
in
in
the
Transvaal. It would be left to the new government to decide how they
wanted to deal with the proposed ordinance - and with the threat of
passive resistance. As it turned out, the new government had little
doubt about what they wanted to do.
On 1 January 1907 the Transvaal was granted responsible government. 118
Two days after the formal opening of the new parliament the Colonial
Secretary, General Smuts, introduced the Asiatic Law Amendment Bill,
which was to amend Law 3. Accepted unanimously as the Asiatic Law
Amendment Act 2 of 1907, and often referred to simply as "Act 2", its
provisions
were
essentially
Amendment Ordinance of 1906.
the
119
same
as
those
of
the
Asiatic
Law
Act 2 was called the “Black Act" by the
Indian community.
In
terms
of
Constitution
the
reservation
Letters
Patent
clause
1907,
the
contained
British
in
the
Governor,
Transvaal
after
the
granting of responsible government, had the right to reserve for Royal
assent any bill whereby "persons not of European birth or descent may
be subjected or made liable to any disabilities or restrictions to
which persons of European birth or descent are not also subjected or
made liable." 120 Consequently, the avenue of an appeal to the British
Government was still open to the Indian community. They used every
available
channel
to
prevent
Britain’s
acceptance
and
the
implementation of Act 2. Resolutions condemning the Bill were submitted
to the colonial office by various organizations representing Indian
interests in the Transvaal, Natal and in England. A deputation waited
on Smuts, and an unsuccessful attempt was made to see Botha. Numerous
objections were raised in the press. 121 Gandhi even attempted to forge a
compromise by proposing voluntary registration if the Act was scrapped.
This was rejected. On the basis of non-interference in the affairs of
118
The Transvaal Constitution Letters Patent 1906.
119
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
Section 39(a).
121
See Swan Gandhi 141.
the Transvaal government. Act 2, however, eventually acquired Royal
assent.
Gandhi’s appeals for Indians not to register were carried in the pages
of his newspaper, the
Indian Opinion. Indian resistance, under the
leadership of Gandhi, would now turn from legal to illegal forms of
protest.
The
Selbourne
Ordinances
provided
a
catalyst
for
an
intensification of a growing resistance in the Indian community which
slowly matured and spilled over into action.
One
fact
contributing
towards
the
pot
eventually
overcooking
was
Britain’s failure to live up to the expectations it created in the
Indian community, namely that after its victory in the Anglo-Boer War,
Britain would be more liberal minded than the ZAR. On the contrary,
additional repressive measures were introduced.
Arguably
community
the
most
towards
important
illegal
reason
action
for
was
a
the
shift
change
or
in
the
Indian
development
in
Gandhi’s own political thinking, which in turn resulted in a change in
the leadership he provided. At the beginning of the century, through a
process with which we need not detain ourselves here, Gandhi became
deeply impressed by the work of a number of proponents of non-violent
resistance, discussed below. 122 As the position of Indians deteriorated,
he gradually became convinced that conditions were right to implement
this new weapon on a wide scale.
In
Natal
and
in
the
Transvaal
the
issues
of
immigration
to
these
colonies, and restrictions on residential and trading rights of Indians
already there, permeated in 1907 into the most important causes of
friction between the Indian communities and the authorities; with the
additional problem of compulsory registration in the Transvaal. It was
against this last-mentioned, most visible form of discrimination that
the campaign was initially directed - which means that it started in
the Transvaal. It must be remembered, however, that the registration
requirement only formed one part of a wider web of discrimination. In a
very real sense, South African Indians at the beginning of this century
were fighting for their survival in the country.
Smuts received strong admonitions from British advisers not to alienate
British opinion by taking too hard a line in its relations with, India
122
See infra chap three III B 2(a). On Gandhi's
transformation during this time, see Kytle Gandhi 64ff.
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
"inferior". 124
considered
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
reaffirmed.
125
resistance
resolution,
aimed
against
Act
2,
was
Mass meetings at which the decision not to register was
confirmed, were held all over the Transvaal under auspices of the BIA.
Although
pickets
operated
on
a
dissuading
wide
scale,
would-be
there
applicants
were
from
virtually
no
registering
reports
of
intimidation and violence. At the end of the (extended) deadline for
registration, only just more than 500 applications had been received
out of the possible 7 000. 126
Gandhi
explained
his
motivation
for
leading
the
campaign
of
civil
disobedience in a letter to The Star:
It is because I consider myself to be a lover of the Empire for
what I have learned to be its beauties that, seeing, rightly or
wrongly, in the Asiatic Law Amendment Act seeds of danger to it,
I have advised my countrymen at all costs to resist the Act in
123
See Hancock Smuts 332 ff.
124
Id 322.
125
See Pachai The international aspects of the South African Indian
question 38.
126
Swan Gandhi 142, 154, 155. Hancock Smuts 331 put the last figure
at approximately 9 000.
the most peaceful, and I shall add, Christian manner. 127
Gandhi also described the effect of the Asiatic Act as the "ruination
of a whole people" and stated:
I claim, too, that the method of passive resistance adopted to
combat the mischief is the cleanest and the safest, because, if
the cause is not true, it is the resistors, and they alone, who
suffer. I am perfectly aware of the danger to good government, in
a country inhabited by many races unequally
developed, in an
honest citizen advising resistance to a law of the land. But I
refuse to believe in the infallibility of legislators ... It is
no part of a citizen’s duty to pay blind obedience to the laws
imposed upon him. 128
In Britain public opinion was turning against the British government’s
allowing the Transvaal government to treat the Indians in this way especially in the light of the likely effect which this would have on
Britain’s position in India. 129
The first person to be arrested for not registering was Pandit Ram
Sunder of Germiston. He was sentenced to a month’s imprisonment. 130 By
the
end
of
January
1908
almost
2
000
Indians
who
had
refused
to
register, had been jailed. This included Gandhi. At his trial Gandhi
asked
the
received
magistrate
only
a
two
for
month
the
maximum
sentence.
131
sentence
To
use
of
the
six
terms
months
but
introduced
earlier, this first campaign of mass result-oriented civil disobedience
was
legitimacy-based,
negative,
non-coercive,
anti-exploitation,
sacrificial and reformatory.
After eight months, however, the movement was running out of steam.
This was due to a variety of circumstances, such a the lack of a 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
"Indian trouble" The Star 30 Dec 1907.
128
Ibid.
129
See eg The Times of London 7 Jan 1908.
130
See Pachai The international aspects of the South African Indian
question 39.
131
The trial is recounted in Gandhi Satyagraha in South Africa
148ff. See also Huttenback Gandhi 184.
trading licences. 132 Gandhi and others then concluded a compromise with
Smuts.
In terms of this compromise Indians would register, but they would do
so voluntarily and not as a result of compulsion. According to Gandhi,
Smuts agreed to repeal Act 2 once such registration was completed. With
this
truce
in
January
1908,
the
first
phase
ended,
and
voluntary
registration - in the most cases accompanied by fingerprinting - took
place. It is ironic to note that voluntary registration is exactly what
Gandhi proposed as a compromise before the campaign.
In the meantime, the Immigrants Restriction Act 15 of 1907 was passed.
This Act provided, inter alia. that any person (that is Indian or
otherwise) unable to write out in "characters of an European language"
an
application
immigrant".
133
to
enter
the
colony,
would
be
deemed
a
"prohibited
This provision was certain to block a substantial portion
of Indian Immigration into the Transvaal. In effect the immigration of
all non-indentured Indians, whatever their social status or educational
attainments, was halted by a further provision that "any person who at
the date of his entering" the Transvaal is "subject to ... any law
which might render him liable ... to be removed from ... this Colony",
was also deemed a prohibited immigrant. 134 Because non-compliance with
Act
2
rendered
Indians
liable
to
deportation,
immigration
and
registration were effectively conflated into a single issue. The by now
familiar
British
way
of
discriminating
against
Indians
without
mentioning them by name was used with deadly effect by the Transvaal
legislature. 135
(ii)
Phase two: Refusal to register (2)
In May 1908 it became clear that Smuts did not intend to repeal Act 2,
132
See Swan Gandhi 161.
133
Section 2(1) "prohibited imigrant".
134
Section 2(4) "prohibited imigrant". See also Huttenback
Gandhi
186.
135
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."
but
in
fact
would
on
pain
of
criminal
sanction,
Asiatics Registration Amendment Act 36 of 1908,
136
by
means
of
the
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
followed.
On
16
Transvaal. 138
Various
abortive
attempts
at
negotiation
139
August
500
trade
licences were burnt in front of a crowd of 3 000 at Fordsburg.
140
At the
same
Transvaal
time
a
1908,
number
1
300
of
registration
Indians
from
certificates
Natal
entered
and
the
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
136
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.
137
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
See Huttenback Gandhi 197.
139
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
movement’s methods was exacting too high a toll from its members. Many
people who had been in jail were not willing to again suffer such
humiliation, and the financial position of those who were imprisoned
was seriously prejudiced. Over the objections of Gandhi, who was now
out of jail, a deputation under his leadership was sent to England which, as it turned out, achieved nothing. The resistance had run out
of steam. By February 1909, 97% of the Transvaal Asians had taken out
registration certificates. 142 On this despondent note the second phase
ended.
A
deputation
to
India,
however,
raised
considerable
public
awareness and the Indian government persuaded the British government to
implore the Transvaal to cease to deport Indians from the colony. 143
The
movement,
Transvaal,
was
which
at
showing
this
its
stage
was
vulnerability
largely
to
confined
increased
to
the
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
141
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
See Swan Gandhi 174.
See "The struggle and what
"Indian Opinion" 1914 13 at 16.
it
has
meant"
Golden
Number
of
prime centre of action would, however, for the time being remain in the
Transvaal. Hopes were raised again that the new administration would be
more tolerant. Dominating this phase would be the approach of the new
South
African
government
to
Indian
immigration. 144
Gandhi’s
main
adversary remained Smuts, who was now Minister of the Interior of the
Union. During this phase, Gandhi would virtually retire to Tolstoy
Farm, outside Johannesburg.
On 7 October 1910 the British government sent a dispatch to the Union
government, urging the repeal of Act 2 and the removal of the racial
bar on immigration. It was suggested that Indian immigration could be
limited to a minimum by posing an education test. The Union government
responded favourably to the suggestions. 145
In
February
repealing
1911
Act
2
an
and
Immigrants
Restriction
consolidating
and
Bill, 146
replacing
which
the
aimed
at
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
Immigration
into
an
educational
any
province,
test
for
however,
regulated by decrees of that particular province.
148
immigrants
could
from
still
be
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.
144
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.
145
See Huttenback Gandhi 27ff and "The struggle and what it has
meant" Golden Number of "Indian Opinion" 1914 13 at 16.
146
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.
147
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
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
to
fulfil
the
demands
of
the
protesters
during
the
1912
session of parliament; Gandhi to bring passive resistance to a halt.
The
first
Immigration
Bi11
was
not
passed
although
the
government
administered the law as if it was in operation, and exempted a number
of educated Indians. 149
Smuts asked Gandhi to have a national "Bill of Rights" (as it was
called) drawn up, which -in truly retroactive fashion would reflect the
sum total of Indian grievances. Smuts clearly wanted to prevent Gandhi
from
later
reopening
the
campaign
of
passive
resistance
with
ever
widening demands. In addition to the familiar grievances, the issue of
the yearly £3 tax on Indians in Natal was now listed as a matter of
priority
and
eventually
dissatisfaction.
150
became
one
of
the
leading
causes
of
A second Immigration Bill was rejected in 1912 for a
variety of reasons and the provisional settlement was extended for
another year. 151
In
October
1912,
Gopo1
Gokhale,
President
of
the
India
National
Congress in India, visited South Africa. He ha talks with Premier Louis
Botha and with Smuts, after which he told Gandhi that the causes of
most of their grievances would be removed, including Act 2 of 1907 and
the £3 tax in Natal When a year later this had not happened, it was
once more regarded by Gandhi as a breach of promise which strengthened
the
moral
basis
of
his
case.
Gokhale’s
visit
British link with both South Africa and India.
also
highlighted
the
152
At this time a shift in Gandhi’s approach became evident. He had become
more
and
more
intent
on
exploring
the
use
of
Satyagraha
as
an
instrument of mobilisation on a national level. Gandhi’s traditional
149
See Huttenback Gandhi 284 and Swan Gandhi 230.
150
See Swan Gandhi 213, 226.
151
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.
152
See Gandhi Satyagraha in South Africa 259ff. See also Hancock
Smuts 341.
focus on the more pressing but also more localised grievances of the
different communities widened. He found in the endorsement of racial
bars
on
interprovincial
migration
contained
in
the
Immigrants
Restriction Bill a cause that was of sufficient concern to inspire
countrywide support, but which at the same time would probably not be
met with the same vehement opposition from the government, if broken,
as was the case with some of
the other issues.
Gandhi no longer upheld the belief that numbers were irrelevant. As
would
happen
so
often
in
his
career,
Gandhi,
the
deontological
moralist, had to make room for Gandhi, the consequentialist politician.
His
commitment
to
the
interests
of
the
elite
now
gave
way
to
a
commitment to the interests of the Indian community as a whole. All
that was needed before Gandhi would appeal to Indians nationwide to
resist the measures to which they were now all being subjected, was
that the political temperature would raise a few degrees.
This happened due to a number of causes. One was the fact that the Cape
Division of the Supreme Court, in a 1913 judgment, found that the wife
in a marriage celebrated in accordance with rites which recognised
polygamy, even if there was only one wife in that marriage, did not
have the right to emigrate to South Africa. 153 Gandhi concluded that all
Hindu
and
Muslim
wives
already
living
consequently lose their right to live there.
in
South
Africa
would
154
The third phase of post-1906 Indian resistance, during which time civil
disobedience was prevented by the provisional settlement, came to an
end when the third Bill dealing
with Indian immigration was passed in
1913, and became law in the form of the Immigrants Regulation Act 22 of
1913. 155
The Immigrants Regulation Act repealed Transvaal Act 2 of 1907 in its
entirety, except insofar as it related to minors. 156 Immigration into
the Union and between provinces was formally made dependent on the
ability
of
the
person
concerned
to
read
and
write
a
European
153
Esop v Union Government (Minister of the Interior) 1913 CPD 133.
154
Gandhi Satyagraha in South Africa 276.
155
Later renamed the Admission of Persons to the Union Regulation
Act.
156
Schedule 2
language. 157 However, the marriage question was not resolved to the
satisfaction
of
the
Indian
community,
and
the
£3
tax
remained
unrepealed. Since negotiations with the government had not secured the
required results, they were broken off, after a last attempt had been
made to mobilise British support.
(iv)
Phase four: Satyagraha on a grand scale
The fourth (and final) phase, during which time the effectiveness of
Satyagraha as a form of mass political mobilisation on a nationwide
scale would be subjected to its most severe test yet, began in 1913.
The prime focus of the campaign at this stage would be the polygamous
marriage and £3 tax questions.
Gandhi’s belief that the Immigrants Regulation Act should be met with
passive resistance was repudiated in Natal and received only guarded
support
in
the
Transvaal.
His
opposition
to
the
£3
tax
in
Natal,
however, found support among the Natal Indian coal miners. Since this
tax was not abolished a year after Gokhale’s visit, it provided the
immediate grievance which, in conjunction with the general harshness of
their living conditions, would move the workers in Natal to strike.
Within two weeks after a call by Gandhi to strike, the appeal was
heeded by between 4 000 and 5 000 Indian coal miners in Northern
Natal. 158 The government followed a policy of non-intervention and did
not arrest the strikers.
In order to elicit a confrontation, Gandhi led a group of strikers and
their dependents, which eventually totalled 4 000, on what was later
called the "Great March" - a trek by foot towards the Transvaal, where
they intended crossing the border illegally and getting arrested. 159
Smuts nearly managed to turn this mass exodus into a disaster for
Gandhi when he refused to arrest the marchers, even when they illegally
157
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
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 Smuts’s biographer, Hancock, observed.
Smuts also acquired some Gandhian skills in ensuring that those under
his command refrained as far as possible from using violence. 160 The
marchers as well as their funds were fast becoming exhausted, and they
were demoralised by the anti-climax of not being arrested. Then the
strike in Northern Natal spread spontaneously to the south of Natal,
and
the
movement
was
saved.
The
government
now
had
a
major,
spontaneously growing expression of open defiance on its hands which it
could no longer ignore. 161
As was to be expected, because the strike in the south of Natal was
much less disciplined and without strong leadership, violent clashes
with the police occurred. The proportions of the strike forced Smuts to
intervene. Mass arrests were ordered, and both the march and the strike
were suppressed, often by violent means. The imprisoned marchers were
returned to Natal by train and confined to the compounds of their own
mines,
which
now
had
been
cordoned
off
with
barbed
wire
and
were
declared outposts of the Natal prisons. When attempts were made through
whippings and beatings to force the strikers back to work, and this was
portrayed in the media, South African and world public opinion was
outraged.
Britain
was
subjected
to
international
criticism,
particularly from India, and this criticism was brought to bear on the
South African government. 162 Gandhi’s moral victory was complete when he
called the campaign off in 1914 when white railway workers also began
striking.
He
stated
that
opponent’s misfortunes.
one
should
not
take
advantage
of
one’s
163
Gandhi rejected the composition of a government-appointed commission of
160
Hancock Smuts 340.
161
Swan Gandhi 251.
162
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.
163
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.
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
abolished.
165
the
£3
tax
on
the
ex-indentured
workers
in
Natal
was
In other respects, however, the battle was far from over:
no provision was made to guarantee the right of South African-born
Indians to migrate from one province to the other, or to provide for a
more
just
administration
of
the
laws
affecting
Indian
interests. 166
However, in correspondence with Gandhi, Smuts undertook on behalf of
the government to carry through the administrative reforms not covered
by the new Act. 167
(d)
Evaluation
For Gandhi, however, the battle in South Africa was over. In the eyes
of the world he had won. His international reputation was established,
and he went back to face India’s much larger problems with the still
novel, but by now tested, tool of Satyagraha. Gandhi and Smuts had come
to respect each other, but when he left. Smuts wrote: "The saint has
left our shores, I sincerely hope for ever." 168
And so it was. But Gandhi’s ideas were yet to exercise a profound
influence on the history of both South Africa and the world. In his
1939 essay on Gandhi's political method, Smuts wrote that Gandhi had
revealed “a skeleton in our cupboard". 169 The skeleton would be dressed
by later governments in the clothes of a beauty queen. It continued to
haunt South Africa and would again be revealed for what it was - not
164
Sections 1 and 2.
165
Section 8.
166
For a discussion of the later history of Indian immigration, see
Corder Judges at work 169ff.
167
See "The struggle and what
"Indian Opinion" 1914 13 at 17.
168
169
it
has
meant"
Golden
Number
at
J
of
See Hancock Smuts 345.
See J C Smuts "Gandhi’s political method"
Collection, University of Pretoria Archives.
2,
D
Pohl
least through civil disobedience.
Some important characteristics of Gandhi’s approach are evident at this
stage:
-
His protest was aimed mainly at making a moral appeal on the
British sense of fair-play. In turn he trusted
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,
to
which
a
large
section
of
the
community could relate - even if these were not the greatest
injustices.
-
The
idea
of
martyrdom,
of
suffering,
was
already
playing
an
important role in Gandhi’s understanding of the working of civil
disobedience.
The
pattern
of
inviting
the
harshest
possible
penalty was set.
-
Gandhi’s focus gradually shifted away from the more exclusive
interests of a particular grouping to become more inclusive, more
universalist.
The genius of Gandhi lay -in the fact that he perceived and used the
opportunity posed in early Twentieth Century South Africa to develop
non-violent resistance as a powerful form of resistance with appeal to
the masses.
(3)
Civil disobedience in South Africa after Gandhi
The precedent which Gandhi set of a "non-white" person standing up for
his rights against the white rulers left a deep impression on the world
at large and on the people of the country where this first happened.
Gandhi
had
in
the
first
place
challenged
the
white
rulers
in
a
fundamental way and managed not to get crushed in the process, which
was in itself a novel feat. Moreover, he managed to bring about actual
social change; something which was previously unheard of for a person
who was not white, dearly, here was something new and promising. It
would, however, be several years before the country once again saw
crowds
reminiscent
of
those
inspired
by
Gandhi,
pursuing
political
change through non-violent, illegal action.
Political resistance against white domination in South Africa after
Gandhi
would
mainly
be
initiated
by
the
African
section
of
the
population, with one dominant strand of this group widening to include
members of all races who opposed the racially exclusive basis of the
government,
and
the
other
strand
being
more
preoccupied
with
the
African cause. The dominant organizations representing the interests of
these
two
formations,
the
African
National
Congress
("ANC"
or
"Congress") and the Pan Africanist Congress ("PAC"), would in turn
sponsor mass campaigns of civil disobedience, before they were both
outlawed and turned to violence.
The period under consideration, from more or less 1912, when black
resistance started to become organised, to the present time, can be
divided into six phases. 170
-
During the first phase, from 1912 until the outbreak of World War
II, black opposition operated within the paradigm or non-activist
or "reactive" liberalism.
-
During the second phase, the 1940’s, the politicising of the
black community took place on an unprecedented scale, preparing
the
ground
for
the
imminent
confrontation
when
legal
protest
could be supplemented by illegal resistance.
170
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.
-
In the 1950’s, during the third phase, the developing political
disquiet
boiled
campaigns
of
over
passive
into
action,
resistance,
which
took
particularly
the
in
the
form
of
form
of
civil disobedience. With the escalation of action, the tensions
underlying the process of politicising that took place in the
previous decade came to the surface, and a rift occurred between
those who were more susceptible to European influences and those
who were more Africanist oriented.
-
The fourth phase was initiated - and largely determined - by the
ban imposed on the main vehicles for black political expression
in the early 1960’s. There was a shift in strategy from 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 1950’s. During the
whole period under consideration, civil disobedience would never be
practised with the same commitment to non-coercion as under Gandhi and it would have much less success. As will be demonstrated, however,
even if the method of civil disobedience was new to many of those who
participated in the liberation struggle and was practised mostly for
reasons
of
strategy,
it
did
have
a
considerable
influence
on
the
struggle itself and on the system of apartheid.
(a)
Phase one: The period before World War II
With the formation of the Union in 1910, black expectations of greater
political participation were not accommodated. The issue of the right
of Africans to vote for parliament was simply sidestepped when each
province was allowed to retain the franchise system that existed before
Union. Consequently, blacks and coloureds voted together with whites in
the qualified franchise dispensation of the Cape, but in the other
provinces only whites were enfranchised. 171
Black
protest
against
white
domination
throughout
this
phase
of
resistance was characterised by its mild and guarded nature. It mostly
took the form of public comments, critical of measures introduced by
the
government,
which
were
made
by
a
small
number
of
politicised
blacks. Because the initiative remained in the hands of the government,
black
opposition
reactive.
during
Resistance
at
this
this
period
stage
can
was
at
aimed
best
not
be
at
described
replacing
as
the
existing structures of government, or even the personnel who manned
those structures, but merely at making them more responsive to black
needs. As Felt put it, the appeals of the leaders of the ANC at this
time "were directed not to the Africans, but to the whites". 172
In 1912 the South African Native National Congress, which changed its
name
to
the
Bloemfontein.
African
173
The
National
formation
Congress
of
background of the enactment of the
the
in
ANC
1923,
took
was
place
founded
against
in
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
See Davenport South Africa 247ff.
172
Felt South Africa 1.
173
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.
175
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.
176
Id 78. It is not clear what the words "continued movement"
signify.
177
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
38.
Quoted in Walshe The rise of African nationalism in South Africa
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
women. 180
for
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
179
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
See Roux Time longer than rope 125.
181
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.
182
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.
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
183
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
See R V S Thema "Towards national unity" Bantu World 19 Dec
1953.
185
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.)
186
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
See R V S Thema "Towards national unity" The Bantu World 28 Dec
time. 188
In
1919,
Africans
disobedience
in
campaign.
the
189
Transvaal
Thousands
engaged
of
in
Africans
an
anti-pass
marched
to
civil
the
pass
office in Johannesburg, where they turned in their passes. Speakers
made statements such as: "We count for nothing in Parliament" and “[w]e
have a right to be heard, and will be heard." The need for non-violence
was
emphasised.
collected,
All
"Rule,
weapons
Britannia"
in
the
was
hands
sung,
and
of
those
the
present
British
were
King,
the
Governor General and President Woodrow Wilson were cheered by those
participating in the protest. When the leaders were arrested women
collected passes from Africans throughout the city. Thousands of passes
were destroyed and about 700 Africans were arrested. They were told by
the police that they would be punished for their "traitorous actions".
Some
were
charged
with
disturbing
the
peace,
others
with
inciting
workers to leave their employment. Eventually violence erupted.
A
subsequent
commission
of
inquiry
recognised
to
some
190
extent
the
legitimacy of the protests, but its recommendations (which amounted to
a
simplification
government.
The
of
the
campaign
pass
system)
achieved
were
very
not
little,
accepted
both
in
by
the
terms
of
changing the behaviour of the government and in terms of mobilising the
masses
politically.
With
the
colonial
occupation
of
Africa
by
the
European powers still firmly in place, the outside world could not be
moved.
Two
incidents
thereupon
ruthless
attitude
to
religious
group
called
commonage,
non-violent
the
Queenstown,
which
underscored
opposition.
"Israelites"
to
In
the
1920
assembled
celebrate
on
government’s
members
the
the
passover.
See De Villiers Die "African National
aktiwiteite aan die Witwatersrand part 2 255.
Congress"
188
near
occurred
of
a
Bulhoek
191
When
en
sy
189
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
See Walshe Black nationalism in South Africa 15.
191
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
number of strikes by especially white workers were also suppressed.
A
194
In October 1920, 23 Africans were killed in Port Elizabeth when panicstricken
white
civilians
fired
into
a
crowd
of
demonstrating against refusals to raise minimum wages.
The
non-violent
resistance
of
the
Transvaal
blacks
who
were
195
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
See Roux Time longer than rope 143ff.
193
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
Id 151.
195
Walshe The rise of African nationalism in South Africa 72.
196
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
facilities
for
blacks.
When
a
year
later
nothing had been done, a member of Congress (apparently acting on its
instructions)
boarded
a
tram
reserved
for
whites.
He
was
forcibly
removed from the bus and succeeded with a claim for damages against the
city council. A separate tram service for blacks was then introduced. 197
In spite of these small and ambivalent "victories", however, it became
obvious at the beginning of the 1920’s that the central leadership of
Congress was out of touch with demands of the masses. Black working
class aspirations at this stage found better expression in the shortlived, but immensely popular. Industrial and Commercial Workers’ Union
("ICU"),
which
was
founded
Kadalie as its secretary.
Party
of
South
Africa
198
in
1922
with
the
charismatic
Clements
Some Africans also joined the Communist
("CPSA"),
which,
at
the
time,
was
the
only
political organization in the country of which the membership was open
to all races. 199
In August 1926, Kadalie, having been refused a permit to go to Natal,
nevertheless
attended
some
meetings
in
Durban.
Upon
his
return
to
Johannesburg he declared that the best way to deal with the pass laws
was to defy them. He was arrested, brought back to Durban and charged
before the local magistrate. Although he was convicted, he appealed and
succeeded on a technical point. 200
At a turbulent conference in April 1927 the ICU, after being referred
to Gandhi’s use of civil disobedience in India, rejected Kadalie’s idea
of a national day of prayer as too mild. A motion was passed which
envisaged the organization of "a passive resistance movement throughout
the Union." 201
In 1927, in the Orange Free State the local chairperson of the ICU,
Johannes Mogorosi, refused to pay "certain location rates and charges"
197
See De Vi11iers Die "African National
aktiwiteite aan die Witwatersrand part 2 265.
Congress"
198
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
Renamed the South African Communist Party in 1953.
200
See Roux Time longer than rope 167ff.
201
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 Caesar’s" and to use established channels for
negotiation. 203
In the same year the ICU also took the initiative in creating test
cases to challenge the validity of proclamations enforcing segregated
living areas in Johannesburg. 204 In two cases taken to the Supreme Court
the relevant proclamations were declared ultra vires. 205
At the 1929 ANC congress a proposal that the pass laws should be met
with a campaign of civil disobedience was rejected. 206
In
1930, the CPSA planned a nationwide campaign of pass-burning on 16
December, claiming that "[y]ou cannot imprison millions." The campaign
was opposed by the ANC and by Kadalie, who warned that the government
would find space in gaol for the law breakers. Eventually the campaign
was
observed
almost
nowhere
except
in
Durban,
where
it
was
most
brutally suppressed by the police. As the protesters were forming a
202
See R v Mogorosi 1927 OPD 293.
203
See De Vi11iers Die "African National
aktiwiteite aan die Witwatersrand part 1 75.
Congress"
en
sy
204
Id part 2 267.
205
See R v Hodos & Jaghbay 1927 TPD 101 and R v Zock 1927 TPD 582.
206
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,
disorderly” persons and deported to their country homes.
dissolute
or
207
Kadalie, however, now followed a policy of hamba kahle (go carefully)
and chose not to offend the government. After some strike action was
orchestrated by Kadalie, the ICU - one of the most powerful black
political
organizations
the
country
has
ever
known
-
faded
from
and
Smuts
existence.
In
1936,
commonly
regarded
as
a
watershed
year,
Hertzog
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
207
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
Walshe Black nationalism in South Africa 12.
209
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
others for "non-Europeans".
on
213
Kimberley
station
for
"Europeans"
and
The appellant had been sitting on a bench
marked "Europeans only" when he was asked to move, and he refused to do
so.
According
to
the
appellant,
he
belonged
to
an
association
of
coloured persons who desired to test their right to use the benches
marked "Europeans only". 214 The appeal was dismissed on the ground that
the statute in question authorised such reservation of facilities for
the exclusive use by particular races. 215
These acts of resistance did little to impress either the government or
the outside world, or, with the exception of the activities of the 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
Section 33.
211
See De Villiers Die "African National
aktiwiteite aan die Witwatersrand part 2 275.
Congress"
en
sy
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
See R v Herman 1937 AD 168.
214
At 169.
215
For a discussion, see Corder Judges at work 148.
216
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
boycotts that lasted for various lengths of time.
218
met
with
sporadic
At times up to 20
000 people walked to work, which meant that some had to get up at 03:00
and
arrived
at
home
only
after
21:00
in
the
evening.
The
boycott
eventually met with success when the Council agreed to sponsor the
fares, but the initiators of the boycott (the ANC and the CPSA) lost
credibility because of ineffective organization and lack of positive
leadership. 219 More important for the struggle as a whole was the fact
that the effectiveness of the mass boycott action as a weapon in the
hands of Africans had been emphasised. The protest was still legal, but
this would soon change.
Between 1944 and 1947 thousands of families illegally moved into open
land near the established townships outside Johannesburg, where they
built shelters with whatever was at hand. The movement was spontaneous
and was aimed at securing physical survival rather than at expressing
political resistance. It occurred with little if any encouragement from
organizations such as the ANC. Eventually the shelters of the squatters
were destroyed by the government, and they were absorbed in the massive
complex of housing estates around Orlando.
The Johannesburg Squatters’ Movement signalled a willingness on the
part of black people openly and non-violently to take the law into
their own hands when deemed necessary. The treatment to which they were
subjected, however, also demonstrated an inclination on the part of the
government to intervene with force and to impose its own perception of
law and order on the black community. 220
The ANC began developing into something resembling a national movement
with a modern branch structure in the 1940’s when Dr Xuma was President
General. 221 Structures developed in these years would prove to be vital
in the process of mass political mobilisation which was to take place
218
Id 13. See also Roux Time longer than rope 325ff.
219
Id 15.
220
Id 16.
221
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 Smuts’s Secretary of Native Affairs of the policy of
"separate development" as an illusion. 224 These changed circumstances,
both at home and abroad, would directly affect the nature of black
politics in South Africa.
The hope that the South African government would voluntarily meet these
expectations was relinquished when Smuts refused an interview requested
by Xuma, and rejected the ANC’s application of the Atlantic Charter to
the situation of Africans in South Africa. It became clear that white
hegemony was not about to disband; on the contrary, there could be
little doubt that if left to itself, the white government would only
increase its hold on the future of the black population.
At the end of 1943, Congress declared the pass laws “enemy number one”.
An Anti-pass Council was established by the ANC and the SAIC. Anti-pass
conferences
were
held
and
several
demonstrations
followed.
In
June
1945, after an unsuccessful attempt to meet with Acting Prime Minister
222
See Karis & Carter From protest to challenge vol 2 209.
223
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,
procession.
were
arrested
and
fined
for
leading
an
unlawful
225
In April 1944, members of the ANC established the Youth League under
the leadership of Anton Lembede. 226 Rejecting the traditional elitist
nature of the ANC and its negative strategy of reaction, the Youth
League set itself the objective of infusing the national liberation
movement with "the spirit of African self-determination". 227 They would
take
organised
African
politics
African
from
opposition
a
mind
into
frame
of
the
streets,
protest
into
and
one
transform
of
active
resistance. When they presented their manifesto to Dr Xuma, the leaders
of the Youth League stated as one of their criticisms against the ANC
the fact that "there was no programme of action - no passive resistance
or some such action." 228 Clearly, they felt that African opposition had
to go on the offensive. The orientation of the new generation was
distinctly Africanist; their approach confrontational.
Various factors accounted for the increase in the political awareness
of the black community at this time. On the home front there was an
increased
dissatisfaction
with
the
unyielding
white
rule
and
the
deteriorating living conditions. On the international front, reference
has been made to the influence of the Second World War. Since 1945, the
United Nations ("UN") for the first time also provided an international
forum which would take an active interest in the domestic affairs of
countries. In the aftermath of Nazism and the devastating consequences
it had for world peace, racism would be regarded in a far more serious
light than before. In India the precedent of a third world country
breaking the hold of a European power was established.
The ANC established contact with other African leaders for the first
time in many years when its representatives attended the 1945 meeting
of the Pan-African Congress in Manchester. The congress, attended by
many of Africa’s young leaders like Kwame Nkrumah and Jomo Kenyatta,
225
Roux Time longer than rope 328ff.
226
See Meli A history of the ANC 108.
227
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.
to respect the
the
only effective
rights of unarmed
way
to
and subjected
229
In 1946, a major strike was organised by the "African Mine Workers
Union", which was terminated only when the police shot and killed at
least nine people. 230
In 1946, a two year "Passive Resistance Campaign" 231 was launched by
members of the South African Indian Congress ("SAIC"), which to some
extent
acted
in
alliance
with
the
ANC.
It
was
the
first
initiated campaign in the country since the days of Gandhi.
232
IndianThis was
to protest against the Asiatic Land Tenure and Indian Representation
Act 28 of 1946, commonly known as the "Ghetto Act". 233 In terms of this
Act, the Indians were awarded communal representation, at the price of
restrictions on their rights to land and property. 234
229
230
See Benson The African patriots 117.
See De Villiers Die "African National
aktiwiteite aan die Witwatersrand part 1 154.
Congress"
en
sy
231
This term is usually used to distinguish this Campaign from the
1952 Campaign.
232
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.
233
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.
234
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
The Campaign took the form of Hartals (economic boycotts), illegal
crossings of provincial borders, and the occupation of selected sites
in “white” areas of Durban. By 1948, some 2 000 protesters had been
convicted and had served terms of several months’ imprisonment with
hard labour.
The
Campaign,
in
terms
of
its
immediate
objectives,
met
with
no
success. It did, however, increase the membership of the Natal Indian
Congress from a few hundred to 35 000. 235 The Campaign also provided the
leadership of the ANC with an example of how people could be mobilised.
It stimulated an appetite in the African community to express their
grievances
in
a
more
forceful
way.
Especially
younger
African
nationalists, such as Nelson Mandela, were impressed by witnessing this
type
of
protest
action. 236
in
Later,
Professor
Z
K
Matthews
would
describe the Passive Resistance Campaign as the “immediate inspiration”
for the ANC’s 1949 decision to employ civil disobedience. 237
Direct
confrontation
between
the
government
and
a
majority
of
the
population was inevitable when, in the 1948 elections, the National
Party ("NP") gained power on the apartheid ticket. The Nationalist
victory heralded an era of increased legislative and administrative
racial
suppression
and
a
decreasing
liberalising outside influences.
openness
of
the
government
to
238
The decrease of legitimacy of the government directly increased the
legitimacy of resistance. The exclusive white nationalism of the NP had
the inevitable effect of eliciting black nationalism and “non-white”
solidarity. The example which the white nationalists set in respect of
objected to. Some mentioned the legacy of Gandhi as their direct
inspiration. See eg Flash 1 Aug 1946. For an overview of the Campaign,
see De Villiers Die "African National Congress" en sy aktiwiteite aan
die Witwatersrand part 1 152ff. See also K A Moodley "South African
Indians: The waivering minority" in Thompson & Butler Change in
contemporary South Africa 250 at 260.
235
Meli A history of the ANC 99.
236
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 one’s goats was one of no holes
barred - also in respect of obedience to the law. Reacting to the Smuts
government’s declaration of war on behalf of the Union on the side of
Britain, Or Malan stated at the 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
239
Or, more correctly, the Reunited National Party, as the party
was called until 1951.
240
Quoted from "Or Malan vertolk wi1 van nuwe Afrikanerdom" Die
Burger 31 Oct 1940.
241
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.
242
For a discussion of this history, see Forsyth In danger for
their talents 61ff.
When the Nationalists came into power in 1948, they started erecting
the cornerstones of "Grand Apartheid", including the Prohibition of
Mixed Marriages Act 55 of 1949, the Population Registration Act 30 of
1950 and the Group Areas Act 41 of 1950. The Immorality Act 5 of 1927
was
also
amended
to
extend
the
ban
on
sexual
intercourse
between
“Europeans” and “natives” to prohibit intercourse between “Europeans”
and all “non-Europeans”. 243
(i)
Prelude to mass civil disobedience
The Youth League argued in favour of a passive resistance campaign in
response to these developments. 244 When Dr Xuma tried to block this
strategy, he in 1949 was replaced as President-General of the ANC by
the more militant (but nevertheless still elitist) Or Moroka. Youth
Leaguers who were now elected to the national executive of the ANC were
Nelson Mandela, Oliver Tambo and Waiter Sisulu. 245
In
December
1949,
at
its
annual
conference.
Congress
adopted
a
statement of policy, entitled the "Programme of Action", 246 backed by
the
Youth
strike[s],
strategies.
League,
[and]
247
It
in
which
civil
would,
the
use
disobedience”
however,
of,
inter
were
take
endorsed
some
“boycott[s],
a1ia,
time
as
acceptable
before
civil
disobedience would be implemented in practice.
Various experiments with campaigns of resistance were now conducted by
the ANC. In 1950, three major demonstrations took place. 248 The first
was a “Freedom of Speech Convention”, over which Dr Moroka presided.
Secondly, it was announced that May Day would be marked by a stay-away
from work. Because of the involvement of the CPSA in arranging the May
Day stay-away, many of the Youth League leaders refused to endorse it.
Nevertheless, the demonstration went ahead and was widely observed,
243
This was done by means of the Immorality Amendment Act 21 of
1950.
244
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
See Lodge Black politics 1n South Africa since 1945 27.
246
Reprinted in Karis & Carter From protest to challenge vol 2 337.
247
Id 338.
248
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”
against the Group Areas and the Suppression of Communism Bills, 250 and a
day of mourning for Africans who had lost their lives in the
struggle
for liberation. No surprisingly, the demonstration was not successful
in term of preventing the passing of these bills, but the date would
become historic as “South African Freedom Day” to commemorate the first
attempt at a political strike on a national level by the black people
of the country. 251
Also in 1950, the (still predominantly white) CPSA strengthened its
ties with Congress by accepting the notion of a two-stage revolution,
according to which a nationalist revolution would have to precede a
socialist revolution. In the same year, the Internal Security Act 44 of
1950, or the “Red Act” as it came to be called, was passed, which
outlawed the Communist
Party. 252 This Act also made it an independent
crime to attempt to bring about any political, industrial, social or
economic
doubly
249
change
through
outlawed:
first
unlawful
in
the
acts.
sense
Civil
that
disobedience
civil
was
now
disobedience
per
Lodge Black politics 1n South Africa since 1945 34.
250
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
(3).
254
See Lodge Black politics 1n South Africa since 1945 40.
255
Later enacted as the Separate Representation of Voters Act 46 of
1951.
256
See Kuper Passive resistance In South Africa 99. See also Karis
& Carter From protest to challenge vol 2 412.
257
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.
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.
260
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.
261
For a discussion of this type of indirect civil disobedience,
see supra chap two IV A.
262
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.
263
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
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
government
was
laws
given
before
notice
29
of
February
the
1952,
intended
failing
campaign
which
of
the
civil
disobedience which was to start with demonstrations on Van Riebeeck
Day, 6 April. 268 In its answer to the letter, the Malan government
described the claims as an attempt to secure “privileges” (not rights)
which were not due. The differences between races were “permanent and
not man-made”. The Campaign was labelled “subversive” and the Prime
Minister gave notice of the state’s intention to “make full use of the
machinery at its disposal” to quash the Campaign. 269
A
subsequent
letter
to
the
government
from
the
ANC,
stating
that
still attributed the statement to Mandela. An apparently authentic
message from Mandela was published as "Youth leader's call to youth"
Spark 6 April 1952. See also Mokoena The South African Outlook 1952
180 and Robertson Liberalism In South Africa 71.
264
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
See Benson South Africa 134.
266
Drum interview, reprinted in Schadeberg Nelson Mandela and the
rise of the ANC 30.
267
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.
268
The letter is reprinted In Kuper Passive resistance In South
Africa App B at 233.
269
Reprinted id 235. For the ANC's response, see "Dr Moroka answers
Malan" Spark 29 Feb 1952.
Africans were “striving for the attainment of fundamental human rights
in the land of their birth” and that they “have explored other channels
without
success”
and
had
“no
alternative”
disobedience, was not answered.
270
but
to
engage
in
civil
A letter from the SAIC, explicitly
linking the Campaign to the name of Gandhi, also failed to elicit a
response from the Prime Minister. 271
On
6
April
1952
(coinciding
with
the
climax
of
the
Van
Riebeeck
tercentenary festival), public meetings were held in the major urban
areas
around
the
country,
with
thousands
of
people
attending
meetings in Johannesburg, Cape Town, Port Elizabeth and Kimberley.
272
the
At
these meetings Congress made its plans for the Campaign known to its
followers. 273
In
May
a
number
of
leaders
of
the
intended
Defiance
Campaign were served with notices by the government, ordering them not
to
engage
any
further
in
the
activities
participating in the envisaged Campaign.
274
of
the
organizations
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
239.
271
Reprinted Id 242.
272
See Benson South Africa 143. See also "'Save South Africa from
fascism'" The Guardian 3 April 1952, "Thousands pledge to defy unjust
laws" The Guardian 10 April 1952 and "Duisende betogers besluit: Sal
wette begin trotseer" Die Transvaler 7 April 1952.
273
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.
274
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.
275
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
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,
rejection of “a particular kind of law”.
but
wanted
to
signify
their
279
The basis of the claims for the repeal of the laws and the ending of
the apartheid system was in some cases advanced in the language of
natural law and human rights. The Joint Planning Council, for example,
said
they
African”.
However,
280
were
claiming
“the
inalienable
rights
of
every
South
Lutuli asked the Question “Shall we obey God or man?”
there
were
differences
in
approach
to
the
use
281
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
See Benson South Africa 146.
278
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.
279
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
Karis & Carter From protest to challenge vol 2 461 para 7.
281
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 Lutuli’s justification for the use of civil disobedience was
strongly
reminiscent
tried to show
of
Gandhi’s
idea
of
“truth-force”:
“[W]e
have
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 Gandhi’s disciples in South Africa, Nana Sita, saw the Campaign
as a manifestation of Satyaaraha, and declared: “By suffering we shall
march forward with this weapon” - the weapon being civil disobedience,
which he declared was “stronger than the atomic bomb”. 288
Nevertheless, the dominant approach was less idealistic. A number of
ANC leaders, like Z K Matthews, justified their decision not to engage
282
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.
283
See Lutuli's observations "What June 26 means to African people"
New Age 27 June 1957.
284
See Luthu1i Let my people go 102.
285
Benson South Africa 144.
286
Id 146.
287
See
"'Democracy
or
open
dictatorship'"
People's
1952.
288
See Kuper Passive resistance in South Africa 120.
World
9
Oct
in violence on the pragmatic basis that the use of violence leaves
bitterness, as was evident from the aftermath of the Anglo-Boer War. 289
When asked whether the envisaged Campaign was to be conducted with
methods
similar
to
those
used
by
Gandhi,
Dr
Moroka
was
also
not
dogmatic about it: “Yes, along those lines. Passive resistance is the
most effective method open to us.” 290
As Lodge observed:
It is unlikely that many subscribed to Gandhi’s notion of Satyagraha in
which the suffering of those punished for disobedience was supposed to
activate the inherent goodness of the rulers. More conceivably, a large
number of those who eventually participated in the Campaign probably
hoped that their actions would succeed in disorganising authority by
filling the prisons and the courts to capacity. 291
Some leaders described civil disobedience to the people as a manoeuvre
which would throw the police off balance: “But what will they
say now?
‘Hoe gaan ons werk, kerels, die mense baklei nie.’ You must give them
that headache.” 292
ANC leaders like Oliver Tambo, while accepting the method
of non-
violent resistance, explicitly rejected Gandhi’s belief in the creative
power of suffering. Tambo’s approach was explicitly coercive. According
to him:
Mahatma believed in the effectiveness of what he called the ‘soul
force’ in passive resistance. According to him, the suffering
experienced in passive resistance inspired a change of heart in
the rulers. The [ANC], on the other hand, expressly rejected any
concepts and methods of struggle that took the form of a 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 Gandhi’s passive resistance, the ANC launched, in 1952,
the Campaign for the Defiance of Unjust Laws. 293
289
See Benson The African patriots 175.
290
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
Lodge Black politics in South Africa since 1945 41.
292
Quoted in Kuper Passive resistance in South Africa 119.
293
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
made
unworkable.” 297
He
described
the
Defiance
Campaign
as
298
(In
“extremely dangerous to the stability and security of the state”.
the
later
Treason
Trial,
however,
Mandela
testified
that
he
had
expected the government, when the Campaign reached the stage of mass
defiance, either at its own accord to “remove an discrimination” or to
do so under pressure from the voters. 299) Meli regarded the philosophy
underlying
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.
294
O Tambo "Passive resistance in South Africa" in Davis & Baker
Southern Africa In transition 217 at 221.
295
See Benson South Africa 137.
296
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
See "Debates at ANC conference" The Guardian 27 Dec 1951.
298
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.
299
See S v Adams & others, unreported case no 1/58 SCC 1961, at
15794.
300
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
apartheid. 304
of
Lutuli
would
later
state
that
the
objective of the Campaign was “to politicise the African people.”
had
the
objective
consciousness.”
of
“awakening
the
native
to
first
305
It
political
306
Looking back, it seems that the objectives of the Campaign can be
described as follows: Insofar as the Campaign was result-oriented or
aimed at bringing about social change, it had both direct and indirect
objectives. As far as the direct objectives vis-a-vis the government
were concerned, there were two different approaches: one, adhered to by
the
Gandhians
and
those
who
were
expressly
motivated
by
Christian
convictions, was the notion that the South African government could be
brought to see the error of its ways through the Campaign; the second
was the belief that the Campaign, even though a relatively low level of
coercion was involved, could force that government to change by making
its
laws
impossible
possibility
of
to
directly
administer.
affecting
Another
the
group
conduct
of
discarded
the
the
government
altogether, and relied entirely on its indirect effects. The indirect
objectives
of
politicising
the
of
Campaign
encompassed
prospective
both
supporters
the
and
possibilities
of
mobilisation
of
international support.
301
See S v Adams & others, unreported
reasons for judgment of Bekker J at 9.
302
case
no
1/58
SCC
1961,
Meli A history of the ANC 120.
303
See L Kuper "Nonviolence revisited" in Rotberg & Mazrui
and power in black Africa 788 at 792.
Protest
304
See Walshe The rise of African nationalism In South Africa 402.
305
See Karis & Carter From protest to challenge vol 2 426.
306
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
307
Quoted in "Non-European plan for 'mass defiance'" The Cape Times
7 April 1952.
308
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
In accordance with the plans for the first stage of the Campaign,
groups
of
apartheid
volunteers
regulations
resisted
under
in
public
auspices
places
of
the
trained
pass
laws
leaders.
309
and
The
intention was to concentrate on localised incidents in large centres
across the country.
It was made clear at this stage that only selected volunteers were to
defy the law - it was not to be a mass movement (at least for the time
being) in the sense of country-wide defiance of laws by all those who
identified with the cause. 310 Only people “who have been called upon by
the Action Committee” of those congresses involved in organizing the
Campaign, were to transgress the laws in public places. These people
were “trained to remain disciplined” and were to act in units under the
leadership of an appointed marshal.
Other
people
were
urged
not
to
defy
the
law. 311
The
non-violent
character of the Campaign was also emphasised on a number of occasions,
inter alia by Or Moroka who stated “We do not want the Mau Mau spirit
to come here.” 312
73ff; Davenport South Africa 366ff and Schadeberg Nelson Mandela 34ff.
See also Hatch Jewish Frontier March 1953 19; Kuper The British
Journal of Sociology 1953 243; Anonymous The Round Table 1953 88;
Anonymous The Round Table 1953 130; and Olivier Koers 1987 512 at
534ff. See also the summary of the facts relating to the Campaign by
Bekker J in S v Adams and others, unreported case no 1/58 SCC 1961, at
47ff of his judgment. For a vivid account of the start of the
Campaign, see "The story of 'defiance'" Drum Oct 1952 9. See also
"Democrat's diary" Advance 1 Jan 1953.
309
The only laws directly broken were the pass laws. For the rest
apartheid regulations were transgressed, mainly on the railways.
310
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.
311
See "Only volunteers will fight '.unjust' laws" The Friend 25
June 1952 and "Net sekeres mag wet uittart" Die Burger 25 June 1952.
312
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
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
Mandela
They
were
trial.
“conspiracy
convicted
316
to
on
and
Cachalia)
not
In
the
incite
the
granted
were
bail
ensuing
public
alternative
arrested
and
trial
violence”.
counts
the
spent
24
they
were
317
under
at
They
the
Boksburg
days
prison
charged
were
pass
in
with
eventually
laws
and
the
location regulations and sentenced to a fine of £1 or seven days’
imprisonment. Nearly all chose to serve terms of imprisonment. 318
Mandela
and
Cachalia
were
arrested
that
evening
with
a
group
of
resistors who had broken the curfew regulations in Johannesburg. They
were arrested on charges of having aided and abetted those in the group
to
break
the
law.
They
were
granted
bail 319
and
eventually withdrawn, due to a lack of evidence.
other
accused,
it
transpired
that
the
320
the
charges
were
In respect of the
protesters,
when
they
were
'Defiance Campaign'" Rand Dally Hall 2 June 1952.
313
See Benson South Africa 147.
314
See "Full list of arrested volunteers" and "Sisulu arrested in
Boksburg" The Bantu World 27 June 1952.
315
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.
316
See "Aansoek om borgtog geweier" Die Volksblad 30 June 1952 and
Sisulu and Sita jailed" Spark 25 July 1952.
317
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
See "Sentenced for 'defiance'" The Argus 21 July 1952.
319
See "Freedom battle begins" Spark 4 July 1952.
320
See
"52
Naturelle
Transvaler 26 July 1952.
van
'protes'-veldtog
vrygespreek"
Die
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
See "52 Rand 'defiers' acquitted" The Cape Times 26 July 1952.
322
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.
323
See "Scorpion", "Arrested"
succession" Flash 25 Nov 1952.
and
"Curfew
for
second
night
in
324
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
1952.
326
See "First city 'resistors' arrested" The Cape Times 4 Aug 1952.
327
See "Defiance Campaign in Free State" The Friend 23 Sept 1952.
328
See "Defiance in Durban" Drum November 1952.
329
the Eastern Cape, 306 from the Western
116 from the Transvaal, 152 from Natal
See "Defiance Campaign now in second
Friend 22 Oct 1952.
330
See Sisulu's remarks as reported in "Organisers urge volunteers
Of these, 5 269 came from
Cape, Mafeking and Kimberley, 1
and 147 from the Free State.
stage: More will take part" The
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
evidence
crime.
338
rule,
admitted
the
formal
resisters
compliance
pleaded
with
not
all
guilty
the
but
elements
then
of
in
the
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
See "Op gelyke voet in die parlement" Die Burger 24 June 1952.
332
See "Teen die witman" Die Vaderland 2 Sept 1952.
333
See "Trotseerders van wette gestraf" Die Burger 23 July 1952.
See also "Sentenced for 'defiance'" The Argus 10 July 1952.
334
See "Swaarder gestraf" Die Burger 25 July 1952.
335
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
See "Uittarters swaarder gestraf" Die Transvaler 26 Sept 1952.
337
See "First conviction under anti-defiance Act" The Bantu World 4
April 1953.
338
See eg "Sentenced for defiance" The Argus 10 July 1952 and "151
go to jail in East London" The Friend 26 July 1952.
339
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.
except the court dock.” 340
The General Secretary of the Natal Indian Congress, Debi Singh, who had
led a group of resistors to defy Railway Apartheid Regulations, told
the court:
There is nothing in our common law which lays down that
differential treatment should be meted out to people of colour.
In some countries it is indeed a criminal offence to discriminate
on racial grounds. Thus it is correct to say that the crime with
which I have been charged is a crime to which there attaches no
moral
guilt
...
When
there
are
marked
and
pronounced
contradictions between thee (sic) law of nature and man-made law
a very painful duty devolves on all enlightened members of our
society. 341
In this case Singh regarded it as his duty to obey “natural law”. 342
The
protesters
gave
due
notice
of
any
intended
acts
of
civil
disobedience, and almost without exception refused to pay fines imposed
and went to prison. 343 In doing this, at least the outward form of
Gandhi’s campaigns of Satyagraha was observed, even if there was no
certainty
was.
344
to
the
as
to
what
the
exact
philosophy
underlying
the
Campaign
In order to counter the fact that some prisons were later filled
brim,
courts
implemented
the
provisions
of
the
Criminal
Procedure and Evidence Act 31 of 1917, which made allowance for the
seizure of the property of a convicted person in order to pay his
fine. 345 As a consequence, people were turned out of gaols against their
will. 346
In
an
especially
controversial
move,
courts
later
began
imposing whippings, in accordance with the provisions of the Criminal
340
MacFarlane Political studies 1968 335 at 342 used this phrase to
describe a system of permanent colonialism.
341
See "Veteran leader Debi Singh leads defiance batch into action"
Spark 14 Nov 1952.
342
Ibid.
343
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.
Section 346. See
Vaderland 28 Aug 1952.
346
"Tronk
reeds
tot
oorlopens
toe
vol"
Die
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 God’s rule”. The magistrate told the accused that
he was not going to allow political speech. The proceedings continued:
“Mhlaba: If the law is oppressive, what is one to do? The magistrate:
There are constitutional means by which you can try to have th1ngs
amended. When it comes to deliberate defiance of the law this court
will see that the persons responsible are properly punished.” 349
Passing sentence in another case on 21 Africans who broke apartheid
regulations, a Johannesburg magistrate remarked:
It is quite clear that the law has been deliberately flouted. The
laws are made to be observed, whether we like them or not. There
are some laws which I also do not like - they hit me rather hard.
The Income Tax Act for example, is one I do not like. Just the
same, I must obey it, as, just the same, you must obey these
laws. 350
He also maintained that it was quite clear that there was no partiality
or inequality in the apartheid regulations which were broken. None of
347
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.
348
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.
349
Quoted from "Natives in court in Port Elizabeth" The Cape Argus
10 July 1952.
350
Reported in "21 go to gaol for 'defiance' at station" Rand Daily
Mail 28 Aug 1952.
the accused’s rights, he said, were taken away or interfered with. 351
In sentencing the group of resistors who, under the leadership of Sita
and
Sisulu,
had
defied
the
Boksburg
“location
regulations”,
the
magistrate stated that he could not concern himself with any of the
political aspects of the case. He said: “My duty is to apply the law as
I find it.” 352
In another case, after hearing that nine out of a group of 29 resisters
who
transgressed
the
pass
laws
were
unemployed,
the
magistrate
remarked:
Julle moot nie die feit uit die oog verloor nie dat die staat
julle dikwels van hongersnood en epidemies gered het. Julle lewe
nou in ‘n soort van weelde, met baie voedsel en baie
werkgeleentheid. Dit sal nie altyd aanhou nie. Ek wil vir julle
dit se: Dit help julle niks om jul koppe teen ‘n muur te stamp
nie - die muur sal nie seer kry nie. 353
One magistrate said to an 87 year-o1d defier: “An old man like you
should have more sense. If you think I shall let you make a martyr of
yourself you are mistaken - go home.” 354
The sentiment that Africans were the helpless and incapable victims of
others, and that they themselves would never have had the initiative to
embark
upon
civil
disobedience,
was
reflected
in
the
words
of
a
magistrate who sentenced a number of offenders who participated in an
illegal
demonstration:
“Ek
betreur
mense, wie se Intel ligensie nie
dit
dat
bale hoog
hierdie
betreklik
jong
is nie, gewerf word om
aan versetpleging en wetsoortreding deel te neem, en dat hulle nou met
hulle vryheid daarvoor moet boet.” 355
At
the
351
trial
of
Dr
Conco,
Lutuli's
second-in-command
in
the
Natal
Ibid.
352
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
Quoted from "Muur sal nie seer kry!" Die Volksblad 11 Sept 1952.
354
Quoted from "Defier (87) not allowed to be a 'martyr'" The Argus
1 Oct 1952.
355
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.
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,
Supreme
Sisulu,
Court
with
Mandela,
the
Moroka
crime
of
Internal Security Act 44 of 1950.
and
others
contravening
360
were
charged
section
11(b)
in
the
of
the
According to the indictment they
356
See Flash 6 Nov 1952.
357
Quoted from "First victims of Swart's new order" Advance 18 Dec
1952.
358
See eg "413 Naturelle gister gevonnis" Die Transvaler 19 Aug
1952.
359
Some people were also tried with Illegally collecting money to
support the movement. See "'Defiance' collection test case" The Cape
Times 14 Aug 1952.
360
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
advocated
and
encouraged
the
achievement
“communism” as defined in the Act.
361
of
the
objectives
of
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
others 363
and
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”,
commonly known as communism.”
364
which
was
different
from
“what
is
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
course of action and to avoid violence in any shape or form.”
An
appeal
dismissed.
against
367
the
conviction
to
the
Appellate
a
peaceful
366
Division
was
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
See the discussion of the offence infra chap four I C (l)(b).
362
See "'Nat government desperate - crown has
World 11 Sept 1952.
363
no case'" People's
Unreported case no 1417/52 W 2 Dec 1952.
364
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
At the first unnumbered page of the reasons for sentence.
366
Ibid.
367
Reported as R v Sisulu and others 1953 3 SA 276 A. Judgment by
Greenberg A C J.
through
a
“threat
that
was
intended
to
produce
terror
in
the
legislators” (that is, even if the Campaign was entirely persuasive and
involved no coercion), it would nevertheless still have constituted a
contravention of section 11(b). 368
Given the formidable legal apparatus at the disposal of the state, and
the intention of the protesters to commit crimes, it is not surprising
that only a small number of cases resulted in acquittals. Where this
did occur, it was either due to the insufficiency of the evidence in
the particular case or the result of lacunae in the legal system.
Charges against 54 black protesters who used the section of a post
office counter reserved for whites were withdrawn and 19 others were
acquitted when it was discovered that the post office regulations did
not make provision for such an enforcement of apartheid. 369 Similar
cases
followed
in
respect
of
purported
breaches
regulations in other courts, with the same result.
of
post
office
370
In another case, a number of white defiers used seats in a post office
reserved for “non-Europeans”, as a result of which a crowd of between
250 and 300 people gathered around them. Since there were no valid post
office
apartheid
regulations
making
provision
for
racially
defined
reservation of seats, they were charged with causing an obstruction. It
was argued on behalf of the accused that the real reason for the
obstruction was the conduct of the crowd, not that of the accused.
Counsel for the accused asked the captain who made the arrests whether
he would have detained Elizabeth Taylor if she had walked into the post
office and a crowd gathered around her. 371 The accused were acquitted.
In
a
crude
reversal
of
the
normal
sentiment
in
such
cases 372
the
magistrate told the accused: “You have committed a moral crime, but
368
At 290.
369
See "Charges of 'resisting' fail: 54 freed" The Argus 21 July
1952 and "Postal apartheid" The Cape Times 22 July 1952
370
See "'Defiers' are found not guilty at Worcester" The Argus 25
July 1952.
371
See "Blanke versetplegers deur hof ontslaan" Die Burger 20 Dec
1952.
372
See eg the observations the magistrate in the "Great Trial" made
regarding Gandhi, quoted infra chap three III B (1)(a).
fortunately for you not a legal one.” 373
In contrast to the situation regarding the post offices, the railway
regulations made specific provision for segregation at stations. The
validity of the” railway apartheid regulations was attacked on the
basis
that
the
regulations.
rights
However,
magistrates’ courts.
of
this
blacks
were
contention
diminished
was
not
through
upheld
these
in
the
374
Much attention centred upon the case of R v Lusu, which acquired the
status of a test case and was eventually decided in the Appellate
375
Division. The case originated in August 1952 when the accused, a
black man, as part of the activities of the Defiance Campaign, entered
the
“European
waiting-room”
at
the
Cape
Town
railway
station,
and
refused to leave when requested to do so. He was charged with having
contravened
the
Railways
Management Act 22 of 1916.
and
376
Harbours
Regulation,
Control,
and
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
See "No legal basis for PO apartheid" Advance 25 Dec 1952.
374
See "42 Oortreders skuldig bevind; 1 kry rottang" Die Transvaler
20 Aug 1952.
375
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
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 crown’s contention were correct, it would follow that the
Administration
could,
under
section
7(bis)(1).
reserve
conveniences on railway premises for members of a particular race
only and provide no conveniences for members of any other race.
This could not, in my opinion, have been the intention of
Parliament. 378
Consequently the appeal was dismissed. In terms of the British case of
Kruse v Johnson, 379 if facilities were to be separate, they at least had
to be equal.
To the great dismay of both the white press and the presiding officers,
there were cases where singing, shouting and other interruptions of the
court
occurred. 380
proceedings
The
trial
of
Sisulu
and
others
was
adjourned at one stage for 15 minutes to allow Sisulu to address the
crowd outside the courtroom. Upon his request they left immediately. 381
The Campaign was Intensified in October when India successfully moved
that
the
Assembly.
in
situation
382
Durban
in
South
Africa
be
debated
at
the
UN
General
A so-called “United Nations Rally” was held at Red Square
and
attended
by
more
than
10
000
people.
The
rally
“unanimously passed by acclamation” a message which was sent to the
Secretary-General
of
the
UN.
After
expressing
solidarity
with
the
values embodied in the Charter of the UN, the message proceeded:
We are of the considered opinion that one of the most disturbing
factors
in
the
world
today
is
the
practice
of
racial
discrimination, a practice which has within it the seeds of
another world war. Because we believe in the peace of the world
and in the creation of peace fu1 (sic) conditions in our own
378
At 491 of the report.
379
[1898] 2 QB 91 at 99.
380
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
See Houser Nonviolent revolution 1n South Africa 25.
382
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
Quoted in "Message to the United Nations" Flash 14 Oct 1952.
384
See "Defiers' first 'UNO batch'" Cape Times 6 Oct 1952.
385
See "Extension of defiance" The Cape Times 13 Oct 1952 and
"'Defiance' to spread to platteland" Rand Daily Mail 13 Oct 1952.
386
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.
387
The court case resulting from the incident at
discussed by Kuper Passive resistance 1n South Africa 135.
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.
See Kuper Passive resistance in South Africa 138 and
Let my people go 115.
Luthuli
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.
391
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.
392
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
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.
393
During December, the number of resisters dropped to 280. Kuper
Passive resistance in South Africa 143.
394
See Benson South Africa 146.
395
See "ANC will continue to fight Nat dictatorship" Advance 4 Dec
1952.
396
This theme is thoroughly discussed in Horrell Action, reaction
and counteraction 6ff. The legislative consequences are discussed in
Horrell Legislation and race relations 48ff.
397
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.
398
See "Defiance Campaign is mutiny, says Donges (sic)" The Friend
10 Dec 1952.
lawlessness. 399 The Campaign was also portrayed as defiance of the valid
laws of a lawful authority and hence as an attack on the authority of
God. 400
The government described the term “unjust laws” as perceived in the
Campaign as a misnomer, insisting that the apartheid laws were in the
best interest not only of white people but also of black people. 401
Consequently,
it
denied
the
Campaign
the
status
of
being
anti-
exploitation, and treated it as policy-based. Not surprisingly, the ANC
rejected
this
assumption
as
one
of
hypocrisy,
and
emphasised
its
conviction that what it was striving for was recognition of the basic
right of the people not to be exploited. 402
The
Defiance
government
Campaign
stated
its
met
with
intention
stern
to
reproach
ensure
that
in
Parliament.
law
and
order
The
was
maintained “irrespective of opposition, irrespective of criticism.” 403
No government “worth its salt” can sit still while being threatened
with intentional violations of the law. The Minister of Justice stated:
“We cannot tolerate that, and if a few heads are split open in the
process, then I am very sorry, but it cannot be helped.” 404
The attendance by two members of Parliament of a meeting addressed by
Solly Sachs in defiance of an order served on him, urging people to
take part in defying the law, caused consternation in Parliament. 405 The
Minister of Justice said: “Even if the policy of this government is
wrong it is still the law and no one may violate it.” 406
399
See Kuper Passive resistance in South Africa 154.
400
The "Sinodale Kommissie van die Ned Herv of Geref Kerk" stated
its conviction "[d]at alle vorms van geweldpleging en verontagsaming
van bestaande wette of die wettige gesag van die land veroordeel moet
word as strydig met die Woord van God." See "Die spanning tussen
rasse-groepe in SA" Die Voorligter Jan 1953.
401
See "Dr Eiselen gives his views on the unjust laws campaign" The
Bantu World 20 Sept 1952.
402
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
Debates of the House of Assembly 20 June 1952 col 8759.
404
Id 20 June 1952 col 8758.
405
Id 26 May 1952 col 6319ff.
406
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
effectively”
with
for
any
additional
further
acts
powers
of
to
defiance
deal
of
“swiftly
the
law.
407
and
The
government held the opposition parties responsible for the Campaign
because of its support for those engaged in breaking the law. 408 The
United Party, seen as the bastion of liberalism, was singled out for
particularly severe criticism in view of the fact that, although it
eventually
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
coloureds from the common voters’ roll.
their
effort
to
remove
the
412
The Campaign was portrayed by the white press and by the government as
inspired by communists and Indians. 413 Africans were often viewed as the
helpless pawns of instigators who did not realise that apartheid was in
407
Id 23 Jan 1953 col 4.
408
Id 27 Jan 1953 col 120.
409
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
Id 27 Jan 1953 col 89.
411
See "The chickens come home" The Cape Times 24 Sept 1952.
412
See "Premier must set an example" The Friend 4 Sept 1952.
413
According to cabinet minister Or T E Dönges, the Campaign could
be labelled "Made in Russia or India". See "Dönges sees mark of
Moscow" The Argus 22 Nov 1952. See also "'n Siniese spel" Die
Volksblad 26 June 1952; "Agter die versetveldtog" Die Burger 12 Aug
1952 and "Leiding van Moskou" Die Volksblad 15 Dec 1952. The approach
accorded with the fact that civil disobedience was regarded as an "act
of communism" in terms of the Internal Securuty Act 44 of 1950.
the blacks’ own best interest. 414
When it seemed that some prisons were approaching their capacity, it
was suggested that those arrested for participation in the Campaign
should be housed in concentration 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’
414
See "'Unjust laws' is complete misnomer" Pretoria News 18 Sept
1952 and "Versetplegers is onkundig oor wette" Die Burger 18 Sept
1952.
415
See "Konsentrasiekampe vir versetleiers" Die Burger 22 Nov 1952.
416
See "Padkampe vir versetters" Die Volksblad 4 Aug 1952.
417
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.
418
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, sê Min Schoeman" Die Transvaler 27 Oct
1952 and "Police will shoot - Swart" Rand Daily Mail 3 Nov 1952. One
aspect of the strong arm tactics of the government in this regard was
the raiding of homes and offices of the leaders of the Defiance
Campaign. See "Union-wide raids by CID" The Cape Argus 30 July 1952.
419
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 "Maatreëls teen
wetsverbreking byna voltooi" Die Vaderland 11 Dec 1952. This provoked
heated resistance at the instance of the ANC. See eg "Protest meetings
call for withdrawal of bills" The Bantu World 14 Feb 1953.
requests. 420
As far as the establishment was concerned, the high moral claims of the
Campaign were effectively neutralised through the publicity given to
acts of violence that had occurred. During the Defiance Campaign the
liberation movement in Kenya was in the news, and white people tended
to see the spirit of the Mau Mau in the Campaign, rather than that of
the Mahatma. The violence which erupted also provided a pretext for
discounting the morality of the cause underlying the Campaign.
Commentators like Desmond 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
legislation.
government
the
In
to
intellectuals
underestimated.
government
fact,
it
initiate
and
423
did
more
to
the
repeal
very
oppressive
religious
any
opposite
of
and
legislation.
leaders
should,
the
offensive
prompted
Its
the
effect
however,
on
not
be
Eventually, these people would play an important role
in the liquidation of apartheid. 424
Executive
harsh.
and
During
legislative
the
response
Defiance
to
Campaign
the
the
Campaign
were
swift
Governor-General
and
issued
a
proclamation which made “the incitement of natives” by either whites or
blacks a criminal offence. 425 White resistors, like Patrick Duncan, who
joined the Campaign at the end were charged and convicted under this
proclamation. Many leaders of the Campaign were also tried, restricted
or
banned
in
a
variety
of
ways
under
the
Riotous
Assemblies
and
420
See "Difficult to 'stamp out' Defiance Campaign" The Friend 11
Oct 1952.
421
See 0 Tutu "Persecution of Christians under apartheid" in Metz &
Schillebeeckx Martyrdom today 63 at 67.
422
See Robertson Liberalism in South Africa 85.
423
See Karis & Carter From protest to challenge vol 2 426.
424
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.
425
This proclamation is discussed infra chap four I C (1)(c). Se
also "Heavy penalties under new proclamation" The Bantu World 6 Dec
1952
Criminal Law Amendment Act 27 of 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
of
Documents)
Act
67
of
1952
was
introduced
which,
in
mockery of its name, made provision for the state to require all black
persons
not previously required to possess passes to carry reference
books. In terms of the Black Laws Amendment Act 54 of 1952 black women
could in future also be required to carry such “passbooks”. 428
Early in 1953, in response to a general outcry from the white public
concerning the Defiance Campaign, the Public Safety Act 3 of 1953 and
the
Criminal
Law
Amendment
elsewhere in more detail,
429
Act
8
of
1953
were
enacted.
Discussed
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
provision
was
for
introduced
segregation
to
consolidate
of
public
regulations
facilities.
which
This
made
new
Act
specifically excluded the requirement of equality between “European”
and “non-European” facilities posed by the courts. 431 Consequently the
decisions in R v Lusu 432 and the post office cases 433 were effectively
426
Mandela was banned for six months under this Act. See Meer
Higher than hope 59.
427
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
See Joseph Africa South 1959 20.
429
See infra chap four I, II.
430
For a discussion of this period in South Africa's legal history,
see Brookes s, Macaulay Civil liberty in South Africa 77ff.
431
See s 3.
432
1953 2 SA 484 (A).
433
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
latter’s claim to have any meaningful following among Africans was
repudiated by the ANC. 435 Selope Thema of the National-minded Block in
the ANC now also took an anti-civil disobedience stance. 436
Most chiefs either rejected the Campaign or remained neutral. 437 The
exception was Lutuli, who participated actively and as a result lost
his chieftainship. 438 Lutuli’s famous defence of his stance was to ask:
“Who will deny that thirty years of my life have been spent knocking in
vain,
patiently,
moderately
and
modestly
at
a
closed
and
barred
434
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.
435
See "Chief A Luthuli speaks of march to freedom" The Bantu World
18 Oct 1952.
436
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.
437
See "Bantu Chiefs warn followers against passive resistance"
Rand Dally Man 8 Sept 1952.
438
See Luthuli Let my people go 111.
door?” 439 National Party newspapers also tried to expose – apparently
not
entirely
without
justification
leadership of the Campaign.
-
black
resentment
at
Indian
440
The reaction of the radical Non-European Unity Movement, on the other
side of the spectrum, was interesting. It declared that “there is only
deception and self-deception in dealing with ‘Malanazis’ as though they
were ‘democrats’ and ‘Christians’ who will suffer pangs of conscience
because certain non-white ‘leaders’ are in gaol.” 441
These
comments
were
clearly
aimed
at
those
who
thought
that
civil
disobedience could bring the government to reconsider the morality of
its position. The underlying assumption is that civil disobedience is
an
instrument
of
immanent
critique,
and
consequently
it
was
not
suitable to be used against the South African government. By using
civil disobedience, one is suggesting that the opponent possesses the
439
439See his statement: "The road to freedom is via the cross",
reprinted in Karis & Carter From protest to challenge vol 2 486.
440
440See "Bantoes raak sat vir Indiër-base" Die Vaderland 23 Aug
1952. These newspapers also took obvious delight in the case of one
protester who told the court that the explanation of a police witness
that only apartheid could maintain good order at the train station
convinced him that apartheid was necessary. See "Verstaan nou waarom
daar apartheid is" Die Transvaler 21 Aug 1952.
441
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.
morality
needed
to
change.
To
them,
civil
disobedience
was
an
unwarranted compliment to the humanity of the government. The indirect
and
eventually
perhaps
more
important
goals
of
the
Campaign
were,
however, ignored.
Some African newspapers gave their full support to the protest and
lashed out at the government for the way in which it handled the
Campaign. 442 As time progressed, African newspapers which were initially
sceptical
became
increasingly
supportive
of
the
Campaign.
This
largely due to the support which the Campaign received from abroad.
was
443
It is difficult to establish what the role of religion was in the black
community
in
respect
of
the
Campaign. 444
Kuper
indicated
that
Christianity was viewed with ambivalence by many blacks. On the one
hand,
Christian
Christianity
was
values
seen
legitimised
as
resentment of suppression.
445
a
plot
resistance;
whereby
on
whites
the
other
hand,
appeased
black
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
442
See eg "Public Safety Bi11 means political terrorism" Advance 5
Feb 1953.
443
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.
444
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
See Kuper Passive resistance in South Africa 116ff.
446
F See "Ministers' comment on political ban" The Bantu World 3
Jan 1953.
447
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.
448
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
At a meeting of nearly seventy ministers of religion of many different
denominations and all races to discuss the role of the church in the
Campaign, the clergy were urged to give moral but not active support to
the Campaign. 449
Civil disobedience also had far-reaching effects on the nature of the
liberation movement in the country. It fulfilled an important function
in making African opposition articulate and robust at a time when other
strategies were simply not available and, it is submitted, in this
sense helped to make the retention of black dignity possible. According
to Mandela, “[i]t inspired and aroused our people from a conquered and
servile community of yesmen to a militant and uncompromising band of
comrades-in-arms.” 450
This aspect is closely related to a further consequence of the Campaign
for the liberation movement: One of the stated objectives with the
Defiance Campaign, at least insofar as the ANC was concerned, alluded
to earlier, was to increase its membership. The Campaign certainly
served to mobilise the masses and was an inspiring demonstration of
black ability. 451 Paid-up membership of the ANC increased during the
Campaign from approximately 7 000 to 100 000 - and paid-up members gave
only a small indication of the movement’s wider support. 452
After
the
Campaign,
the
ANC
was
for
the
first
time
truly
a
mass
movement. It lost much of its élitism and became more sensitive to the
needs of the workers and the less privileged. 453 It was this change in
force' says rev Nkabinde" The Bantu World 23 Aug 1952. See also "2 000
pray in rain for defiance 'volunteers'" Rand Daily Mail 23 June 1952.
See also N Carter "The Defiance Campaign - A comparative analysis of
the organization, leadership, and participation in the Eastern Cape
and the Transvaal" in Institute of Commonwealth Studies Collected
seminar papers on the societies of Southern Africa in the 19th and
20th centuries 76 at 83.
449
See "Clergymen discuss Defiance Campaign" The Bantu World 21 Feb
1953.
450
Mandela "No easy walk to freedom" in Mandela The struggle is my
life 34 at 34.
451
See "Civil disobedience
Argus 31 July 1952.
campaign
a
continuing
struggle"
The
452
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.
454
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
See Robertson Liberalism in South Africa 102.
See
and power
122. See
Vaderland
Mercury 2
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.
457
See L Kuper "Nonviolence revisited" in Rotberg & Mazrui Protest
and power in black Africa 788 at 791.
458
Lutuli emphasised the fact that the target of the Campaign was
the system and not a race. See Luthuli Let my people go 105.
to join the non-Europeans in their fight for freedom and democracy.” 459
While many other factors also had an influence in this regard, it was
inevitable that the high moral ground of non-racialism on which the
Campaign was premised, made it difficult for those participating to
practise
apartheid
in
their
own
ranks.
Even
if
the
use
of
civil
disobedience did not convince its direct opponent to mend its ways, it
contributed towards changing the people who practised it. 460 The irony
of the Defiance Campaign was that it changed those who used it for the
better, but those against whom it was targeted for the worse.
The Defiance Campaign no doubt made a significant contribution towards
mobilising support for the liberation movement and towards fostering
black
self-respect.
Even
if
still
oppressed,
Africans
gained
some
control over their own 1ives.
-
International consequences
Coming soon after the Second World War, the Campaign also served to
arouse
world
government.
461
opinion
against
the
policies
of
the
South
African
Eliciting a negative world response to the South African
government was one of the objectives of the Campaign, 462 and something
the
government
tried
to
avoid. 463
International
sympathy
with
the
459
See "ANC stands by the alliance with Congress of Democrats" New
Age 13 Nov 1958.
460
The same happened during the campaigns conducted by Gandhi. See
infra chap three III B (1)(b).
461
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.
462
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.
463
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
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
interference in their country’s domestic affairs.
as
468
direct international onslaught on apartheid as such.
an
unwarranted
It was the first
469
The UN played a significant role in the thinking of those leading the
to say to the outside world how they were being suppressed. See
"Oorsake van die onluste sal uit die hofsake blyk" Die Transvaler 22
Nov 1952.
464
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.
465
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
Indië" Die Transvaler 15 Sept 1952 and "Congress motion calls for
financial aid for passive resistors" Rand Dally Mail 15 Sept 1952. In
Britain, a "Christian Action" group established an assistance fund
which was administered in South Africa by a group under the
chairmanship of Alan Paton. See "Fund opened in London for dependants
of 'resistors'" The Star 29 Oct 1952; "Misplaced zeal" The Star 31 Oct
1952; "Distress fund group" The Argue 17 Dec 1952; "Geld van oorsee
vir 'slagoffers van rassestryd'" Die Transvaler 18 Dec 1952; "Openbare
fonds vir uittarters in Brittanjt gestig" Die Transvaler 2 Feb 1953;
"Versetfonds van Britte" Die Volksblad 2 Feb 1953; "London fund for
native resistors" The Friend 2 Feb 1953 and "London meeting to aid
'defiers'" The Cape Times 3 Feb 1953
466
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.
467
See "Wil VVO op versettery in SA wys" Die Transvaler 25 Aug
1952; "Indië steun versetters" Die Vaderland 25 Aug 1952 and
"Versetplegers en die VVO " Die Burger 25 Aug 1952.
468
See "Huigelary ken geen perk in die VV, sê Min Dönges" Die
Vaderland 22 Nov 1952.
469
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,
assistance,
government
churches
475
the
Defiance
also
from
led
the
Campaign,
to
strong
press,
and politicians.
472
the
apart
from
criticism
radio,
473
attracting
of
the
the
trade
financial
South
African
unions, 474
the
476
In the United States, the New York Times commented that the Malan
government’s policies were responsible for the disrespect which was
shown for the law. 477 Eleanor Roosevelt, widow of the former American
president and one of the principal authors of the Universal Declaration
of Human Rights, wrote a letter of support to the leadership of the
Campaign. 478 Voices against the South African system were also raised in
470
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.
471
See "Versetters sê hu11e kry baie steun" Die Burger 4 Aug 1952
and "India attacks race policy of S Africa" Rand Daily Mail 15 Sept
1952.
472
See "Net een antwoord moontlik" Die Volksblad 29 Aug 1952 and
"British periodicals comment on Defiance Campaign" Rand Daily Mail 30
Aug 1952.
473
See "Beskrywing van uittartery oor BBC gegee" Die Transvaler 22
Sept 1952 and "SA defiers described to Britain" Mercury 22 Sept 1952.
474
See
"Britse
vakbondkongres
se
besluit"
Die
Volksblad
4
Sept
1952.
475
See "Prediker sê Dr Malan sleg in St Paul-katedraal" Die
Volksblad 9 Sept 1952; "Resistance campaign supported" Mercury 9 Sept
1952. See also, on a report in the Church of
England newspaper,
"British Christians' interest in Defiance Campaign" The Star 29 Oct
1952.
476
See "Apartheid - the shadow over Africa" The Friend 4 Feb 1953.
477
See "New York paper's view of 'unjust laws' campaign" The Friend
15 July 1952.
478
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
countries
such
as
Canada 479
and
even
by
the
government
Nepal. 480
of
Clearly, apartheid was now on the international agenda.
Although at the time no immediate action was taken against South Africa
by
the
international
community,
the
global
quicksand
which
later
threatened to engulf the country was starting to build up under its
feet.
The
implementation
and
lack
of
concrete
results
of
civil
disobedience would later be an important argument advanced to justify
to the world community the use of violence in the struggle, and to
bring foreign countries to isolate South Africa in a number of ways.
Given
the
extent
of
the
eventual
pressure
from
the
international
community on the South African government and the effect this would
have on the country, this aspect of the Defiance Campaign might well
eventually prove to be one of its most meaningful consequences. 481
The Defiance Campaign consequently contributed towards making apartheid
an international issue.
(v)
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
Indiërs" Die Transvaler 16 Sept 1952.
479
See "Kanadese is geskok" Die Burger 21 Aug 1952.
480
See "Nepal betuig meegevoel met SA se versetters" Die Vaderland
18 Sept 1952.
481
For an overview of United States economic pressure against South
Africa, see Heyns CILSA 1989 269.
compatibility
of
civil
disobedience
as
an
instrument
of
political
resistance with African culture, the way in which the Campaign was
conducted, and the attitude of the adversary.
-
Civil disobedience in the African context.
According to Kuper, “the technique of civil disobedience seemed alien
to
the
ardor.”
African
482
masses
and
failed
to
fire
them
with
revolutionary
At least two aspects of the type of resistance practised
during the Campaign possibly did not fit well into African culture. In
the first place, as will be pointed out, the idea that suffering is a
creative force is an integral part of the culture of India, 483 but it is
not to the same extent indigenous to Africa, where the traditional
methods of settling serious disputes are either amicable, legal means
or force. 484 The “spirit of Nongqausi” does dwell in Africa, but she is
not as dominant here as in some other societies, and in any case she
did not have a good track record. In the second place, the female
component of civil disobedience, also discussed earlier, was bound not
to go down well in the traditionally male-dominated African society.
-
Weaknesses in the way in which the Campaign was conducted
As indicated earlier, no coherent philosophy existed of what was to be
achieved through the Defiance Campaign. Nor was the Campaign associated
with a charismatic leader such as Gandhi or King. Mandela, who is
perhaps the only person who could have played that role, was not nearly
as
prominent
then
as
ha
would
become
later.
In
the
absence
of
a
principled commitment to non-violence, the fact that participants in
the
Campaign
resorted
to
violence
or
were
drawn
into
it
was
not
altogether surprising. Through this, much of the moral high ground was
lost. Participation in the Campaign became singularly unattractive once
the protection of a non-violent record was lost.
As we already know, the Gandhian practice of notifying the authorities
beforehand of an intended Campaign and going to prison voluntarily was
adhered to during the Defiance Campaign. Whether this was necessary,
482
L Kuper "Nonviolence revisited" in Rotberg & Mazrui Protest and
power In black Africa 788 at 795.
483
484
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
a
precise
Campaign
resulted
adherence
in
a
to
his
situation
methods
where
too
during
much
the
was
Defiance
asked
of
prospective protesters, with too remote prospects of success.
It
also
seems
that
the
laws
targeted
failed
to
arouse
order
to
be
sufficient
enthusiasm to sustain resistance.
-
Nature of the adversary
It
has
been
stated
repeatedly
that,
in
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
Kuper Passive resistance in South Africa 125.
486
See infra chap three III A (3)(e).
487
See on the role of religion in legitimising apartheid Infra chap
five II.
year,
was
bound
to
encounter
a
problem. 488
legitimacy
Clearly,
the
government had few scruples in applying the laws objected against. And
indeed, the ruthless suppression of the Campaign by the government was
one of the major reasons why it ran out of steam.
In fairness it should be pointed out that the challenge which civil
disobedience in post-World War II South Africa posed to the rulers,
seen from their perspective, was more formidable than the challenge
posed by Gandhi in South Africa and in India, and by King in the United
States.
In
all
three
of
these
last-mentioned
cases
there
were
circumstances which mitigated the challenge. Either the opponent was
foreign or the objective was not its overthrow.
In Gandhi’s South Africa, the opponent was local, but the aim was not
to overthrown the existing system. In India the aim was to overthrow
the government, but the officials of the government were foreigners,
which meant that they did not perceive their existence to be under
threat. In the United States, as in Gandhi’s South Africa, the opponent
was a domestic government, but the aim was not its overthrow. One could
consequently expect a more lenient approach in all of these cases. In
the
South
African
case
in
the
1950’s
the
opponent
was
a
domestic
government whose overthrow was the ultimate aim. As a result, a harsher
response by the government was to be expected.
In consequence of a combination of the above factors, there was “an
insufficient
stimulus
to
launch
the
revolution,
stimulus to strengthen the counter-revolution.”
(vi)
but
a
sufficient
489
Black politics in the wake of the Campaign
After
the
Defiance
Campaign,
very
little
in
the
line
of
civil
disobedience emerged from the ANC. Only in 1958 did the ANC again - and
rather
ambivalently
this
time
-
encourage
civil
disobedience,
when
women in Johannesburg protested against the pass laws. Eventually the
half-hearted campaign had to be called off. 490 For the time being, the
ANC restricted itself to forms of protest within the confines of the
law. Only in 1960, not to be outdone by its own offshoot, the PAC,
would the ANC again engage in acts of civil disobedience. The events
488
See L Kuper "Nonviolence revisited" in Rotberg & Mazrui Protest
and power In black Africa 788 at 794.
489
Id 795.
490
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 1950’s would largely be a period of increasing
polarisation of the South African society. During this period, the ANC
was
at
times
also
nearly
immobilised
through
the
banning
of
its
leaders.
Picking up where the Joint Planning Council had left off, the Congress
Alliance was formed in 1953 with the prime objective of planning a
“Congress of the People”. Participating in this effort was the ANC,
SAIC,
the
SA
Coloured
People’s
Organization
and
the
South
African
Congress of Trade Union. At the seminal Congress of the People at
Kliptown in 1955, with which we need not detain ourselves here, the
“Freedom Charter” was adopted. It was later ratified by the individual
congresses represented at Kliptown. 491
During
1954
and
1955
the
ANC
singled
out
two
aspects
of
the
government’s policy as targets for campaigns of passive, although not
illegal, resistance: the so-called Western Areas Resettlement scheme
and the Bantu Education Act 47 of 1953. These campaigns were by and
large without positive results in terms of changing the behaviour of
the
government
-
it
merely
added
to
the
general
level
of
dissatisfaction of the protesters. A brief look at these two campaigns
will illustrate the non-violent tactics that were now resorted to. 492
Shortly after it came into power in 1948, the newly elected Nationalist
government made its intention known to remove the inhabitants (adding
up
to
more
than
10
000
families,
including
350
Africans
who
held
491
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.
492
See, on these two campaigns. Felt African opposition in South
Africa 92ff, 143ff.
freehold
titles 493)
from
the
freehold
townships
of
Sophiatown,
Martindale and Newclare (Johannesburg’s “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
government.
from
Black
the
provincial
education
would
now
authorities
be
to
controlled
the
by
central
a
special
department and on a differential basis apropos the education of the
other sections of the South African community. The loose control of the
provincial authorities over black schools, mostly run by missionaries,
would be replaced by the tight control of the Nationalist government.
In the words of Verwoerd, then Minister of Native Affairs, the new
system
would
provide
the
“correct
education”
-
not
the
type
of
education which “create[s] wrong expectations on the part of the Native
himself”, based on “a policy of equality”. 495 Syllabuses now had to
accustom
blacks
to
their
role
in
apartheid
South
Africa.
Cost
per
student was to be lowered. Verwoerd pursued the following policy:
Die Bantoe moet gelei word om sy eie gemeenskap in alle opsigte
te bedien. Daar is vir hom bokant die peil van sekere vorms van
arbeid nie piek in die blanke gemeenskap-nie ... Daarom baat dit
horn niks om ‘n opieiding te ontvang wat die opname in die blanke
gemeenskap ten doel het terwyl hy nie daar opgeneem sal en kan
word nie. 496
The carrying out of government policy in this regard was made possible
by the passing of the Black Education Act 47 of 1953.
493
See Kotzé African politics 1n South Africa 11.
494
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
isolated
thrust
areas
of
and
the
was
campaign
sporadic.
was
conducted
Following
a
in
geographically
government
ultimatum,
children started to return to school at the end of the month. Apart
from
some
children
who
attended
alternative
educational
facilities
provided for some time by the ANC, the boycott was dead. It also
undermined
public
alternatives.
498
belief
in
the
ANC’s
ability
to
provide
Whereas the Defiance Campaign brought the ANC great
popularity, the Western Areas and Bantu Education campaigns of 1955
reflected
badly
on
its
organisational
and
leadership
skills.
Presumably, after the open confrontation of illegality in the Defiance
Campaign, legal protest now failed to inspire.
Since the beginning of 1956, when the requirement that women had to
carry passes was implemented, there was widespread unrest, mainly in
the form of pass-burning. Mass arrests were effected. This lasted until
February
1959.
convicted.
499
In
From
total
1957
1
893
onwards
achieving only limited successes.
people
the
were
ANC
arrested
turned
to
and
926
strike
were
action,
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
See Lodge Black politics in South Africa since 1945 121.
498
Felt African opposition 1n South Africa 143ff.
499
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 magistrate’s order was not unreasonable. Although the
order was not given in terms of the Reservation of Separate Amenities
Act 49 of 1953, that Act showed that “the distinction drawn by the
provision of separate tables ... is of a nature sanctioned by the
legislature.” 502
The
court
made
reference
to
the
fact
that,
on
a
previous occasion, “Mr Tambo, a non-European”, had appeared in the same
matter before the same magistrate. As he had done previously, Tambo on
that
occasion
used
the
table
reserved
for
“Europeans”.
On
being
informed that he would not be heard unless he addressed the court from
the other table, he withdrew from the case.
According to the Chief Justice, in view of the history of the case,
it is apparent that the appellant, when he went to court on this
day, knew of the existence of the separate facilities in the
court, that he purposely took a seat at the table provided for
European practitioners, that he expected to be ordered to the
other table and intended not to comply with such order ... It
follows, I think, that his failure to comply with the order was,
deliberate and premeditated. It cannot, therefore, avail him to
contend that he did not intend to insult the magistrate and was
not motivated by contempt. 503
In 1956, 156 people - most of them leaders of the Congress Alliance were arrested on charges of High Treason. A number of them were charge
in what became known as the Treason Trial. 504 It was alleged by the
prosecution that the accused had planned the violent overthrow of the
state. To substantiate the charge, the prosecution argued that the
demand of the accused for full equality of all races in South Africa
“in
their
conclusion
state.
505
lifetime”
that
they
led,
were
by
“an
irresistible
planning
the
inference”,
violent
overthrow
to
the
of
the
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
See R v Pitje 1960 4 SA (A) 709.
502
At 710.
503
503At 711, 712.
504
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
of
the
revolutionary
directly
by
ANC
should
offensive,
force,
or
be
where
where
seen
the
the
as
a
state
state
prelude
would
would
to
an
eventual
either
be
attacked
be
provoked
to
act
violently. This would then lead to revolutionary counter-violence. The
prosecution argued that no middle ground existed between the ballot box
and treason. 506 The formation of the Joint Planning Council and the
organisation
of
and
participation
in
the
Defiance
portrayed as part of the wider treasonable strategy.
Campaign
was
507
In 1961 all the accused were acquitted. The presiding judge, Rumpff J,
found that the Freedom Charter was not a communist document. Since the
entire case was brought and conducted by the state on the basis of a
conspiracy to commit violence, and it was not proven that the policy of
the ANC was to overthrow the state by means of violence, no conviction
of treason could be sustained. 508 What the trial did achieve, however,
was effectively to cut the bulk of the ANC leadership off from their
people for five years.
In the late 1950’s the ANC was to a considerable extent paralysed by
the unattractiveness of its options. Another Defiance Campaign was very
unappealing
in
light
of
the
arsenal
of
legislation
that
had
been
enacted by the government, and was unlikely to gain widespread support.
On the other hand, the movement was also not yet ready for the dark
road of violence. It would be the combined threat of losing members to
more radical organizations and the increased militancy and anger of the
leaders of the Youth League which would force the ANC towards more
radical options.
In 1959 the so-called Africanists, who had been expelled from the ANC a
year earlier, formed the PAC, with Robert Sobukwe as its president. 509
Among the main grievances of the Africanists was the influence of white
506
This argument was taken over from R v Leibbrandt. unreported
case no G 1/42 SCC 1943. See infra chap four I 0 (1).
507
See para 6 of the prosecution's summary of facts, reprinted in
Karis The treason trial in South Africa 59.
508
509
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 PAC’s most important political statement
almost immediately after its inception included a resolve to start
organising a campaign of protest very much along the lines of the
Defiance Campaign - but this time it was to be an all African affair.
This campaign was to have far-reaching consequences for the entire
liberation struggle.
The
obvious
target
for
any
anti-apartheid
campaign
of
civil
disobedience in the late fifties was still the pass laws. While the
ANC’s Anti-Pass Planning Council now resolved that the precise meaning
of civil disobedience first had to be established before such action
could
again
be
contemplated,
the
PAC
captured
the
initiative
and
organised what they called the “Positive Action Campaign” or “Anti-pass
Campaign”, which was targeted primarily against the pass laws. 512
The PAC envisaged that Africans would, on an appointed day, leave their
passes at home and proceed to police stations and present themselves
for arrest.
The idea that massive participation would result in the
prisons being filled up to capacity, whereby the government would be
prevented
from
enforcing
its
policies,
was
given
central
priority.
Pressure would build up and somehow “political independence” would be
established
in
1963.
Sobukwe
envisaged
campaigns “until independence is won”.
510
a
“never-ending
stream”
of
513
See Karis & Carter From protest to challenge vo1 3 505.
511
See Motlhabi The theory and practice of black resistance to
apartheid 145.
512
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
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 PAC’s call
for Africans to present themselves for arrest remained largely unheeded
on
a
national
Vereeniging,
514
515
level. 518
where
the
The
PAC
exception
was
well
was
the
industrial
organised
and
area
faced
near
little
See Lodge Black politics in South Africa since 194S 203.
Motlhabi
apartheid 153.
The
theory
and
practice
of
black
resistance
516
Quoted in Gerhart Black power in South Africa 234.
517
Karls & Carter From protest to challenge vol 3 566.
518
See Gerhart Black power in South Africa 236.
to
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
519
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.
520
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.
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
imprisonment.
521
minority”.
He
was
sentenced
to
three
years’
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
organizations.
now
a
crime
to
further
the
objectives
of
these
522
Civil disobedience was once more considered a possibility at the “Allin
Conference”
in
March
1961.
A
three
day
strike
was
planned
to
coincide with the proclamation of a Republic on 31 May 1961. It was
decided
that
an
ultimatum
to
the
government
to
call
a
national
convention would be issued, failing which a campaign of “mass-non-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
521
See Pogrund Sobukwe and apartheid 153.
522
See Infra chap four I & II.
523
See Johns
Congress 87ff.
&
Davis
Mandela,
Tambo,
freedom
and
the
was
compromised
African
National
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.
525
See Mandela's "Black man in a white court'-statement, reprinted
in Mandela The struggle is my life 133 at 156.
through governmental bannings, Mandela stated:
I was made, by the law, a criminal, not because of what I have
done, but because of what I stood for, because of what I thought,
because of my conscience. Can it be any wonder to anybody that
such conditions make a man an outlaw of society? 526
(d)
Phase four: The violent underground struggle starts
When Mandela proposed the use of violence at an ANC national executive
meeting in June 1961, it was agreed that, although the ANC remained
committed to non-violence, individual members who wanted to follow the
route
of
violence
would
not
be
restrained.
Umkhonto
we
Sizwe.
the
“spear of the nation”, was formed, apparently with at least the tacit
agreement of Lutuli, 527 although as late as October 1961 he was publicly
still calling for non-violence. 528 A similar movement, Poqo, was formed
by the PAC in 1962. 529 A the same time an international diplomatic
offensive was launched against South Africa.
The military option was taken by the ANC, inter alia. in view of the
strength
of
the
realisation
that,
as
Mandela
put
it,
“unless
responsible leadership was given to canalise and control the feelings
of the people, there would be outbreak of terrorism which would produce
an intensity of b1tterness and hostility between the various races of
the country.” 530
A discussion of the armed struggle falls outside the scope of this
study.
For
mentioned
the
that
governmental
purposes
the
of
continuity
focus
at
installations.
On
the
16
and
perspective
beginning
December
was
1961
the
on
it
could
be
sabotage
of
first
sabotage
attack was launched. A flyer, issued by the command of Umkhonto we
Sizwe on that date, stated that "the people’s non-violent policies have
been taken as a green light for government violence.” 531
526
Id 157.
527
Karis & Carter From protest to challenge vol 4 62.
528
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
See Davenport South Africa 395.
530
Karis & Carter From protest to challenge vo1 3 772.
531
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.
training.
533
Scores
of
youths
left
the
country
for
military
Part of the ANC's struggle would include terror attacks on
civilian or “soft” targets. There could be little doubt that these acts
diminished
the
moral
appeal
of
the
ANC's
cause,
and
strained
the
support of the international community.
In its response to these events, the South African government would
bring further security laws into effect, which affected all expressions
of political protest. 534
(e)
Phase five: External and internal resistance
The advent of an overt mass resistance movement in the country, which
would operate in tandem with the armed underground, can be traced to
the
Natal
strikes
of
1973. 535
The
re-emergence
of
legal
structures
through which black resistance might find expression meant that the
tool of civil disobedience could be revived. Black workers, in spite of
legal
impediments,
gained
full
trade
union
findings of the Wiehahn Commission in 1979.
rights
following
the
536
Civil disobedience re-emerged as one of the major political tools of
resistance at the end of the 1970’s. In 1978, Indian and coloured
people began moving into areas such as Mayfair, which were designated
“white” in terms of the Group Areas Act 36 of 1966. A number of people
were prosecuted and evicted. In 1979, a couple by the name of Naidu
were evicted from their home in Mayfair onto the pavement, from which
Congress 138.
532
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
See Davenport South Africa 430ff and Holland The struggle 178.
534
See infra chap four II A.
535
See Davis & Fine Journal of Southern African Studies 1985 25 at
29.
536
See "Quiet civil disobedience the real force
apartheid, says Kane-Berman" Natal Post 5 May 1989.
in
eroding
they refused to move. They were eventually forcibly removed from the
pavement.
Press
organization,
established.
where
coverage
ACTSTOP
Under
evictions
its
were
aroused
(Action
Committee
auspices,
about
eviction extremely difficult.
public
to
third
take
to
indignation
Stop
persons
place,
the
Evictions),
now
and
and
occupied
was
houses
consequently
made
537
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 1980’s, openly stated
their intention to marry racially mixed couples in contravention of the
Prohibition of Mixed Marriages Act 55 of 1949. This was in fact done in
a number of cases. 540 In 1985, the Prohibition of Mixed Marriages Act
was repealed and section 16 of the Sexual Offences Act 23 of 1957 (the
old Immorality Act) was amended. 541 Although civil disobedience was by
no means the only or even necessarily the most crucial force that
brought about these changes, it did play an important role.
An important event in the recent history of civil disobedience was the
formation in Cape Town in August 1983 of the United Democratic Front
(“UDF”), a broad political alliance which cut across racial and class
barriers. 542 As an internal and legal organization, which later joined
forces with other progressive organizations to form the Mass Democratic
Movement (“MOM”), the UDF would be in a position to initiate sporadic
campaigns of civil disobedience. 543
537
See R Robertson "Three case studies of non-violent action" in
Nürnberger et a1 Conflict and the quest for justice 319 at 319.
538
1986 3 SA 969 (T).
539
The Group Areas Act was repealed by the Abolition of Racially
Based Land Measures Act 108 of 1991.
540
See R Robertson "Three case studies of non-violent action" in
Nürnberger et a1 Conflict and the quest for justice 319 at 320.
541
This was done by the Immorality
Marriages Amendment Act 72 of 1985.
and
Prohibition
of
Mixed
542
See Davenport South Africa 458ff.
543
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
See Villia-Vicencio Civil disobedience and beyond 59.
545
The interview was reprinted in Johns & Davis Mandela, Tambo, and
the African National Congress 172. The section quoted is from 173.
546
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
1986.
See "Focus on South Africa as King is saluted" The Star 20 Jan
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
apologised
or
to
dissolve
the
the
State
House
of
President.
Representatives,
In
a
subsequent
Hendrickse
statement,
Hendrickse said he had “not apologised for swimming at a white beach,
but
for
any
President.”
549
interpretation
of
this
as
an
affront
to
the
State
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
cosmopolitan
Act
by
“white”
thousands
areas,
to
of
black
which
people
reference
who
was
moved
made
into
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
548
See "Hendrickse apologised for affront, not swim" The Citizen 23
Jan 1987.
549
Ibid.
550
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.
551
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, sê Rektor" Die Burger 1 Jan 1987,
where the same principal said that civil disobedience cannot be
conducted in the name of academic freedom.
552
See Villa-Vicencio Civil disobedience and beyond viii and
"Kongres vir eenheid teen apartheid" Rapport 8 Oct 1989. See also
1989”. 553 Boesak explicitly linked this Campaign to the tradition of
Gandhi, saying: “We have not learnt about non-violence as an instrument
for change from books but have learnt this from our fathers and mothers
who have learnt it from their fathers and mothers.” 554
Many of the activities associated with the new Campaign took place in
Cape Town. Firstly, there was the “March on Parliament”, organised by a
number of churches as the “Standing for the truth Campaign”. On 2
September 1989, approximately 1 000 people attempting, illegally, to
march
to
parliament
were
arrested,
often
in
a
brutal
manner.
Most
visible, however, was the “Peace March”, in which 30 000 people took
part. This the government, after initial resistance, allowed to go
ahead. 555 Particularly significant in respect of this march was the
decision of the mayor of Cape Town, Gordon Oliver, to participate even
if the march was to be illegal. 556 The “inferior magistrates” were now
leading the resistance.
In
the
wake
of
the
events
in
Cape
Town,
thousands
of
people
participated in - mostly legal - marches across the country. Groups of
black people insisted on being admitted to white hospitals, schools and
swimming pools. 557 On a number of beaches segregation laws were defied.
"Wits Black students join defiance" The Citizen 30 Aug 1989; "F W's
problem: How to cope with people power" The Dally News 19 Sept 1989;
"The thin white line" Pretoria News 19 Sept 1989 and "SA gave world
lead on mass protest marches" The Leader 22 Sept 1989. For comments,
see "Maak plek vir die buite parlementariërs" Die Transvaler 9 Aug
1989 and "Civil disobedience" Business Day 24 Aug 1989.
553
The Campaign is discussed at some length by Smuts & Westcott The
purple shall govern, especially at 45ff and 81ff.
554
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
Villa-Vicencio Civi1 disobedience and beyond xi.
556
For Oliver's explanation of his reasons for this decision, see
Smuts & Westcott The purple shall govern 159.
557
See "Veldtog van verset" Vrye Weekblad 21 April 1989. See also
"Throwing a lifeline" Business Day 2 Aug 1989 and "Black miners join
The slogan used was “All of God’s beaches for all of God’s people.” 558
Many of those served with banning orders, openly defied their orders. 559
In
a
number
of
cases,
state
restrictions on meetings
561
of
emergency
restrictions 560
and
other
and funerals, were openly defied. Veteran
liberal Member of Parliament, Helen Suzman, called these restrictions
an
“open
invitation
to
civil
disobedience”. 562
The
most
important
internal organizations, which had been banned by then, held “unbanning”
rallies, declaring themselves not to be constrained by the banning
orders. More than 1 569 people were arrested. 563
The immediate result of these acts of defiance was not always positive.
Threats and actions of civil disobedience were blamed for National
Party victories, in which white people voted for the restoration of
security and law and order. 564 On the other hand, there could now no
longer
be
any
doubt,
both
at
home
and
abroad,
that
apartheid
was
bankrupt and on the verge of collapse.
To conclude the overview of this phase, an important though perhaps not
obvious
instance
of
civil
disobedience
during
this
period
must
be
considered. In the late 1980’s it became clear that offers had been
made by the government to Nelson Mandela, imprisoned since the Rivonia
trial, offering him his freedom if he accepted a range of conditions one of which was to renounce violence. This he refused to do, and his
imprisonment was continued.
Reference was made earlier to the view that the voluntary acceptance of
martyrdom
as
culture.
The
a
political
validity
of
tool
this
is
not
view
an
integral
seems
less
part
obvious
of
if
African
it
is
considered that the refusal of Mandela to accept a conditional release
Defiance Campaign" The Star 4 Aug 1989
558
See Smuts & Westcott The purple shall govern 148.
559
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
See "Wits black students join defiance" The Citizen 30 Aug 1989.
561
See "Beperkings bespotting" Die Vaderland 10 April 1986.
562
See "Suzman hits at funeral restrictions" The Citizen 10 April
1986.
563
564
For a fuller discussion, see Levin SAJHR 1989 518 at 521.
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,
perspective,
apartheid
this
regime.
and
stick
option
In
the
to
would
the
agreement.
have
involved
second
place,
he
However,
“giving
could
from
in”
have
to
his
the
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.
Mandela’s martyrdom played an immense role in mobilising the oppressed
in the country to become politically active, and it was a powerful fact
in bringing the international community to put pressure on the South
African government. It was one of the major factors which legitimised
what is today commonly referred to as the “new South Africa”. 566
(f)
Phase six: Prospects of reconciliation and new resistance
On 2 February 1990, State President F W de Klerk, in his historic
opening of parliament speech, astounded South Africa and the world by
announcing not only the imminent release of Nelson Mandela, but also
the lifting of the ban on the ANC, the PAC and the South African
Communist Party. Amnesty was granted to the external leadership (and
later to rank and file members) of the ANC to return to the country.
The process of negotiations between the government and its traditional
565
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.
566
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.
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
See infra chap five I L (2).
568
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.
569
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
See eg "Don't" The Citizen 18 Oct 1990.
571
See eg "The govt must take on the right wing" Sowetan 18 Oct
1990.
572
See "KP se planne nie op vaste grond" Die Volksblad 19 Oct 1990
and "KP praat met swartmense in kombuise oor die ANC" Vrye Weekblad 19
Oct 1990.
civil disobedience as an example of “legitimate, peaceful” conduct. 573
In
January
1991,
hundreds
of
farmers
converged
on
Pretoria.
They
arrived in the city at night with tractors and other farming vehicles,
and sealed off the major entrances into the city. Their protest was
aimed at highlighting the crisis in agriculture. Among their grievances
were their
heavy financial debt, high interest rates, the poor prices
they receive for produce, and the then pending abolition of the Land
Act. For more than a day the entire city was disrupted. The government
refused to make any concessions to the protesters. 574
Clearly,
for
better
or
for
worse,
Gandhi’s
method
of
political
resistance has become an integral part of the South African political
process.
B.
GANDHIAN CIVIL DISOBEDIENCE IN INDIA
Gandhi’s reputation as the champion of the rights of Indians in South
Africa who had prevailed against Smuts and the British Empire, preceded
him
upon
his
return
to
India
in
1915,
and
he
was
already
called
“Mahatma” or “Great Soul”. Nevertheless, he still had to establish
himself as a national leader in the practical politics of his home
country. In India, growing resistance against the British Raj or rule
was developing, mainly under the leadership of the Indian Congress
(“Congress”). At the same time, India was tormented by the dark forces
of inner strife, in the form of animosity between Hindu and Muslim
factions and between the different castes. Gandhi would devote the
remainder of his life to addressing these issues in accordance with his
philosophy of non-violent confrontation.
As
far
Gandhi
as
was
independence
the
attainment
in
the
in
1947
end
-
of
to
an
Swaraj
see
or
independence
success
independence
when
from
was
India
concerned,
was
colonialism
granted
which
was
573
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.
574
See "Disgruntled farmers plan protest march" The Citizen 9 Jan
1991; "Polisie en boere bots" Die Transvaler 29 Jan 1991; "Farmers go
for protest rally" The Star 29 Jan 1991; "Siege of Pta", "It's walk to
work in capital's worst-ever traffic jam" The Citizen 30 Jan 1991;
"Protesoptogte in SA kry nog 'n knou in die maag" Die Burger 30 Jan
1991; "The farmers - and others", "Pretoria faces more chaos",
"Amazing scenes as farmers sow chaos" The Star 30 Jan 1991.
remarkable for the relatively minor role which violence played. In
fact, India’s independence sparked off a wide rejection of colonialism
in Asia and Africa. In a real sense Gandhi - the dark-skinned man who
stood up against the most powerful colonial forces of his time, and won
-
can
be
colonialism
seen
in
as
the
general.
liquidator
575
In
of
respect
the
of
British
India's
Empire
and
domestic
of
strife,
however, Gandhi was to experience humiliating and frustrating defeat.
Upon independence, the India which he knew was torn apart by a violent
and bloody civil war into the predominantly Hindu India of today, and
Pakistan, which is mainly Muslim.
(1)
Campaigns conducted by Gandhi
Gandhi’s political resistance against British rule in India centred
upon three major campaigns of Satyagraha: the Non-co-operation Campaign
of 1920, the Salt Tax Campaign of 1930, and the “Quit India” Campaign
of 1942. 576 These campaigns were preceded by events that set the stage
for mass civil disobedience in India.
The
first
incident
occurred
almost
inadvertently.
Beseeched
by
a
peasant from the remote area of Champaran to come to his district,
Gandhi learned that the British landlords in the area coerced indigo
share croppers into paying impossible sums of rent. When he visited the
area, the landlords had the civil authorities issue an order for Gandhi
to leave the region - which he refused to obey. In a subsequent trial,
Gandhi pleaded guilty. 577 He stated that he disregarded the order “not
for want of respect for lawful authority, but in obedience to the
higher law of our being, the voice of conscience.” 578 Before sentence
could be passed, the case was withdrawn on orders from the LieutenantGovernor.
A second incident which set the stage was Gandhi’s conduct at Ahmedabad
when strikers whom he had supported were considering ending the strike.
575
For a discussion of political obligation and colonialism, see
Macfartane Political studies 1968 335 at 339ff.
576
For a discussion of the most important campaigns, see Bondurant
Conquest of violence 46ff.
577
See Gandhi An autobiography 404ff and Bishop A technique for
loving 59ff.
578
Gandhi An autobiography 414.
In
order
to
Satyagraha,
strategy
move
as
them
at
against
to
persist,
Champaran,
the
British,
he
would
he
went
on
constitute
would
often
fast. 579
a
Gandhi’s
use
the
Whereas
preferred
technique
of
fasting against his own people.
During the First World War, Gandhi once more aided the British war
effort, this time by taking part in a recruiting campaign to encourage
the enlistment of Indian soldiers in the British army. By doing this,
he again hoped to establish his bona fides as a loyal British citizen.
He believed that after the War in which Indians fought on the side of
Britain,
Empire”.
India
580
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,
Gandhi’s quarrel was not yet with the British Empire itself but only
with India’s subordinate position in the Empire.
As it turned out, however, Britain was far from ready to live up to the
expectations which it had created. The shock to Gandhi and to Congress
could not have been greater when, after the War, in 1919, Britain
introduced the draconian Rowlatt Acts. 582 Powers granted to the Indian
government to deal with people in areas declared “subversive” included
summary
Against
arrest,
this
trial
without
background,
jury,
Gandhi
and
in
started
camera
proceedings. 583
organising
mass
civil
disobedience in India.
(a)
Phase one: The Non-co-operation Campaign of the 1920’s
Gandhi responded to these events by organising a Hartal or economic
boycott, a traditional Indian form of non-violent protest. All economic
activity in a specific area would be suspended for a number of days.
579
580
Id 430 and Woodcock Gandhi S3.
Bishop A technique
autobiography 444.
581
for
loving
62.
See
also
Gandhi
An
Quoted in Fischer Gandhi 60.
582
Gandhi An autobiography 454 and Moore Liberalism and Indian
politics 117.
583
See Bishop A technique for loving 63 and Woodcock Gandhi 58.
Stalls were closed and workers downed their tools. In addition, Gandhi
encouraged Satyagrahi’s (the followers he had by now assembled) to
offer themselves for arrest by breaking one of a selected number of
laws,
such
newspapers.
as
584
selling
forbidden
books
or
distributing
unregistered
The police, however, turned a blind eye and hence defused
the situation.
Then, on 13 April 1919, one of the most influential events of the
independence struggle occurred. 585 In spite of Gandhi’s insistence on
non-violence, some violence did accompany Hartals, especially in the
major centres. In the town of Amritsar, in the Punjab, mob violence
occurred when certain local politicians were arrested. The military
commander, General Dyer, announced martial law, whereby public meetings
were
banned.
Nevertheless,
a
public
meeting
was
organised
in
Jalianwalah Bagh, a closed-in public park. Dyer set out to break up the
meeting with armed troops. According to his own account, Dyer, when he
arrived at the scene of the meeting, gave the crowd no warning to
disperse. He considered it unnecessary since they were gathered in
breach of his proclamation. He gave the order to shoot, and for ten
minutes his troupes fired into the unarmed, trapped crowd. 1 650 rounds
were fired at what he later described as “the place where the crowd was
the thickest.” 1 516 casualties were inflicted: 379 people died, and 1
137 were wounded. 586 Violence in the form of uprisings then swept the
country.
Horrified by this turn of events, Gandhi called the Satyaaraha campaign
off.
He
called
miscalculation”.
the
587
initial
launching
of
the
campaign
a
“Himalayan
In typical fashion he did not blame his opponents as
the main culprits: Indians, he concluded, were not yet disciplined
enough
for
a
nationwide
campaign
of
non-violent
resistance.
Nevertheless, an important point had been made - the violence on which
the British Raj depended had been revealed. In practice the Rowlatt
Acts were never implemented. 588
As a consequence of the shootings, Gandhi now turned to a complete
584
Gandhi An autobiography 462 and Woodcock Gandhi 58, 59.
585
See Bishop A technique for loving 65.
586
See Woodcock Gandhi 60 and Fischer Gandhi 66.
587
Gandhi An autobiography 469.
588
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 countrymen’s proneness
to
succumb
Bardolli,
to
and
violence,
forfeited
immediately
political
in
called
off
favour
of
the
moral
footwork did not go down well with all of his followers.
Campaign
gains.
in
This
592
With Gandhi being in this vulnerable position, he was arrested for
sedition in March 1922. Gandhi practically asked for it in so many
words
in
articles
which
he
had
published
He
wrote:
“I
have
no
hesitation in saying that it is sinful for anyone, either soldier or
civilian, to serve this government ... sedition has become the creed of
Congress ... Nonco-operation, though a religious and strictly moral
movement, deliberately aims at the overthrow of the government and is
therefore legally seditious.” 593 He stated that they were “at war” with
the government, and that they had declared a “rebellion” against it. He
said: “We want to overthrow the government”, and that it was a “fight
to
the
finish”. 594
By
arresting
him,
however,
the
British
restored
Gandhi’s fledgling support. Woodcock described what is today called
589
Fischer Gandhi 68.
590
Ibid.
591
Id 70.
592
Woodcock Gandhi 64.
593
Fischer Gandhi 72.
594
Ibid.
“the Great Trial” as a turning point in Gandhi’s tug of war with the
British. 595
Gandhi was tried with “bringing or attempting to bring into hatred or
contempt or exciting or attempting to exciting disaffection towards His
Majesty’s
Government,
established
law
in
India.” 596
British
Characteristically, Gandhi pleaded guilty and told the court:
I am here, therefore, to invite and cheerfully submit the highest
penalty that can be inflicted upon me for what in law is a
deliberate crime and what appears to be the highest duty of a
citizen. The only court open to you, the judge, is ... either to
resign your post, or inflict on me the severest penalty, if you
believe that the system and law you are assisting to administer
are good for the people. 597
Gandhi described the British rule of India as “exploitation of the
masses”. 598
The magistrate’s treatment of Gandhi reflected and expressed a new
realisation on behalf of British officialdom that the British code of
honourable
behaviour
was
being
used
against
it.
After
convicting
Gandhi, the magistrate stated:
[W]hat remains, namely, the determination of a just sentence, is
perhaps as difficult a proposition as a judge in this country
could have to face. The law is no respecter of persons.
Nevertheless, it will be impossible to ignore the fact that you
are in a different category from any person I have ever tried or
am likely to have to try. It would be impossible to ignore the
fact that in the eyes of millions of your countrymen, you are a
great patriot and a great leader. 599
He
stated
that
it
was
his
duty
to
sentence
Gandhi
to
six
years’
imprisonment and proceeded: “I should like to say in doing so that, if
the
course
of
events
in
India
should
make
it
possible
for
the
government to reduce the period and release you, no one will be better
595
Woodcock Gandhi 64. A detailed account of the trial is given
under the heading "Arrest and trial" in Mayer The pacifist console
204.
596
See Mayer The pacifist conscience 207.
597
Id 211.
598
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
twenties,
the
national
mood
in
India
was
ugly,
with
violence and talk of violence the order of the day. There was strong
pressure
on
Congress,
independence,
and
especially
consequently
to
from
the
young,
to
declare
declare
war
against
England.
In
February 1928, Gandhi for the first time articulated his desire not
only to end Britain’s hold over India, but to bring to a fall the whole
British Empire: “[T]hrough the deliverance of India I seek to deliver
the
so-called
exploitation
weaker
in
which
races
from
England
is
the
the
crushing
greater
heels
partner.”
of
602
Western
Gandhi’s
mission was no longer only to end the degrading treatment inflicted on
Indians but to end exploitive racist in general. His own racism and
elitism was now something of the past.
Gandhi decided to go ahead with the tax strike at Bardo11i, which he
had previously called off. It turned out to be 4 textbook example of
what Gandhi intended a Satyaraha campaign to be. 603 The 84 000 peasants
in the area refrained from violence despite brutal arrests when they
refused to pay their taxes. In less than six months the government
released
all
prisoners
and
granted
the
reduction
in
taxes
they
demanded.
In December 1928, Gandhi managed to persuade Congress not to declare
independence
warning
to
with
grant
immediate
India
effect
but
independence.
to
When
give
England
Ramsay
a
one
McDonald’s
year
Labour
Party took office in England in 1929, new possibilities arose. The
Viceroy, Lord Irwin, announced that the British government envisaged a
600
Ibid.
601
Woodcock Gandhi 69.
602
Id 71.
603
See Woodcock Gandhi 71.
round table conference of British and
“the
natural
issue
of
India’s
attainment of Dominion status.”
Indian delegates, and said that
constitutional
604
progress
...
is
the
Gandhi and the nationalist leaders
responded favourably. Then the Tories and the Liberals, in a combined
effort in the British parliament, overruled Lord Irwin’s commitment.
(b)
Phase two: The Salt Tax Campaign 1930
Congress now passed a resolution declaring that they were no longer
interested in India being a dominion in the Empire. Gandhi issued the
Indian Declaration of Independence, calling for India to sever the
British connection in toto, in order to attain Purna Swaraj or complete
independence.
Non-co-operation
with
government
structures
was
once
again sanctioned, as well as non-payment of taxes and a nationwide
campaign of civil disobedience. Gandhi was expected to take the lead in
the civil disobedience campaign. 605
Gandhi knew through bitter experience how easily a campaign intended to
be non-violent could erupt into violence, especially in such a charged
situation. He took six weeks to consider which approach to take, before
he came up with a very simple, but powerful, idea. It was to serve as
yet another model of non-violent action. 606
He decided on a large-scale public protest against the Salt Tax Laws.
These laws made it illegal to possess salt not purchased from the
government salt monopoly. Through its monopoly, the British government
was in a position to exact high taxes on the salt it sold. Since salt
is
an
essential
tropical
poor.
Indian
commodity
sun,
this
for
those
placed
a
working
heavy
in
burden
the
on
fields
in
the
especially
the
607
In March 1930, after notice was served on the Viceroy, Gandhi (now aged
61) led a procession of 78 followers, which along the way grew to
several thousand, on a 24 day, 240 miles epic march by foot to the
coastal town of Dandi. Here, Gandhi said, he would break the Salt Laws.
This march of defiance of Britain, in pursuit of the interests of the
very
poor,
captivated
the
imagination
of
India
604
See Fischer Gandhi 95.
605
See Woodcock Gandhi 71 and Pischer Gandhi 94.
606
Bishop A technique for loving 72.
607
Woodcock Gandhi 72.
and
of
the
world.
Gandhi’s progress was followed, in Woodcock’s words, as the world had
followed Lindberg’s flights. 608
At Dandi, Gandhi dipped in the water, and then picked up some salt left
by the waves. Through this natural and innocent action he committed a
crime. All India received the message. The second Indian campaign of
civil
disobedience
had
started,
this
time
nationwide.
Salt
was
illegally produced all over the country, and people were arrested on a
large
scale.
reading
of
Other
crimes
seditious
included
literature
in
in
the
protest
public,
action
urging
the
were
the
boycott
of
foreign textiles and organising Hartals.
When the government called in the troops to restore order, they more
than once refused to fire on demonstrators. One hundred thousand people
were
placed
himself.
609
in
prison,
including,
after
nearly
a
month,
Gandhi
This time those participating in the Campaign, knowing that
Gandhi would call the Satyaqraha campaign off if violence broke out,
kept it virtually non-violent. 610 Newspapers from all over the world
urged
the
Gandhi.
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
Salt
Works,
which
they
intended
to
invade
non-violently.
Without offering any resistance, they marched, in file, to its gates to
be
struck
command.
A
down
with
journalist
steel
shot
witnessing
staves
the
by
policemen
confrontation
under
reported
British
to
the
world: “Those struck down fell sprawling, unconscious or writhing with
fractured
skulls
or
broken
shoulders
...
The
survivors,
without
breaking ranks, silently and doggedly marched on until struck down.” 612
This eerie ritual continued for several days.
The proceedings at the salt works, and the constraint shown by the
protesters, were an enormous moral victory for India and for Gandhi.
Upon his release, Gandhi asked for an interview with the Viceroy and
608
Id 73.
609
Id 75.
610
Fischer Gandhi 99.
611
See Bakshi Gandhi and [the] civil disobedience movement 104.
612
Fischer Gandhi 101. See also Woodcock Gandhi 75.
found himself in a strong bargaining position. Churchill, with all his
racial
prejudices
understood
Gandhi’s
moral
advantage
better
than
anyone else, when he described what was to him the “nauseating and
humiliating
spectacle
of
this
one-time
Inner
Temple
lawyer,
now
seditious fakir, striding half naked up the steps of the Viceroy’s
palace,
there
to
negotiate
and
parley
representative of the King-Emperor.”
on
equal
terms
with
the
613
When it came to negotiations, however, Gandhi secured very little more
from Irwin than a suspension of the salt laws for the coastal regions,
and the release of the people who had by now been arrested. Formally,
no advancement in the direction of independence had been made. 614
In August 1931, Gandhi, as the sole representative of Congress, went to
London for the second set of round table talks. Again virtually nothing
positive was achieved. Instead, the differences between Congress, the
Muslim league and the Indian princes (who were all represented) were
emphasised. Gandhi regarded the British emphasis on the divisions as a
delaying
tactic
-
the
divisions
was
a
problem
that
would
resolve
itself. Eventually he would find out what a grave mistake this was.
Gandhi did, however, gain considerable popularity amongst
people of England.
the working
615
When he returned to India at the end of 1931, a new Viceroy had assumed
power, and in terms of new emergency powers which had been proclaimed,
Gandhi
was
arrested
and
imprisoned. 616
In
September
1932,
while
in
prison, Gandhi addressed an aspect of Indian social life which to him
had become of supreme importance, namely the status of the untouchables
or Harijans. A proposed constitution for India’s legislative assembly
envisaged that Hindus and Muslims, as well as untouchables, would be
placed on different voters’ rolls. In a dramatic attempt to persuade
Indian society to abandon these prejudices (which had its origin in
racist considerations), Gandhi announced a six day fast. 617
613
Quoted in Fischer Gandhi 103. (Emphasis added.)
614
See on the Gandhi-Irwin Pact, Bakshi Gandhi and [the] civi1
disobedience movement 104.
615
Woodcock Gandhi 76.
616
Ibid.
617
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. Gandhi’s fast certainly
did not solve the problem of division of Indian society, but a dent was
made in a very rigid system. 618
When Gandhi was released from prison in May 1933, he undertook a ten
months tour of India for Harijan welfare. He called off the civil
disobedience campaign and was not involved with Congress politics for
the rest of the 1930’s. Gandhi’s concern with the caste and religious
divisions in India, and the disruptions caused by industrialisation,
led to attempts on his part to remedy those evils. His “constructive
programme” was in fact premised on the same point of departure as the
Satyagraha campaign, namely that Indians first had to purify themselves
through self-sacrifice, and that they would then automatically gain
their freedom through desert.
In 1939, when the Second World War broke out, India was taken into the
conflict
by
Britain,
Congress
reacted
without
strongly
Indian
against
leaders
Britain’s
having
been
declaration
consulted.
of
war
on
behalf of India, which was regarded as a further act of humiliation.
While Congress sympathised with the Allied cause, they wanted clarity
on the independence issue before Indian lives were to be sacrificed for
England.
Gandhi, on the one hand, wanted to show his strong disapproval of
Britain. On the other hand, he did not wish to embarrass England while
she
was
engaged
propagated
not
in
a
mass,
war.
Consequently,
but
individual
for
the
Satyagraha
time
in
being,
pursuit
independence. Eventual some 23 000 Satyagraha’s were imprisoned.
(c)
he
of
619
Phase three: The “Quit India” Campaign
When it became clear in 1942 that Britain was not about to give in on
the
issue
launched.
of
620
general
of
Indian
independence,
the
“Quit
India”
Campaign
was
This demonstration took the form of a massive demonstration
Satyagraha.
Gandhi
told
his
countrymen
to
consider
themselves free, and to act accordingly. He and the other leaders were
618
Id 123.
619
See Woodcock Gandhi 94.
620
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 life’s work
was under serious threat. Eventually, Jinnah and the population as a
whole could not be persuaded to adhere to the moral ideals which Gandhi
propagated. In the ensuing civil war, the greatest uprootment of people
in history took place, as 15 million would abandon their homes and flee
in terror, and hundreds of thousands of people died. 623
In September 1946, an interim local government was established. Gandhi,
preoccupied with the internal struggle, devoted his time to visiting
those spots most troubled by Hindu-Muslim antagonism. Eventually while
in Bengal and exasperated by the senseless killings, he took his refuge
to a “fast to death”. Unless sanity returned at least to Calcutta, he
vowed to die of hunger. The 73 hours fast made a lasting impression on
the province, and violence eventually subsided. A second fast did not
make the same impression. The country remained locked in a deadly,
religious civil war.
On 15 August 1947, India and Pakistan gained independence as separate
nations. 624 India became a republic on 26 January 1948, and remained a
member of the British Commonwealth.
On 30 January 1948, Gandhi, aged 78, was assassinated by a member of an
621
Gandhi spent altogether almost six years in Indian prisons, and
249 days in prisons in South Africa. Fischer Gandhi 148.
622
Id 159.
623
Id 171.
624
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.
-
Gandhi’s preoccupation with the role of discipline in non-violent
protest remained unwavering and in fact increased. Campaigns were
for the most part focussed on transgressing a strictly limited
number of laws, and were often confined to a certain area. He did
not hesitate to call off a campaign of civil disobedience if this
discipline
subsided
-
irrespective
embarked upon by the other side.
of
the
degree
of
violence
He used Satyagraha not only to
demoralise his opponent but also to inspire his own people and to
give them self-confidence.
-
Gandhi saw the essence of civil disobedience in the voluntary
acceptance of suffering, when that suffering is caused by the
opponent’s commitment to a practice or practices of which he
disapproved. In conformity with this attitude, he invited the
harshest possible punishment for his unlawful acts, and refused
to conduct his defence in cases brought against him so as to
procure a mitigated sentence. His brand of civil disobedience was
clearly sacrificial.
-
He
retained
his
flair
for
selecting
as
targets
for
civil
disobedience, easily identifiable injustices (as with the salt
tax) that would capture the imagination - even if these targets
did not entail the worst injustices. He was a master at using
civil disobedience as a tool of communication in an age when
global communication was in the process of being established.
-
Also important was the development of Gandhi himself. From an
elitist and indeed racist beginning in South Africa he developed
into a champion of the third world. It is submitted that this
development
might
to
a
considerable
extent
be
a
natural
consequence of the use of civil disobedience, with its emphasis
on morality. Especially his conduct in respect of the Harijans
reveals the nature of civil disobedience as a double-sided sword
- it makes a moral appeal to the opponent as well as to the
person who practises it.
(2)
Gandhi's philosophy of Satyagraha
Leo To1st6y in 1910 described Gandhi’s Satyagraha campaign in South
Africa as “the most important of all the work now being done in the
world”. 625 Even if exaggerated, the comment reflects the desire of a
world
finding
itself
subjected
to
increasingly
powerful
and
dehumanising forms of human destruction, to establish more humane ways
of regulating the terms of our shared existence. 626
Gandhi’s
political
philosophy
in
many
respects
certainly
is
idiosyncratic, and it is embedded in a philosophical outlook on life
that may not be acceptable to everyone. While civil disobedience has
not by any means been universally accepted as a feasible means of
offering political resistance, Gandhi’s own peculiar version of that
strategy of protest is even more controversial. Especially Gandhi’s
almost complete commitment to non-coercion and his insistence on the
need to pursue self-sacrifice in order to elicit the creative power of
suffering would not be shared by many.
Nevertheless, his example, even if extreme, has inspired non-violent
625
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, Tolstóy's Individual nonviolent resistance, which drew inspiration from Gandhi's acts in South
Africa, seriously eroded the resolve of the Tsarist régime. See
Woodcock Gandhi 105.
626
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?"
resistance movements worldwide - not only in his native India. 627 His
influence on the liberation struggles in South Africa and the United
States of America, as is evident elsewhere in this chapter, was direct.
Gandhi’s legacy also found resonance in the pursuit of other causes in
the rest of the world, to which reference has been made earlier, where
mass civil disobedience was used to protest against issues as diverse
as
the
military
perceived
as
and
non-military
detrimental
unpopular foreign wars.
to
use
the
of
nuclear
environment,
power,
and
the
activities
conduct
of
628
In Africa, at least until the 1960’s, Gandhi’s ideas had a strong
influence on the formative processes of black nationalism. The West
African Congress, for example, was established in 1920, patterned after
the Natal Indian Congress. Kwame Nkrumah was influenced by Gandhi's
ideas in his conducting of the liberation struggle of Ghana, as was
Julius Nyerere in Tanzania. The 1945 Pan-African Congress, which was
attended by Nkrumah and Kenyatta, as well as by ANC delegates, endorsed
Gandhi’s passive resistance as the only effective way of persuading
alien rulers to respect the rights of unarmed subjected races. 629
The Algerian National Liberation Front initially had great difficulties
in securing the legitimacy of their armed struggle against the French,
due to the popularity of Gandhian ideas. 630 It was, however, Kenneth
Kaunda,
whose
influence
Southern
Africa
Gandhi.
Gandhi’s
light”.
was
in
respect
immense,
teachings,
who
of
was
Kaunda
resistance
most
said,
in
markedly
“flooded
the
whole
of
influenced
by
my
mind
with
631
During
the
late
1980’s
and
the
early
1990’s
the
embattled
Eastern
European governments were given notice, in no uncertain terms, of the
627
See G Ostergaard "The Gandhian movement in India since the death of
Gandhi" in Hick & Hempel Gandhi's significance for today 203.
628
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
See Benson South Africa 90.
630
See Nanda Gandhi and his critics 32ff.
631
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
Gandhi’s teachings in many cases did not prevent the eventual use of
violence, especially in Africa of the 1950’s and later; nevertheless,
it often inspired reluctance to resort to the use of force. Few people
accept the radical nature of Gandhi's claim – “non-violence as the
first article of [one’s] faith”, 633 but the example set by himself -in
his pursuit of this ideal and the successes he achieved have exercised
a powerful gravitational pull away from a resort to violence.
To
systematically
reconstruct
the
theoretical
tenets
of
Gandhian
thought would be no easy task. He was primarily a man of action and
what he wrote was in the first place designed to further his particular
practical aims of the time. As Fischer stated: “He did not think out
his ideas, he worked them out.” 634 Consequently, much of our time was
spent on tracing his actual conduct. A short exposition of the outlines
of his philosophy will now follow. 635
(a)
The sources of Satyaqraha
In the first place, one should establish what the primary influences on
Gandhi’s thought were. Apart from the influence of Hinduism (to which
we will presently return), Gandhi was evidently also deeply -influenced
by his legal training in London and his exposure to British liberal
values. Even at the time of the deepest Indian-British conflict, Gandhi
had a love-hate relationship with Britain. 636
Although Gandhi’s own collected works are contained in altogether 67
volumes, he was not a well-read man. A number of books, however, had a
profound influence on him. His constant companion was the Bhagavad-
632
See Smuts & Westcott The people shall govern 81ff.
633
See Mayer The pacifist conscience 210.
634
Fischer Gandhi 59.
635
A fascinating analysis of Gandhi's
Wolfenstein The revolutionary personality.
636
personality
is
given
in
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
selflessness, or, as Gandhi referred to it, “desirelessness”.
638
of
He was
also influenced by the Bible. In the Sermon on the Mount, with its
admonition of turning the other cheek and concern with the weak, Gandhi
found sustenance which almost moved him to Christianity. 639 Later he
would say: “I am a Christian and a Hindu and a Muslim and a Jew.” 640 In
the final analysis, the “benevolent background force” in which Gandhi
placed his trust was an omnipotent and just God.
In 1893, Gandhi read Tolstoy’s “The kingdom of God is within you”, 641
which, to Gandhi, “furnished a reasoned basis for ... non-violence.” 642
In 1904, a few years before he established Satyagraha, he read John
Ruskin’s “Unto this last” 643 exhaling the value of the simple life. This
book, Gandhi said, “made me transform my life”, but it should be noted
that Gandhi read much into the book that is not there. 644 Gandhi also
described Thoreau as one of his “teachers”, 645 but Thoreau’s influence
in
forming
Gandhi's
ideas
should
not
be
overrated.
Gandhi
read
Thoreau’s essay “On the duty of civil disobedience” when he was already
637
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.
638
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.
639
On Gandhi's understanding of the Sermon on the Mount, see Das
Bangalore Theological Forum 1985 17 41.
640
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."
641
Reprinted in To1stóy The kingdom of God and peace essays 1. It
is interesting to note that the first chapter of "The Kingdom of God
is within you" deals with the experiences of American abolitionists,
Quakers, Mennonites and pacifists, which means that Gandhi was
influenced along this route by the early American experience.
642
Bishop Gandhi 52.
643
Reprinted in Ruskin Unto this last and other essays on art and
political economy 115.
644
See Woodcock Gandhi 25.
645
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,
and
undertakes.
creditor
647
It
to
starvation.
shaped
was,
move
648
by
for
his
the
649
the
to
devotion
discipline
example,
debtor
Connected
selflessness,
compromise.
is
to
this
to
an
this
person
established
payment
is
a
the
by
voluntarily
practice
engaging
idea
equilibrium,
of
which
for
in
a
self-
anasakti
or
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
anekantavada,
fundamental
belief
of
suffering.
manysidedness
that
our
of
From
the
reality,
understanding
of
Jain
Gandhi
truth
theory
derived
is
at
of
his
best
fragmentary, which implies that we have no right to impose our views on
others. 651
In the last place, the word ahimsa or non-violence expresses an ancient
ethical precept accepted by Hinduism, Jain and Buddhism. This notion
has an active rather than a passive meaning - it is a guide to action,
646
See Woodcock Gandhi 25.
647
Chatterjee Gandhi's religious thought 19.
648
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
Chatterjee Gandhi's religious thought 36.
650
Id 31.
651
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 Gandhi’s political thought
An essential key to understanding Gandhi’s political thought and action
lies in the realisation that, to him, there is no difference between
religion and politics. This accounts for his emphasis on the spiritual
as opposed to material driving forces in history, and his belief that
civil disobedience could make a difference. Because we all are the
creation of one God, our humanity is indivisible. Consequently, he
believed that “[t]he humankind is one big family.” 652 In fact, Gandhi
saw the universe as something akin to a giant household. 653 He was in
the first place a 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, Gandhi’s intention was to remind
Smuts that he was a Christian. 657 Once people have been brought to see
the truth, they would automatically mend their ways. This is especially
true
of
political
relationships.
Those
who
govern
sometimes
make
mistakes and treat their subjects unjustly, while subjecting them to
unwarranted violence. What is important when this happens is not that
we as subjects suffer, because our physical and material well-being
compared with our spiritual values is not important. Those in positions
of power, when they err, should also be brought to see the light, the
truth. Those who are governed should do this because they should take
652
Gandhi Non-violent resistance 363.
653
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.
654
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
See Parekh Gandhi's political philosophy 110.
656
Gandhi Non-violent resistance 93.
657
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
of
counterviolence,
importance
is
those
even
who
if
gained,
we
because
abuse
power
by
subjecting
to
subdue
them,
manage
we
we respond to
then
confirm
to
them
them
to
nothing
of
that
they
themselves had a right to use violence - we legitimise their way of
expressing (or rather impressing) their opinions. A spiral of violence
is created and perpetuated, which will eventually lead to a mindless or
spiritless world. The only way in which this spiral can be broken is
through non-violent resistance to violence. One must absorb aggression
instead of returning it.
This inevitably involves the voluntary acceptance of suffering, which
is
the
pivot
on
which
Gandhian
civil
disobedience
turned.
Gandhi
believed in the “eternal law of purification through suffering.” 658 To
him
innocent
suffering
by
necessity
accompanies
the
emergence
of
freedom. According to Gandhi, “[c]ivil disobedience is a terrifying
synonym for suffering.” 659 Voluntary suffering has the power to convince
the opponent and to make oneself worthy of one’s goal. 660 If I suffer
openly
and
willingly
at
the
hands
of
my
adversary,
and
I
do
not
threaten him with retaliation, he will see the true consequences of his
actions and will be cured of his ignorance and change his ways. He will
be won over to a higher moral level. As the Bible says, we must do good
to
the
evil-doers.
Satyagraha’s
coerce, the wrongdoer.”
661
objective
is
“to
convert,
not
to
Gandhi’s philosophy, in a word, was to answer
evil with good, coercion with persuasion.
The word, “Satyagraha”, used by Gandhi to describe his perception of
non-violent, illegal resistance, was created by him by conflating two
words from his native language, Gujarati: Satya which means the truth
(the equivalent of love) and Agraha, firmness or force. The direct
translation
of
Satyagraha
is,
therefore,
“truth
force”
or,
because
truth and love are both attributes of the soul, “soul force”. At the
658
Gandhi Non-violent resistance 112.
659
Id 69.
660
See Chatterjee Gandhi's religious thought 77.
661
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
dialectical search for the truth with the opponent.
is
aimed.
It
is
a
663
Marx thought that society - and consciousness - is determined by the
material infrastructure. The universe is propelled by conflict. Given
these points of departure, his emphasis on the inevitability of violent
revolution and the need for change in the material conditions of living
before a change of consciousness will occur, is logical. 664 In such a
process the end can justify the means. Gandhi, like Hegel, upheld the
exact
opposite
Gandhi’s
life
premises
signified
about
a
the
defence
driving
of
the
force
belief
behind
that
history.
eternal
and
universal morality is the determining factor in the world: “I prophesy
that if we disobey the law of the final supremacy of spirit over
matter, of liberty and love over brute force, in a few years we shall
have Bolshevism rampant in this land.” 665
To him, human beings were essentially spiritual beings. Because both
ends and means must be moral, the end can never justify the means. 666 A
non-repressive society cannot be obtained through repression. A nonviolent society cannot be forged through violence. 667
662
See Gandhi Satyagraha
Conquest of violence 15ff.
in
South
Africa
109ff
and
Bondurant
663
See also Haksar Civi1 disobedience, threats and offers 3.
664
See infra chap five I BB.
665
Quoted in Fischer Gandhi 88.
666
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.
667
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
Gandhi’s
thoughts
reflected
both
a
pessimism
concerning
human
capabilities to know truth with certainty and an optimism concerning
the forces that prevail in the world. To assume the power to inflict
violence on others and to kill them, even if they treat us unjustly,
reflects an arrogant claim to have a direct insight into the demands of
truth, which enables one to commit irrevocable deeds. For Gandhi, man
is not capable of knowing the absolute truth and, therefore, not in a
position to punish. This does not, however, imply that there is no good
or evil. Gandhi believed that truth should be allowed to speak for
itself, undistorted by human desire. As appears from the title of his
autobiography,
he
viewed
his
own
life
merely
as
“experiments
with
truth”. In accordance with the basic premises of liberalism, Gandhi
believed that truth, when given the chance, would speak for itself.
To
openly
according
and
to
voluntarily
Gandhi,
had
suffer
injustice
several
without
advantages.
It
retaliating,
purifies
and
strengthens one’s own detachment from the seductions of material wellbeing, and allows one to attune one’s ear to revelations of the truth.
Within a group, the willingness to use restraint furthermore fosters
the type of discipline which makes that group worthy of freedom. It
also makes the opponent powerless, because he has no power over someone
who does not fear his weapons. Truly committed Satyagrahi’s cannot be
put down by any amount of force. “The soul can remain unconquered and
unnconquerable [sic] even when the body is imprisoned.” 668 A campaign of
Satyagraha can bring the state to a complete standstill when it becomes
clear
that
the
subjects
do
not
fear
suffering.
The
opponent
also
becomes demoralised, because he will realise that such action cannot
come from the weak. Gandhi insisted that non-violence can only be used
by the strong. Finally, even if the resistance eventually turns out to
have been misguided, no damage was done to the opponent.
The
non-violent
resister
occupies
the
moral
high
ground,
because
voluntary acceptance of suffering would normally not be endured for
personal
gain.
Disobedience
to
the
demands
of
the
state
with
full
knowledge that the consequences may be highly unpleasant can only be
the result of obedience to a superior moral imperative. The ability to
practise civil disobedience against all odds gives shining testimony to
the superior force of that moral imperative. It proves the authenticity
noxious weed." Gandhi Non-violent resistance 10.
668
Gandhi Non-violent resistance 289.
of the demand.
Gandhi perceived his Utopia in explicit anarchist terms.
To him, “the
state represents violence in a concentrated and organised form." He
believed
that
anarchy.”
“[t]he
ideally
non-violent
state
will
be
an
ordered
669
Non-coercion, therefore, and a willingness to undergo suffering are the
decisive factors in Gandhi’s concept of political resistance, which was
deeply rooted in his religious world view. To Gandhi, who believed in
non-violence
as
an
"article
of
faith”,
Satyagraha
is
not
an
intermediary step on the road from legal to violent protest - it is not
a prelude to violence but an equally powerful alternative. It is, what
has been called, “the moral equivalent of war”. 670
Gandhi’s
approach
embodies
Gandhi’s
emphasis
on
the
several
problems.
voluntary
In
acceptance
of
the
first
place,
suffering
(which
underlies his insistence that Satyagrahi’s should plead guilty when
charged, supply missing evidence against themselves and others, ask for
maximum sentences, and be model prisoners) will to many reflect an
unacceptable preoccupation with martyrdom. There are, after a11, many
other ways in which one’s bona fides and opposition to anarchy can be
demonstrated. No doubt, such a display of supreme discipline can be
particularly effective, and to do so would often not be wrong, but it
can hardly be a necessary condition for justified civil disobedience,
as Gandhi seemed to insist.
The
result
disregarded,
of
Gandhi’s
what
was
preoccupation
earlier
with
called,
suffering
was
that
non-sacrificial
he
civil
disobedience. He failed to recognise that under certain circumstances
it would not be necessary to court arrest, plead guilty, insist on the
maximum
penalty,
etc.
On
the
one
hand,
an
application
of
Gandhi’s
approach can in some cases lead to a situation where too much sacrifice
is
required
of
prospective
resisters.
It
was
argued
earlier
that
adherence to the form of Gandhian protest in the Defiance Campaign
probably had this effect. At the same time, it may also have the effect
of prompting legal decision-makers into believing that however much
they sympathise with a protester, the ethics of civil disobedience
requires of them to impose a harsh punishment. This seems to have been
669
Woodcock Gandhi 64.
670
See Muzumdar Mahatma Gandhi 16.
the
approach
Trial”.
The
of
the
thrust
magistrate
of
chapter
who
sentenced
six
will
be
Gandhi
that
in
this
the
“Great
approach
is
unwarranted.
Another problem inherent in Gandhi’s approach is that his insistence on
the overreaching importance of morality and moral victories often made
him a poor negotiator in respect of material issues. Once a moral
battle has been won, he often seemed to think that there was nothing
important left to do, and this made him lose opportunities.
Gandhi’s
boundless
optimism
about
human
nature
incapable of recognising evil when he saw it.
was
“misguided”
and
urged
the
Jews
to
671
often
rendered
him
He stated that Hitler
practise
Satyagraha
against
Hitler. Of all the wars in his lifetime, he chose the Second World War
to pursue his commitment to non-violence further than ever before. It
is
not
that
he
misunderstood
the
conditions
under
which
civil
disobedience is effective. He recognised the role played, for example,
by a “benevolent background force” and did place all his hope on a
change of heart in the opponent. 672 The problem is rather that he placed
too much reliance on the inherent ability of good to trump evil.
Nevertheless, it should be kept in mind that Gandhi’s belief was in the
ultimate preponderance of good over evil, not in the absence of evil.
In this context, it is revealing to note that Gandhi, until the end of
his life, was not an absolute pacifist. He recognised that at some
point violence might be needed. He stated: “I would rather see India
freed
by
violence
oppressor.”
673
than
enchained
like
a
slave
to
her
foreign
Nevertheless, he was willing to go further than almost
anyone else in leaving scope for the good by itself to triumph over
evil.
Even
if
Gandhi
went
too
far
in
certain
respects,
his
conduct
and
example provides a powerful reminder of the importance and power of
spiritual values.
671
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.
672
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
See Woodcock Gandhi 61.
C.
CIVIL DISOBEDIENCE IN THE UNITED STATES OF AMERICA
The
United
States
originated
from
a
revolution
and
is
primarily
committed to individual liberty. At the same time, it is a society with
many people of different backgrounds and persuasions. Not surprisingly
therefore, the United States has a rich tradition of resistance against
government - both legal and illegal, both violent and non-violent.
The
most
outstanding
examples
of
civil
disobedience
in
the
United
States are the Civil Rights Movement and the anti-Vietnam protests.
Nevertheless,
although
still
controversial,
civil
disobedience
has
deeper roots in American society.
(1)
Civil disobedience by native Americans
Charles Black gave a fascinating account of a case of non-sacrificial
civil disobedience in the early history of the United States, in a
setting which illustrates the universality of this strategy of protest.
It is worth quoting his account in full.
I think of a story of a young Pawnee brave, whose name comes back
to me as Peshwataro. In his day the law of the Pawnee commanded
that on the day of the summer solstice there take place the
sacrifice of the star maiden. A girl was each year captured from
a neighboring tribe and bound to a stake. At dawn, the Pawnee
braves would ride in a circle about her and shoot their arrows
into her. This was not done for sport, but because, like so much
that seems cruel in so many societies, it was thought to be a
cruelty necessary to the maintenance of the moral and religious
order. Many Pawnees, through what processes and influences I
cannot say, came to disapprove of it and talked of doing away
with it, but it was the law, and conservatism was too strong.
Then one summer solstice at dawn this Peshwataro, a young man of
high repute within the tribe, broke from the circle before an
arrow was shot, rode furiously to the stake, freed the girl of
that year, slung her in front of him, and escaped with her. He
left her with her people and then rode back, much as Gandhi might
have done, to submit himself to his fellows. As it happens, they
did nothing. It was time, really, to stop this business; they had
only needed an act of such courage to make that clear. 674
(2)
Religious civil disobedience
The first crimes of conviction among the colonists in the United States
took the form of defensive civil disobedience when members of religious
minorities refused, under pain of severe persecution, to comply with
governmental
674
violations
of
the
principle
of
religious
See Black Texas Law Review 1965 492 at 493.
freedom.
The
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
Jehova’s
Witnesses
very religious people on the one hand
on the other. In the “flag salute cases”,
attacked
public
school
regulations
requiring
students to salute the American flag. The Witnesses maintained that
this was “forbidden by demands of scripture.” In Minersvi11e School
District
Gobatis, 677
v
the
Court
upheld
Virginia Board of Education v Barnette,
Court
overruled
regulations.
In
its
own
decision
in
678
the
regulations.
In
West
barely three years later, the
Gobatis
and
struck
down
the
679
Wisconsin
v
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
ramifications
slavery
deeply
in
the
troubled
mid-Nineteenth
many
Americans.
Century
It
led
and
to
its
legal
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
Weber Civil disobedience In America 35ff.
676
See supra chap three III B (2)(a).
677
310 US 586 (1940).
678
319 US 624 (1943).
679
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.
railroad”, 684
which
assisted
escaped
slaves
from
being
685
Civil disobedience, however, proved inadequate to resolve this issue.
Only after the Civil War (1861-1865), the Thirteenth, Fourteenth and
Fifteenth Amendments were passed which abolished slavery, guaranteed
the former slaves’ citizenship and protected their right to vote.
(4)
Henry David Thoreau
Henry David Thoreau’s famous act of civil disobedience in the 1840's
was prompted by the American government’s endorsement and enforcement
of slavery, as well as its involvement in the war against Mexico. His
refusal to pay taxes as an act of protest landed him in prison for one
night, after which the fine imposed was paid on his behalf. 686
In his 1848 essay, later called “On the duty of civil disobedience”,
681
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
Weber Civil disobedience in America 95.
Ibid.
684
For the legal background of the "underground railroad",
Villarruel Southern California Law Review 1987 1429 at 1437ff.
685
686
see
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
today?
I
answer,
that
he
cannot
without
disgrace
be
associated with it. I cannot for any instant recognise that political
organization
also.”
690
as
my
government
which
is
the
slave’s
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
one’s opinions differed from that of the government: “I came into this
world, not seeking to make it a good place to live in, but to live in
it, be it good or bad.” 692 We have to be prepared to live with some
injustice. In the present case, however, he argued that he had no
option
other
than
civil
constitution is ... evil”.
693
disobedience,
since
the
state’s
“very
Thoreau urged people to use their "whole
influence" to counter the majority when it went wrong. “A minority is
687
The essay is reprinted in Thoreau Walden or. Life 1n the woods
and On civil disobedience 249.
688
Id 252.
689
Ibid.
690
Id 254. (Original emphasis.)
691
Ibid.
692
Id 259.
693
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
Thoreau’s semi-anarchist approach generated little support during his
lifetime, but it would become highly influential in the next century.
He
had
a
direct
influence
on
the
leadership
of
the
Civil
Rights
Movement and the anti-Vietnam protests and had an indirect influence on
Gandhi. 696
(5)
The Womens’ Rights Movement
Activists in the United States defied laws on a number of occasions in
pursuit
of
equality
for
women. 697
This
movement
has
been
active
to
varying degrees since the first Womens’ Rights Convention at Seneca
Falls, New York, in 1846, where the “Declaration of Sentiments” was
written and issued. A main tenet of the declaration was the need for
women to have the vote before the government could really claim to have
the consent of the governed. 698
The issue of womens’ suffrage gave rise to widespread and persistent
activism, including acts of civil disobedience. From the outset, the
womens’ position was that their right to vote was guaranteed in the
Fourteenth and Fifteenth Amendment to the Constitution, even though it
was denied by statute. This was the basis upon which Susan B Anthony
and fourteen other women registered and voted in Rochester, New York in
1872. 699 In 1875, the Supreme Court held that women were “citizens” of
the
United
States
constitution.
700
but
were
not
entitled
to
vote
in
terms
of
the
Once this avenue was closed, the women concentrated
694
Id 261.
695
Ibid.
696
See supra chap three III 8 (2)(a).
697
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.
698
This declaration is reprinted in Weber Civil disobedience in
America 180.
699
See Weber Civil disobedience in America 184ff.
700
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
701
Weber Civil disobedience in America 196 and Flexner Century of
struggle 294.
702
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
See Sitkoff The struggle for black equality 19.
704
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,
occurred later.”
and
helped
lead
to
the
protest
campaigns
that
705
In view of the constitutional support which black aspirations found
from the highest court in the country, it was only natural that their
resistance
would
often
assume
the
form
of
legality-based
civil
disobedience.
Although the Civil Rights Movement was largely a spontaneous national
movement which had many leaders, Martin Luther King and the Southern
Christian Leadership Conference (“SCLC”) established themselves as the
most prominent in this regard. The following campaigns and events were
among the most decisive.
(a)
The Montgomery Bus Boycott 1955-1956
Unlike
the
other
campaigns
of
defiance
of
this
century
where
organization and planning largely preceded defiance, the Civil Rights
Movement was triggered by a spontaneous act of resistance. In 1955, in
the state of Alabama and in many other southern states, seating in
public buses was segregated along racial lines.
On 1 December, on a
Montgomery bus, a black woman, Rosa Parks, refused to give up her seat
- which was designated for blacks - to a white passenger, upon being
ordered to do so by the bus driver and later by the police. She was
arrested and charged with the violation of a city ordinance and was
eventually convicted and sentenced to pay a fine of $10. 706
The situation had the makings of a classical case. A woman identified
an
obvious
disobedience.
injustice
707
and
engaged
in
an
act
of
defensive
civil
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
Ibid.
706
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.
707
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.
After the arrest of Rosa Parks, the Womens’ Political Council, a black
womens’
civil
organization,
took
the
lead
in
organising
a
one-day
boycott of the buses by blacks. This action was mainly successful and
gave rise to the Montgomery Bus Boycott, which lasted for more than a
year. The boycott was organised by a new umbrella body, called the
Montgomery
Improvement
Association,
over
which
King
was
chosen
to
preside. As with other campaigns, the movement at this early stage was
characterised by its conservatism. King emphasised that “[w]e are not
asking
for
an
end
to
segregation.” 708
At
this
stage
he
was
merely
seeking a way to make the prevailing system more acceptable to black
people.
As the boycott continued, the city authorities invoked a 1921 law for
trying King for conspiring “without a just cause or legal excuse” to
hinder a lawful business.” 709 Because of its political implications,
wide publicity afforded the case national attention. King was convicted
and sentenced to a fine of $1 000 with alternative imprisonment. He
refused
to
pay
the
fine,
but
it
was
paid
on
his
behalf.
In
this
particular case only the question whether or not King's conduct came
within the scope of the particular statute was considered by the court.
The wider constitutional issues were not discussed.
The break-through came when the constitutional merits of the Montgomery
bus
segregation
Browder,
710
statutes
reached
the
Supreme
Court
in
Gayle
v
where it was decided that de jure segregation on the buses
violated the Fourteenth Amendment of the Federal Constitution, on the
basis inter alia, of the precedent in Brown v Board of Education. The
first round of the struggle ended with a victory for the Civil Rights
Movement in the highest court of the USA. In future, most of the
activities of the Civil Rights Movement would be conducted with the
hope of vindication by the Supreme Court in terms of the constitution.
The
Montgomery
boycott
and
its
positive
outcome
had
important
consequences, not only for the government but also (and especially) for
the Civil Rights Movement. It demonstrated the Movement’s ability and
sense of responsibility, and provided a resource to the movement to
708
Id 1026.
709
S v King 98 So 2d 443 (Ala Ct App 1957).
710
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
High
School
as
a
first
step
towards
integration.
Governor Orval Faubus, however, seeking gubernatorial re-election on a
racist
ticket,
decided
to
obstruct
the
order.
He
had
the
school
surrounded by National Guardsmen and the children were prevented from
entering the school.
Another order was issued by the Federal District Court in Arkansas.
After
three
weeks,
President
Eisenhower
sent
in
federal
troops
to
escort the children to school. Eisenhower personally opposed the Brown
decision, but he was bound by the Constitution to uphold the laws of
the land and would have been embarrassed by international publicity if
he were to disregard this obligation. 712
(c)
The lunch-counter sit-ins 1960
A spontaneous movement of civil disobedience developed in 1960 in 113
southern
towns
when
privately
initiated
segregation
in
departmental
stores was challenged by black people. The protesters sat at lunch
counters reserved for whites. They were refused service but remained in
their seats until normal closing time, and returned to the counters on
succeeding days. 713
These sit-ins started in Greensboro, North Carolina, and at least 70
000
people
workshops
on
black
and
white
non-violence,
-
based
eventually
to
some
participated.
extent
on
Special
Gandhi’s
teachings, prepared those participating not to respond aggressively to
brutal attacks. Presidential candidate John F Kennedy gave his support
to this type of protest.
The decision to have segregated counters rested with the proprietor.
This meant that the initial act of sitting down at the counter did not
711
See Kennedy The Yale Law Journal 1989 999 at 1066.
712
See, in general, Freyer The Little Rock crisis and Sitkoff The
struggle for black equality 29ff.
713
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.
constitute a violation of any segregation laws. The real question,
however, was whether the refusal to leave once one had been denied
service and asked to leave constituted trespass. To this question there
was, and still is, no clear legal answer. 714 However, the campaign was
highly successful in disrupting services and reducing profits - and
eventually in moving proprietors to desegregate their facilities. The
cost was high, however, in terms of humiliation and abuse - physical
and otherwise which those participating had to endure.
(d)
The freedom rides 1961
At the end of 1960, American blacks, dissatisfied with the gains in
their
struggle
against
institutionalised
racism,
turned
to
more
confrontational tactics. At the end of the year, the Supreme Court
extended an earlier prohibition on segregation on vehicles engaged in
interstate
travel
to
apply
to
all
terminal
accommodations. 715
The
decision was taken to test the practical application of this principle
in the South. 716
The
first
“freedom
ride”
left
Washington
DC
in
May
1961
for
New
Orleans, Louisiana, with the purpose of challenging segregation laws
and practices along the way. The passengers were attacked along the way
by whites opposed to desegregation. In Ariston, Alabama the windows of
the bus were smashed, tires slashed and passengers were beaten. The bus
was eventually fire-bombed. The occupants of a second bus were also
beaten in Ariston. In spite of the most brutal attacks by mobs on those
participating, the local police refused to intervene.
These events became headline news all over the world. Editorials in
Africa
and
Asia
commented
that
the
United
States
government’s
compromising with racial discrimination and violence, would make it
impossible for the country “to sell to the outside world, especially
the non-white world, that she stands for equality of all men.” 717 The
Kennedy
administration
considered
its
international
714
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
Bovnton v Virginia 364 US 454 (1960).
716
See Lomax The Negro revolt 132ff.
717
See Sitkoff The struggle for black equality 105.
threatened.
Attorney-General Robert Kennedy demanded protection for the buses from
Alabama’s governor. A new group of passengers set out under police
protection for Montgomery. They were nevertheless mobbed, and Kennedy’s
emissary was assaulted. Six hundred federal marshals were sent in to
preserve the peace. Passengers protected by the national guard now took
a
bus
to
Jacksonville,
Mississippi,
where
many
were
arrested
for
breaking segregation laws. They went to prison instead of paying fines.
By the end of the summer, more than 1 000 people had participated in
the freedom rides.
Victory came when the federal government, convinced that an end to the
arrests and demonstrations was “vital to [its] conduct of international
affairs”,
issued
facilities.
(e)
rules
prohibiting
discrimination
in
interstate
718
Birmingham 1963
In Albany, Georgia, over 1 200 protesters were arrested in 1961 and
1962 for sit-ins, demonstrations, marches etc. Those arrested more than
once included Martin Luther King. The anti-segregation activities in
Albany, however, were not successful for a variety of reasons. Those
reasons included the state’s effective use of the criminal justice
system,
both
on
local
and
eventually
federal
level,
and
the
sophistication of the local police under Laurie Pritchett, which also
adopted
a
“non-violent”
strategy
against
protesters. 719
the
The
protesters were discouraged and their morale was low.
In a desperate move, King and others now prepared what they called
“Project C” (“C” for confrontation) to tackle the most segregated city
in the United States, Birmingham, Alabama. They issued a manifesto
setting
out
Birmingham,
government
their
to
to
grievances.
draw
the
the
Thereafter
attention
looming
showdown.
of
they
the
Then
staged
media
they
and
started
sit-ins
the
with
in
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
Id 110.
719
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.
Demonstrations would stop and the city would be desegregated.
This was
rejected, however, by segregationist and white supremacist groups, such
as the Ku Klux Klan, who attacked blacks at random. The house of King’s
brother was dynamited. The segregation signs did not disappear. After
fierce clashes all over the country, which involved the use of violence
by vigilante groups on both sides. King’s leadership helped restore
order. 720
The victory of the demonstrations was certain when the Supreme Court on
20 May ruled that Birmingham’s ordinances upholding segregation were
unconstitutional and overturned the convictions of those arrested under
those laws. 721 The Federal Government also made its commitment clear in
respect of what later would be enacted as the 1964 Civil Rights Act.
Before
that
could
materialise,
however,
demonstrations
in
other
communities followed in the wake of the success in Birmingham - inter
alia in Danville, Virginia 722 and Selma, Alabama. 723 The same pattern
repeated itself. In Danville, Pritchett’s “non-violent” strategy was
followed
by
the
authorities,
with
disastrous
consequences
for
the
movement. In Selma, the police followed a strong armed policy, which
gave the movement the press coverage and legitimacy it sought. 724
720
See Barkan Protesters on trial 69 and Sitkoff The struggle for
black equality 137.
721
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
See Barkan Protesters on trial 74.
723
Id 79.
724
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 can’t win civil rights cases in the local and state courts in
the South; your important job will be to help local council build a
solid
foundation
Supreme Court.”
(h)
for
an
eventual
and
successful
appeal
to
the
US
726
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 everyone’s equal
access to all publicly owned and operated facilities. 728
The Civil Rights Act also paved the way for later legislation such as
at 787.
725
See King A testament of hope 217 and Sitkoff The struggle for
black equality 160ff.
726
Barkan Protesters on trial 84.
727
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.
728
Title II, upheld in Heart of Atlanta Hotel v United States 379
US 241 (1964).
the
Voting
Rights
Act
of
1965, 729
which
enfranchised
the
mass
of
Southern Blacks (and, ironically, even greater numbers of whites). The
use of civil disobedience by black Americans would not cease, but a
major battle was won. 730
No doubt, the most influential figure in this course of events was
King. His approach will now be considered.
(i)
As
Martin Luther King
mentioned
earlier,
imprisoned
for
Birmingham
in
his
1963,
Martin
Luther
part
in
wrote
his
the
King,
Jr
civil
famous
(1929
rights
“Letter
-
1968),
while
demonstrations
from
Birmingham
in
City
Jail”. The letter was a response to fellow (white) ministers who called
the civil disobedience campaign “unwise and untimely”, because they
were of the opinion that it would incite civil disturbances. 731 The
letter
contained
a
comprehensive
exposition
of
his
views
on
civil
disobedience.
In the letter King defended his presence and activities in Birmingham
(not his home-town), on the basis that “whatever affects one directly
affects all indirectly.” 732 He stated that the protesters had “no other
alternative”
than
civil
disobedience. 733
Especially
“Negroes” were the victims of a “broken promise”,
734
in
Birmingham,
since the leaders
of the economic community had promised to remove humiliating racial
signs from their stores but had declined to do so. The campaign was
started
only
after
extensive
workshops
on
the
discipline
of
non-
violence.
Civil disobedience was justified by King, with reference to Socrates,
on the basis that it generated the creative tension needed to bring
about social reform. “The purpose of the direct action is to create a
situation so crisis packed, that it will inevitably open the door to
729
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).
730
For an overview of the political history of black Americans
after 1964, see Marable Race, reform and rebellion 95ff.
731
The letter is reprinted in King A testament of hope 289.
732
Id 290.
733
Ibid.
734
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
King’s policy of non-violent resistance had its roots in Christianity
and in his admiration of Gandhi. According to King, “Christ furnished
735
Id 292.
736
Ibid.
737
Id 293. (Original emphasis.)
738
Ibid.
739
Id 294.
740
Ibid.
741
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
Id 17, 88.
743
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
See Barkan Protesters on trial 34.
745
King The words of Martin Luther King 79.
746
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 1960’s
In the early 1960’s the United States began drifting into a war in
South East Asia, which would bring the deepest division in the American
nation
since
the
Civil
War. 749
In
the
resolution
of
the
domestic
conflict, civil disobedience would again play a major role.
For various reasons, which need not be canvassed here, America provided
economic
and
government
National
in
non-combat
its
military
conflict
Liberation
Front,
with
assistance
the
backed
to
the
guerrillas
by
the
South-Vietnamese
of
the
communist
Viet-Cong.
American
involvement gradually increased over the years. Approximately 16 000
American troops were stationed in Vietnam in 1964.
In August 1964, a United States destroyer was attacked in the Gulf of
Tonkin by North Vietnamese patrol boats, while the destroyer was (at
least according to first reports) in international waters. The Gulf of
Tonkin resolution pledged full congressional support for any action by
President
Vietnam.
Johnson
in
defence
of
the
United
States
troops
in
South
750
Shortly after passage of the resolution, about 60 people demonstrated
in midtown Manhattan against the War. Seventeen were arrested. A week
748
See "The trumpet of conscience", reprinted in King A testament
of hope 651.
749
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.
750
The resolution was passed in the House of Representatives by 416
to 0 votes and 1n the Senate by 88 to 2 votes.
later, 40 more demonstrators were arrested at a second protest meeting.
It was the beginning of another major campaign of civil disobedience.
In
1965,
President
Johnson
dramatically
increased
the
American
war
effort in Vietnam, which in turn resulted in a drastic escalation in
draft calls. Letters were addressed to newspapers and politicians and
other legal channels were followed by those opposed to the War. A
group, called the “Women Strike for Peace”, held a large vigil outside
the
United
Nations,
precipitating
further
arrests.
“Teach-ins”
and
rallies were held at colleges and universities across the country. A
group of 3 000 marchers were led to a rally in front of the United
Nations headquarters by child-care expert, Or Benjamin Spock. Over 15
000 people picketed the White House.
In July 1965, it was announced that the commitment of American troops
in Vietnam, who were now engaged in defensive and offensive combat,
would be raised to 125 000, and monthly draft calls would be doubled
from the June rate of 17 000 to 35 000. By this time it was clear that
the War was becoming more and more unpopular at home. Draft centres
were picketed, attempts were made to stop trains carrying soldiers to
embarkation points, and at least five young men publicly burnt their
draft cards. An 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 government’s approach, both in Vietnam
and at home, was challenged by those questioning the justification of
the War. Especially the draft-card-burning amendment was bound to be
challenged
on
the
ground
legitimate
expression
of
that
this
symbolic
kind
speech,
of
action
protected
constituted
by
the
a
First
Amendment.
A young pacifist by the name of David Miller was the first to be
arrested and eventually convicted for publicly burning his draft card
in New York City in October 1965. His argument that such action was
protected as an expression of free speech was rejected by the Court of
751
111 Cong Rec 19669 (1965).
752
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 Miller’s
It was clear that the courts were more reluctant to deal with a
foreign policy issue such as the Vietnam War than with a domestic issue
as was the case during the Civil Rights Movement. What was at stake now
were not state and local laws that clashed with those of the Federal
Government, but the actions of the Federal Government itself in its
international relations.
Through a legal quirk, however, the Supreme Court eventually had to
rule on the issue. A pacifist by the name of David O’Brien had burnt
his draft card in public. On trial he admitted that his intention was
to urge other people to do the same and to refuse to “co-operate with
murder”. 756 His appeal against his conviction by a lower court was heard
by the First Circuit, which ruled that the ritual of burning a draft
card was in fact a form of symbolic speech which was protected by the
First Amendment. Nevertheless, his conviction was sustained on other
grounds. Both O’Brien and the government decided to appeal. The Supreme
Court was now forced to hear the case and bring clarity in the matter.
It ruled (7 to 1) that the draft card amendment law did not violate
free speech and was constitutional. 757
A body of jurisprudence also developed in connection with refusing to
serve in the armed forces for reasons of conscience or encouraging
753
This view was upheld by the Court of Appeal for the
Circuit. See Schechter Contemporary constitutional Issues 50.
754
Id 49.
755
386 US 911 (1967).
756
O'Brien v United States 376 F 2d 538 (1967).
757
Eight
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 1960’s it was clear that politicians, in order
to secure their own political survival, could not support the War. In
the end it was public opinion, mobilized by a variety of factors that
included civil disobedience, which drove Lyndon Johnson from office and
seriously limited Richard Nixon’s options. 760
In 1973, the United States signed an agreement to end the War. Nixon
called it “peace with honour”; many saw it as disgraceful defeat. In
the course of events, civil disobedience and conscientious objection
played a mayor role. It is estimated that the number of draft dodgers
and deserters ranged up to 100 000. More than 10 000 stayed abroad
after the War ended and Nixon refused to grant them amnesty. 761
The
legal
implications
of
a
number
of
more
sporadic
incidents
of
individual civil disobedience in the United States will be discussed
later. 762
758
Infra chap six IV B (2).
759
This case is discussed by Barkan Protesters on trial and Weber
Civil disobedience In America 275.
760
See Schechter Contemporary constitutional Issues 37ff.
761
See Link et al The American people 990.
762
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
rendering
Reich
was
military
civilization”.
established.
service
In
was
1933,
he
necessary
wrote
pacifists
“to
save
that
European
764
Perhaps the clearest recent example of a situation not amenable to
civil disobedience comes from the People’s Republic of China. Since May
1989, protesters - mostly students from Peking University - staged
peaceful pro-democracy demonstrations in Tiananmen Square in the centre
of Beijing, where an illegal sit-in was held in which thousands of
people participated. Amongst other things, a replica of the American
Statue
of
Liberty
was
erected.
Clearly
the
prime
target
of
the
protesters was the outside world. In spite of the imposition of martial
763
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
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
square.
At
least
a
thousand
civilians
were
killed
and
thousands more were injured when the troops fired indiscriminately into
the
crowds
and
overran
bicycles
with
tanks.
The
crushing
of
the
demonstrations was officially justified as an act of self-defence on
the part of the troops who were allegedly confronted by a "shocking
counter-revolutionary rebellion”. 766
Without going into any details, it seems fair to say that the Chinese
government was too ruthless to be moved by the moral appeal of such
demonstrations,
and
too
independent
and
too
strong
to
be
moved
by
outside pressure.
A number of cases where the threat of civil disobedience was used to
pursue objectives which can at least be described as controversial have
been alluded to. Reference was made to Or Malan’s threat to defy a ban
on
meetings
in
support
of
the
Ossewabrandwag,
the
support
of
Bill
O’Connor and Dr Andries Treurnicht of civil disobedience as a method of
resisting political reform in their countries, as well as the recent
siege of Pretoria by farmers who blocked the major roads in the city.
It s perhaps revealing, however, that civil disobedience was actually
used (as opposed to merely threatened) in few cases only, in pursuit of
such causes. That is so presumably because the people involved realised
the vulnerability of their position in the moral sense. In practice,
civil disobedience tends to be employed in pursuit of objectives that
are widely regarded as morally sound, although there is no principled
reason why it cannot be used in pursuit of obnoxious goals.
Arguably,
the
most
controversial
but
at
the
same
time
the
most
widespread use to which civil disobedience was put in recent years has
been
the
development
expression
and
of
deployment
protest
of
against
nuclear
nuclear
weapons.
The
power
and
development
the
of
nuclear facilities - be they peaceful or military - does not place
direct legal duties on anyone. Consequently, protests against it have
765
See the report of Amnesty International Death in Beijing Oct
1989 5ff.
766
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 government’s nuclear policy. Perhaps because the
of
civil
disobedience
has
also
to
some
extent
worn
off
novelty
in
other
campaigns, anti-nuclear protests have thus typically take the form of
entering
the
premises
of
the
nuclear
facilities,
blocking
the
entrances, people chaining themselves to the premises, massive – often
violent – demonstrations and ships into areas where nuclear tests were
to be conducted. 767
Closely
akin
resistance,
to
aimed
anti-nuclear
at
drawing
protest
attention
are
to
pro-environment
the
destruction
acts
of
of
the
planet. Although certain groups advocating this cause have acted in a
radical and highly coercive manner, 768 others chose the road of civil
disobedience. 769
Having completed the overview of the historic development of civil
disobedience, the way in which this form of protest is seen under the
South African positive law will now be considered.
767
See Weber Civil disobedience in America and Dworkin A matter of
principle 104ff.
768
See the discussion of "ecosabotage" and "monkey wrenching" in
Martin Environmental Ethics 1990 291 at 292ff.
769
On the activities of the "Greens" in Germany, see Papadakis The
Green Movement in West Germany in general, and 67, 83 in particular.
CHAPTER FOUR:
CIVIL DISOBEDIENCE UNDER THE
SOUTH AFRICAN POSITIVE LAW
Over the years, politics and law in South Africa have developed a close
relationship. It is not surprising, therefore, that civil disobedience,
as a form of illegal political protest, on a number of occasions has
attracted the attention of the legislature and the courts. Although
there are some direct references to civil disobedience in South African
law, the full impact of the law on civil disobedience can only be
appreciated in the wider context of crimes of protest.
As indicated earlier, civil disobedience is “illegal” in the sense that
it provokes the coercive powers of the state. In a society where the
rule of law is not consistently observed, as in South Africa, not only
the provisions of the criminal law, but also the prerogative powers of
the executive, should be considered in order to establish what the
official powers of the state embrace in this regard. In what follows,
the most important implications of the criminal law and the powers of
the executive relating to crimes of protest in general, and acts of
civil disobedience in particular, will be analysed. Thereafter, the
effect of having committed a crime of protest on the perpetrator’s
ability to practise law will be considered. The chapter will conclude
with a discussion of the law relating to conscientious objection to
military service. 1
I.
IMPLICATIONS OF THE CRIMINAL LAW FOR CIVIL DISOBEDIENCE
Civil disobedience in most instances involves a transgression of the
norms of criminal law, and it is consequently the criminal law that has
the
most
direct
implications
for
this
form
of
protest. 2
These
1
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.
2
As indicated earlier, civil disobedience does not necessarily
involve the commission of a crime. See supra chap two I A.
implications manifest themselves on three levels.
In the first place, civil disobedience may entail, what will be called,
the “primary offence” - that is, the offence or illegal action through
the commission of which the protest is expressed.
In the second place, there are legal provisions designed to provide for
special
treatment
of
persons
having
committed
crimes
of
protest,
including acts of civil disobedience. These provisions by and large
relate to the sentences that can be imposed for the commission of the
primary offence, but, as will be demonstrated, it is also possible that
commission of the primary offence could
render the perpetrator liable
to be charged with additional - and often more serious - offences.
In the third place, there is a body of laws aimed at counter-acting the
encouragement or assisting of other persons in commiting crimes of
protest.
Insofar as these secondary and tertiary provisions serve to increase
the
legal
incentives
for
people
not
to
practise
or
each
civil
disobedience (compared to those used in cases where a political motive
was absent), they may be called “booster provisions”. Insofar as they
serve
to
mitigate
the
gal
sanctions
imposed
for
acts
of
civil
disobedience, they may be called “dampening provisions”.
These different aspects of the criminal law will next be considered.
A.
THE “PRIMARY OFFENCE”
There
is
a
wide
variety
of
possible
transgressions
that
could
constitute the primary offence. In principle, almost any fence of which
dolus is an element can qualify as an act of civil disobedience. In
practice these offences range from trespass or transgressions of the
remaining
vestiges
of
the
apartheid
laws,
to
breaches
of
security
legislation. Many of these laws are in themselves not objectionable,
but could be violated through acts of indirect civil disobedience with
tent to express opposition to other aspects of the social and political
life. It will not serve any purpose to discuss these laws here in any
detail, except insofar as the particular law is specifically designed
to curb the public expression of protest, for instance, where public
demonstrations in certain places are prohibited.
The
Gathering
and
Demonstrations
Act
52
of
1973
prohibits
demonstrations in a defined area “by one or more persons for against
any person, cause, action or failure to take action” in an area in Cape
Town, 3 including the site of the uses of Parliament. 4
The Demonstrations in or near Court Buildings Prohibition Act 71 of
1982 likewise prohibits demonstrations "by one or more persons for or
against any person, cause, action or failure to take action, and which
is
connected
with
or
coincides
with
any
court
proceedings
or
the
proceedings at any inquest” in any court building, or in the open air
within a radius of 500m from such building. 5
Contraventions of both Acts constitute crimes. Demonstrations in these
areas almost inevitably constitute acts of civil disobedience.
B.
SECONDARY IMPLICATIONS OF THE CRIMINAL LAW
Special legal provisions that apply to crimes of protest and which also
affect
acts
of
civil
disobedience,
include
those
which
apply
to
sentencing for political crimes. At one time the commission of a crime
of protest in itself constituted a substantive or independent offence.
(1)
One
Sentences imposed for crimes of protest
element
of
vulnerability
civil
and
disobedience
defiance.
Civil
is
openness,
disobedients
which
implies
establish
their
both
bona
fides in this way; on the other hand, it has discouraged many from
engaging in civil disobedience. Both the legislature and the Courts
have in the past dealt with the issue of the proper sentence to be
imposed for crimes of protest.
(a)
Statutory provisions for increased penalties
The Criminal Law Amendment Act 8 of 1953 broke the back of the Defiance
Campaign
of
imposition
1952,
of
inter
drastic
alia
by
penalties
providing
for
changes in the law or its application
in
offences
6
section
committed
1
for
to
the
secure
- 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
Section 2(1).
4
See the Schedule to the Act.
5
Section 1(a).
6
See R v Segale & others 1960 1 SA 721 (A).
7
Section 1(a).
8
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
enactments
did
commentators maintain;
heavy
penalties
for
not
10
create
a
new
substantive
offence
as
some
instead it made provision for the imposition of
any
offence, 11
however
insignificant,
if
that
offence was committed as a sign of protest.
Section 58 serves to make even the mildest form of civil disobedience
attractive to only those persons who are willing to risk martyrdom. It
should
be noted, however, that only protests against a law or its
application are affected - which means that protests against 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
9
Section 2(c).
10
See eg Dugard Human rights and the South African legal order 175.
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).
12
1962 3 SA 572 (0. The case dealt with the similarly worded s 1 of
Act 8 of 1953.
express
protest
property.
by
Commission
advertisement
of
committing
of
the
the
the
crime
crime
was
campaign
of
defacing
"purely
and
post
incidental”
"not
a
factor
office
to
in
his
the
13
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
At 573.
14
Preceded by s 4 of the Criminal Law Amendment Act 8 of 1953.
15
See R v Pungula 8, others 1960 2 SA 760 (N) at 766.
16
Preceded by s 6 of Act 8 of 1953.
17
Or in terms of ss 59 and 60 of the same Act.
Given the apartheid government’s point of departure, the legislative
bias of the South African law in respect of sentences for crimes of
protest is not surprising. 18 Both the legislature and the executive in
white dominated South Africa for many years had a built-in tendency
(given their constituency) to sacrifice freedom of expression in favour
of what it perceives to be the demands of law and order. The question
arises,
sentence
however,
in
those
as
to
the
cases
approach
where
they
of
were
the
courts
in
respect
bound
by
legislative
not
of
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
18
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).
19
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).
20
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.
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
course of the strike, likewise led to much bitterness.
committed
in
the
23
In other cases, a less severe approach was followed. The four leaders
of the “Reform Committee”, initially sentenced to death, had their
sentences commuted to a fine. 24 Robey Leibbrandt, sentenced to death for
treason in 1943 by Schreiner J, 25 had his sentence commuted to life
imprisonment by Premier Jan Smuts and was released when the National
21
Van der Linden Koopmans handbook 2.4.4.5.
22
Dugard SALJ 1974 59 at 65.
23
Id 66.
24
See S v Phillips & others (1896) 3 Off Rep 216, also reported
anonymously in the Cape Law Journal 1900 15 at 30.
25
Confirmed on appeal: R v Leibbrandt 8 others 1944 AD 253. See
also infra chap four I 0 (1).
Party came into power in 1948.
The British subjects in Natal and the Cape who joined the Boer forces
during the Anglo-Boer War of 1899-1902 were treated with exceptional
leniency, and in most cases either a fine or a short prison sentence
was imposed. 26 The leaders of the 1914 Rebellion, General Kemp and
General De Wet, were sentenced to seven and six years’ imprisonment
respectively, but before the end of 1916 all rebels were released from
custody. In fact, after the execution of Jopie Fourie the Indemnity and
Special Tribunals Act 11 of 1915 excluded the death sentence in cases
of treason. 27
The
of
dictum
Van
der
Linden,
quoted
above,
Appellate Division in R v Jolly and others,
28
was
endorsed
by
the
where the sentence of
certain strike leaders who had derailed a train in the course of the
strike, and were convicted of assault with intent to commit murder, was
considered. In this particular instance there was no loss of life,
although the possibility of deaths occurring existed and was foreseen.
In support of the observation that the case did not merit “the utmost
rigour
of
the
law”,
the
Court
stated
that
“the
accused
were
actuated by any personal motives, whether of gain or of revenge."
an obiter dictum in R v Gomas,
30
not
29
In
Van der Linden’s statement was also
approved, and it was stated that “[i]t is always undesirable, by an
unnecessarily harsh sentence, to make anyone appear to be [a] martyr
because
Those
of his political convictions.” 31
convicted
of
treason
after
the
Second
punished relatively mildly. In R v Mardon,
32
World
War
were
also
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
See Anonymous SALJ 1901 164.
27
See also Dugard SALJ 1974 59 at 65.
28
1923 AD 176 at 183.
29
Ibid.
30
1936 CPD 225 at 235.
31
Ibid.
32
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
At 776.
34
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
See supra chap three III A (3)(c)(iii).
36
1956 4 SA 23 (T).
37
At 25 per Kuper J.
38
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
the
sentences,
the
Appellate
Division
found
that
the
“circumstances of the present offence ... differ obviously very widely
from
those
campaign
in
for
Sibande’s
a
case.”
national
The
protest
Court
week
proceeded:
was
“Although
motivated
by
the
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
magistrate’s
in
S
court
v
of
Benjamin
and
contravening
others 43
section
were
11(a)
convicted
of
the
in
the
Internal
Security Act 44 of 1950, in that they distributed pamphlets with the
heading “War preparations”, issued by the then recently banned ANC.
These
pamphlets
urged
Africans
to
prepare
themselves
for
“sharp
conflict” and a “dangerous clash” with the government, which, it was
claimed, could take the form of the Algerian Civil War. The accused
were sentenced to 18 months’ imprisonment, of which 12 months were
suspended.
On appeal the Court stated that “it would be a dangerous doctrine to
subscribe to that generally speaking a political offence should not be
punished by absolute imprisonment.” 44 The Court indicated that in view
of the maximum sentence which could be imposed (the minimum sentence
was then not yet in operation), the sentences imposed erred on the side
of leniency.
In S v Budlender and another, 45 the first appellant was charged with
having
organised
an
illegal
gathering.
In
an
appeal
against
the
conditions of his bail, the Court granted some relief and in a judgment
39
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
R v Segale & others 1959 1 SA 589 (T).
41
At 733.
42
Ibid.
43
1963 2 SA 363 (T).
44
At 367. See also R v Sithole 1964 4 SA 477 (SR AD) at 480.
45
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
46
indicated
that
he
placed
virtually
no
reliance
on
the
At 268.
47
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
where
the
appellants
were
convicted
on
several
counts
of
terrorism under the Terrorism Act 83 of 1967 emanating, inter alia,
from
a
number
of
cases
of
arson
related
to
unrest
situations
at
schools. In considering the question of sentence, the Court stated
that,
as
mitigating
circumstances,
the
bona
fide
belief
in
the
inferiority of black education and the effect of agitation to which the
appellants were subjected must be taken into account. Most instructive,
however, is the following statement of Jacobs J P and Rees A J:
[O]ns belewe tans tye van verandering waar strukture reeds geskep
is en nog geskep word wat daarop gemik is om swart frustrasies
piek te laat maak vir hoop en verwagting vir die toekoms vir a11e
bevolkingsgroepe en ons meen dat in gepaste gevalle waar dade
gepteeg is op ‘n tydstip toe hierdie frustrasies nog oorwegend
was dit nie onvanpas is om met ‘n groter mate van begrip en
erbarming na die dade te kyk nie. 51
It is submitted that this seminal statement indicates that courts of
law, when dealing with politically motivated offences, should take into
consideration the probability that the political values of the accused
win in some form or another find application in the future. Courts have
to anticipate to some extent impending positive political change, and
where processes under way have not yet worked their way down to actual
legal provisions, courts sometimes have to act in anticipation. What
this amounts to, is that courts sometimes have to regard society, and
49
At 69.
50
1985 3 SA 188 (N). See also S v Makape & another 1989 2 SA 753
(T).
51
At 209.
not only the other more conventional “texts” they deal with, in the
Dworkinian best possible light.
In S v Nel, 52 the Court took for granted that sabotage committed as an
act of private revenge should be treated with more leniency in respect
of sentence than would be the case if it was politically motivated. No
authority is quoted for this remarkable conclusion, which turned on its
head everything our law has for centuries stood for. It is even more
remarkable to note that counsel for the state and the defence seemed to
have agreed with this statement. 53
In S v Sprag, 54 Van der Walt J convicted a white member of Umkhonto we
Sizwe of several offences involving violence against the state. In
imposing a sentence of imprisonment he remarked: “If a black South
African were in your position his or her acts could be understood,
although not excused. The fact that as a white South African you have
espoused the cause of revolution I regard as an aggravating feature.” 55
While recognition in the judgment of the principle that absence of the
opportunity
political
of
political
resistance
participation
should
be
gives
welcomed,
its
some
legitimacy
application
in
to
the
particular case is questionable. Surely, the point is that the accused,
irrespective of her race, was effectively prohibited at the time by the
state from pursuing what obviously were her political convictions. The
“vote” she had was, to her, for all practical purposes meaningless.
In a number of cases courts have had to consider the effect a political
motive ought to have in respect of the death sentence. Their findings
in this regard are most instructive, because if a political motive was
in
itself
an
extenuating
circumstance,
one
would
not
expect
death
sentences to be imposed for such crimes at all.
In S v Mkaba and others, 56 the death sentence imposed on the appellants
for a murder (presumably of a state witness), which had been committed
to
prevent
the
conviction
of
members
of
Umkhonto
we
Sizwe
in
a
political trial, was confirmed on appeal. Steyn C J held that although
52
1987 4 SA 276 (0).
53
At 295.
54
Unreported case no 166/86 W 3 Nov 1986.
55
At 8 of the judgment.
56
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 Court’s approach.
The Chief Justice distinguished historical from contemporary acts of
high treason by stating that the element of terrorism - the intentional
killing of innocent people - had been introduced in recent times. The
following
warning was then sounded: “However lenient the attitude of
the courts may have been in the past in regard to our historical brand
of high treason, a complete change now in regard to the present type of
high treason would not be surprising, nor, in the circumstances, be
unjustified.” 60
The Chief Justice soon found an opportunity to implement this new,
harsher approach. In S v Lubisi and others, 61 the accused were convicted
in the court a quo of high treason following an attack with fire-arms
and hand grenades on a police station. Death sentences were imposed.
From the facts as reported in the judgment, it would appear that no
civilians were present at the police station at the time of the attack.
One policeman was injured.
The Appellate Division accepted that the appellants did not act from
"inner vice", and stated that “the position in which the appellants
57
At 217.
58
1965 2 SA 340 (A).
59
1980 4 SA 613 (A).
60
Ibid.
61
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
appellants for political purposes.”
63
sought
to
be
killed
by
the
On this basis the death sentences
were confirmed.
When the facts of the case are considered, the reference to “innocent
people”
in
this
dictum
is
difficult
to
understand.
That
term
is
commonly used to denote civilian or “soft targets”. The attack was
directed
against
policemen,
who
are
considered
“hard
targets”.
The
Appellate Division identified itself with the trial judge who had said:
“An attack on police officials in such a manner, whilst they are only
doing their duty, is an act which is difficult to describe adequately
in words. It is sheer terrorism of the highest order.” 64
If this is to be the case, it would be no less repulsive to attack
“soft”
rather
than
“hard”
targets.
If
the
courts
do
not
make
a
distinction in this regard, why should the opponents of the state be
expected to do so?
The view expressed in Mkaba and Harris that a political objective does
not constitute ipso facto extenuation where the death of civilians
ensued, was endorsed by Corbett J A (as he then was). In S v McBride 65
he
held
that,
in
such
cases,
circumstances of the matter.”
66
“it
all
depends
upon
the
particular
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
At 124.
63
Ibid.
64
At 125.
65
1988 4 SA 10 (A).
66
At 25.
67
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 Lutuli’s words: “Who will deny that 30 years of my life have
been spent knocking in vain, patiently, moderately and modestly at a
closed and barred door?” 69
With a view to the accused’s subjective belief that they were fighting
a war of liberation for their people, and the indoctrination which
their training entailed, the trial judge came to the conclusion that
extenuating circumstances existed. He was, however, overruled by the
assessors and had to impose the death penalty. The Appellate Division
stated
that
“[p]olitical
considerations
can,
circumstances, constitute mitigating factors,”
70
depending
on
the
and held that in this
case it did. The death sentences were set aside.
In a major, recent decision the Appellate Division again addressed the
issue of the imposition of the death penalty for political crimes. In S
v
Mncube
en
ander 71
‘n
the
Court
dismissed
the
appellants’
appeal
against the death sentences imposed upon them for murder, arising out
of
the
death
of
eight
civilians
in
landmine
explosions.
Both
the
appellants were members of Umkhonto we Sizwe, and the first appellant
insisted on being treated as a soldier. The Court recognised that, in
appropriate cases, the fact that particular offences were committed
with a political motive could be regarded as extenuating circumstances.
However,
these
considerations
were
outweighed
by
the
aggravating
circumstances of the case, which included the terroristic nature of the
acts.
The
first
appellant
also
testified
that
attacks
on
civilian
targets were against the policy of the ANC, and described such conduct
as undisciplined. The Court rejected the contention that it should
68
1990 4 SA 709 (A).
69
At 717. See also supra chap III A (3)(c)(ii).
70
At 719.
71
1991 3 SA 132 (A).
impose “a sentence which reaches out for reconciliation”, and declared
that
it
could
country.
not
take
into
account
the
political
climate
of
the
72
From the above it seems safe to state as a general rule that our courts
do regard crimes committed with a political motive in a less serious
light than offences committed with a self-serving motive. 73 This applies
even in the case of armed uprising. 74 Several considerations, however,
affect the application of this general rule.
-
Where the lives and safety of civilians are threatened, the rule
does
not
imposed.
-
necessarily
apply,
and
harsh
sentences
are
often
75
Where the immediate conflict situation has been resolved, courts
tend to follow an even more lenient approach than usual. 76 The
reason
for
this
attitude
might
be
a
combination
of
various
considerations: the fact that it is no longer necessary to deter
others from participating in the uprising; the fact that the need
and opportunity for reconciliation has emerged, and so on. Where,
on the other hand, the conflict has not been resolved at the time
of the judgment, these considerations do not apply. 77
It
is
submitted
attacks
and
the
that
the
unresolved
increasing
use
of
nature
the
conflict
of
indiscriminate
in
South
terror
Africa
during the past number of decades were largely responsible for the
courts’ taking a more harsh line in sentencing.
No doubt, since the middle of the century the personal convictions of
72
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.
73
Contra Benjamin, Hogan and Nel. but see Jolly, Gomas, Sibande,
Mkaba, Budlender and Masina.
74
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
Contra Jolly, but see Harris, McBride and Mncube.
76
See most of the cases discussed from the era of white against
white conflict. See, however, also Mncube.
77
See most of the cases discussed from the era of black against
white conflict.
the
judges
concerned
often
prompted
the
imposition
of
heavier
sentences. In all the cases considered, the accused were either black
or have identified themselves with the liberation struggle, while the
presiding Judges were invariably part of the white establishment. The
most conspicuous example of this is the Hogan case.
Non-reactionary governments are often challenged by opponents from all
sides, but because of the diversity of reasons for the opposition, the
attacks are more readily seen as isolated. Reactionary governments, on
the other hand, are almost invariably attacked from a fairly permanent
position. Such attacks are then regarded as treasonable by those with a
stake in the maintenance of the status quo, and all other smaller
challenges
to
the
state
are
viewed
as
part
of
this
onslaught.
By
overreacting to minor challenges, the divide is increased: there is no
incentive
to
challenge
the
state
in
a
non-radical
manner
if
such
actions are in any event punished as if they were radical.
Concluding too readily that a link exists between actions which are
seemingly non-violent and the spectre of impending violence can indeed
undermine demonstrations of leniency in sentencing practices of the
courts. It is submitted that this is precisely what happened in a case
such
as
clearly.
The
Hogan.
The
imminence
of
the
danger
must
be
established
78
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
Motlaaomang and others
79
was
specifically
addressed.
In
R_v
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
78
See the discussion of the "clear and present danger" doctrine in
American law infra chap six IV B (2).
79
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
aggravating circumstance.
the
openness
of
the
crime
to
be
an
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
treatment.
ought
Moreover,
not
to
openness
be
singled
(as
out
defined
for
particularly
earlier)
is
a
harsh
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
Quoted in the record of the appeal case at 628.
81
At 629.
also makes more sense to encourage openness.
The second aspect of the judgment that is open to critique concerns the
Court’s
assumption
that
acts
of
civil
disobedience,
such
as
those
perpetrated by the appellants, were responsible for “oproer” in the
area. If it had indeed been established that the civil disobedience
occasioned violence, that would certainly have provided justification
for following a tougher line than would otherwise be the case. But the
existence
evidence
of
-
such
it
a
link
cannot
has
simply
to
be
be
established
assumed.
There
through
is
reliable
nothing
in
the
judgment which indicates why the Court accepted the existence of such a
link. If the “oproer” did not entail the use of violence, the case for
taking a hard line would evidently be much weaker.
The
general
political
approach
crimes
of
outlined
the
courts
above,
in
if
respect
applied
to
of
the
sentencing
case
of
for
civil
disobedience, suggests the following: A general approach of leniency
should be followed in view of the political motivation of the crime.
The
exception
to
this
rule
alluded
to
above
and
which
applies
to
violent terror attacks, is not applicable to civil disobedience, due to
its non-violent nature. Especially where resistance has already taken a
violent turn, it is the duty of courts to demonstrate to resisters that
less dramatic alternatives are available.
(2)
Attempt to commit an act of civil disobedience
The Riotous Assemblies Act 17 of 1956, provides as follows:
Any person who attempts to commit any offence against a statute
or a statutory regulation shall be guilty of an offence and, if
no punishment is expressly provided thereby for such an attempt,
be liable on conviction to the punishment to which a person
convicted of actually committing that offence would be liable. 82
(3)
Civil disobedience as a substantive crime
During
the
most
Africa,
a
crime
crucial
of
years
protest
of
the
liberation
constituted
an
struggle
independent,
in
South
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,
83
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
By the Internal Security Amendment Act 79 of 1976.
85
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
Section 1(1)(ii)(b).
87
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
See S v Nokwe & others 1962 3 SA 71 (T) at 74.
89
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
such
Division,
by-laws
would
or
regulations,
qualify
as
instances
furthering the objectives of communism.
These
provisions
were
according
subsequently
Internal Security Act 74 of 1982.
91
of
the
to
the
Appellate
statutory
crime
of
90
repealed
and
replaced
by
the
As it was then defined, the crime of
furthering the objectives of Communism 92 was more narrowly 93 focused on
outlawing
advocating
of
the
communist
ideology
as
it
is
commonly
understood, and acts of civil disobedience in themselves were no longer
a
substantive
crime.
The
operation
of
this
provision
was
first
suspended as part of the present negotiations between the government
and certain liberation movements, 94 and eventually, in July 1991, it was
entirely scrapped. 95
A number of offences which are not often used in this regard with which
persons engaging in acts of civil disobedience (or organising campaigns
of
civil
discussed.
C.
disobedience)
could
possibly
be
charged,
will
later
acts
of
be
96
TERTIARY IMPLICATIONS OF THE CRIMINAL LAW
Those
who
do
not
themselves
necessarily
engage
in
civil
disobedience, but who encourage others to do so, could also be liable
to criminal prosecution.
90
See also supra chap three III A (3)(c)(iii), for the example
cited by Rumpff J in the court a quo.
91
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
Defined -in s 55 of the Act.
93
Mathews Freedom, state security and the rule of law 45 and S_v
Ramgobin 4 others 1986 1 SA 68 (W).
94
Proc R229, Regulation Gazette 12287, 3 Feb 1990.
95
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
97
See Burchell et a1 South African criminal law and procedure vol 1
472ff.
98
S v Nlhovo 1921 AD 485.
99
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
Section 18(2)(b).
101
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 other’s mind
may take various forms, such as suggestion, proposal, request,
exhortation, gesture, argument, persuasion, inducement, goading,
or the arousal of cupidity. The list is not exhaustive. The means
employed are of secondary importance; the decisive question in
each case is whether the accused reached and sought to influence
the mind of the other person towards the commission of a crime. 103
Clearly, encouragement to commit acts of civil disobedience is covered
by the confines of this crime. In R_v Abdurahman, 104 for example, the
appellant was convicted in the court a quo of inciting “non-Europeans”
to use railway coaches reserved for “Europeans only”. In R v Segale and
others, 105
the
accused
were
convicted
of
incitement
for
having
encouraged municipal workers and domestic servants to stay away from
work.
(b)
Incitement to commit a political offence
Over and above the general provisions of the law regarding incitement,
there are also a number of statutory provisions aimed specifically at
advocacy of political offences. These offences have been relied upon in
the
past
to
disobedience.
106
prosecute
those
engaged
in
advocacy
of
civil
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
1966 4 SA 655 (A). See also S v Dreyer 1967 4 SA 614 (E) at 621.
103
At 658, 659.
104
1950 3 SA 136 (A).
105
1960 1 SA 721 (A).
106
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
Campaign was tried and convicted in 1952.
leadership
of
the
Defiance
109
In response to the Defiance Campaign, a second offence of encouragement
of crimes of protest was enacted, without the one outlined above being
revoked. This offence was sanctioned by the Criminal Law Amendment Act
8 of 1953. 110 The Act provided for a fine of up to £300, imprisonment of
up to five years and a whipping of up to ten strokes upon conviction of
incitement to commit a crime of protest. 111 The imposition of corporal
punishment for political crimes was particularly controversial.
The pertinent provisions of the 1950 Internal Security Act and the 1953
Criminal Law Amendment Act were repeated by the Internal Security Act
74 of 1962, which currently is still in force. Section 59 of this Act
outlaws, in the exact words
of the Criminal Law Amendment Act of 1953,
incitement to commit crimes of protest, though the penalties provided
107
Section 11(m)(i).
108
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).
109
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
See s 2(a) & (b).
111
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
by
members
of
the
Indian
communities
to
obey
orders to vacate certain premises in terms of the Group Areas Act. The
rhetorical
question
was
posed:
“Is
it
any
wonder
that
there
is
developing among our people in different parts of the country a feeling
112
Consequently, decisions and comments
provisions can be applied to the 1982 Act.
113
dealing
with
the
older
S v Moilwanyana 1957 4 SA 608 (T) at 615.
114
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
methods of non-violent actions.”
“we
will
continue
to
maintain
our
119
The appellant was acquitted on appeal on the ground that what he had
said fell “just short” of the incitement required by subsection (a),
which constituted the basis of the case against him. Nevertheless, the
Court held that “the report as a whole was couched in such excessively
provocative
language
that
it
might
contravention of [subsection (b)].”
120
well
be
said
to
constitute
a
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
117
At 593.
118
Ibid.
119
Ibid.
120
At 597.
action
which
fall
short
of
incitement”
are
also
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
was
Nathie
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
121
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.
122
See the excerpt quoted from S v Nkosiyana and another 1966 4 SA
655 (A), supra chap four I C (1)(a).
123
See Mathews Freedom, state security and the rule of law 54.
124
Milton & Fuller South African criminal law and procedure vol 3
136.
125
See, however, Mathews Law, order and liberty in South Africa
188.
126
1964 1 SA 269 (T).
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
not
represents
an
particular
context,
included
attempt
and
to
to
in
subsection
regulate
give
an
the
(a).
crime
indication
Section
of
of
59
incitement
the
simply
in
a
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
1962 3 SA 71 (T).
128
See supra chap four I B (3).
129
Strydom JCRDL 1964 314 at 316. Strydom's views in this regard
are endorsed by Van Niekerk SALJ 1970 299.
130
Strydom JCRDL 1964 314 at 316.
131
Id 318.
132
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
decided.
In
that
case
the
state
failed
to
prove
that
the
incitee had reached the age where he could commit the crime incited,
namely
throwing
away
his
reference
book.
The
conviction
of
appellant was dismissed on appeal. Similarly, in R v Plaatjies,
137
the
the
appellant was acquitted because there was no proof that the people who
had been encouraged to participate in an illegal strike were “native
labourers” as defined in the relevant statute.
The
acquittal
of
the
appellants
in
R
v
Mpekwa
and
others 138
was
justified by the Court on the basis that the act complained of was
prompted
by
an
error
juris.
In
that
case
the
appellants
assaulted
certain people in order to “persuade” them to “allow” the appellants to
take
possession
of
their
(the
assaulted
people’s)
reference
books.
“Allowing” a third party to take possession of one’s reference book
constituted an offence. Because these persons assaulted were forced to
hand over their reference books, they could not be convicted of any
crime, and those who forced them to do so could not be convicted of
inciting others to commit an offence.
Mathews pointed out that the presumption of a guilty intent which would
arise from the commission of a crime of protest while in the company of
two or more persons, created by section 69(8) of the Internal Security
Act 74 of 1982, probably does not apply to a contravention of section
59, because the words creating the presumption refer to a prosecution
in which the offence charged was committed by way of protest. 139 The
134
See S v Davies 1956 3 SA 52 (A) at 63.
135
1962 4 SA 288 (C).
136
I960 4 SA 353 (0).
137
1960 2 PH H371 (C).
138
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
proclamation
1952,
140
when
the
Defiance
was issued by the Governor-General,
in the so-called “native areas”
present
at
Campaign
any
one
time”,
143
142
was
141
at
its
peak,
a
outlawing meetings
at which “more than ten natives are
except
under
certain
circumstances. 144
Furthermore, it was decreed that in those areas “[a]ny person who at
any time uses language or behaves in a manner or does any act or thing
calculated to cause natives to resist and contravene any law or to
prevail upon them to obstruct the administration of any law, shall be
guilty of an offence.” 145
These
regulations
made
provision
for
a
imprisonment of not more than three years.
fine
146
of
up
to
£300
or
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
140
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
Issued in terms of s 27 of the Black Administration Act 38 of
1927.
142
The areas referred to in s 25(1) of the Black Administration Act
38 of 1927.
143
Section 1(1)(a).
144
Section 1(2).
145
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.
146
Section 4. Patric Duncan and the other white resisters were
convicted of contravening these regulations. See supra chap three III
A (3)(c)(iii).
147
Government Notice 2753, Government Gazette Extraordinary 4971
of 28 Nov 1952.
it
removed
repressed
those
groups
obstacles
to
that
sustain
normally
their
make
resistance.
148
it
The
difficult
provision
for
of
foreign funds to those engaged in civil disobedience was also seen as
unwarranted foreign interference in, what was considered to be, South
Africa’s domestic affairs.
In order to counter these developments the act of giving as well as
that of receiving such assistance was outlawed. Section 3(1) of the
Criminal Law Amendment Act 8 of 1953 ‘made it a crime for anyone to
offer or accept material assistance (financial or otherwise) for the
execution of crimes of protest.
This
provision
was
almost
ipsissima
verbis
carried
over
into
the
Internal Security Act 74 of 1982. Section 60(1) now provides as follows:
Any person who solicits, accepts or receives from any person or
body of persons, whether within or outside the Republic, or who
offers or gives to any person or body of persons any money or
other article for the purpose of –
(a) assisting any campaign (conducted by means of any unlawful
act or omission or the threat of such act or omission or by means
which include or necessitate such act or omission or such threat)
against any law, or against the application or administration of
any law; or
(b) enabling or assisting any person to commit any offence by way
of protest against any law or in support of any campaign against
any law or in support of any campaign for the repeal or
modification of any law or for the variation or limitation of the
application or administration of any law; or
(c) unlawfully assisting any
person
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
148
Earlier, reference was made to the "million shillings" drive
launched at the commencement of the Defiance Campaign. In spite of the
fact that the drive was aborted before it had reached its goal, it is
clear that some money had been collected from the public. See supra
chap three III A (3)(c)(iii).
149
For the penalties prescribed in s 59, see supra chap four I C
(1)(b).
the purposes mentioned above. 150
The
offence
(prospective)
created
in
recipient
section
and
60(1)
the
can
be
(prospective)
committed
by
the
provider
of
the
assistance. The assistance pertains to a campaign of crimes of protest,
whether impending or already in progress (paragraph (a)); or assistance
to an Individual in respect of crimes of protest still in progress
(paragraph (b)) or crimes of protest of the past (paragraph (c)).
Except insofar as paragraph (c) is concerned, the assistance must be
provided with the intention of furthering the commission of crimes of
protest. This means that an unforeseen outbreak of crime during an
essentially legal campaign of protest would not constitute an offence
at
the
instance
of
those
who
had
provided
or
accepted
material
assistance in respect of that campaign, even if that outbreak of crime
was foreseeable. 151 It also appears from the wording of section 60 that
the crimes of protest envisaged must specifically be aimed at a certain
law or laws, or the administration thereof. The law violated need not
be the one objected against.
Paragraph (c), which prohibits anyone from "unlawfully assisting any
person who has committed any offence referred to in paragraph (b)" did
not
contain
the
adverb
"unlawfully"
in
its
1953
equivalent.
Taken
literally, the older provision could consequently be interpreted as
prohibiting anyone but the offender himself from paying for his legal
defence, 152 and it could even be interpreted as prohibiting anyone from
acting as the lawyer for someone who has committed such an offence. It
could in fact be argued that the actions of a welfare officer or other
150
Section 60(2).
151
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.
152
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.
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
assisting"
Act.
means
The
in
problem
the
now
present
is
what
context.
It
the
is
term
"unlawfully
submitted
that
a
feasible guideline would be the general legal position relating to
assistance
given
to
persons
who
committed
offences.
Consequently,
paragraph (c) should be understood to have incorporated into section
60(1)
the
prohibition
of
being
an
accessory
after
accessory after the fact is someone who intentionally
assists
the
perpetrator
commission of that crime.
of
153
a
crime
to
escape
the
fact.
An
and unlawfully
liability
after
the
Paragraph (c) renders someone whose conduct
satisfies the requirements of that particular common law crime, liable
to the
penalties for contravening section 60(1).
If that is the case, what then are the implications of section 60(1)
with regard to financial contributions and other assistance in respect
of the legal defence of persons who have engaged in crimes of protest?
It is submitted that the right to legal representation (at least if one
can afford it) is so basic that even the 1953 provision could not have
rendered
such
assistance
unlawful.
It
is
certain
that
the
current
provision does not do so.
The raising of money for the defence of such a person or persons is
more problematic. It is submitted that where the money is raised or
promised before the commission of a crime or crimes of protest in order
to encourage the prospective offender to go ahead with his campaign,
such
action
could
constitute
a
transgression
of
the
provisions
of
paragraphs (a) or (b). Where the money is promised or raised after the
commission of an offence for purely humane or even ideological reasons,
the requirement of assistance "to someone who has committed an offence"
would be satisfied, but because such assistance was not "unlawful" as
required by section (c), it would not come within the definition of the
offence under consideration.
A more difficult question arises when financial assistance is given to
an offender who has already committed a crime, with the purpose of
encouraging other persons and giving them the assurance that their
legal expenses will also be covered. If it should appear that such
153
See Snyman Criminal law 236.
encouragement and assurance
money
given
for
the
were intended, one would be dealing with
purpose
of
assisting
future
acts
of
civil
disobedience, as contemplated in subsections (a) and (b).
D.
OTHER CRIMES
In the discussion thus far, the most important and direct implications
of the criminal law in respect of civil disobedience were analysed. To
a large extent, the
statutory component of this body of laws emanated
from ad hoc legislation which followed in the wake of governmental
paranoia
occasioned
by
the
Defiance
Campaign
of
1952
and
later
manifestations of political resistance. It will be submitted that civil
disobedience
strive
to
can
have
uphold
an
important
democratic
role
values,
to
and
play
that
in
societies
tolerance
of
that
civil
disobedience is indeed one of the earmarks of such a society. The
special legislative "booster" provisions discussed above have no role
to play in such societies.
It
could
be
argued,
however,
that
the
possibility
of
mass
civil
disobedience can pose a serious threat to the modern state, especially
in a deeply divided society. Most of the crimes that might be committed
to
express
protest
-
the
primary
offences
-
were
developed,
and
penalties were determined, with transgressions by a limited number of
persons in mind. The legal impediments attached to the commission of
the primary crime might consequently in some cases be insufficient to
counter
an
unjustified
but
well
orchestrated
campaign
of
civil
disobedience. What would happen, for example, if a highly organised
group opposing the transformation of the South African society were to
launch
a massive campaign of protest, paralysing the entire country?
Some "boosting" of the position of the state might in exceptional cases
be necessary.
It
is
submitted
that,
where
feasible,
specific
campaigns
of
civil
disobedience can adequately be dealt with under the general provisions
of the law dealing with state security, and particularly the common law
crimes. 154 This does not mean that the country’s security laws do not
also require revision. However, while they are in force, those laws are
more than might ever be needed to deal with any possible campaign of
154
See
also
Ackermann
Die
reg
insake
openbare
orde
en
staatsveiligheid 2, 3, 14 and Milton South African criminal law and
procedure vol 2 27.
civil disobedience.
In
what
follows,
the
question
win
be
discussed
whether
the
organization of, and participation in, a campaign of civil disobedience
can come within the ambit of any of the five most serious crimes
against
the
terrorism,
state:
treason,
subversion
or
sedition
sabotage
(the
(the
common
law
statutory
crimes),
crimes).
and
155
The
question whether civil disobedience could in given circumstances amount
to the crime of defeating or obstructing the course of justice, will
also be discussed.
(1)
Treason
It was argued earlier that, contrary to what some American authors
maintain, civil disobedience can in principle be directed against "the
existing system seen as a whole". Illegal, non-violent, open, political
acts
motivated
by
conviction
do
not
cease
to
be
acts
of
civil
disobedience simply because those acts are intended to bring about a
fundamental
change
in
the
basic
constitutional
structure
of
the
country. Certain protest campaigns against the apartheid state in South
Africa,
Gandhi’s
demonstrations
in
campaigns
the
in
People’s
India,
and
the
Republic
of
China,
Tiananmen
are
Square
examples
of
revolutionary civil disobedience.
The question is whether revolutionary civil disobedience may constitute
treason as defined in South African law. 156 As mentioned earlier, the
state contemplated bringing charges of treason against the leaders of
the Defiance Campaign of 1952. 157 Evidence regarding the organization of
the
Defiance
Campaign
also
constituted
state’s case in the Treason Trial.
158
a
substantial
part
of
the
Towards the end of the proceedings
the prosecution mentioned the possibility of a conviction of treason
155
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.
156
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.
157
See "Treason, sedition
Daily Mail 31 July 1952.
158
searches
made
See supra chap three III A (3)(c)(vi).
throughout
Union"
Rand
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
disobedience
violence
will
not
is
a
qualify
necessary
as
element
treason.
of
However,
treason,
if
any
civil
illegal
attempt to overthrow the state, whether violent or non-violent, would
suffice to constitute treason, revolutionary civil disobedience could
be treasonable. What then are the essential elements of the crime of
treason?
According to Milton: "High treason consists in any overt act unlawfully
committed by a person owing allegiance to a state possessing majestas
who intends to impair that majestas by overthrowing or coercing the
government
of
that
state." 160
According
to
Snyman:
"High
treason
consists in any act committed either inside or outside the borders of
159
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.
160
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.
the Republic by a person who owes allegiance to the Republic with the
intention
unlawfully
existence,
Swanepoel
to
independence
maintained:
overthrow,
or
coerce,
security
"Hoogveraad
of
is
the
die
impair
or
Republic.
161
endanger
De
wederregtelike,
Wet
the
and
opsetlike
verstoring, aantasting of in gevaarstelling van die staatsbestaan." 162
Ackermann defined treason as follows:
Hoogverraad teen die Republiek word gepteeg indien iemand wat
trou aan die land verskuldig is, binne of buite die Republiek ‘n
handeling verrig met die vyandige opset om op wederregtelike wyse
die staat omver te werp, in gevaar te stel, die onafhankiikheid
daarvan aan te tas, die grondwet daarvan te verander of die
owerheid daarvan onder dwang te plaas." 163
It is apparent from the above definitions that treason does not require
that one’s attempt at overthrowing or coercing the state should be
successful - certain acts committed with that intention will suffice.
In fact, treason will only be treason if it is unsuccessful, because
the successful overthrow of the government will put a new government in
power,
itself.
and
the
new
regime
will
have
no
incentives
to
prosecute
164
The "key definitive element" 165 or "hallmark" 166 of treason is animus
hostil is, a hostile disposition against the state or government. 167
What is required is a "vyandige opset" 168, not "vyandelike opset": 169 One
need not associate oneself with the enemy in a time of war; to act like
161
Snyman Criminal law 257.
162
De Wet & Swanepoel Strafreg 518.
163
Ackermann Die reg Insake openbare orde en staatsveiligheid 8.
164
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
Milton South African criminal law and procedure vol 2 25.
166
Snyman Criminal law 259.
167
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.
168
As maintained by Gonin JCRDL 1951 1. Approved in S v Mayekiso &
others 1988 4 SA 738 (W).
169
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.
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"
or
is
endanger
"an
the
intention
existence,
government of the Republic."
unlawfully
to
independence
overthrow,
or
security
coerce,
of
the
171
According to these interpretations of hostile intent - one might call
it the orthodox position - the intention to coerce or to overthrow the
state by illegal means would constitute hostile intent.
The striking feature of the orthodox position is the use of the word
"or". Either the intention to coerce or the intention to overthrow the
state
illegally
can
constitute
hostile
intent.
There
might
be
an
overlap between the meaning of "intention to coerce" and "intention to
overthrow", but the disjunctive 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.
Snyman Criminal law 261. See also
openbare orde en staatsveiligheid 11.
Ackermann
Die
reg
Insake
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.
173
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).
174
Id 26. De Wet & Swanepoel Strafreg 529 maintained that "sodra
die wil om die bestaande staat omver te werp, dws die bestaande staat
The
orthodox
position,
if
correct,
would
clearly
have
far-reaching
consequences for civil disobedience. According to this approach, civil
disobedience both in its coercive and in its non-coercive form, as long
as it is aimed at the overthrow of the state, can be treasonable. It is
submitted,
however,
that
the
orthodox
position
does
not
correctly
express the essence of treason under South African law, as reflected in
the opinions of Roman-Dutch sources and in case law. Instead, it will
be proposed that an intention to illegally overthrow the government is
neither
a
necessary
nor
a
sufficient
condition
for
purposes
of
a
hostile intent, while an intention to coerce the government is both
necessary and sufficient.
What
do
the
sources
say?
Voet
regarded
the
intention
overthrow the state as a necessary element of treason.
as Van der Linden
176
and Moorman
177
175
to
actually
Writers such
, however, took the view that animus
hostilis is constituted by any intent to disturb, injure or endanger
the
security
of
the
state,
and
does
not
require
an
intention
to
overthrow the government.
The Appellate Division endorsed the latter approach in R_v Erasmus, 178
where
it
was
held
that
a
partial
erosion
of
the
government’s
independence of action already constitutes hostile intent. In this case
the appellant took part, as one of the leaders, in the armed uprisings
during the gold mine strikes on the Rand in 1921, which led to violent
clashes with the police. The trial Court came to the conclusion that,
deur 'n ander te vervang, maar deur die geringste gedraging blyk, word
die staatsbestaan in gevaar gestel en is die handeling strafbaar [as
treason]." See also Ackermann Die reg insake openbare orde en
staatsvelligheid 12.
175
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.
176
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.
177
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
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
Division, after a thorough overview of
the authorities, rejected the notion that proof of an intention to
overthrow
the
government
was
a
necessary
condition
of
treason.
According to Innes C J, "the whole structure of society might be shaken
by the violent action of a body of men whose object was not to alter
the constitution or change the government, but to compel the latter to
obey their behests." 179
The
Court
regarded
as
decisive
the
question
whether
attempt by the strikers "to impose their will" upon
there
was
an
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
179
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.
180
At 82. According to Kotzé J A, the fact that the accused’s
intention was "to compel the government of the Union to submit to the
will of the strikers, or otherwise to render it powerless in the
maintenance of law and order", was crucial. (At 83.)
181
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
skirmishes.
in
total
more
than
200
people
died
in
the
ensuing
182
While some less-than-total attacks aimed at coercing the state can
therefore qualify as treasonable, it should be obvious that this does
not apply to all attempts to coerce the state. The takeover of a prison
by inmates who are holding some wardens hostage and who demand prison
reforms, will inevitably
involve coercion of the state, but could
hardly qualify as treason. The language used in Erasmus suggests that
it is a question of how seriously the state is being coerced. The
violent actions of the strikers in that case were described by the
Court as "on no mean scale". 183
According to Innes C J the question whether a hostile intent existed
was "a matter to be gathered from all the circumstances, of which the
probable consequences of the actions taken are supremely important." 184
In R v Viljoen and others, 185 another Appellate Division decision based
on the miners’ strike, the same approach was followed. In this case it
was
held
that
operations
on
hostile
a
intent
considerable
can
scale
be
inferred
undertaken
from
with
the
the
"warlike
object
of
forcibly imposing the will of the participators upon the government of
their country." 186
Again, an intention to impose one’s will or to coerce the state in a
serious manner was regarded as the feature that justified a finding of
hostile intent, even in the absence of an intention to overthrow the
state.
This approach of the Appellate Division indicates that an intention to
actually
overthrow
the
government
is
not
a
necessary
element
of
"hostile intent". On the other hand, an intention seriously to coerce
the
state
is
a
sufficient
condition.
What
is
left
open
by
these
conclusions, however, is the question whether an intention to coerce
182
At 78.
183
At 83.
184
At 82.
185
WS AD 90. Approved in R v Christian 1924 AD 101 at 133.
186
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
187
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
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
so-called
in the case of S v Mayekiso and
The accused was charged with
"organs
of
people's
treason for having established
power"
as
a
type
of
alternative
government. They inter alia formed "people's courts" with their own
disciplinary structures, which also executed sentences against those
convicted. They also launched a number of boycott actions. According to
the charge sheet, by doing this the accused attempted "to coerce the
state". 192
The charge sheet, however, did not allege that the accused intended or
actually used "violence towards the state". An application was brought
for the discharge of the appellants, inter alia on the basis that,
because
such
an
allegation
had
not
been
made,
the
charge
did
not
disclose the crime of treason. Consequently the Court had to decide
whether
"violence
against
the
state"
was
a
necessary
element
of
treason.
In
a
carefully
conclusion
that
researched
the
use
of
judgment,
violence
Van
der
against
Walt
the
J
came
state
is
to
not
the
an
essential element of treason. None of the old writers considered by the
190
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
1988 4 SA 738 W, per Van der Walt J.
192
At 739.
Court
regarded
violence
as
a
necessary
element
of
treason. 193
Van
Leeuwen required an act "to the prejudice of the sovereign of the
country or the state"; Huber a "plan against the safety or dignity of
the sovereign power of the province"; Moorman an act "ten nadele van
den staat"; Van der Keessel a plotting against the state's "dignity,
safety, or sovereign authority", alternatively stated as an intention
"to bring about the destruction of the people or of the Emperor."
According
to
Van
der
Linden,
treason
is
committed
by
someone
who
"endangers the independence or safety of the state." A survey of these
writers led the Court to the conclusion that "anything done with the
intent to act as an enemy towards the state ... is treason." 194 Violence
against the state was consequently not considered a necessary element
of treason, and the Court held that the charge sheet was therefore not
defective. 195
The Court also identified itself with the approach of Schreiner J in
the Leibbrandt-trial. 196 where it was noted that 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
coercion
non-violent
still
action
necessary,
can
or
be
can
treasonable?
non-coercive
Is
some
acts
of
form
of
illegal
"propaganda" be treasonable? It could possibly be argued that the idea
193
The following quotations are from the Court's summary at 743ff.
194
At 746.
195
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
Approved in R v leibbrandt & others 1944 AD 253 at 282.
197
As was mentioned earlier, Bertrand Russell described
disobedience as a form of propaganda. See supra chap two I B.
198
At 750.
civil
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
necessary
that
element
the
presence
of
some
form
of
treason.
In
the
first
of
coercion
place,
the
Mayekiso Court (like Milton) only rejected the words "by force" in
Schreiner J's definition of hostile intent. The words "or to coerce"
were left untouched. Schreiner's reference to the use of propaganda
furthermore applied in the context of physical assistance to the enemy
during the Second World War, which means that propaganda was part and
parcel of a wider coercive strategy. The factual situation in Mayekiso,
moreover, was one of (indirect) coercion against the state. Lastly, as
was pointed out earlier, the charge sheet in Mayekiso did allege that
the accused had coerced the state.
In S v Zwane and others(3) 200 the accused were charged with treason on
the basis of facts similar to those in Mayekiso. The accused also set
up
alternative
governmental
structures,
such
which enforced their findings inter alia
lashes
with
a
sjambok.
People
were
as
"people's
courts",
through the imposition of
physically
prevented
from
co-
operating with the police, and the accused conducted their own anticrime campaigns.
The
approach
endangering
of
or
the
Court
coercing
the
was
to
regard
judicial
unlawful
authority
of
acts
aimed
at
the
state
as
treasonable, provided those acts were committed with the intention to
impair the majestas of the state. 201 On the facts, however, the Court
found that the state had not proved an objective on the part of the
accused to "'compel the government to obey their behests', as it was
put by Innes C J in the Erasmus case." 202
It appears from the above that an intention to use violence or force
against the state is not a necessary element of treason. In one form or
199
At 751.
200
1989 3 SA 253 (W).
201
At 260.
202
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
"existence, independence and security" of the state.
described
204
as
the
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
governmental structures with their own coercive powers.
up
alternative
205
It cannot be
done, however, by non-coercive civil disobedience that has as its aim
to persuade (as opposed to coerce) the state to bring about change.
Indeed, such civil disobedience is directed precisely at bringing about
the making of autonomous decisions by the state, not at preventing it
203
Compare J 0 van der Vyver "The concept of political sovereignty"
in Visser Essays In honour of Ellison Kahn 289.
204
See Snyman Criminal law 262. See also R v Adams & others 1959 1
SA 646 (SC) at 649.
205
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.
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
overthrow
why
the
commentators
state
by
traditionally
illegal
means
as
regarded
a
an
intention
to
sufficient
condition
of
treason, can be traced back to the assumption that any illegal attempt
to overthrow the state must inevitably involve the use of force. This
assumption, valid for many centuries, was explicitly made by Schreiner
J in the trial of Leibbrandt:
206
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.)
207
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.
208
R v Erasmus 1923 AD 73 at 88. See also R v Christian 1924 AD 101
at 134.
209
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.
210
See, in R v Leibbrandt & others 1944 AD 253 at 278, the Court's
"[p]utting [of] the same argument in another way".
There is no intermediate course between constitutional action
through the ballot box and treasonable action through the illegal
use of force. Members of an organization may not themselves
desire to use bombs or other weapons, but this will not avail
them if their purpose is to act outside the constitution to
achieve their ends. 211
This approach was possibly warranted before the development of the
technique of civil disobedience as an instrument of mass mobilization,
capable
of
challenging
the
state
in
its
entirety,
but
times
have
changed. In fact, hardly four years after the judgment in Leibbrandt.
India
became
independent
subsequent
to
a
protracted
struggle
with
England in which Gandhi’s acts of civil disobedience, which were aimed
at bringing about a "peaceable revolution", played a significant role.
Nine years later civil disobedience challenged the very foundations of
the South African state.
The
question
how
the
proposed
approach
-
according
to
which
an
intention seriously to coerce the state is regarded as a necessary and
sufficient
condition
of
a
treasonable
intention
-
should
be
administered in practice need not unduly detain us. Hostile intent
could for example be defined as an intention to endanger the existence,
independence and/or security of the state through coercion. The words
"through
coercion"
can
also
be
taken
to
be
implied
in
the
phrase
"endanger the existence". The point for present purposes is simply that
serious coercion of the state is an essential element of treason. How
serious this coercion must be, has to be determined with reference to
the criterion underlying all forms of unlawfulness - namely the legal
convictions of the community. In this regard considerations such as
freedom of expression, state security and the general criteria used to
determine the relationship between the individual and the state, should
be taken into account. In the latter regard something along the lines
of the "clear and present danger" test seems indispensable. 212
211
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 government’s authority, can scarcely be said
to Intend its 'overthrow'." He does not address the possibility of a
more ambitious campaign of civil disobedience.
212
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
is
wrong.
The
intention
to
overthrow
the
state
illegally is neither a sufficient nor a necessary element of hostile
intention.
The
intention
seriously
to
coerce
the
state
is
both
a
necessary and a sufficient element. A campaign of civil disobedience
can
consequently
serious
constitute
coercion.
treason
Non-coercive
if,
and
civil
only
if,
it
disobedience
involves
cannot
be
treasonable, even if it has revolutionary objectives, but a coercive
campaign can qualify as treason.
To put this in concrete terms: an army of Gandhis who trespass on
government
property
throughout
the
country,
demanding
a
change
of
government, cannot be convicted of treason, but members of a nationwide
non-violent movement which sets out to block the major roads in the big
cities
of
the
country
for
a
couple
of
weeks,
making
government
impossible in order to bring it to a fall, may be so convicted.
One last point must be tied up. It was stated at the outset that, where
serious coercion is involved, even if violence is absent, it makes
little sense to treat protest actions as acts of civil disobedience.
Civil
disobedience
involves
little
or
no
coercion.
Since
treason
involves serious coercion, it follows that, if a campaign of protest is
coercive enough to qualify as treasonable (as with the blocking of the
roads
example),
it
has
in
all
likelihood
ceased
to
be
civil
disobedience. In this respect civil disobedience and treason can be
regarded, for all practical purposes, as mutually exclusive concepts.
(2)
Sedition
The question will next be considered whether civil disobedience can
constitute
sedition.
Again
it
is
a
question
of
comparing
the
definitions. The definition of civil disobedience need not be repeated.
According
to
Milton:
"Sedition
consists
in
unlawfully
gathering,
together with a number of people, with the intention of impairing the
majestas of the state by defying or subverting the
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
supremacy,
"Defy"
the
was
revolt at"
or
right
defined,
217
right
to
to
enforce
command,
inter
a1ia.
or
as
obedience:
give
to
an
moral
ultimate
"reject,
or
legal
decision." 216
renounce,
disdain,
. 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
Milton South African criminal law and procedure vol 2 46.
214
Snyman Criminal law 263.
215
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
S v Twala & others 1979 3 SA 864 (T) at 870.
217
Ibid.
218
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
unlawful purpose to constitute the crime of sedition.
for
an
221
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,
is
carried
through
to
its
logical
conclusion, it would follow that there is no principled reason why a
civil
disobedience
constitute sedition.
campaign
-
whether
coercive
or
not
-
cannot
226
Before a conviction for sedition can follow, it must be established
that the necessary intention be present. That is, there must be an
intention not merely to break the law, but also to defy the authority
219
Snyman SALJ 1980 14 at 22.
220
1987 4 SA 369 (W). See also S v Zwane & others (3) 1989 3 SA 253
(W) at 261.
221
At 374.
222
1915 TPD 142.
223
At 147.
224
1988 4 SA 738 (W).
225
At 751. See also S v Mayekiso & others, unreported case no
115/89 W 24 April 1989, at 56 of the reasons for judgment.
226
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.
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
gathering."
in
itself
not
be
sufficient
to
constitute
a
seditious
228
It seems then that this matter must also be looked at from the angle of
the interests protected: the question is what sort of action can pose a
sufficiently serious threat to the authority of the state, as defined
earlier,
to
constitute
sedition.
It
appears
incontestable
that
the
"moral and legal supremacy" of the state can be challenged through a
campaign of civil disobedience. If the common law writers did not make
provision for this form of challenge in their definitions of sedition,
as Snyman maintained, 229 it is probably because this form of protest was
largely unknown to them. And, indeed, it seems that Snyman also does
not take the possibility of a full-scale campaign of civil disobedience
into account. In a more refined version of the stark choice posed by
Schreiner in Leibbrandt between constitutional and violent protest, 230
Snyman said that "[i]f there is no actual violence, there must at least
be threats of violence. A crowd gathering unlawfully but dispersing
peacefully at the request of the police can hardly be said to commit
sedition." 231
Granted, but what, one may
ask, about the case where crowds across the
country do not "disperse peacefully" at the request of the police but
also do not engage in violent resistance? That is, what if the crowd's
actions are part of a sustained campaign of civil disobedience? It is
submitted that there is in principle no reason why their conduct cannot
be seditious.
The above should not be taken to mean that all those who engage in
unlawful gatherings aimed against the authority of the state commit
sedition.
A
few
observations
should
requirement of unlawfulness.
227
1989 3 SA 253 (W).
228
At 261.
229
Snyman SALJ 1980 14 at 22.
230
See supra chap four I D (1).
231
Snyman SALJ 1980 14 at 21.
be
made
in
respect
of
the
It is not sufficient that the dissident gathering should knowingly be
in breach of a legal provision. For example, a heated political meeting
does not become seditious if the fire-regulations pertaining to the
number
of
people
allowed
into
the
hall
are
knowingly
violated.
Unlawfulness of the primary offence must be the vehicle through which
the authority of the state is being defied.
Also, not all acts of unlawful defiance of the authority of the state
would qualify as
seditious. If a number of neighbours, in order to
protest municipal restrictions on the
use of water in their gardens,
agree that they will a11 turn on their sprayers at a pre-arranged time
when it is forbidden, their conduct can hardly be said to constitute
sedition. Arguably, the decision of a group of people to engage in what
was called legality-based civil disobedience, that is where a claim of
right is being made, would also not qualify as sedition. In order to
comply
with
the
requirement
of
unlawfulness
for
the
purposes
of
sedition, the action must in a serious way challenge the authority of
the
state.
In
making
the
decision
whether
the
challenge
to
the
authority of the state is serious enough to warrant a conviction of
sedition, a court will have to take into account the same matters
referred to under the heading of treason - such as freedom of speech,
the danger posed by such action, and so on. 232
(3)
Terrorism
The crime of terrorism as it stands today is codified in section 54(1)
of the Internal Security Act 74 of 1982. 233 Since violence in one form
or another is an element of terrorism," 234 it 1s clear that acts of
civil
disobedience
(which
are
per
definition
non-violent)
cannot
232
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.
233
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
25.
See Ackermann Die reg insake openbare orde en staatsveiligheid
constitute terrorism.
(4)
Subversion
The crime of subversion was created by section 54(2) of the Internal
Security Act 74 of 1982, which lists a variety of ways in which this
crime can be committed. 235 Some of these possibilities involve the use
of violence, but violence is not a necessary element of the offence. 236
Since
it
would
be
virtually
impossible
to
summarise
the
relevant
provisions, they have to be outlined in some detail.
Section 54(2) provides that any person who, with the intent described
in section 54(1), namely to
(a)
overthrow or endanger the state authority in
the Republic;
(b)
achieve, bring about or promote any constitutional,
political, industrial, social or economic aim or change in
the Republic;
(c)
induce the Government of the Republic to do or to abstain
from doing any act or to adopt or to abandon a particular
standpoint; or
(d)
... demoralize the general public, a particular population
group or the inhabitants of a particular area in the
Republic, or to induce the said public or such population
group or inhabitants to do or to abstain from doing any
act,
[does any of the following:]
(a)
causes or promotes general dislocation or disorder at any
place in the Republic, or attempts to do so;
(b)
cripples, prejudices or interrupts at any place in the
Republic any industry or undertaking, or industries or
undertakings generally, or the production, supply or
distribution of commodities or foodstuffs, or attempts to
do so;
(c)
interrupts,
impedes
or
endangers
at
any
place
in
the
235
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).
236
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.
Republic
the
manufacture,
storage,
generation,
distribution, rendering or supply of fuel, petroleum
products, energy, light, power or water or of sanitary,
medical,
health,
educational,
police,
fire-fighting,
ambulance, postal or telecommunication services or radio or
television transmitting, broadcasting or receiving services
or any other public service, or attempts to do so;
(d)
endangers,
damages,
destroys,
renders
useless
or
unserviceable or puts out of action at any place in the
Republic any installation for the rendering or supply of
any service referred to in paragraph (c), any prohibited
place or any public building, or attempts to do so;
(e)
prevents or hampers, or deters any person from assisting
in, the maintenance of law and order at any place in the
Republic, or attempts to do so;
(f)
impedes or endangers at any place in the Republic the free
movement of any traffic on land, at sea or in the air, or
attempts to do so;
(g)
causes, encourages or foments feelings of hostility between
different population groups or parts of population groups
in the Republic, or attempts to do so
[or in a variety of ways commits acts related to the above]
shall
(i)
It
should
be guilty of
conviction –
the
offence
of
subversion
and
liable
on
to imprisonment for a period not exceeding twenty years.
be
clear
that
these
provisions
can
in
many
cases
be
transgressed by means of both coercive and non-coercive acts of civil
disobedience.
Most
successful
campaigns
of
civil
disobedience
would
cause or promote "general dislocation or disorder ... in the Republic"
in contravention of subsection (a), if coupled with the intent to bring
about one of the wide range of consequences listed in the Act. 237 The
blocking of highways is explicitly covered by subsection (f). The wide
reach of the "common purpose" doctrine in this regard should also be
noted. 238 Another obvious provision under which charges based on acts of
civil disobedience can be brought, is subsection 2(e). Consequently, it
can be said that nothing in principle seems
to preclude a charge of
subversion from being based on acts of civil disobedience, as long as
the required intent is present. 239
237
See Minister of Law and Order v Pavlicevic 1989 3 SA 679 (A) at
690.
238
See S v Safatsa & others 1988 1 SA 868 (A) at 894.
239
See Ackermann Die reg insake openbare orde en staatsveiligheid
Lastly, it is important to note that according to section 69(5) of the
same Act, in prosecutions in terms of section 54(1) and 54(2), if it is
proved that "the accused has committed any act alleged in the charge,
and
if
such
act
resulted
or
was
likely
to
have
resulted"
in
the
achievement of any of the objects set out in respect of these crimes,
it is rebuttably presumed that the necessary intention was present.
(5)
Sabotage
Section 54(3) of the Internal Security Act 74 of 1982 defines the
present
meaning
of
the
crime
sabotage. 240
of
incredibly wide range of behaviour.
241
The
crime
covers
an
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
of
conviction,
the
public
offenders
are
in
any
liable
place
in
to
maximum
a
the
Republic." 243
of
twenty
Upon
years'
imprisonment.
The extraordinary wide reach of these provisions is evident from the
fact that, on a literal interpretation of section 54(3), even the 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
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.
240
Previously, sabotage was circumscribed differently, in s 21 of
the General Law Amendment Act 76 of 1962.
241
See Ackermann Die reg insake openbare orde en staatsvei1igheid
33ff and Mathews Freedom, state security and the rule of law 4lff.
242
Dolus directus is required. S v Nel 1989 4 SA 845 (A).
243
Section 54(3)(a).
244
See Ackermann Die reg Insake openbare orde en staatsvei1igheid
245
S v Radebe 1988 1 SA 772 (A).
34.
does defeat and obstruct, the due administration of justice. 246
It was mentioned in the historical survey of civil disobedience in
South Africa that one of the expressed aims of some of the organisers
of the Defiance Campaign and the Positive Action Campaign was to flood
the prisons. This would in turn cause the breakdown of the whole system
of the administration of criminal justice. It is conceivable that such
action can constitute the crime of defeating or obstructing the course
of justice, or at least an attempt to do so.
II.
EXECUTIVE POWERS AND CIVIL DISOBEDIENCE
The above survey focused on provisions of the criminal law which, to a
greater
or
a
lesser
extent,
have
a
bearing
on
civil
disobedience,
insofar as acts of civil disobedience may come within the confines of
specific
statutory
or
common
law
provisions.
At
least
in
a
formal
sense, the rule of law prevails in respect of the above provisions, in
that an attempt (with varying degrees of success) was made to establish
publicly the basis on which the wrath of the
on those who resist it, and the
state would be unleashed
implementation of these measures is
mostly left to the courts. The picture would, however, be incomplete if
reference
is
not
also
made,
however
brief,
to
the
ability
-
and
tendency - of the executive to use powers, the exercise of which to a
greater
or
lesser
extent
lies
in
its
own
discretion,
to
curtail
activities which it disapproves of, including the promotion or practice
of civil disobedience.
These executive powers include the pervasive security
powers of the
South African government, as well as the censorship system.
A.
EXECUTIVE POWERS RELATING TO STATE SECURITY
The security powers of the 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
246
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).
247
The general Issue of state security is discussed at some length
infra chap six III B (5).
be
imposed
on
individuals,
official declaration of an
(d)
organizations
and
events,
without
the
emergency or unrest situation.
Detention
Two forms of detention without trial has traditionally been authorised
in
terms
of
South
Africa’s
non-emergency
security
legislation:
"preventative detention", which is "designed to remove certain actors
from the
stage of public life
because they are deemed to
be a threat
to its orderly conduct" and "pre-trial detention", which is designed to
facilitate the conduct of a trial. 248 A government that has assumed
these powers and which is intent upon eradicating acts or campaigns of
civil disobedience, can be expected to take recourse especially to
preventative detention. 249
Preventative detention, as provided for in the Internal Security Act 74
of 1982, has in turn manifested itself in three different ways. In the
first place, until July 1991, indefinite preventative detention could
be imposed by the Minister of Law and Order." 250 Secondly, detention for
a period of up to 180 days could be authorised by a commissioned police
officer of or above the rank of lieutenant-colonel. 251 This provision
has now also been repealed. 252 Lastly, according to a provision which is
still in force, an officer of or above the rank of warrant officer may,
under warrant from a magistrate, order detention of up to fourteen
days. 253
(b)
"Banning"
The executive has the power to "ban" organizations, individuals and
meetings.
248
This
means
that
the
activities
of
organizations
or
See Mathews Freedom, state security and the rule of law 62.
249
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.
250
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
Section 50A. For a discussion, see Id 77ff.
252
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
freedom
of
individuals
in
respect
of
membership
of
organizations, presence at certain places, attendance of gatherings,
etc. 256
(iii) "Banning" of meetings
The executive also has the power, when it deems it necessary in the
interests
of
manifestation
state
of
security,
civil
to
disobedience
prohibit
would
nevertheless proceed with such meetings.
254
certain
occur
if
gatherings.
the
A
organisers
257
See ss 4(1) and 13.
255
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.
256
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
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
57
of
the
convening,
advertising,
prohibited
in
terms
of
last-mentioned
attending,
the
Act
etc
by
a
Act
prohibits
gathering
either
the
anyone
which
has
magistrate
from
been
of
the
particular district, or the Minister of Law and Order, or which is not
held in accordance with the conditions laid down for such gatherings by
the magistrate or the Minister.
(2)
Emergency powers
The most important emergency powers of the state are contained in the
Public Safety Act 3 of 1953. 261 These powers can be divided into two
categories: The State President has the power to declare "macro" or
more extensive emergencies (a "state of emergency" is declared in a
certain area), and the Minister of Law and Order has the power to
declare
"micro"
or
less
extensive
emergencies
(a
certain
area
is
declared an "unrest area").
(e)
"Macro emergencies"
The Public Safety Act 3 of 1953 empowers the State President to declare
a twelve month state of emergency if he is of the opinion that "the
safety of the public, or the maintenance of public order" is seriously
threatened, and that the ordinary law of the land is inadequate to deal
Campaign of 1952, when a number of leaders defied orders to resign
from the organizations responsible for the Campaign and not to
participate in public gatherings, supra chap three III A (3)(1). See,
in general, on state control over public meetings, Pretorius Die
begrip openbare belang en burgervryheidsbeperking 227ff.
258
See supra chap four II A (D(b)(iii).
259
Section 2.
260
Sections 46-53.
261
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 1980’s, it
was
also
an
statement",
266
offence
defined,
to
make,
inter
possess
alia.
as
or
disseminate
"a
statement
"a
which
subversive
contains
anything which is calculated to have the effect or is likely to have
the effect ... of inciting the public or any person or category of
persons to ... take part in any acts of civil disobedience." 267 These
powers
have
disobedience.
(f)
A
indeed
been
used
to
curb
the
practice
of
civil
268
"Micro emergencies"
1986
262
amendment
to
the
Public
Safety
Act
introduced
a
mechanism
Section 2.
263
For a discussion, see Mathews Law, order and liberty In South
Africa 224.
264
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.
265
For a general discussion of the effect of these regulations, see
Burns Woord en Daad 1988 7.
266
See eg s 10 of Proc 109, Regulation Gazette 3964, Government
Gazette 10280, 12 June 1986.
267
268
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 country’s elaborate and controversial censorship
system. 271
The statutory foundation of the censorship system is the Publications
Act 42 of 1974. This Act provides for an administrative structure with,
as its highest "appellate" authority, the Publications Appeal Board
(the "PAB"), 272 which has the power to declare certain publications
"undesirable". 273 It constitutes an offence to produce 274 or distribute 275
an
undesirable
prohibited.
publication.
In
some
cases
possession
may
also
be
276
In terms of section 47(2)(e), a publication may be declared undesirable
if it is found to be "prejudicial to the safety of the state, the
general welfare or the peace and good order." Clearly, this provision
could have far-reaching implications for those who wish to promote a
campaign of civil disobedience through the media. The scope of those
implications depends on the exact meaning of this clause. What exactly
does the particular provision attempt to protect, and what criterion
269
Public Safety Amendment Act 67 of 1986.
270
See Mathews Freedom, state security and the rule of law 214.
271
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.
272
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.
273
The term "publication" is used here to include any object, film
or public entertainment as defined in s 47(1).
274
Section 8(1)(a).
275
Section 8(1)(b).
276
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 doctrine’s requiring a real threat
and that s[ection] 47(2)(e) goes further by employing the term
"prejudicial", which, even if read with "is" points to a
(substantial)
contribution
being
sufficient
and
that
an
"imminent" danger is not a requirement. 278
The threat posed by the publication in order to render it undesirable
consequently need not be "imminent" or "present" - it, must simply be
"real" or "clear". According to Van Rooyen, this
means that section
47(2)(e) "obviously deems more material to be undesirable than [the
clear and
This
present danger] doctrine would." 279
interpretation,
publication
fanciful,
if
correct,
would
render
it
easy
to
find
a
undesirable if there is any chance, however remote or
that
the
publication
in
question
may
lead
to
serious
disruptions of the safety of the state, the general welfare or the
peace and good order by the protesters themselves, or eventually by the
community at large. The question whether or not a danger is imminent or
present would be immaterial.
It is submitted that, purely on the level of statutory interpretation.
277
Id 105.
278
Id note 54.
279
Ibid.
Van
Rooyen’s
identification
of
the
interest
protected
by
section
47(2)(e) is too narrow, while his exposition of the criterion according
to
which possible threats to that interest are to be evaluated is too
wide.
In respect of the interest protected, the language used in section
47(2)(e) seems to leave little doubt that it is aimed not only against
the
promotion
of
violence,
but
turbulence. It was argued earlier
also
against
other
forms
of
social
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 city’s highways could be
referred to. The advocacy of such acts through publications clearly
could compromise the "peace and good order" and there appears to be no
reason why it could not come within the range of section 47(2)(e). It
is consequently submitted that the section is directed not only against
political violence, but also against certain instances of non-violent
political expression. In principle, the promotion of civil disobedience
cannot be excluded.
With regard to the criterion to be applied when determining whether a
threat
to
public
order
is
serious
enough
to
warrant
a
finding
of
281
as
undesirabi1ity, it is submitted that the words "is prejudicial"
used in section 47(2)(e) pose a clear requirement of imminence
or
presence of the danger. The language used in fact conveys this idea in
particularly
strong
terms.
What
is
required
by
the
section
is
not
merely the potentiality of prejudice (a "danger" or a "threat") but
actual prejudice. The use of the present tense form of the verb "is",
instead of the imperative "can be", indicates the requirement that the
probability of the violence should actually be present.
It consequently seems that the wording of section 47(2)(e) is more
closely comparable with the present increasing
First Amendment jurisprudence on the
emphasis in American
requirement of imminence than
with the classical clear and present danger approach. 282 Presumably the
introduction
of
a
freedom
of
speech
clause
in
the
South
African
constitution will compel the PAB to adhere to a more liberal criterion
280
See supra chap two I B.
281
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.
followed
a
course
that
is
generally
protective
of
free
283
The PAB aligned itself with the "free trade in ideas" philosophy which
underlies the protection of speech. 284 It also recognised the need to
allow "sharp political criticism" and emphasised the "safety
function of uninhibited speech.
285
purposes, however, is the fact that
Most instructively for our present
the PAB has accepted the
that "claims of national security must always be viewed
degree
valve"
approach
with a high
of scepticism", and that there "cannot be a search for total
security". 286 In respect of the approach to be followed in times when a
"revolutionary climate" is said to exist, the PAB did not regard the
existence
of
a
state
of
emergency
as
conclusive
proof
that
the
interests protected by section 47(2)(e) are more vulnerable than at
other times. 287
The
PAB’s
approach
regarding
publications
283
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
See SASPU National 105/83.
285
See Grassroots 200/83 Annexure.
286
SASPU National 221/84.
287
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
undesirable."
In
Benoni
or
a
strike
-
even
an
unlawful
strike
-
is
not
289
Student
Movement, 290
the
PAB
declared
a
publication
undesirable, stating that the
main problem [of the publication] centres around the fact that the
majority of the articles have civil disobedience as their basis. In
some cases this kind of action is directly promoted by the use of
references to the deprivation and frustration of the blacks in the
areas of education, health, labour, housing and welfare.
The PAB’s view that the publication was undesirable was based on its
finding that "[t]he present publication is opposed to the whole system.
The
publication
is
also
interlarded
with
typical
socialistic
terminology. In this manner extra-constitutional methods of change are
subtlety (sic) and even directly propagated."
The above decision provides a good example of the need for the PAB to
give
recognition
decision
is
any
to
the
requirement
indication
given
of
of
imminence.
facts
that
Nowhere
go
to
in
show
the
that
disorders might ensue on a scale large enough to warrant the banning of
speech in consequence of civil disobedience incited by the particular
publication.
In view of the above, it is submitted that publications promoting civil
disobedience can in principle be brought within the ambit of section
47(2)(e), but then only when the danger of grave social upheaval is
imminent.
C.
EXECUTIVE LENIENCY FOR POLITICAL OFFENDERS
There are a number of ways open to the executive, should it want to
show
leniency
to
political
offenders.
The
state
may,
for
288
Grassroots 54/85. See also Izwe lase Township 144/82,
289
See Grassroots 200/83 and Heartland 43/82 Annexure.
290
159/81.
example,
refuse to prosecute, withdraw charges, stop a prosecution, 291 reduce a
term of imprisonment, 292 or grant a pardon. 293
In order to facilitate the present process of negotiations between the
government and previously outlawed organizations, the Indemnity Act 35
of 1990 was passed, increasing the government’s options in this regard.
According to the preamble to this Act, "for the sake of reconciliation
and for the finding of peaceful solutions," provision was made for the
granting of temporary immunity as well as permanent indemnity by the
executive to those against whom criminal charges could be instigated or
were pending.
In terms of the Indemnity Act the State President may, "if he is of the
opinion
that
it
is
necessary
constitutional solutions
for
in South
the
promotion
of
peaceful
Africa," grant either conditional
or unconditional immunity from prosecution to any person or category of
persons 294
for
a
stipulated
period. 295
Similarly,
indemnity
from
prosecution - either conditional or unconditional - may be granted to
any person or category of persons. 296
In the course of discussions between the government and the ANC, the
so-called
"Groote
Schuur
Minute"
and
"Pretoria
Minute"
were
agreed
upon. Following these discussions the government issued some guidelines
regarding its approach to political offences. 297 In this latter document
it was stated that "[i]n the interests of the process of reconciliation
the government considers it appropriate that all persons, irrespective
of their affiliations, who have committed political offences in the
South African situation, should be considered for the grant of pardon
or indemnity. 298
291
In terms of s 6(2)(d) of the Criminal Procedure Act 51 of 1977.
292
In terms of ss 61-72 of the Prisons Act 8 of 1959.
293
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
Section 1(1).
295
Section 1(2).
296
Section 2.
297
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
objective being pursued, eg the
offence
and
the
political
directness or proximity of the
relationship, or the proportionality between the offence and
the objective pursued.
(vii) The question whether the act was committed in the execution
of
an
order
or
with
the
institution or body concerned.
Unconditional
indemnity
was
granted
approval
of
the
organization,
299
to
persons
who
had
left
Africa without being in possession of valid travel documents
South
300
and
persons who left South Africa at a place other than an officially
recognized port. 301
Provision was also made for the establishment of indemnity committees,
299
Paragraph 3.2.
300
Paragraph 6.1(a).
301
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
ammunition and explosives
308
murder; 307
and trespassing.
possession
of
firearms,
309
A number of observations are called for in respect of the above. It
should be clear that the definition and justification of political
crimes are to a large extent conflated. The fact that someone’s actions
are regarded as a "political offence" is seen as a strong indication
that she should be treated with leniency. The guidelines also disclose
a strong tendency to show
more tolerance for those who
were members
of established organizations and who acted within the scope of the
discipline
of
that
organization,
when
they
committed
the
acts
in
question.
The fact that the gravity of the offence is considered relevant seems
to indicate that the level of coercion will be important, while
the
reference to the "directness" of the relationship between the offence
and
the objective
pursued suggests that indirect acts of resistance
will be more difficult to justify than direct resistance.
302
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
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
Annexure paras (1),(ii).
305
Id para (iii).
306
Id para (v).
307
Id para (vi).
308
Id paras (vii)-(ix).
309
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
transgressing its provisions.
to
undermine
respect
for
law
by
310
This raises several questions: In the first place, should someone who
has committed a crime - any crime - be allowed to practise law? In the
second place, what is the position when the offence committed by a
lawyer happens to be a political crime, and, in the third place, what
if the act complained of was one of civil disobedience? Is there not a
fundamental
contradiction
between
open
and
deliberately
-
illegal
resistance and legal practice?
These questions are complicated by the fact that lawyers
are regarded
as having a special obligation, not only to the law of the land, but
also to advance the cause of justice, 311 and - to paraphrase André Brink
- law and justice are often distant cousins. Civil disobedience is in
most cases motivated by the conviction that a conflict between law and
justice exists in circumstances where only one of these values could
prevail. Since lawyers have a special commitment to both values, civil
disobedience by a lawyer presents a particularly difficult problem. A
310
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.
311
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.
legal system’s most considered attitude towards civil disobedience will
to a large extent be reflected in its approach to such activities by
members of the legal profession.
In South Africa, the right to practise law is regulated by statute. An
applicant who wishes to be admitted to practice, either as an advocate
or as an attorney, is required to satisfy the court, inter alia, that
he or she is "a fit and proper person to be so admitted." 312 Following
admission, a court can suspend an advocate or attorney from practice,
or order the removal of a person’s name from the roll of practitioners,
if
the court is satisfied that the person concerned is no longer a
"fit and proper person to continue ... practice." 313
A substantial body of case law
has developed in connection with the
interpretation of the phrase "fit and proper person", as used in this
context. Except in one important respect, which will be pointed out
later, the phrase carries the same meaning where (i) admission to and
(ii) suspension from practice, and (iii) removal from the roll are
concerned.
There
is
also
no
substantial
distinction
between
the
interpretation of these words as far as attorneys and advocates are
concerned.
In
essence
the
court
is
called
upon
to
evaluate
the
integrity of the prospective or practising lawyer. In general, it can
be said that a person will only be denied the right to practise if the
Court finds that she is of a dishonest, dishonourable or disgraceful
character. 314
A.
THE GENERAL IMPLICATIONS FOR LEGAL PRACTICE OF EARLIER CONVICTIONS
One important fact that must be taken into account to evaluate the
suitability of a person’s character for legal practice, is his previous
312
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.
313
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
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
person
been
whether,
should
done.
given
319
the
The
fact
be
punished
only
of
matter
his
again
for
previous
the
that,
Court
after
all,
to
decide
conviction,
the
has
is
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
315
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).
316
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.
317
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.
318
See Incorporated Law Society. Natal v Hassim (also known as
Essack) 1978 2 SA 285 (N) at 291.
319
Ex parte Krause 1905 TS 221 at 223.
practise law. 320
What
needs
honour"
321
to
be
assessed,
is
the
extent
to
which
the
"personal
of the particular person has been affected by his criminal
conduct, the conviction and the sentence imposed. The Court must take
into
account
public opinion
the
322
probable
effect
which
these
factors
will
have
on
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
320
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
See Ex parte Krause 1905 TS 221 at 223.
See Society of Advocates of
Fischer 1966 1 SA 133 (T) at 136.
SA
(Witwatersrand
Division)
v
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.
324
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.
the law but must apply their discretion based on practical wisdom.
In the first place, it must be determined exactly how serious the
particular
was. 325
crime
Insignificant
offences,
such
as
traffic
violations, are ignored. One indication of the degree of seriousness
with
which
imposed.
A
indication
the
trial
sentence
that
a
court
of
regarded
imprisonment
particular
the
is
person
offence,
often
(at
is
regarded
least
for
the
as
the
sentence
a
strong
time
of
imprisonment) should formally be excluded from practice. The idea of a
lawyer practising from a prison cell does indeed seem intolerable, and
a suspension, at least, would in many cases be appropriate. The use of
violence increases the seriousness of the crime. Nevertheless, as will
be
illustrated, the
fact that the offence committed was a serious one
and that imprisonment was imposed, does not in itself necessarily imply
that the most stringent approach will be followed.
Another
factor
which
courts
take
into
account
is
the
motive
that
inspired the crime. Was the offence motivated by self-interest (as is
typically the case with the embezzlement of trust monies) or
was it
committed with an altruistic or idealistic objective in mind?
326
The
latter motivation is considered more honourable. In this regard it is
important to establish whether an element of dishonesty attended the
crime. 327 Since the relationship between a legal practitioner and the
public, his colleagues and the court is based on trust, and since
dishonesty destroys trust, crimes involving an element of dishonesty
are viewed in a serious light. The particular person’s untruthfulness
during his trial would likewise be to his detriment, although it is not
necessarily fatal. 328
325
See Society of Advocates of Natal & another v Knox & others 1954
2 SA 246 (N).
326
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.
327
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).
328
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
A further important consideration is the question whether or not the
offence was committed by the legal practitioner in his professional
capacity.
If
circumstance.
the
329
particular
not,
this
is
often
regarded
as
a
mitigating
Nevertheless, crimes which are not directly related to
person’s
legal
practice
can,
in
appropriate
circumstances, be regarded as sufficiently corruptive to render the
perpetrator unfit for legal practice. 330
In this context, the one important respect in which admission to legal
practice differs from suspension or exclusion from legal practice, is
that
crimes
committed
before
the
offender
commenced
practice,
are
generally viewed in a much kinder light, especially if there is some
indication of reform.
Often such actions are viewed as consequences of the indiscretions of
youth. 331
Courts will also consider the chances of a recurrence in future of the
criminal conduct. 332 Many factors can affect prognoses in this regard.
Where it is found that the offence was committed in circumstances of
extraordinary personal pressure, the chances of a recurrence might be
viewed as remote. 333 Similarly, repentance is sometimes viewed as a
positive indication of reform. 334
B.
CONVICTIONS FOR POLITICAL OFFENCES
said he found the temptation to break his banning order "truly quite
frankly ... too much to resist".
329
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
See eg Incorporated Law Society (OFS) v Van Deventer 1933 OPO 124.
See Matthews v Cape
Hoseneke 1979 4 SA 884 (T).
Law
Society
1956
1
SA
807
332
Law Society. Cape v Koch 1985 4 SA 379 (C) at 389.
333
Natal law Society v N 1985 4 SA 115 (N).
334
(C)
and
Ex
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
n
of their countries were incarcerated for
political offences. To exclude such people from legal practice would be
to deny
the legal profession
the
services of some of society's
most
conscientious members. Politics is inherently fickle. Law and the legal
profession must be protected against becoming a mere instrument in the
hands of those who at any particular moment in time control the levers
of power. On the other hand, not all types of criminality by legal
practitioners can be condoned simply because it was committed in the
name of politics. How do the courts deal with this issue in practice?
Here, as earlier in the study, it is useful to distinguish between the
era of white against white conflict, and the era of black against white
conflict.
(g)
The era of white against white conflict
A number of cases stemming from the Second Anglo-Boer War dealt with
(prospective) legal practitioners who committed crimes while inspired
by their convictions during the War. In two separate cases heard during
the War, applications were brought to strike from the roll the names of
two
attorneys who had been convicted of treason and sentenced to
imprisonment. 337
Both
were
merely
suspended
from
practice
for
an
unspecified period. Judged by the way in which the orders were phrased,
335
See law Society. Cape v Koch 1985 4 SA 379 (C) at 387.
336
See Mihálik SALJ 1990 304. He discussed the meaning of the term
"political offence" at 306. For a thorough discussion of the origins
and meaning of the term "political trial", see Wanke Political justice
3ff.
337
Incorporated Law Society v Vermooten (1900) 17 SC 312 and The
Incorporated Law Society v Badenhorst (1902) 19 SC 73.
it seems that the Court was of the opinion that this period should not
necessarily
be
very
long.
A
similar
results, directly after the War.
case
was
heard,
with
similar
338
The locus classicus in this regard is Ex parte Krause, 339 decided in
1905. In this case the petitioner was taken prisoner while fighting on
the Boer side in the Anglo-Boer War. While on parole, he practised as a
barrister in England. Apparently while the War was still in progress, 340
he sent a letter to someone in South Africa, instructing that person to
bring about the killing of a certain member of the staff of the British
General Officer Commanding, since that person was regarded as a serious
threat to the Boer cause. The petitioner was convicted in England of
attempt to solicit someone to commit the crime of murder. Although this
is not evident from the judgment, according to a newspaper report he
was sentenced to two years' imprisonment. 341 Upon his return to South
Africa, he applied for admission as an advocate
On
granting
the
application,
Innes
C
J
in the Transvaal.
stated
that
the
important
question to be considered was whether the conviction reflected upon the
character of the applicant in such a way that he was not worthy to be
admitted to the ranks of "an honourable profession". 342 Although the
crime was a serious one, the Court held that the motive behind the
letter was "political, and not personal". 343 He honestly
he was furthering "the cause of his own country".
into
account
the
fact
that
war
"blunts
the
344
believed that
The Court also took
moral
sense", 345
and
expressed the hope that its approach would help in "eradicating from
memory many things which have been done in the past and which should
338
Incorporated Law Society v Scholtz (1902) 19 SC 439. See also
Petition De Klerck (1903) 20 SC 161.
339
1905 TS 221. Approved, inter alia. in Natal law Society v N 1985
4 SA 115 (N).
340
See 224.
341
Supreme Court" The Star 10 May 1905. See also the headnote of
the case, and Roberts SALJ 1959 364 at 368.
342
Ex parte Krause 1905 TS 221 at 223.
343
At 227.
344
At 231. (Solomon J, concurring.)
345
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
90 Days Detention Act. The record does not indicate whether the
property of the post office was in any way physically damaged. The
Court
remarked
that
the
applicant’s
conduct
"obviously
calculated to incite others so also to protest."
351
was
an
act
Although, according
to the Court, it was the duty of all legal practitioners, and also of
aspirant practitioners, "not to incite persons to commit breaches of
the
law," 352
the
application
was
granted.
The
applicant’s
previous
offences did not indicate that he was guilty of dishonest, disgraceful
346
At 228.
347
Incorporated Law Society v Roos & others 1915 OPD 112. See also
Incorporated Law Society v Van der Merwe 1915 OPD 131.
348
Incorporated Law Society v De Villiers 1915 OPD 98.
349
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
1970 4 SA 476 (T).
351
At 477.
352
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 lawyer’s
involvement in the use of violence to overthrow the government, as a
good reason for striking the name of such a person from the roll,
especially if innocent people were injured.
The first case which hints in this direction does not provide a clear
precedent. In Hassim (also known as Essack) v Incorporated Law Society,
Natal," 354 a practising attorney was struck off the roll after being
convicted of contraventions of the Terrorism Act 83 of 1967, in that he
was a party to a conspiracy aimed at recruiting persons in the Republic
to
undergo
political
and
military
training
with
the
intent
of
overthrowing the government by force of arms.
The Court declined to consider the earlier high treason cases where a
generally lenient approach was followed, claiming that "[n]o useful
purpose will be served in discussing these cases as I think that each
353
1979 4 SA 884 (T).
354
1979 3 SA 298 (A).
case
must
be
dealt
with
on
its
merits." 355
own
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
imprisonment.
of
The
high
basis
treason
of
and
the
sentenced
conviction
was
to
twenty
his
close
years’
personal
involvement in a series of explosions over a period of nine months, in
which nine civilians were injured (some seriously) and
nearly half a
million rands of damages were caused. The Court found that even if the
offence was politically inspired, the inherent character of the offence
still had to be considered. In view of the seriousness of the offence,
which involved violence targeted at civilians, and the fact that the
respondent had not renounced his actions, his name was struck off the
roll.
(2)
Civil disobedience
Civil disobedience is per definition non-violent, which means that the
last
consideration
resistance.
If
it
should
is
not
correct
apply
that
to
courts
such
acts
recently
of
political
started
to
view
politically inspired crimes committed by lawyers in a more serious
light, and that this tendency is the result of the increased use of
force against civilians, this should then not affect the way in which
civil
disobedience
is
treated.
The
element
of
openness
of
civil
disobedience, however, is often seen as an aggravating circumstance in
this context - the idea being that lawyers make a mockery of their
profession if they deliberately and openly break the law. Lawyers, in
the
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
At 307.
356
1986 3 SA 849 (N).
357
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
social
and
political changes in the country by means of disobeying a number of
laws. The accused was sentenced to nine months’ imprisonment, which was
conditionally suspended.
In dismissing the application, Ramsbottom J stressed that the question
was not whether the respondent should be punished for his actions that had already been done. He then proceeded:
The sole question that the Court has to decide is whether the
facts which have been put before us and on which the respondent
was convicted show him to be of such character that he is not
worthy to remain in the ranks of an honourable profession. To
that question there can, in my opinion, be only one answer.
Nothing has been put before us which suggests in the
slightest
degree that the respondent has been guilty of conduct of a
dishonest, disgraceful, or dishonourable kind; nothing that he
has done reflects upon his character or shows him to be unworthy
to remain in the ranks of an honourable profession. In advocating
the plan of action, the respondent was obviously motivated by a
desire to serve his fellow non-Europeans. The intention was to
bring about the repeal of certain laws which the respondent
regarded as unjust. The method of producing that result which the
respondent advocated is an unlawful one, and by advocating that
method the respondent contravened the statute; for that offence
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
attorney’s profession. Matthews’ application to be admitted was opposed
by the Law Society on the basis of his previous conviction.
The Cape Court, per De Villiers J P, held that the performance of acts
of civil disobedience - and especially if accompanied by incitement of
others to engage in similar acts - were incompatible with a practising
attorney’s duty as an officer of the court; that is, the duty not to
break the laws of the country and not to incite others to do so.
Opposition to laws which he regarded as unjust could manifest itself
only in the form of criticism of such laws or attempts to secure their
repeal by legal means. The Court stated that the approach followed by
the
Mandela
court
was
too
narrow.
considered the question whether
In
that
case
the
Court
only
the respondent’s personal honour had
been affected. The-obligation which an attorney has to the court was
not considered at all. Consequently, the approach of the
Mandela court
was rejected.
Nevertheless,
because
the
crimes
of
which
Matthews
was
convicted
occurred a considerable period before he applied for admission as an
attorney, the Court held that it could not be said that he was an
officer of the court at the time when he was convicted and hence that
he had violated his duties to the court. The application was granted on
these grounds.
The Mandela case and the comments in the Matthews case regarding the
360
At 108.
361
1956 1 SA 807 (c).
362
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
demands
of)
justice,
and
followed
a
natural
law
approach,
the
Matthews court emphasized the duty of the lawyer to uphold the positive
law.
Even
if
it
could
be
said
that
the
Mandela
case
focused
on
the
individual concerned and the Matthews case more on the interests of
society (as perceived by the Court), the issues raised by the Mandela
court were more universal, while the bottom-line concerns in Matthews
were more local or parochial. Whereas the respondent in Mandela was
evaluated morally as a human being and with a view to the honesty,
grace and honour of his character, the applicant in Matthews was judged
primarily on the grounds of the political message which his admission
to
the
legal
profession
would
at
the
time
convey
to
society.
The
insistence of De Villiers J P in Matthews that officers of the court
have an absolute duty not to
engage in acts of civil disobedience, was
almost explicitly motivated by his fear that such actions would incite
others (read: "black
people"), described in the application of the Law
Society as "generally uneducated and unenlightened". 363In the course of
his
judgment,
President.
364
this
sentiment
was
repeated
twice
by
the
Judge
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
At 810.
364
At 813.
365
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
conduct on public opinion. In
P
distinguished
consideration from the Mandela case, inasmuch as the
the
case
under
Mandela court
"was apparently of the view that the respondent had been punished for
his unlawful activity, which had ceased and was not likely to recur (a
wrong view, as it turned out)." 367
The Court proceeded: "But I would also say, with respect, that the
[Mandela] court appears to have overlooked the fact that it is the duty
of an attorney to further the administration of justice in accordance
with the laws of the country and not to frustrate it." 368 The Court
stated that bail applications would in future be seriously jeopardized
unless it acted against Fischer. 369
On
a
personal
presiding
judge
level,
in
the
more
Fischer’s
cautionary
case
is
approach
perhaps
not
taken
by
difficult
the
to
understand. He was, after all, also the judge who presided in the
Rivonia trial, where it became apparent that the respondent in the
Mandela case did not cease his unlawful activity. Hence the remark: "a
366
1966 1 SA 133 (T).
367
At 137.
368
Ibid.
369
At 136. The observation of Mihálik SALJ 1990 304 at 315 that
this finding is "based on the false premiss that the majority or
perhaps all of the applicants for bail wish to become fugitives from
justice" seems questionable. Why, after a11, do courts require bail 1n
certain cases if no danger exists that the accused might not appear to
stand trial?
wrong view as it turned out."
Nevertheless, although the judge in Fischer said that the Mandela and
the
Fischer
cases
were
distinguishable,
he
did
not
identify
the
essential difference, which makes his reference to the Mandela case
unwarranted. In Mandela an act of civil disobedience was at stake,
which implied that the respondent openly defied certain laws. He did
not attempt to evade the sanction of the law of the country; he in fact
invited it. In Fischer the respondent did the exact opposite: In order
to avoid the sanction of the law he became a fugitive from justice.
Fischer, as Du Plessis indicated, specifically tried to evade "die weg
van die reg". 370Even though Mandela broke the law, he still sought "the
way of the law". Moreover, the offence in Fischer was directed
against
the administration of justice.
The remark in Fischer aside, however, it should be noted that the
Mandela case has been quoted with approval in many subsequent cases,
including judgments of the Appellate Division, even though not always
directly on the point in question. 371 It is also revealing to note that
the
name
of
subsequent
the
respondent
incarceration
in
the
following
Mandela
the
case,
Rivonia
in
trial,
removed from the roll of attorneys in the Transvaal.
spite
has
of
not
his
been
372
From a jurisprudential point of view, the reasoning underlying the
Matthews case can at best be classified as "positivism gone wrong". The
fact that the duty of an attorney was merely described as being "to
uphold
the existing laws", 373 while nothing was said concerning the
need to pursue justice, suggests a point of departure, in terms of
which everything enacted by parliament is accepted as legitimate and
binding. Many people accept this approach as valid, and the intention
370
Du Plessis Die professionele gedrag van die juris 32.
371
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.
372
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
At 813.
is not here to attack the basic premises of positivism. The problem
with the way in which it was applied in the Matthews case, however, is
that while the Court was required by a particular statute (that is, by
parliament) to make a moral assessment of the applicant, it accepted
without question that parliament’s will as expressed in other statutes
disposes of the question of what, morally, is the right thing to do.
Not even the most committed positivist needs to, or rather should,
arrive at that conclusion. In fact, the central claim of positivism is
the distinction between law and morality. 374 As was observed by Mi liner
with regard to the two cases under consideration: "[E]ven if law does
not cease to be law when it is unjust, the act of opposing it then
ceases to be ethically reprehensible. The boundless sovereignty of the
legislature obliges the judge to treat the breach of its statutes as
illegal but not to pronounce it as immoral." 375
Perhaps
the
clearest
warning
against
an
approach
such
as
the
one
endorsed by the Matthews court comes from the doyen of positivism, H L
A Hart, who warned of "the danger that the existing law may supplant
morality as a final test of conduct." 376
The third and final basis upon which the two cases may be compared is
to consider how they fit in with the general approach of the courts in
respect
of
earlier
convictions,
as
set
out
above.
A
number
of
considerations which the courts take into account were identified, and
will now be discussed.
It was stated that the seriousness of the crime of which the person
involved was convicted is considered when her suitability for legal
practice is considered. One aspect to be considered in this regard
concerns the extent of violence and destruction of property that was
involved. The fact that civil disobedience is non-coercive calls for a
lenient approach.
It was also pointed out above that our courts tend to be more strict
where an element of dishonesty attended the offence in question. It has
already been noted that the true feature that distinguishes Mandela
from Fischer is the fact that the respondent in the latter case tried
374
See infra chap five I DD.
375
Millner SALJ 1957 342 at 346.
376
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
Court
excluded
acts
of
civil
disobedience
from
the
operation of the general rule, namely that politically motivated crimes
are to be treated with special leniency. This would imply that the only
category of crimes to which the rule can apply are those where the
perpetrator attempted to escape detection. Certainly one cannot follow
this approach and at the same time claim to take "the road of the law"
seriously.
The consideration that crimes committed in a professional capacity are
treated more harshly does not provide any guidance as to the general
approach to be followed in cases of civil disobedience by practising
lawyers. It does not favour either Mandela or Matthews on the point
under discussion. (It is, however, probable that lawyers who take part
in a protest march in their robes wi11 not be looked upon kindly. The
case of Pitje, a lawyer who practised civil disobedience in court, was
discussed earlier.)
It was furthermore stated that the chances of recurrence should be
taken into account. This consideration tends to support the Matthews
approach,
because
acts
of
civil
disobedience
are
committed with a political motive, and, unless
almost
inevitably
the conditions which
gave rise to that motivation change, the convictions of the persons
concerned
would
most
likely
also
remain
the
same.
As
alluded
to
earlier, this is collaborated by the later history of the respondent in
the
Mandela
case,
culminating
in
the
Rivonia
trial
and
in
his
subsequent statements. At a certain point, if it is established clearly
that
the
person
disobedience
with
concerned
some
intends
regularity,
to
engage
this
in
acts
consideration
of
will
civil
become
paramount. In many cases it might, however, be appropriate to grant or
bring
-
an
application
for
removal
or
suspension
only
after
a
repetition of unlawful conduct. If that is not the case, however, and
it is clear that an isolated incident is at stake, it is submitted that
this
consideration
should
not
be
regarded
as
crucial.
Courts
have
simply sidestepped the question whether the particular person has shown
remorse, at least where no violence was involved. 377
It
was
pointed
instruments
of
out
that
courts
the
powers
should
that
be,
guard
and
against
should
becoming
protect
mere
their
own
relative autonomy from becoming entangled in the inconsistencies of
politics. To be sure, courts cannot always avoid being affected by the
whims of politics when, for example, in criminal trials they have to
enforce
law
reflecting
that
which
the
government
of
the
day
has
earmarked as offences. That being the case, the least they can do is to
avoid becoming civil service rubber stamps when they are required by
statute to evaluate the Integrity of a particular person. In such a
case a court should rather uphold a I long-term perspective.
The
facts
of
the
Moseneke
case,
discussed
earlier,
provide
a
good
example of this approach: The applicant was sentenced to ten years’
imprisonment for the statutory offence of being a member of a banned
organization. Three years before his conviction, and 17 years after his
release, the same conduct’s would not have been regarded as an offence
at all. In such circumstances it would be extremely short-sighted for a
court to bar such a person from legal practice. Other offences, such as
the forfeiture of bail in Fischer. are less closely linked to the
policies of a particular government, and are unlikely to be materially
affected
by
future
changes
of
the
political
dispensation.
Such
an
offence is also very closely related to the administration of justice
and the judicial process. Consequently, in those cases the same degree
of leniency might not be appropriate. 378
377
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.
378
The observation of Mihálik SALJ 1990 304 at 323 that "[m]edica1
practitioners who have served prison sentences for politically
motivated offences as serious as high treason are not subsequently
convicted on disciplinary charges of improper and disgraceful conduct"
might be correct (he cited only one instance in support of this
contention) but it does not follow (as he suggested) that lawyers
should be granted "free pardons" in respect of political offences. The
direct analogy between the legal and the medical profession does not
hold water, because different codes of conduct apply to different
professions. Certainly the severe approach which courts follow in
respect of embezzlement of trust money is justifiable in respect of
lawyers, but the same degree of strictness should not necessarily
apply in the case of medical doctors. Mihálik's general "free pardon"
From the above it must be concluded that the Mandela court’s lenient
approach
was
under
the
circumstances
correct. 379
Obviously,
whether
tolerance should be shown, and if so the extent of such tolerance, win
also be affected by the measure in which the particular acts of civil
disobedience may be described as justified - a separate inquiry which
will be dealt with
that
the
elsewhere. 380 For the moment the only claim made is
Mandela-approach,
according
to
which
legal
practice
and
participation in civil disobedience is not necessarily incompatible,
most accurately reflects the values which underlie the South African
legal system.
IV.
CONSCIENTIOUS OBJECTION TO MILITARY SERVICE
The armed forces of a country specialise in the application of violence
including, where deemed necessary, the killing of human beings.
Some
governments view it to be essential for their survival that citizens be
compelled, through the threat of criminal sanctions, to render service
in
the
armed
forces. 381
Not
surprisingly,
many
people
find
this
unacceptable.
One of the reasons why some people refuse to serve in the military is
based on narrow self-interest. Service in the armed forces can expose
one to grave personal risks and discomfort. A very different reason may
be the convictions of the individual involved, who for a variety of
reasons might believe that rendering
or
in
all
category
cases
of
is
wrong
or
"conscientious
such service in a particular case
immoral.
objectors",
Such
382
persons
who
often
belong
regard
to
the
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.
379
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
See infra chap six III.
381
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.
382
The term "conscientious objection" was circumscribed supra chap
two V.
The
issue
of
conscientious
objection
to
military
service
clearly
involves a strong tension between the interests of the state and the
rights of the individual. Can the individual enjoy the benefits of
communal
life
efforts?
But
but
on
refuse
the
to
other
participate
hand,
can
in
the
the
country’s
state
force
military
someone
to
participate in military activity even if that would mean the violation
of that person’s deepest beliefs?
In
most
jurisdictions
conscience
context,
objectors
is
and
a
the
value
systems
to
alternative service.
worthy
have
military
383
principle
of
been
service
is
at
recognised
least
devised
in
one
some
for
way
that
freedom
protection
allowing
or
in
of
this
conscientious
another
to
render
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
equal
to
period
or
of
alternative
surpass
that
service
required
of
ordinary conscripts.
In most cases, the issue is not one of recognising the broad principle
that certain convictions might warrant exemption, or the practice of
requiring alternative service. 384 What is highly controversial, however,
is the way in which such a system is applied. Central to the dispute is
the question of the kinds of conviction that should be recognised as
grounds warranting exemption from regular military service.
The
demands
made
by
national
service
in
South
Africa
over
several
decades on those subjected to such service, and the extent to which a
person’s conscience might be involved, are indeed extraordinary. Apart
from the problems experienced by many people regarding military service
383
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."
384
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.
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
townships
its
came
operations
to
be
in
agencies
neighbouring
of
states
repression.
385
In
and
in
black
addition
to
resistance by those who subscribe in general to the pacifist position,
military
conscription
in
South
Africa
has
consequently
elicited
resistance from the ranks of those who believed that the government was
engaged in what, in Augustinian terms, is called an "unjust war". 386
Conscientious
objection,
in
one
form
or
another,
was
supported
by
particular groups in the mainline English language churches, while the
idea of military conscription was to a large extent supported by the
Afrikaans churches. 387
Given these circumstances, conscientious objection to military service
by
some
members
controversial.
388
of
In
society
what
was
follows,
inevitable,
the
legal
and
basis
bound
of
to
be
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
385
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.
386
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
See infra chap five II B.
388
See eg Degenaar Insig Sept 1988 18.
389
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
illustration
conscience.
legally
disobedience.
be
of
a
considered
recognised
is
concession
Moreover,
it
is
One
on
reason
because
the
it
part
necessary
alternative
why
service,
to
legal
conscientious
provides
of
the
establish
which
an
important
legal
system
to
the
limits
of
denotes
the
confines
where civil disobedience begins.
A.
THE LEGAL SANCTION OF COMPULSORY MILITARY SERVICE
The Defence Act 44 of 1957 determines the maximum period of compulsory
military service to which the government may subject every white 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
390
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
See supra chap two V.
392
Section 2(l)(b) excludes "females and persons who are not white"
from compulsory military service.
393
Section 3(1)(b).
394
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,
until
after
the
Second
World
War,
the
South
African
Defence Force relied almost exclusively on volunteers to supply its
numbers. 396
Conscription
in
its
modern
form,
administered
on
the
basis
of
the
ballot, was introduced in the 1950’s, first for a three months period
and later, as from 1961, for nine months. In 1967 the ballot was
abolished
and
universal
conscription
for
a
one
year
period
was
introduced. Since 1977, national servicemen were called up for the
maximum period of two years. At the beginning of 1990 this period was
again reduced to one year. 397
B.
ILLEGAL CONSCIENTIOUS OBJECTION
be found in the requirement of the Dutch East India Company for Free
Burgers to render service in the militia. See Van Riebeeck
Daghregister part 3 34. When the British occupied the Cape, they
abolished the militia, but retained the informal commando system,
which was Initiated in about 1715. This system was also implemented in
the Boer Republics. Every white man between 16 years of age and 60 was
liable to combat duty. In the Nineteenth Century, universal service
under the Zulu and Matabele was standard practice. See D F S Fourie
"Universal service - a military view" in Centre for Intergroup Studies
Conscientious objection 42 at 44. The South Africa Defence Act 13 of
1912 provided that white citizens (s 7) of the newly formed Union who
were selected by ballot (ss 56, 57) could be called up for military
training 1n times of peace (s 2) for an initial period of 30 days and
for subsequent periods (s 64). In time of war or internal disorder,
citizens could be called up for combat duty (ss 1, 78, 79). The
original version of the Defence Act 44 of 1957 provided for compulsory
military training for an initial period of three months (s 22(2)(b))
of persons selected by ballot (ss 66, 67, 70). The citizen force, the
reserves and the commandos could also be mobilised in time of war (s
1) and internal disorder (s 2). Provision was made for universal
conscription of white males by s (c) of the Defence Amendment Act 85
of 1967.
396
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.
397
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.
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.
served his sentence may again be
400
The courts initially ruled that the imposition of the maximum prison
398
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.
399
Section 126A(1)(a). For a discussion, see Foundation for Peace
and Justice Facing prison 10.
400
Section 126A(1)(b). See also Foundation for Peace and Justice
Facing prison 9.
sentence
in
mandatory.
401
the
case
However,
of
in
refusal
the
to
cases
render
of
S
v
military
Toms:
S
service
was
402
the
v
Bruce
Appellate Division ruled that the Court had a discretion to impose a
lighter sentence of imprisonment, which may even be suspended.
In
Toms,
an
appeal
was
noted
against
the
sentence
imposed
for
a
conviction related to the appellant’s refusal to render further periods
of
training
for
reasons
of
political
conviction.
The
appellant,
a
medical doctor, had some years previously completed his initial period
of military training. By the time his appeal was heard in the Appellate
Division, he had served nine months of a sentence of eighteen months’
imprisonment. His sentence was reduced to the nine months
already served.
he had
403
Bruce was convicted for his refusal to do his basic military training,
also for reasons of political conviction. The trial court was of the
opinion that it was bound by statute to impose the maximum sentence of
one-and-a-half times the
four years which the accused was required by
law to serve. Bruce became the first person to be sentenced to six
years imprisonment for this offence. The sentence was confirmed in an
appeal
to
the
Local
Division,
but
the
Appellate
Division
set
the
sentence aside and remitted his case to the trial court to consider the
question of sentence
afresh. 404 The trial court sentenced Bruce to the
20 months prison sentence he had already served. 405
It is also a crime in terms of the Defence Act to use any language or
do
anything
"to
recommend
to,
encourage,
aid,
incite,
instigate,
suggest to or otherwise cause any other person" to refuse or to fail to
render compulsory military service. The punishment that can be imposed
for
this
offence
thousand rand.
401
is
imprisonment
of
six
years
or
a
fine
of
five
406
See eg S v Toms 1989 2 SA 567 (C).
402
1990 2
SA 802
(A). The appellants were convicted of
contraventions of s l26A(1)(a). See also "Torr se appél gedeeltelik
gehandhaaf" BeeId 21 May 1991.
403
At 821.
404
Ibid
405
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
members
fide
of
and
adhered
to
"a
recognised
religious
denomination, by the tenets whereof its members may not participate in
war." 407
All
illegal,
408
other
forms
of
conscientious
objection
were
considered
including religious objection to military training. 409
During 1983, the Defence Act
was amended and a more subjective test
was introduced in terms of which the religious beliefs of the objector
Defence Further Amendment Act 83 of 1974, which was passed -In
response to the so-called "Hammanskraal resolution" of the South
African Council of Churches of 1974, which supported conscientious
objection. See infra chap five II 8.
407
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
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
beliefs,
the
but
Defence
that
he
Force
in
a
will
have
capacity
to
that
render
would
violate
alternative
his
service
as
prescribed in the Act. Since the convictions of the appellants in the
Toms and the Bruce cases were of a political and moral nature, they did
not
qualify
for
classification
as
"religious
objectors",
and
their
refusal to serve in the armed forces therefore constituted a crime.
The courts have stated that provisions for exemption from military
service should be interpreted strictly, because the effect of not doing
so would be "to cast an unfair burden upon the more patriotic of the
country's citizens." 413
In order for the Board to find that anyone is a "religious objector",
he must be classified in one of three categories:
category
(i)
non-combatants,
whose
religious
convictions
do
allow them to render combat service in any armed force;
category
not
414
(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
410
Section 9 of the Defence Amendment Act 34 of 1983. See Taitz De
Jure 1988 239 at 241.
411
Section 72A.
412
Section 72D(1)(a). The English text of Act 34 of 1983 was signed
by the State President.
413
S v lovell 1972 3 SA 760 (A) 766. See also Willem de Klerk's
editorial "Moker die ontdulkers" Rapport 30 Jan 1983.
414
Section 72D(1)(a)(i).
415
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
outside
still
the
be
SADF
shorter period).
called
(unless
up,
the
doing
community
Minister
provides
service
for
a
420
Exactly how limited the concessions in terms of the Defence Act to
conscientious objectors are, becomes clear when an index of the full
range of possible motivations for conscientious objection to service in
the
armed
forces
is
considered.
Schematically
possibilities could be summarised as follows:
Universal
416
Section 720(1)(a)(iii).
417
Section 72E(1).
418
Section 72E(2)(a)(ii).
the
different
421
Selective
objectors(those
who
object
to
419
Section 72E(2)(b). Failure to render such service constitutes an
offence in terms of s 721(1).
420
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
See also Harris SAJHR 1987 240 at 241.
pacifists(those
fighting for a particular regime; against
who
a
refuse
serve
in
to
any
particular
enemy
or
with
certain
weapons)
army)
Religious objectors
UNIVERSAL
a)
b) SELECTIVE RELIGIOUS OBJECTORS
RELIGIOUS
(those who refuse to serve
PACIFISTS
for religious reasons)
c)UNIVERSAL
Secular objectors
d) SELECTIVE SECULAR OBJECTORS
SECULAR
(those who refuse to serve
PACIFISTS
for non-religious reasons)
If a literal meaning is given to the words of section 720(1)(a) of the
Defence Act (namely that those who find service in "any armed force"
repugnant
to
their
"religious
convictions"
can
be
classified
as
religious objectors), only those objectors in category a) in the above
diagram
are
covered
by
its
provisions
and
qualify
for
alternative
service. Objectors in all three the other categories will be guilty of
criminal acts if they refuse to serve.
While
the
objectors
protection
is
clearly
which
section
extremely
72
narrow,
affords
its
exact
to
conscientious
demarcations
are
nevertheless hard to define. After all, exactly what does the term
"religious conviction" mean? Predictably, the interpretation of this
phrase has been the focus for those who seek wider recognition for
objection to mi1itary service.
The locus classicus in this regard is Hartman v Chairman,Board for
Religious Objection. 422 In this case the Board had found that universal
pacifism based on mainstream or Theravada Buddhist beliefs does
422
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.
constitute
a
"religious
conviction"
in
terms
of
the
Defence
Act,
because this form of Buddhism is non-theistic in the sense that it does
not recognise the existence of a God or a Supreme Being. Instead it
prescribes a certain way of understanding life and dealing with it.
On review before the full bench of the Orange Free State Provincial
Division, Smuts J P found, on the strength of expert evidence, that
Theravada Buddhism is one of the great recognised religions of the
world, even though it is non-theistic. The preamble to the Republic of
South Africa Constitution Act 110 of 1983 states as a national goal the
"recognition
and
protection
of
freedom
of
faith
and
worship";
the
legislature was obviously aware of the diversity of "faiths, religions
and creeds" in the country; and it is presumed that the legislature
does not intend to treat people unequally. Consequently, the Court
found that the applicant's genuine Buddhist belief did constitute a
"religious conviction" proclaiming that it is wrong to perform any
tasks connected with the military. This brought the appellant within
the confines of the Defence Act insofar as it provides relief for all
"religious
objectors"
who
object
to
wars 423.
all
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
court
Hartman
explicitly
rejected
the
reasoning
States Supreme Court in United States v Seeaer.
425
of
the
United
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
At 924.
424
At 929
425
380 US 163 (1965).
426
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
427
At 166. See also the facts regarding the other two appellants,
whose cases were heard together with that of Seeger, at 167.
428
At 165.
429
398 US 333 (1970).
430
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
merely
upon
considerations
of
public
policy,
he
was
still
entitled to an exemption as long as those beliefs were deeply held and
were
to
some
degree
based
upon
"moral,
ethical,
or
religious
principle", and not "solely upon considerations of policy, pragmatism,
or expediency." 431
Harlan J agreed with the conclusion of the majority, namely that the
appellant's conviction had to be set aside. However, he differed from
the majority in this case, and from his own opinion in the Seeger case,
on what the basis should be for such a finding. Harlan now argued that
through
its
wide
interpretation
of
section
6(j)
the
Court
"has
performed a lobotomy and completely transformed the statute by reading
out of it any distinction between religiously acquired beliefs and
those
deriving
from
'essentially
political,
sociological,
philosophical views or a merely personal moral code'."
As
a
matter
of
statutory
interpretation,
or
432
according
to
Harlan,
the
wording of section 6(j) could not be stretched as far as was done in
Seeger and in Welsh. In view of its natural meaning, however, the
provision would have to be regarded as unconstitutional because it
would, in Harlan's opinion, violate the establishment clause of the
First
Amendment,
since
it
draws
a
line
between
theistic
religious
beliefs on the one hand, and non-theistic religious beliefs and secular
convictions
on
the
other. 433
Section
6(j)
could
be
scrapped
in
its
entirety consistent with the First Amendment. But in that event the
long
standing
congressional
policy
of
exempting
religious
objectors
from military service would be nullified. In order to avoid this result
section 6(j) has to be "patched", and relief must be given to the
appellant. 434
The
interesting
feature
of
the
Hartman
court's
embracing
of
the
position of Marian in Welsh is that only that part of Marian's opinion
that criticised the majority's interpretation of the phrase "religious
training and belief" - that is, the conservative prelude to the most
radical opinion expressed in the Welsh case - was quoted and
431
At 343.
432
At 351.
433
At 357.
434
At 367.
applied
by the Hartman court. 435
The
interpretation
of
what
should
be
regarded
as
"religious
convictions" which emanates from the majority opinions in the American
cases, is tied up in what Paul Tillich calls a person's "ultimate
concern". 436 The effect of following this approach would be that secular
resistors (categories c) and d) objectors in the above diagram) are
treated
the
same
as
religious
resistors
(categories
a)
and
b)
objectors). The question as to whether selective pacifists categories
b) and d) objectors) should be treated in the same way as universal
pacifists
(categories
a)
and
c)
objectors)
is,
however,
left
unanswered.
The Court in Hartman acted boldly in interpreting the phrase "religious
conviction" widely enough to include non-theistic religious beliefs.
Strictly
speaking,
the
Court
was
not
required
to
say
more.
Nevertheless, the Court rejected in anticipando a further expansion of
the
interpretation
of
the
phrase
to
include
protection
of
secular
beliefs.
Could the Hartman court have followed the wider American approach in
its interpretation of section 72D(1)(a)? 437 The Court referred to the
fact
that
a
narrower
and
a
wider
meaning
of
the
words
"religious
convictions" can be identified. The narrower meaning requires a belief
in
a
Supreme
"convictions
435
Being
which
or
are
Beings
held
while
the
conscientiously
wider
and
meaning
which
refers
are
to
observed
See also Harris SAJHR 1987 240 at 245.
436
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.
437
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.
scrupulously
strictly." 438
or
In
regarding
a
belief
in
Theravada
Buddhism as a "religious conviction", the Court eventually opted for a
middle road - wider than the narrow meaning but narrower than the wide
one. The narrow meaning was rejected by the Court for the reasons
outlined above. But why was the wide meaning rejected?
As justification for rejecting the wide meaning, the Court referred to
the fact that the Defence Act requires a religious objector to state in
his application the "books of revelation and the articles of faith" 439
on which
hit convictions are based. The Court saw this provision as an
indication that the legislature regarded it to be essential that the
convictions
in
question
must
be
based
on
such
books
or
articles.
According to the Court the source of these texts must be "'something'
or 'someone' outside a human being which communicates with him." 440
This argument is weaker than it might seem.
-
According to section 728(3) of the Defence Act, the Board has a
discretion as to whether the applicant is required to "state the
books of revelation and the articles of faith" upon which his
religious
convictions
are
based
-
there
is
not
obligation on the Board to require such a statement.
-
an
absolute
441
Insofar as it is necessary to make such a statement, it should be
noted that the term "books of revelation and articles of faith"
is also susceptible to a narrower and a wider interpretation. It
is clear from the evidence taken into account by the Hartman
court that the Buddhist revelation, the Pali Canon, does not
claim to be a work inspired by a Supreme Being. Surely, then,
insofar as such documents are necessary, the work on non-violence
espoused by, for example, Gandhi (who drew heavily upon both
Christianity
and
necessary texts.
Hinduism)
can
presumably
438
At 924.
439
Section 72B(2)(d).
440
At 929.
441
See Robinson De Jure 1987 374 at 379.
442
constitute
the
442
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
court,
Hartman
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
military
in
service
respect
has
of
been
conscientiously-based
from
a
more
objection
objective
to
a
to
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
an
to
as
religious or not.
-
It
is
also
true
that
the
granting
of
exemption
some
increases the burden on others, especially in times of danger. 444
It should also be
not
exemption
alternatives
requested
from
to
by
remembered,
service
specific
those
however, that what is at stake is
to
forms
who
the
of
object
community,
national
to
-
service.
military
alternative way of serving the community.
but
service
merely
What
is
is
an
445
The United States Supreme Court in Seeger held that sincere and
meaningful
beliefs
should
also
be
treated
as
religious
convictions, even though "religious training and belief" in the
Act under consideration in that case was defined as a "belief in
relation to a Supreme Being involving duties superior to those
arising
from
any
human
relation." 446
While
the
words
of
the
statute, therefore, clearly spelled out the narrow meaning of
religion (referred to by the Hartman court), the Court in effect
substituted it with the wider meaning. The course taken by the
Court was indeed far-reaching. Under the South African Defence
Act, courts need not be so bold. The Defence Act merely refers to
"religious convictions" without defining the term. Because the
phrase
is
ambiguous
and
constitutes
a
serious
inroad
on
the
freedom of the individual, courts should make the choice which
444
See the judgment of Ogilvie-Thompson C J in S v Love11 1972 3 SA
760 (A) at 766.
445
See B Steyn "The case for alternative service" in Centre for
Intergroup Studies Conscientious objection 104.
446
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
conscientious
philosophical
objection
is
the
basis
of
protection
the
of
legal
recognition
people's
integrity
of
or
"ultimate concerns", and objection to participation in a particular
war, just as much as objection to participation in all wars, can be
one's "ultimate concern". Insofar as integrity is involved, resistance
to conscription should be treated with a high degree of leniency. 447
To summarise: As the Defence Act currently stands, not only category
(a) but also category (c) objectors may and should be classified as
religious objectors who qualify for alternative service. Because of the
explicit requirement that the conscientious objector must believe it to
be wrong to serve in the specified capacities in "any armed force", it
is submitted that categories (b) and (d) objectors cannot under the
present provisions of the Defence Act be so classified, although it is
argued that these provisions ought to be amended.
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
action.
On
the
other
hand,
in
situations
where
change is desperately needed but a sufficient stimulus is absent, some
observers
might
overstate
their
support
for
resistance.
It
is
consequently necessary to take the particular social context of each
different contribution into account.
This chapter will follow the following sequence: First, an exposition
will
be
given
of
the
most
important
biblical
text
(Old
and
New
Testament) on the relationship between the individual and the state.
Some
of
the
most
influential
Greek
philosophers
(Socrates,
Plato,
Aristotle and the Stoics) wil thereafter be discussed, as well as the
1
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.
2
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
this
a
condition
era
for
emanated
meaningful
mainly
from
existence,
the
elite,
Greek
philosophy
resulting
in
a
propensity to require blind obedience from the ruled, coupled with a
strong aristocratic slant in its view of political life. However, as a
more lasting contribution the Greeks had their philosophy to offer,
which would provide a rational basis for dealing with the question of
government.
That
is,
they
made
a
science
of
political
philosophy.
Judeo-Christian ethics and Greek science combined to form the basis of
the Western approach to political obligation.
Roman law, in the classical and post-classical age, also afforded to
government a primary position. The Roman contribution, however, lay in
its powerful demonstration of the extent to which legal science could
be
used
to
regulate
human
relationships.
Western
political
thought
largely developed on the foundations of Judeo-Christian values by means
of Hellenistic and Roman science.
However, to some extent the above observations, which largely represent
the orthodox view, oversimplify the contribution of Greek and Roman
philosophy in the field of ethics. As will be indicated later on, the
Greek Stoics, who made their contribution after the golden age of Greek
philosophy, had a major influence on Roman and also Christian thinking.
The Stoic-Christian conception of political obligation and legitimate
resistance dominated Western thought for many centuries. This school of
thought posited a general duty of political obedience. Nevertheless, it
regarded integrity-based, religious, defensive civil disobedience as
permissible,
although
and
indeed
in
result-oriented
some
cases
resistance
saw
of
it
any
as
a
positive
kind
was
duty,
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
necessarily untrue.
In
respect
of
be
cynical
but
it
is
obedience
to
earthly
authority,
omnipotent god, however, is a two-edged sword.
the
prevailing
not
for
that
reason
3
system
to
believers,
when
the
belief
in
an
Religion can legitimise
that
system
is
seen
as
conforming to their basic ideals. But when the system is not seen in
that
light,
it
can
also
mobilise
people
to
resist
the
existing
political dispensation. Because of the transcendental loyalty of the
believer, religion has a strong subversive potential.
The
idea
that
the
political
ruler
represents
God
on
earth
affords
special authority to his station in life, but, at the same time, the
fact
that
rulers
sometimes
do
act
unjustly
and
even
require
their
subordinates to sin, confront believers with the theodicy problem: how
can a good and omnipotent God allow, and in this case sanction, evil?
This problem requires believers to accept that not a11 rulers represent
God.
It will be argued, however, that the Stoic approach of the early church
in the time of its persecution, and identification of the church with
the governing elite since Christianity became the state religion of the
Roman Empire, caused active or result-oriented resistance, aimed at
openly challenging the state, never to acquire a dominant position in
the tradition of the church.
3
See Greyer Die wysbegeerte van die Grieke 69. The influential research of
Emilé Durkheim in this regard is discussed -In Lukes & Scull Durkheim and law.
There are a number of important passages in the Bible in which the
issue of political obligation is canvassed, directly or indirectly.
(1)
The Old Testament
Religion
played
a
major
role
in
sustaining
the
political
unity
of
Israel and obedience to its internal leaders. At the same time, it
inspired
much
Religious
of
Israel’s
inspiration
for
resistance
political
against
foreign
disobedience
is
domination.
evident,
for
example, in the history of Hezekiah, the king of Judah, when "[h]e
rebelled against the king of Assyria and did not serve him." 4 Similarly,
Daniel's friends, Shadrach, Meshach and Abednego, refused to worship
the image of gold set up by King Nebuchadnezzar. They told the king:
"We want you to know, D king, that we will not serve your gods or
worship the image of gold you have set up." 5 Daniel himself defied a
decree of king Darius not to worship his God. Three times a day he
prayed at open windows towards Jerusalem. Daniel was thrown in the
lion's den, but according to Scripture, remained unharmed. 6
It
should
not
be
presumed,
however,
that
the
internal
power
relationships between Israel’s rulers and their subjects were based on
the divine power of kings. The Old Testament portrays Israelites as a
most rebellious nation, whose kings were servants of Javeh and were
subject to the censorship of his prophets. 7
(2)
The New Testament
The most important event of the New Testament - the crucifixion of
Christ - was the result of an act in defiance of the existing worldly
order by the Son of God In obedience to the authority of God himself.
At the same time, the defiance was non-violent and open. As indicated
earlier,
in
consequently
secular
of
terms
much
of
this
central
Western
pivot
of
civilization,
Christianity,
can
therefore
and
be
described as an act of civil disobedience through which the present
world
order
was
established.
It
inspired
many
who
defied
worldly
authority to believe that their defiance was justified.
4
2 Kings 18.7.
5
See Daniel 3.18.
6
Daniel 6.
7
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 Emperor’s", to which
Jesus said: "Well, then, pay to the Emperor what belongs to him, and
8
Matthew 5.38, 39. See also Luke 6.29, 30.
9
John 18.11.
10
See 1 Peter 2.23.
11
Matthew 21.12. See also Mark 11.15-19; Luke -19.45-48 and John 2.13-22.
12
John 18.36.
pay to God what belongs to God." 13
Jesus’ teachings directly inspired disobedience of earthly authorities
amongst his immediate followers. His disciples, Peter and John were
arrested
for
spreading
the
gospel
in
the
temple,
and
were
brought
before the Council. After being told not to speak or teach in the name
of Jesus under any circumstances, Peter and John told the Council: "You
yourself judge which is right in God's sight, to obey you or to obey
God. For we cannot stop speaking of what we ourselves have seen and
heard. " 14
The leaders of the church realised the threat posed by the apostles to
their
position
and
had
them
arrested.
According
to
Scripture,
the
apostles were then given divine instructions to disobey: "[A]n angel of
the Lord opened the prison gates, led the apostles out, and said to
them, ‘Go and stand in the temple, and tell the people all about this
new life.’ The apostles obeyed, and at dawn they entered the temple and
started teaching." 15
They were again arrested and brought before the Council, where the High
Priest questioned them. "’We gave you strict orders not to teach in the
name of this man’, he said; ‘but see what you have done! You have
spread
your
teaching
all
over
responsible for his death!’"
Jerusalem,
and
you
want
to
make
us
16
Peter and the other apostles then gave their famous answer, recorded in
Acts 5.29: "We must obey God, not men." The Counci1 decided not to put
the apostles to death.
They cabled the apostles in, had them whipped, and ordered them
never again to speak in the name of Jesus; and then they set them
free. The apostles left the Council, full of joy that God had
considered them worthy to suffer disgrace for the name of Jesus.
And every day in the temple and in people's homes they continued
to teach and preach the good news about Jesus the Messiah. 17
Paul, however, placed much emphasis on the duty of Christians to obey
state authority. No doubt, the best known exposition n this regard,
13
Matthew 22.19-21. See also Mark 12.13-17 and Luke 20.20-26.
14
Acts 4.19, 20.
15
Acts 5.19-21.
16
Acts 5.28.
17
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 God’s permission, and the existing authorities
have been put there by God. Whoever opposes the existing
authority opposes what God has ordered; and anyone who does so
will bring judgment on himself. For rulers are not to be feared
by those who do good but by those who do evil. Would you like to
be unafraid of the man in authority? Then do what is good, and he
will praise you. For he is God’s servant working for your own
good. But if you do evil, be afraid of him, because his power to
punish is real. He is God’s servant and carries out God’s wrath
on those who do evil. For this reason you must obey the
authorities - not just because of God’s wrath, but also as a
matter of conscience.
This is also
authorities are
Pay, then, what
taxes, and show
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.
Paul wrote this to the congregation in Rome, which was subjected to the
rule
of
the
Roman
government.
That
government
was
described
in
Revelation 13 as a "beast from the sea" that cursed God. Paul also
said: "Remind your people to submit to rulers and authorities, to obey
them ..." 18
Peter urged the early Christians to "submit yourselves, for the Lord’s
sake, to every human authority: to the Emperor, who is the supreme
authority, and to the governors, who have been sent by him to punish
the evil-doers and praise those who do good." 19 He also urged them to
"respect the Emperor". 20
Not surprisingly, these texts have been the object of widely divergent
interpretations. Insofar as resistance is allowed, many commentators
emphasised the strong - although not absolute - insistence of the Bible
on non-violence. 21
18
Titus 3.1.
19
1 Peter 2.13, 14.
20
1 Peter 2.17.
21
See eg Wink Jesus' third way 12ff and Régamey Non-violence and the
Christian conscience 79ff. See also IDO-C When all else falls and Culliton
Non-violence, where it is argued that non-violence is central to Christian
spirituality. It should be noted, however, that 1t has been estimated that of
approximately 980 million professed Christians in 1971, probably less than 600
However, controversy centred upon the question how the general duty to
obey the state, as exemplified in Romans 13, is to be reconciled with
the first loyalty of Christians toward God, as posited in Acts 5. 22 In
view
of
the
obedience
general
to
interpolation.
God,
23
message
some
of
have
the
Bible,
rejected
which
Romans
requires
13
as
a
ultimate
supposed
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.
obedience to any
25
One of the more popular - and feasible - views is to regard Romans 13
as a corrective on the "over-enthusiastic" congregation in Rome who, as
citizens
of
God’s
Kingdom,
rejected
the
very
notion
of
secular
authority and regarded themselves only as citizens of the Kingdom of
God. The message of Romans 13 is, therefore, that the institution of
the state as such accords with God's wishes, but it does not at all
address the issue of an unjust government. The latter issue, according
to this interpretation, is addressed by texts such as Acts 5.29. 26
In conclusion, it seems fair to say that the Bible poses a general duty
of obedience to secular authority. This duty is secondary, however, to
000 were universal pacifists. That is less than a one-thousandth part of the
total number. See D P Whitelaw "Christian responses to violence: A historical
survey" in Vorster Views on violence 21 at 34.
22
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 geïnspireerd wees nie."
23
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
Id 27.
25
Id 20.
26
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 one’s
religious
integrity
is
at
stake,
defensive
civil
disobedience
is
justified. There is no explicit endorsement or rejection of stronger
forms of resistance to be found in the Bible. 27
B.
GREEK PHILOSOPHY
(1)
Socrates and Plato
Political philosophy finds its illustrious origin in the thought of
Socrates (469-399 BC) 28 and his student, Plato (427-347 BC). 29 Socrates
did not produce any writing himself, and his life and thought is known
to us mainly through the dialogues of Plato, in which he played the
dominant role. Plato, however, had his own objectives in the way in
which
he
portrayed
Socrates. 30
The
political
message
contained
in
Plato’s account of the death of Socrates was discussed earlier, when
the double-barrel legacy of Socrates was considered: Through the device
of sacrificial civil disobedience he reconciled the need to be true to
one’s own conscience with the obligation to obey the law. 31 In this
section Plato’s views on political obligation will be considered.
Plato’s
political
thought
is
set
out
mainly
in
three
books:
The
republic, The statesman and The laws. The influence of these books, and
especially The republic, considered to be the first work on political
science
in
centuries
the
of
articulation
history
its
of
of
philosophy,
existence,
virtually
all
is
the
throughout
incalculable.
modern
day
the
The
twenty
first
issues
of
three
recorded
political
philosophy can be found in Plato’s writings.
27
On political resistance among the early Christians, see supra chap three
II D.
28
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.
29
On Plato's philosophy in general, see Copleston A history of philosophy
vol 1 151ff. On his political philosophy, see Ebenstein Great political
thinkers Iff; Strauss & Cropsey History of political philosophy 7ff and Lee's
Introduction in Plato The republic 11ff. His views on political resistance are
discussed by Calvert Revolution 32ff. On Plato's legal philosophy, see Du
P1essis Westerse regsdenke tot en met die middeleeue 77ff.
30
See Copleston A history of philosophy vo1 1 120.
31
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 individual’s psyche is no longer accepted). Plato also introduced
the concept of the "public" as distinct from the "private". 32
Although
Plato’s
inquiry,
and
subjection
the
concepts
of
he
political
introduced,
institutions
have
been
to
scientific
central
to
the
development of Western political philosophy, his political views are
largely
discredited.
aristocratic,
and
His
expressly
approach
was
distinctly
anti-democratic
and
elitist
or
anti-individual.
Plato’s position was that those who know should rule over those who do
not know, regardless of the latter’s consent. The philosopher-king has
the right to rule (and the subjects must obey) because he has the
clearest view of the unchanging "idea of the good" - the concept which
is central to Platonic philosophy.
A number of causes can be cited for Plato's opposition to democracy,
and his commitment to the rule of the aristocracy. The first had to do
with
his
own
personal
position
in
Athens
of
the
Fifth
and
Fourth
Centuries. Being from a noble family, Plato apparently had personal
political aspirations which never materialised, due to the rise of
democracy. Moreover, after the Peloponnesian War (419-404 BC), two of
Plato’s uncles led the Thirty Tyrants, and were eventually killed by
the democrats. When democracy was restored, Socrates was tried and
executed. Plato blamed democracy for the death of Socrates. 33 Plato
regarded his society as sick and maintained that it had to be cured.
Plato's diagnoses and proposed cure were far-reaching. Democracy, to
him, was only a symptom of a more basic problem that was destroying
society from within. The problem was change - itself, manifested in its
worst form in social revolution. The world was moving away from its
original form - its divine form or idea - in the image of which it was
created. As organisms, political structures are subjected to changes in
32
33
See Ebenstein Great political thinkers 2.
In
trial of
Tyrants,
was that
entirely
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
accordance with the ebb and flow of nature. Social change had to be
arrested,
because
it
inevitably
involves
social
deterioration.
Timocracy (a state governed by by people whose primary motivation is
love
of
honour)
would
naturally
democracy and eventually to tyranny.
evolve
into
oligarcy,
thence
to
34
Plato’s approach is perhaps best understood - if contrasted with that
of Hegel, which will be discussed later. Although both proceeded from
the
ideal
conducive
right
situation,
to
of
Hegel
development,
resistance
to
saw
and
conflict
and
consequently
authoritarian
change
as
endorsed
a
government,
healthy
and
far-reaching
while
Plato
entertained the exact opposite view.
Pre-Socratic
Greek
philosophy
identified
the
alternative
sources
of
political obligation as either "nature" (physis) or "convention" (also
called law or nomos). 35 The first implies a measure of necessity, the
latter contingency. Not surprisingly, then, given his objectives, Plato
would latch onto the former, which placed him in the category of the
natural lawyers. The term "natural law", as perceived by its early
proponents, however, referred to a basis for the legitimacy of the
coercive power of the state and consequently for political obligation,
rather than to a formulation of a right to resist, as would be the case
with later adherents to natural law such as Locke.
Plato developed a cosmology and political theory which would posit a
most rigid hierarchical structure embracing the individual and which
would
allow
very
little
political resistance.
36
scope
for
individual
decision-making
and
According to Plato, someone who disagrees with
the state should speak his mind, if that is likely to produce a good
result.
But force against his native land he should not use in order to
bring about a change of constitution, when it is not possible for
the best constitution to be introduced without driving men into
exile or putting them to death; he should keep quiet and offer up
prayers for his own welfare and for that of the country. 37
34
See the discussion by Calvert Revolution 32.
35
See Strauss & Cropsey History of political philosophy 3.
36
See Karl Popper's contribution entitled "Plato"
Encyclopaedia of the Social Sciences vol 12 159 at 162.
37
in
International
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 one’s friends and harming one’s
enemies
was
also rejected. 40
Especially interesting is Socrates’ next encounter, with Thrasymachus
of Chalcedon, who regarded justice as "simply what is in the interest
of the stronger party". 41 Obedience is enforced by the stronger group in
society and is not voluntarily granted by the weak. Morality is nothing
more
than
the
code
of
behaviour
so
extracted.
Justice
or
law
is
consequently not necessarily good for the subjects - it might even be
bad. For the rulers, justice simply does not exist as a constraint they lay down the law with exclusive concern for their own advantage.
Socrates,
in
responding
to
these
statements,
asked
how
this
understanding of justice was affected by the fact that rulers may often
be
mistaken
about
their
own
interests.
Thrasymachus
replied
that
rulers, as rulers, are never mistaken - when they are mistaken they are
not
rulers.
Socrates
argued
that
government
exercise of any skill as such is disinterested.
is
42
a
skill,
and
the
Consequently, justice
cannot simply be the interests of the stronger.
As always, Plato arranged for Socrates to have the better of this
particular encounter (not least by portraying Thrasymachus as extremely
rude), but history would prove the debate to be far from over. 43 Indeed,
38
Plato The republic 331c.
39
Id 331e-334b.
40
Id 334b-336a.
41
Id 338c.
42
Id 342.
43
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
resistance it engenders."
45
preponderance
of
power
over
the
To them political obligation is determined
by control and not by authority.
After
his
encounter
with
Thrasymachus,
Socrates
was
confronted
by
Glaucon with the argument that an individual’s morality and political
obedience
is
prompted
merely
by
the
prospect
of
reward
or
social
approval - that is, by convenience. It is simply in order to avoid
social and other sanctions that people act "justly". 46If people had no
fear of detection there would have been no obedience. 47
To counter this, what in modern terms would be called consequentialist
view, Socrates maintained that justice should be welcomed "both for its
own sake and for its consequences". 48 Socrates argued that it is easier
to study objects on a large scale than on a small scale, and proposed
firstly to discuss justice in the state or country and then to apply
the conclusions so reached to the individual.
How,
then,
would
the
natural
state
look?
This
question
leads
one
directly to Plato's discussion of the ideal city-state or "Cal1ipolis".
The reason for this device is that "justice" or "law-abidingness" can
be good only if the law is good; and good laws can emanate only from a
good city. 49
Plato’s description of the ideal city is well-known and need not be
elaborated upon in any detail. Plato, through Socrates, described a
44
See Dahrendorf Essays in the theory of society 129ff.
45
Id 138.
46
See Plato The republic 358b.
47
Id 360a.
48
Id 358a.
49
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
good
and
subjected
to
the
most
discipline. 50
rigorous
Justice
prevails in such a state when every individual occupies the station in
life
most
interfere
suitable
"with
to
each
his
abilities
other’s
and
jobs".
51
the
three
Similarly,
classes
justice
do
not
in
the
individual means that all parts of the soul are subjected to reason. 52
The
important
point,
then,
is
that
justice
is
the
harmony
of
the
individual soul and of the classes in society.
"Doing right", therefore means acting in harmony with nature, as it
reveals itself through reason. One has to take one’s place in the
hierarchical structure of the state and ultimately the cosmos, which
has at its apex the "idea of the good".
A number of "imperfect societies" were then discussed by Socrates oligarchy, 53 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,
50
See Plato The republic 471.
51
Id 434c.
52
Id 441b-444e.
53
Id Book 8.4.
54
Id Book 8.6.
55
Id Book 8.8.
56
Id Book 9,2.
legitimised
from
above,
by
a
metaphysical
ideal.
Because
Plato’s
ideal
state
had
transcendental
sanction, it needed no popular recognition and resistance could not be
justified.
(2)
Aristotle
Aristotle (384-322 BC), 57 the greatest systematic thinker of ancient
Greece, unlike his teacher, Plato, concentrated not primarily on the
ideal,
the
perfect,
but
on
that
which
is
actually
possible
and
attainable. A major part of Aristotle’s teachings dealt with government
and ethics, and he wrote what is still today considered to be an
introductory textbook to the entire field of political science - The
politics,
which
should
be
considered
together
with
his
Nicomachean
ethics.
Although intimately associated with the Macedonian monarchy, and the
tutor of Alexander the Great, Aristotle - himself from a middle class
background - would be much less elitist than Plato. Nevertheless, it is
clear that Aristotle’s political perspective was from the side of the
rulers, not the ruled. Aristotle placed the virtue of the rulers above
the consent of the governed. In contrast to the Sophists, who based
political obligation on convention or contract, he regarded its source
as the natural order. Like the other early proponents of this school of
thought, Aristotle saw natural law primarily as a basis for political
obligation, not resistance. 58
Aristotle’s political philosophy should be seen against the background
of his philosophy as a whole, to which only the scantiest reference can
be made here. According to Aristotle’s teleological approach humankind
strives towards eudaimomia, which refers to the fulfilment of each
person’s function or "happiness". In the course of this pursuit the
correct choice is always the avoidance of extremes - the mean must be
chosen. In his political philosophy Aristotle was primarily interested
in establishing how, in the less than ideal circumstances of real life,
57
On Aristotle's philosophy in general, see Vorländer Geschiedenis van da
Wijsbageerte vol 197ff and Dreyer Die wysbegeerte van die Grieke 121ff. On his
political philosophy, see Ebenstein Great political thinkers 66 and Strauss &
Cropsey History of political philosophy 64. His views on political resistance
are discussed by Calvert Revolution 33ff. His legal philosophy is dealt with
by Du Plessis Westerse regsdenke tot en net die middeleeue 102ff and Van
Eikema Homines Major trends in the history of legal philosophy 17ff.
58
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.
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
preservation
of
life;
the
village
for
the
comforts
of
companionship; but the polis exists for the sake of the good life, and
not
for
the
sake
of
life
only.
Humankind’s
moral
nature
can
be
expressed only in the polis - not in a bigger and not in a smaller
context. To Aristotle the polis was held together not by impersonal
laws, but by personal bonds of friendship and morality. 62
To Aristotle the polis was natural in two ways: (i) Social institutions
evolve from the family through the village to the polis, which is the
natural and final stage in the growth of human relations, and (ii) the
polis was also natural in
a philosophical sense, "[f]or the whole must
needs be prior to its part." 63 Political obligation to Aristotle was
therefore, to use a modern expression, a "natural duty", 64in the sense
that it is simply the result of one’s citizenship, which in turn is a
natural consequence of being human.
59
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
Aristotle The politics 1.1
61
Id 1.2.
62
Ibid.
63
Ibid.
64
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
as
polis
Plato.
Aristotle
recognised
that
"not
only
does
a
state
consist of a number of individuals but the individuals are different in
kind," 65
Having
influence,
been
where
raised
there
on
was
the
much
edge
of
exposure
the
to
Greek
sphere
different
of
cultures,
Aristotle’s approach was one of tolerance for diversity. His po1is was
heterogeneous, not homogeneous.
What type of state would best serve humankind's needs as a "political
animal"? Aristotle distinguished three forms of government which could
each be either unperverted (conducted in the interests of the ruled) or
perverted (conducted only in the interest of the rulers). The three
forms of genuine or unperverted government are kingship, aristocracy,
and
(a
polity
qualification).
democracy
In
limited
perverted
form
by
these
a
types
considerable
of
property
government
become
tyranny, oligarchy, and democracy (in the sense of the rule by the
poor, for the poor). 66 The distinguishing feature of bad government is
consequently the element of exploitation.
Aristotle’s
deep
anti-democratic
sentiments
are
evident
in
his
discussion of the phenomenon of the "individual of pre-eminent virtue".
Such an individual, Aristotle maintained, should not be subjected to
the law, "for we might as well presume to rule Zeus. It remains then,
as indeed seems natural, that all should render willing obedience to
such a one, and that he and his like should thus be perpetual kings
within their states." 67
In the ideal, therefore, Aristotle would have preferred an enlightened
monarchy. Nevertheless, he realised that this would require a standard
of virtue absent in most societies.
Consequently, as a practical matter, he accepted that decisions should
rather
be
taken
by
many
than
by
one.
Aristotle
accepted
political
participation as the hallmark of citizenship. In order to steer between
the dangers of oligarchy (rule by the rich) and democracy (rule by the
poor) Aristotle chose polity, in the sense of a kind of middle class
65
Aristotle The politics 2.2.
66
Id 7.
67
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
68
[W]henever one party or the other fails to enjoy such a political
influence as is consistent with its own conception of Justice, it becomes the
author of sedition." Id 8.1. (Original emphasis.)
69
Id 8.3.7.
70
Id 8.3.11.
71
Id 8.5.
72
Id 8.6.
73
Id 8.7.
74
Id 8.10.
75
Id 8.8.10.
76
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
recognise
a
order.
At
right
to
the
same
resist,
time,
he
however,
regarded
while
revolutions
he
as
did
not
natural
phenomena under certain circumstances.
As
will
be
demonstrated,
Aristotle’s
views
gained
considerable
prominence when it was integrated into Christian theology by Aquinas.
(3)
Stoicism
Stoicism, one of the dominant philosophies of the Hellenistic-Roman
period, was founded during the last years of Fourth Century Greece by
Zeno of Citium (336-264 BC) and his successor Chrysippus of Soli (c
280-c 206 BC). 78 Stoicism spread to Rome when Diogenes of Seleucia and
Carneades the Sceptic visited the city in 156 BC. It flourished and
eventually declined in Rome in the First and Second Centuries AD.
The specific contribution of the Roman Stoics - and especially Cicero will
be
dealt
with
later. 79
Only
a
general
survey
of
some
of
the
recurrent themes in Stoic thought will now be given.
It is revealing to note that Stoicism came to the fore in the moral
vacuum that emerged when the Greek polis declined. The central role of
the polis in the Greek world view and political life was discussed
earlier. Where security could be found if not in the polis? Clearly not
in the fickle and frivolous Greek gods.
Zeno
had
the
same
premise
as
his
predecessors,
the
Cynics,
who
maintained that unhappiness and insecurity resulted from the pursuit of
that which was beyond the control of the individual. One had to know
the
difference
between
that
which
can
be
changed,
and
that
which
cannot, and concern oneself only with the former. The only aspect of
our
existence
which
is
really
within
our
power
is
pursuit
of
the
correct moral attitude or virtue. We must become indifferent to all the
passions,
77
78
and
even
should
hold
no
fear,
because
one
can
do
See Calvert Revolution 33ff.
Greek Stoicism
Wenley Stoicism and
vol 1 l20ff; Van
philosophy 29ff and
115ff.
79
death
and its political and legal implications are discussed by
its influence; Vorländer Geschiedenis van de wijsbegeerte
Eikema Homines Major trends in the history of legal
Du Plessis Westerse regsdenke tot en met die middeleeue
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. One’s highest loyalty should
be to be true to oneself, to one’s own nature or integrity. Each person
must be the captain of his own soul - nothing more, but also nothing
less.
What does it mean to be true to one’s own nature? Reason is the active
force in the universe, and it is also an active force in human beings.
Humans
must
consequently
accommodate
their
own
beings
to
universal
nature or reason. Virtue means that one lives in harmony with nature.
In place of the polis, the Stoics therefore postulated the cosmos-po1is
- a universal community in which all people (or at least all men) are
equal. He whose being is in harmony with nature, will also be a citizen
of the universe.
Clearly, these premises had far-reaching political implications. The
very basis of the authoritarian view of the state of earlier Greek
philosophers - the notion that perfect life could be lived in the polis
only - was rejected.
The highest possible moral achievement was no
longer compliance with the positive law of the polis, but obedience to
natural law as it reveals itself in human reason. The preservation of
one’s integrity was now regarded as more important than any earthly
obligation.
The Stoa were not as radical as the Cynics, who refused to participate
in the institutions of state and family. 80 Nevertheless, the idea that
each person is the captain of his own soul has definite implications
for the idea of political obedience. On the one hand, the Stoics took
it to mean that those commands of the state that do not affect one’s
virtue
should
be
obeyed,
even
if
it
causes
discomfort,
because
it
belongs to the realm of things beyond one’s control. Resistance would
here serve no purpose. On the other hand, it meant that in respect of
laws that could compromise one’s virtue there is no obligation to obey
the state. In those cases one has a higher obligation - namely to
natural law. This does not mean that the state should in such cases be
actively resisted. It merely means that its demands should simply not
be obeyed. Natural law as perceived by the Stoics did not in the first
place endorse political power, as other early proponents of natural law
80
31.
See Van Eikema Homines Major trends in the history of legal philosophy
perceived it to do – instead it provided a criterion that could be used
to establish the limits of obedience. In this sense. Stoicism can be
seen as an exception to the traditional natural law approach and as the
early
forerunners
of
the
modern
notion
of
inalienable
fundamental
rights.
Stoicism postulated the idea that one should be faithful to one’s own
nature. The demands of nature are conveyed to the individual through
the voice of his own nature, ie his conscience. That inner voice should
be obeyed at all costs, and if it conflicts with laws of the state,
conscience should prevai1.
To
express
the
Stoic
approach
to
political
resistance
in
the
terminology used, in this study - the preservation of one’s integrity
can
justify
and
disobedience,
but
indeed
not
demand
integrity-based
result-oriented
resistance.
defensive
civil
This
would
idea
largely be taken over by Christianity, although "integrity" would be
interpreted
to
refer
only
to
religious
convictions.
As
will
be
demonstrated, the Stoic-Christian idea of a general duty of obedience,
except where one’s personal highest values are compromised, would until
at least the Reformation dominate Western political thought, and it
continues to exercise a strong influence to this day. Although their
claims were limited, the Stoic emphasis on human conscience lies at the
basis of the Western approach to political resistance.
C.
ROMAN JURISPRUDENCE
Roman civilization produced some of history’s most outstanding leaders.
While Augustine represented the apex of enlightenment of that time,
others, like Diocletian, were notorious tyrants. 81 The rule of Julius
Caesar was more controversial - some regarded him as a hero and others
as a villain. Not surprisingly, then, Rome harboured a wide spectrum of
political dissidents.
This raises questions as to what the nature of the power of the Roman
rulers
treated
was,
and,
whence
in
they
general,
derived
to
their
what
powers,
extent
how
dissidents
recognition
was
were
given
to
illegal political resistance.
81
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.
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,
mundi.
83
according
to
Roman
thinking,
was
without
doubt
dominus
Often quoted in this regard are the maxims: princeps legibus
solutus est 84 and salus rei publicae suprema lex. 85 Ulpian’s observation,
quod principi placuit, legis habet vigorem, 86 has been described as
"perhaps the most influential passage of the whole of the Corpus Juris
Justiniani
politics
in
the
granted
formation
the
Emperor
of
Western
merum
political
imperium
-
the
thought." 87
highest
Roman
form
of
public power - which included the ius gladii or right of the sword and
the right to make laws. 88 At least on the face of it, the powers of the
Roman rulers seems absolute. What was the foundation of this power?
The Romans, since the time of the Republic, invested the consules with
imperium by means of the lex de imperio. Traditionally the imperium was
invested in the consules upon election at the comitia or meeting of the
people. During the Empire, the successors of Augustus invoked the lex
de
imperio
as
the
basis
of
their
power
as
Emperors. 89
Ulpian
and
Justinian called the lex de imperio, lex regia and referred to it as
the foundation of the legislative power of the princeps. 90 However,
little is known about the exact provisions of the lex regia.
82
See Kunkel An
l4ff, 35ff.
83
Introduction to
Roman legal
and constitutional history
See Skinner The foundations of modern political thought vol 1 8.
84
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
On the obscure origins of this maxim, see Venter JCRDL 1977 233 at 235.
86
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
See Hahlo & Kahn The South African legal system and its background 431.
88
See Skinner The foundations of modern political thought vo1 2 127.
89
See Van den Bergh The life and work of Gerard Noodt 194.
90
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
91
See eg the discussion of tyrannicide under Roman
Davidson Problems of the Roman criminal law vo1 1 )7.
92
law
in
Strachan-
Table 9 Law 7. See also D 48.4.3.
93
See Coertze JCRDL 1937 274; Gonin JCRDL 1951 1 and De Wet & Swanepoel
Strafreg 518.
94
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
D 48.4.1.
96
Ibid.
97
D 48.4.3.
98
Ibid.
99
Ibid.
100
D 48.6.
some of the provisions of the last-mentioned law could also be made
applicable to the rulers. It rendered liable, for example, someone who,
"being invested with power or authority, acts in any other way than the
law decrees and requires that he should" 101 as well as "[t]hose who
impose new taxes arbitrarily". 102
The status and influence of Roman jurisprudence is often discarded when
it
is
compared
particularly
with
the
private)
law.
highly
Some
developed
loose
Roman
comments
positive
were
made
by
(and
Roman
authors regarding the philosophical basis of state power, but as Berman
observed: "The Roman texts themselves reveal little political or legal
theory of any kind." 103 The orientation was explicitly positivistic.
This lack of theory, it is widely agreed, was the consequence not in
the first place of inability but of design - it was the result of the
often-noted Roman distrust of abstract speculation. 104
What,
then,
could
discussion
of
the
the
value
be
development
political resistance? The
of
of
references
to
theoretical
effects of Roman
Roman
notions
law
in
a
concerning
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
"constitutionally".
claim
This
that
meant
this
that
notion
the
had
to
"inferior
be
interpreted
magistrates"
were
also regarded as bearers of this power and that they could use it to
resist a tyrannical ruler. This so-called "constitutional theory" of
resistance
tradition.
would
later
find
support
in
105
101
D 48.6.10.
102
D 48.6.12.
103
Berman Law and revolution 239.
104
See eg Syme Ten studies in Tacitus 119.
105
See infra chap five I L (2).
especially
the
Calvinistic
Secondly,
Roman
private
law
had
a
well
developed
notion
of
self-
defence, which recognised the principle of vim vi repellere licet, 106
which made it lawful under certain circumstances for one citizen to
repel with force an unlawful attack by another. Although the Romans
applied the rule strictly to private law relations, this principle
would later be made applicable to public law as well, most notably by
Lutheran lawyers, as the basis for the right of political resistance. 107
In the third place, the true implications of the lex regia would also
become the subject-matter of a lively debate, with some commentators
claiming
that
although
a
number
of
powers
were
reserved
for
the
Emperor, power ultimately resided in the people, who could take it back
if it were to be abused. 108
Fourthly, commentators would later also emphasise those instances (some
of
which
were
referred
to
above)
where
Romans
subjected
those
who
governed, as well as those being governed, to law. Hence, political
obligation
was
tied
to
underlies
the
modern
legal
obligation
concepts
of
the
-
the
central
"rule
of
notion
law"
that
and
the
On
the
lawyers
and
"Rechtsstaat" as the basis of legitimate government.
The
above
relates
philosophical
to
level,
a
aspects
of
Roman
positive
number
of
prominent
Roman
law.
philosophers towards the end of the Republic and the beginning of the
Empire made a significant contribution to the development of Stoicism.
It
has
been
suggested
that
this
influenced Western political thought.
positive
law
on
Western
notions
philosophical
109
of
While
approach
deeply
the influence of Roman
political
obligation
will
be
discussed as we follow the course of history, the approach of Roman
proponents of Stoicism - among them Lucius Annaeus Seneca (c 5 BC-65
AO), 110 Epictetus (c 55-135) and Marcus
Aurelius (121-180) 111 will now
106
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
See infra I L (1).
108
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.
109
See Skinner The foundations of modern political thought vol 1 xiv and
vo1 2 275.
110
To be distinguished from his
father, Marcus Annaeus Seneca. As to
Seneca's political thinking, see Griffin Seneca. Seneca, like Calvin, saw
be considered. The eclectic, Cicero, (106-43 BC) 112 also professed some
Stoic views.
The concept of natural law, as advanced by the Stoics, would embrace
all human beings into a single unit, and not exclude some who are
considered inferior, as
Aristotle.
113
Whereas
was the case in the philosophy of someone like
other
early
notions
of
"natural
law"
largely
served to justify the institution of the state. Stoic natural law would
provide a criterion for evaluating the acceptability of state action,
and hence in itself carried the potential of resistance. 114
Especially Cicero's articulation of the doctrine of
natural law that
made this notion accessible to Roman and Romanist lawyers and to
fathers of the Christian Church.
115
the
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.
111
A discussion and extracts from the works of Epictetus and
Aurelius may be found in Ebenstein Great political thinkers 139ff.
Marcus
112
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.
113
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.
114
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.
115
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,
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
sense of all men living in ‘one world’." 116
Stoic
Cicero, like the Stoics, maintained that there is a divide beyond which
unjust laws cease to be laws. According to him, a state
which lacks
law "must ... for that reason be considered no state at all". 117The mere
fact that legislative formalities
have been
executed does
not
imply
that law has been created. Cicero maintained that "the many deadly, the
many
pestilential
statutes
which
nations
put
in
force
...
no
more
deserve to be called laws than the rules a band of robbers might pass
at their assembly." 118
According to him, "[l]aw is the distinction between things just and
unjust" 119 and, in order to be law, it must "inflict punishment upon the
wicked but defend and protect the good". 120
Stoicism,
with
its
strong
emphasis
on
the
individual
conscience,
claimed that certain aspects of the human life are beyond the control
of the state. 121 Christianity and Stoicism established the fundamental
idea of a private realm over which the state has no jurisdiction.
There
is,
however,
an
important
limitation
on
what
can
called
the
subversive potential of Stoicism and for the matter of Christianity.
Both systems urge one to disregard the external world and emphasise the
spiritual life of the individual. Since the outside world is broken and
cannot
I
repaired,
injustices.
As
a
one
must
general
expect
rule,
the
to
have
demands
to
of
put
up
incumbents
with
of
son
state
authority belong to the category of these "outside things to which one
should
demands
be
indifferent.
of
those
in
It
is
positions
consequently
of
not
authority,
worth
even
if
resisting
that
the
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
Ebenstein Great political thinkers 147.
117
Cicero De legibus 2.12.
118
Id 2.13.
119
Ibid.
120
Ibid.
121
See Post Studies in medieval legal thought 261.
Cicero
maintained
mention
of
resignation."
a
122
that
"a
parent's
man
is
offence,
bound,
but
not
even
only
to
to
suppress
endure
it
all
with
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
See "Pro Cluentio" in Cicero The speeches 17.
123
Cicero Philippics 2.15.
124
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
See eg Skinner The foundations of modern political thought vol 2 279.
126
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
Pufendorf.
the
129
Roman
Dutch
legal
system,
such
Grotius 128
as
and
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
Could
imperii.
he
peace? 130
maintain
Clearly
any
form
of
hostility
to
result-oriented disobedience was out of the question.
While
the
writings
of
Tacitus
bear
testimony
of
his
tyranny, he did not show much sympathy for its victims.
131
The speakers
in his historical reconstructions took for granted the "honour due an
Emperor". 132In
(completed
c
typical
109)
endured any sort",
Stoic
remarked
133
fashion,
that
"he
a
speaker
prayed
for
in
good
The
histories
Emperors,
but
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 one’s soul is not
affected, political dispensations should be placed in the same category
127
For a thorough contextualised discussion of the political opinions of
Tacitus, see Syme Ten studies in Tacitus 119ff.
128
See eg Grotius De jure belli ac pacis chap 4.
129
See eg Pufendorf On the law of nature and nations 7.8.4.
130
See Syme Ten studies in Tacitus 132.
131
Id 136.
132
Tacitus The histories 4.8.
133
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 one’s soul, because that lies in one’s control.
D.
GERMANIC JURISPRUDENCE
The
early
Middle
Ages
in
Europe
were
dominated
by
the
traditional
Germanic concept of the "law-based state", which proclaimed that the
state existed "in the law and for the law". 135Law was not seen as a
product of the state, but as something to which the state was also
subjected. 136
These points of departure culminated in a liberal approach to the right
of
resistance,
which
would
emerge
whenever
the
ruler
exceeded
his
powers. Kern, in an in-depth discussion of the subject, observed that
"[t]he right of resistance was an integral part of medieval Germanic
constitutional
ideas." 137
According
to
Gierke
"the
purely
medieval
doctrine did not only allow’ the right and duty of a martyr’s ‘passive
resistance’’ - it taught that every command which exceeded the limits
of the ruler’s authority was as far as his subjects were concerned a
mere nullity and did not oblige anyone to obedience." 138
Medieval jurisprudence also proclaimed "the right of resistance, and
even
armed
resistance,
against
the
compulsory
enforcement
of
any
unrighteous and tyrannical measure - such enforcement being regarded as
an act of bare violence. Nay more, it taught ... that tyrannicide is
justifiable or at least excusable." 139
This
approach
appears,
for
example,
from
the
Sachsenspiegel,
a
compilation of customary law of the Saxons and the most outstanding
legal
monument
of
German
feudal
law
of
the
Middle
Ages.
Probably
written between 1215 and 1233 by Eike von Repgow (c 1180-1233), the
Sachsenspiegel represents the beginning of German jurisprudence, and
135
See Gierke Political theories of the middle age 73.
136
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
See Kern Kingship and law in the middle ages 85ff.
138
Gierke Political theories of the middle age 35.
139
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 master’s, and [by doing so] does not act against
his loyalty." 141 In the process, one could without violation of his
fidelity wound or slay his lord. 142
E.
St
AURELIUS AUGUSTINE
Augustine
(354-430),
from
Roman
North
Africa,
critical juncture where the era of the Roman Empire
Middle
Ages;
teachings
himself,
of
144
when
this
antiquity
"African
was
deposed
writing
to
by
represented
the
made way for the
Christianity. 143
Africans",
as
he
The
described
and father of the Christian churches (both Catholic and
Reformed), dominated Western thought for centuries. He integrated the
philosophy
of
the
Greco-Roman
world
(particularly
Plato,
but
also
Cicero and the Stoics) into the emerging ethos of Christianity. More so
than any other dominant religion, Christianity would be tolerant of,
and in fact open to, the influence of philosophy.
Augustine’s
political
writings
should
be
evaluated
in
view
of
the
central political event of his time, namely the fall of the Roman
Empire. The fall of Rome at the hands of barbarians left the world
stunned. How could such a rock crumble so easily? Was this course of
events not a consequence of the influence of Christian faith which
supposedly
precluded
Christians
from
being
patriotic
citizens?
140
See K1sh Sachsenspiegel and Bible 3 and Van Zyl Geskledenis van die
Rome1ns-Ho11andse reg 69.
141
Sachsenspiegel 3.78.2. (Own translation, with assistance from Philip
Thomas, from Eckhardt's edition of Sachsenspiegel Landrecht 260.)
142
Id 3.78.6. See the discussion in Carlyle
medieval political theory in the West vol 3 61ff.
143
&
Carlyle
A
history
of
0n his philosophy in general, see Vorländer Geschiedenis van de
wijsbegeerte vol 2 28ff and Versfeld St’ Augustine’s confessions and City of
God. For a discussion of Augustine’s political views, see Strauss & Cropsey
History of political philosophy 151ff; Ebenstein Great political thinkers
170ft; Deane The political and social Ideas of St Augustine, especially 116ff,
Villa-Vicencio Between Christ and Caesar 20ff and Villa-Vicencio Civil
disobedience and beyond 73, 93ff. As to the implications of his teachings for
legal philosophy, see Du Plessis Westerse regsdenke tot en met die middeleeue
148ff.
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.
Augustine’s most elaborate work with political implications, 146 The city
of God against the pagans, was largely an attempt to respond to these
charges. In the first place, Augustine would deride the value which
people placed on an earthly institution such as the Roman Empire with
all its weaknesses. In the second place, he rejected the notion that
Christians were by nature unpatriotic citizens.
would
be
less
scope
for
the
political
After Augustine, there
indifference
of
the
early
Christians, although, as win be pointed out, much of that indifference
remained.
According
to
Augustine,
justice
is
the
highest
virtue
and
the
cornerstone of civil society. Philosophy in itself, however, cannot
reveal the meaning of perfect justice - a higher and more genuine form
of justice is needed, which can only be provided by the grace of God.
The essence of justice, according to Augustine, following the lead of
Plato in this regard, is constituted by the right ordering of things,
which alone can bring peace. For Plato, this "right ordering" referred
largely to the relationship of the virtues in the individual himself
and
in
his
station
in
life.
For
Augustine,
harmonious relationship between man and God.
it
signified
in
the
147
Augustine agreed with Plato that the lower aptitudes should be governed
by reason, but for him reason should in turn be regulated by God. Like
the later Reformers, Augustine saw the need for state authority, and
indeed for civil rule, as a necessary consequence of the fallen nature
of human beings and their proneness to sin, which propensity entails
that
the
government
145
lower
in
appetites
accordance
or
desires
with
the
take
over.
Good
government
virtue
of
justice.
In
is
typical
See Cary & Scullard A history of Rome 547.
146
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.
147
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."
Platonic
terms
Augustine
saw
human
justice
as
merely
an
imperfect
imitation of divine justice.
Eternal
law
(lex
is
aeterna)
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
bands?" 148
robber
The
centrality of the virtue of justice in Augustine's thought is evidenced
by his well-known statement that "an unjust law, it seems to me, is no
law." 149 This phrase would become one of the central maxims of the
traditional natural law approach in respect of the limits of political
ob1igation.
Central to Augustine’s perception of the relationship between Christian
and civic duty was his doctrine of the duality of the two cities in
which humanity finds itself: the city of God (civitas dei) and the
earthly city (civitas terrenea). Citizens of the city of God are those
(irrespective of race or national origin) who follow Christ and lead
virtuous lives - those who pursue virtue and truth. The earthly city is
the
fallen
interest.
150
world
The
-
the
problem
world
of
the
of
those
who
Christian,
pursue
then,
is
narrow
self-
his
double
citizenship, and hence his double loyalties - he belongs to both of
these worlds. This brings us to the question as to which citizenship
should be afforded priority.
A
conflict
between
the
two
citizenships
is
not
inevitable.
If
the
rulers should act in accordance with Christian principles, the demands
made by the two jurisdictions would coincide. In such a case, the
Christian can pursue the life of general obedience - and to Augustine
obedience
was,
"in
a
sense,
the
mother
148
Id 4.4.
149
Augustine The free choice of the will 1.5.11.
150
and
guardian
of
all
“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
administration
of
of
things
the
(not
much
a
later
government
Marxist
over
ideal
people)
reminded us that in paradise God placed man in charge of
of
an
Augustine
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 Ambriose’s earlier
repudiation of a right of resistance. 154
It is true, according to Augustine, that the Christian is in the first
place a citizen of the heavenly city. But this does not mean that he
should disobey the state: on the contrary, it means that he has little
reason to oppose the state. Augustine, in what can be regarded as a
classic exposition of the Stoic-Christian approach, argued in favour of
remaining indifferent to unjust demands of the state, as long as one’s
citizenship of the heavenly city is not threatened: "As far as this
mortal life is concerned, which is passed and ended in a few days, what
difference does it make for a man who is soon to die, under what rule
he lives, if only the rulers do not force him to commit unholy and
unjust deeds?" 155
As indicated in the emphasised section of this passage, the general
rule of obedience to the law applies, unless the law requires one to
151
Id 14.12.
152
Genesis 1.26.
153
Augustine The city of God against the pagans 19.15.
154
See Calvert Revolution 51.
155
Augustine The city of God against the pagans 5.17. (Emphasis added.)
violate God’s law. No one need to, or should, obey a command to do sin
- for example an edict which proclaims: "Do not worship God." In that
case
there
is
a
conflict
of
interests
in
which
God’s
law
enjoys
priority. The latter law should be upheld even if that means (earthly)
death. 156
By becoming a martyr under such circumstances, one gives strength and
courage
to
believers.
one’s
fellow
However,
believers.
martyrdom
One
should
might
not
be
even
used
win
to
over
more
discredit
or
otherwise undermine the law-giver, even if he is wicked. Its aim is
solely
to
protect
the
redeemed
personal or societal ends.
157
from
sin,
not
the
advancement
of
Ultimately, it is within God’s power to
remove a tyrant.
Augustine approved and even propagated the right of Christians in such
cases to disobey the law, but not to resist the authorities. One cannot
actively
place
oneself
in
opposition
to
the
existing
authorities,
because they receive their power from God with a view to preserving the
order and tranquillity of society. God does not, however, control the
application of this power by the authorities. That is why there are
sometimes wicked laws.
Augustine’s
often-quoted
adage
that
an
unjust
law
should
not
be
regarded as a law at all, should consequently not be taken as a licence
for result-oriented disobedience of the law. In fact, he explicitly
rejected this. Augustine’s profound commitment to justice did not imply
a concomitant right to resist. To him, the maintenance of law and order
was a religious duty. The only type of political disobedience endorsed
and, in fact, in some cases required by him was
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
156
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
Augustine The city of God against the pagans 8.20.
Augustine
translation.)
"Sermo"
62.13,
contained
in
Augustine
Opera
omnia.
(Own
Modern
Western
writings
of
political
the
science
Englishman,
has
John
an
of
early
Salisbury
forerunner
159
(c
in
the
1120-1180),
a
Christian humanist, who tried to wrest political thinking from the hold
of Stoicism. In his most important work, Policraticus, 160 John startled
his
contemporaries
when
he
presented
an
elaborate
defence
of
tyrannicide. A staunch champion of the supremacy of ecclesiastical over
temporal power, John was particularly perturbed by the murder of his
friend, Thomas Becket, by the henchmen of Henry II.
As
the
point
of
departure
in
his
discussion
of
tyrannicide,
John
accepted the orthodox premise of his time that all rulers, including
tyrants, should be obeyed because, according to Romans 13, they are
ministers of God. 161 There is a difference between kings and tyrants, in
the sense that the king rules in accordance with the law while the
tyrant
rules
obedience
by
also
alone. 162
force
applies
to
Nevertheless,
tyrants,
"[f]or
the
general
tyrants
are
rule
of
demanded,
introduced, and raised to power by sin." 163 To get rid of a wicked king,
John
maintained
political theory,
that king
In
165
respect
in
164
accordance
with
conventional
ecclesiastical
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
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
159
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.
160
Completed in 1159, and sometimes translated as "The statesman's book",
although the Latin title is more commonly used.
161
John of Salisbury Policraticus 4.1.
162
Id 8.17.
163
Id 8.20.
164
See Dickenson's introduction id 1xx
165
Id 8.20.
166
Id 6.25.
John’s choice of words seems to suggest that in such a case defensive
civil
disobedience
should
normally
be
practised:
"If
princes
have
departed little by little from the true way, even so it is not well to
overthrow them utterly at once, but rather to rebuke injustice with
patient reproof until finally it becomes obvious that they are 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
John’s approach is extraordinary in several respects: In the first
place, the forthrightness with which he advanced the proposition that
under certain circumstances a king could be killed was unheard of at
the time. Later, writers like Calvin would seem deliberately vague on
the point, presumably in order not to rule out this possibility but at
the same time not to encourage people to engage in such action too
readily. Ultimately, they seem to have suggested that every person has
to accept responsibility for such action himself and personally bear
the moral cost. John, for his part, described such action as a public
duty. He did not only, like Augustine, regard a refusal to comply in
some cases as one’s duty but also saw the actual killing of the ruler
as
a
duty.
He
was
one
of
the
first
to
cross
the
line
from
the
propagation of defensive to result-oriented resistance.
It
is
also
remarkable
that,
whereas
other
early
writers
such
as
Augustine confined the function of disobedience to the protection of
167
Id 5.6. (Emphasis added.)
168
“It should be done without loss of religion or honor” and not by
someone who is bound to the tyrant "by an oath or by the obligation of
fealty". Id 8.20.
169
Id 3.15.
one’s personal religious integrity, John seems also to have advocated
disobedience in the pursuit of the public benefit. His approach was
consequently also anti-exploitation.
But
John
went
even
further:
While
Calvin
would
demand
that
any
insurrection should be led by recognised leaders of the people, John
did not require any form of organised collective action and in fact
advocated individual tyrannicide – an approach which would be rejected
by Aquinas as being subversive of all civil order. 170
In
spite
of
the
fact
that
John,
no
doubt,
in
the
eyes
of
hi*
contemporaries and most of his successors overstated hit case, he is
important because he was one of the first writers to establish the
doctrine that obedience to the political ruler is not absolute but
conditional; that it depends upon the way in which the latter rules. 171
Few
of
the
later
writers
would
unconditionally
accept
his
ideas
concerning the conditions and limits of justified resistance, but it
could not be denied that the issue was placed squarely on the agenda of
political
discourse,
to
counteract
the
traditional
conservative
approach.
G.
THE RE-EMERGENCE OF ROMAN LAW AND THE GLOSSATORS
The legal systems which comprise the Roman-Germanic legal family have
as their common point of departure the inherent values of the Roman and
Germanic
dispensations.
In
this
regard,
Roman-Dutch
law
is
no
exception. At the same timer, this body of law to a large extent
reflects the particular social and political context of the societies
of Europe in which the system developed, as well as the political
convictions of the commentators responsible for its development. In no
other
area
can
this
be
seen
more
clearly
than
in
the
principles
pertaining to political obligation and resistance.
At the end of the Eleventh Century, when Roman law revived at the
universities of Bologna and Ravenna in Italy, the Roman emphasis on the
supreme powers of the rulers re-emerged and supplanted the more liberal
Germanic approach. In this process, Roman law was amplified by the
Canon law. Whereas, in the Germanic tradition, people were seen as the
source of all power, power was now increasingly regarded as descending
170
See infra chap five I H.
171
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.
At the same time, however, the idea of libertas
of the cities as
against the German Empire was developing into a powerful political
aspiration. The notable exception among the Glossators, who shared this
aspiration, was Azo (1150-1230).
Through
consolidation
(and
manipulation)
of
Roman
law
texts
he
developed a forerunner to the concept of sovereignty, as subsequently
elaborated upon Jean Bodin.
Azo maintained that "jurisdiction" or the power to rule did not descend
downward from the Emperor but emanated upward from the community. More
important is the fact that Azo, in a dispute with the jurist Lothair,
advanced an interpretation of the concept of merum imperium in terms of
which the ius gladii could be exercised by the Emperor and also by the
"inferior magistrates". According to this approach, the Emperor could
be said to have signed a contract, at his election, with the electors
and other "inferior
magistrates" to uphold the good of the Empire and
to protect the liberties of his subjects. The jurisdiction of "inferior
172
See Hahlo & Kahn The South African legal system and its background
430ff.
173
174
See Kern Kingship and law in the middle ages 195.
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
"inferior
his
power
magistrates"
had
independent. 175
it
was
the
power
to
use
the
Consequently
sword
Emperor, if he did not uphold his coronation oath.
176
the
against
the
This approach,
called the "constitutional theory" of resistance, would later play an
important role in Calvinistic thinking.
H.
THOMAS AQUINAS
The
early
middle
ages
were
dominated
by
Augustinian
Platonism,
according to which the world is bad, and the only good world belongs to
the realm of the ideal which can be known in this life only through
revelation or vision.
The pessimism and other-worldliness of Christianity in the "dark middle
ages" came under increased challenge after the millennium. New ideas
and modes of thought were developed in the emerging universities. At
the same time, crucial texts of Aristotle for the first time became
accessible to the West, setting out his views that the (earthly) state
was
the
highest
achievement
of
man.
This
threatened
the
very
foundations of the Augustinian world view espoused by the church of the
time. The state was placed in a new, positive light. At the same time
the church was experiencing strong internal tensions, due to the fact
that it was becoming a major worldly institution. To put it bluntly,
the fact that the second coming did not materialise at least at the end
of the millennium put the church under new pressure to make peace with
this world, and to reassess its role in it.
The task to pilot the church in these shifting currents would fall on
the shoulders of one of the most outstanding intellectuals who has ever
served
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.
See the discussion
thought vol 2 127
177
in
Skinner
The
foundations
of
modern
political
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'Entrèves
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 humankind’s social impulse as natural and consequently
as basic to all further relations. He stated repeatedly that "man is
naturally a social and political animal." 180 Man is unthinkable without
the state, because it is in the state that human fellowship finds its
highest expression and all that depends on that fellowship is natural
to man.
According to Aquinas, two types of dominium should be distinguished:
subjectio
servilis
and
subjectio
civilis.
Slavery
is
contrary
to
nature, because it degrades man to a tool for someone else’s good. But
-
and
here
the
Aristotelian
influence
is
clear
-
the
political
subjection of someone for the common good (or of women to men) is not
inherently wrong or unnatural: "Such subjection already
existed before
sin: for it would argue a lack of reasonable order in human society if
it were not regulated by those who are more wise." 181 The capable should
govern the incapable.
The heart of Aquinas’ treatment of politics can be regarded as his
conception of natural law, as developed in his Summary of theology.
Aquinas distinguished four forms of law:
i)
Lex aeterna is identical to the divine reason that governs the
universe, and is called eternal because God’s reason is eternal.
178
Reprinted in Aquinas Selected political writings 3ff.
179
Id 103ff.
180
See eg Aquinas On princely government 1.1.
181
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
rational creatures is called the natural law.
iii)
law
by
183
Lex divina refers to the fact that man’s reason is not the only
or the most reliable guide to his understanding of truth and
justice. Divine law is revealed to man through the Old and the
New
Testaments,
and
apprehended by reason.
iv)
Lex
humana,
positive law.
the
does
not
contradict
natural
law
as
184
lowest
form
of
law,
is
what
we
would
call
185
There are four conditions which law must meet in order to have the
nature of law. Firstly, it must be derived from natural law. In the
second place, human law must be directed to the common welfare of the
city. Thirdly, the law should be promulgated by the rulers of the
community. In the last place it must be enacted "by the common sanction
of nobles and people". 186
Obedience to the demands of law is therefore required by nature itself
- no social contract is required in this regard. The obligatory nature
of law is derived from its divine origins. Sin also has no part in the
rational justification of the state, because political obligation is
inherent in man’s nature.
It is important to note that while Aquinas is considered one of the
primary natural lawyers of all time, his conception of natural law was
182
Id 1.5.
183
Ibid.
184
Ibid.
185
Ibid.
186
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
See Aquinas Selected political writings xiv.
188
Aquinas Summary of theology 1.3.
189
Id 1.23.
190
Id 1.16.
191
Ibid.
192
Aquinas On princely government 1.6.
193
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
194
Id 1.6. Presumably he was referring
Salisbury. See supra chap five I F.
to
the
arguments
of
John
of
195
Ibid.
196
Id 1.6.
197
Ibid.
198
Aquinas Summary of Theology 1.9.
199
Id 1.23.
200
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
should be taken.
203
does
not
provide
a
cure,
extraordinary
measures
This thought would be repeated in the Placcaet van
Verlatinge of 1581, to which we will presently turn.
K.
BARTOLUS OF SASSOFERRATO
The Italian ideal of freedom of the cities as against the Holy Roman
Empire found its legal champion in the work of the post-Glossator or
Commentator, Bartolus of Sassoferrato (1314-1357), arguably the most
outstanding jurist of the Middle Ages. This new political approach was
made possible by a change in the basic approach to scholarship which he
and his colleagues practised. To Bartolus, the primary objective of
legal
writing
was
not
strict
adherence
to
the
Roman
texts,
but
faithfulness to truth and reason. If necessary, the law had to yield to
facts.
Bartolus set out his views in commentaries on the principal divisions
of the Corpus Juris Civilis. On the question of the power of the
Emperor, Bartolus began his commentary on the Code by conceding that,
de jure, the Emperor was the sole dominus mundi and had merum imperium.
De facto, however, many people did not obey the Emperor’s decrees. This
de facto position, he argued, had to be officially recognised. Insofar
201
See Skinner The foundations of modern political thought vol 2 125.
202
See Van Zyl Geskiedenis van die Romeins-Honandse Reg 330.
203
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.
move
toward
articulating
the
modern
legal
concept
of
the
204
The above exposition served as a legal foundation for asserting the
freedom as against the Empire of the Italian cities and also of the
kingdoms of Northern Europe. It could consequently be said to deal with
resistance by political communities against external domination. The
truth of the matter was, however, that most of the rulers of the
communes were tyrants. How were they to be treated? Bartolus, with a
view to these questions, also addressed the issue of revolt against
domestic authority. Among the most notable of his works was "On the
tyrant", the first treatise by a jurist dedicated exclusively to the
subject of tyranny and the way in which it should be handled. 205 We
shall consequently dealt with it at some length.
In "On the tyrant", Bartolus, as in his other writings, was at pains to
emphasise
the
idealistical1y
Fourteenth
independence
regarded
Century
were
of
the
the
fact
city-state
that
characterised
(civitas).
Italian
by
tyranny
He
communes
as
a
rather
of
the
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
See Skinner The foundations of modern political thought vol 1 9.
205
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
hostile judge".
213
no
one
is
bound
to
appear
before
a
notoriously
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
Id para 6.
208
Id para 7.
209
Ibid.
210
Ibid.
211
Id para 8.
212
Id para 9.
213
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
Id para 12.
215
Ibid.
216
Ibid.
217
Ibid.
218
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
Reformers
exercising
there
Consequently,
earthly
could
one
be
would
only
not
authority,
was
one
-
expect
sword
from
rejected.
that
them
a
of
For
the
robust
the
state.
theory
of
political resistance.
The Reformers’ revived emphasis on the inner or spiritual experience of
faith, as opposed to external action or deeds, was also not suggestive
of
an
aggressive
circumstances
develop
a
approach
existed
theory
of
to
which
political
prompted
resistance
the
which
resistance.
Reformation
represented
a
Nevertheless,
eventually
decisive
to
step
further to the modern-day position.
According
to
Aquinas,
and
the
Roman
Catholic
tradition,
the
state
preceded sin - it was in the state where humans had to fulfil their
true
earthly
existence.
Like
Augustine,
the
Reformers
regarded
the
existence of the state as a consequence of sin. The function of the
state is to counter the sinful nature of man. Since the state was the
only institution on earth which could counter the chaos which resulted
from
sin,
it
had
to
be
obeyed.
The
use
of
coercion
by
the
state
counteracted the consequences of sin and constituted the means whereby
God in his mercy provided for the blessing of a peaceful social life. 219
In accordance with these points of departure, the Reformers saw as a
critical
part
of
the
Christian
message
the
divine
endorsement
of
political authority. Their view was not founded on the notion of a
social contract which lost its binding force once the state failed to
keep its promise. To them, political authority and obligation did not
depend upon consent and the rulers had to answer for their use of power
only to God himself.
The Reformers recognised the fact that some rulers were wicked, but
regarded that as God’s punishment for our sins. As a general rule, if
it was impossible to flee from oppression one was expected to suffer
injustice. One could not, however, become a partner in injustice, which
meant that if the authorities required one to act unjustly one should
not co-operate. Because the state was the only legitimate holder of the
earthly sword, however, private individuals could not challenge the
state.
Only
after
the
Reformation
itself
came
under
serious
threat
from
political rulers, would its leaders recognise a right under certain
circumstances of more confrontational resistance against the state. The
fact that the state was now seen as an instrument destined to serve a
certain
purpose,
carried
in
itself
a
powerful
potential
for
disobedience; that is if the state were to disregard that purpose. At
the same time, it should be noted that, although Luther and Calvin
rejected and resisted this view, a number of their followers maintained
that
rulers
who
failed
to
exercise
their
divine
duties
could
be
resisted. This meant that they recognised a right to resist "heretical
rulers".
The approach of the two most dominant figures of the Reformation, and
aspects of their legacy, will now be considered.
(1)
Martin Luther
Although he offered no systematic account of political obligation, it
can safely be said that the German theologian, Martin Luther (1483-
219
See the discussion
political philosophy 309.
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 Luther’s convictions regarding the total depravity of man - applying
equally to those who rule and those who are being ruled. Luther’s
conception of the natural state of man reminds one of the description
later given by Hobbes of the state of nature; one of a war of every
person against all others.
In the second part of "Temporal authority", Luther outlined limitations
of the state's authority. "External affairs" fail within the scope of
secular
soul".
authority,
221
but
the
state
has
no
jurisdiction
over
"the
If a political leader were to suppress the Bible or other books
(Luther’s own writings were banned and burned by several rulers) and
enforce outward compliance to certain
simply not co-operate.
222
religious beliefs, one should
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
220
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.
221
Luther "Temporal authority", reprinted in Luther Selected political
writings 51 at 61.
222
223
Ibid.
See Luther "On war against
Selected political writings 121.
224
63.
the
Turk"
(1529),
reprinted
in
Luther
Luther "Temporal authority" in Luther Selected political writings 51 at
interference of other rulers or the violent uprising of the unfaithful
masses. 225
In spite of Luther’s own conflicts with temporal authorities of his
time,
he
for
the
most
part
supported
the
absolutist
rule
of
the
monarchs of his time. In 1525, he endorsed the vicious suppression of
the uprising which resulted in the Peasants’ War; one of the causes of
which
was
a
commentary
mistaken
on
these
interpretation
events,
Luther
of
his
made
writings. 226
own
some
shocking
In
his
statements,
including an admonition to "everyone who can" to "smite, slay and stab,
secretly or openly" the rebels, just "as one must kill a mad dog",
because "nothing can be more ... devilish than a rebel." 227
In 1531, however, Charles V of Germany prohibited the preaching of
Lutheran
thought.
The
use
of
force
by
the
state
to
suppress
the
Reformation seemed imminent. The question of a right to resist now
became existential to Luther. Two arguments in favour of disobedience
in extreme cases were presented by lawyers to Lutheran theologians. 228
According to Augustine, the ruler does not hold the sovereign power by
himself - if he is chosen (or deemed to have been chosen) by lower
magistrates
they
share
his
power,
granted
by
God.
According
to
constitutional theory, when the ruler uses his powers contrary to the
purposes for which he was
appointed, these lower magistrates have the
power to take up the sword against him. As argued by Azo, in doing so
they are not usurping the divine power of the ruler - they already have
such power. According to the so-called private law theory, on the other
hand, everyone has the right to defend himself against violence. The
basis of this theory was the rule of Roman private law that vim vi
repellare licet. 229 Similarly, every citizen (and not only the lower
magistrates)
has
the
right
to
defend
himself
against
a
violent
government.
225
See Luther "Whether soldiers, too, can be saved" (1526), reprinted in
Luther Selected political writings 101.
226
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.
227
Luther "Against the robbing and murdering hordes of peasants" (1525),
reprinted in Luther Selected political writings 85 at 86.
228
See Manenschijn Burgerlijke ongehoorzaaroheid 166.
229
See supra chap five I C.
Faced with an emergency, Luther chose the latter, more extreme of the
two options. In "Dr Martin Luther’s warning to his dear German people"
(1531), 230 Luther described the use of force to crush the Gospel as
blasphemy and maintained that rulers who wage such a war are the true
rebels. Those who resist the "murderous and bloodthirsty papists", act
in
self-defence.
Those
against
whom
they
act
cannot
properly
be
considered "rulers", because through such actions the perpetrators have
relegated themselves into being mere citizens. It seems that under
these circumstances Luther was indeed prepared to abandon his earlier
view that political resistance could never involve more than defensive
civil disobedience, and sanctioned the use of violence.
The latter views, however, constituted an exception to his normally
pro-state attitude, which more properly reflects his legacy. Because of
his enthusiastic endorsement of the absolute state, nationalism and
even
racialism,
Luther
has
been
described
as
one
of
the
spiritual
ancestors of the excesses of the Third Reich, although this view may be
contested especially in view of his later disenchantment with the state
and his willingness then to endorse resistance. On the whole, however,
Luther’s inconsistencies can be regarded as a reflection of the strain
which the traditional
(2)
Stoic position was undergoing. 231
Jean Calvin
In theological terms, the modern, more activist approach to political
resistance was
Calvin
introduced by the great figure of the Reformation, Jean
(1509-1564), 232
Calvin’s
ideas
exerted
a
great
influence
on
Holland and subsequently on South Africa, where it has been used and
230
Reprinted in Luther Selected political writings 133ff.
231
See Ebenstein Great political thinkers 305.
232
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
matters.
234
less
tolerance
for
state
interference
in
spiritual
Consequently, one would expect Calvin to be more favourably
inclined than Luther to a right of resistance against state absolutism,
at least insofar as the state’s encroachment on religious matters was
concerned. And indeed, eventually Calvin would go much further than
Luther
as
far
as
his
motivation
for
resistance
and
the
type
of
resistance are concerned. His initial views, however, did not differ
much from those of Luther.
In Institutes of the Christian religion (first edition 1536) Calvin
instructed subjects to see their rulers as exercising "a jurisdiction
bestowed by God". Governments should not be seen as a "necessary
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 Lord’s wrath upon the earth." Although rulers are required to
rule justly, a wicked ruler can also accomplish God’s work on earth by
punishing his subjects for their sins. The best and the worst king
233
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.
234
The Calvinistic concept of "sphere sovereignty" is outlined in Van der
Vyver Die jur1d1ese funksie van staat en kerk. See especially 98.
235
Calvin Institutes of the Christian religion 4.20.22.
236
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
all governments. 239 The only
possible relief
from continuous oppression can come from God, who, in response to the
prayers
of
the
suppressed,
will
send
a
"hero"
or
outside
agency
("benevolent background force"?) to rid the people of the oppressor.
These views of Calvin differ little from the orthodox position of the
early church fathers.
From the early 1550’s, those who participated in the Reformation in
Europe and England experienced increased persecution. The punishment
for
heresy
was
death.
stake. Calvin continued
Again,
the
whole
movement’s
survival
to defend the line taken in
was
at
Romans 13 in
respect of resistance by private individuals. Nevertheless, at the end
of the last edition of the Institutes (1559), he now inserted a passage
on resistance to political authority, which constituted, in the opinion
of many, the nucleus of modern liberty. 240 Following immediately on the
exposition of the general rule in favour of obedience, the passage
proceeds as follows:
I am speaking all the while of private individuals. For if there
are now any magistrates of the people, appointed to restrain the
willfulness of kings (as in ancient times the ephors were set
against the Spartan kings, or the tribunes of the people against
the Roman consuls, or the demarchs against the senate of the
Athenians; and perhaps, as things now are, such power as the
three estates exercise in every realm when they hold their chief
assemblies), I am so
far from forbidding them to withstand, in
accordance with their duty, the fierce licentiousness of kings,
that, if they wink at kings who violently fall upon and assault
the lowly common folk, I declare that their dissimulation
involves nefarious perfidy, because they dishonestly betray the
freedom of the people, of which they know that they have been
appointed protectors by God’s ordinance. 241
237
Id 4.20.25. See also id 4.20.26.
238
Reprinted in Calvin Commentaries on the epistles to Timothy, Titus and
Philemon 19.
239
Calvin "The first epistle to Timothy" 2.2.
240
See the references in Murray Acta Juridica 1958 275 at 300.
241
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
intervention
contribution
of
"lesser
here
concerns
authorities".
That
resistance
through
the
is,
not
the
it
is
for
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
opposition to tyranny by the so-called populares magistratus.
242
of
He in
fact declared that resistance in such cases was not only a right but
also a duty.
Several observations are called for in this regard. It should be noted,
in the first place, that the above, at least in the view of Calvinists,
does not technically constitute an exception to the general rule of
obedience to authority. The point is that the lower magistrates are
part of the governmental structure and are therefore also "rulers", who
are endowed with divine authority and are under the divine duty to rule
justly. It is the exercise of this duty that can bring them in direct
confrontation with the rulers - not a "right of resistance".
Nevertheless,
insofar
circumstances
be
as
the
appropriate,
exercise
it
of
could
this
involve
power
may
more
in
than
given
non-co-
operation or defensive civil disobedience. It can be used to protect
the
"freedom
of
the
people",
and
especially
those
in
positions
of
political weakness - the "lowly common folk". This passage, almost in
so many words, justifies active, result-oriented disobedience, based
not only on the protection of integrity but also as a defence against
exploitation.
Another aspect of this passage which is worth noting is the absence of
restraints pertaining to the methods that could be employed by the
lower officials in opposing the higher officials. Consequently, this
passage
is
commonly
violence, under
As
stated
interpreted
as
an
endorsement
of
the
use
certain circumstances, as a political instrument.
earlier,
the
above
does
not
technically
of
243
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
See Manenschijn Burgerlijke ongehoorzaamheid 172ff.
243
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
displeasure" of God. "If
when
co-operation
would
"incur
the
they command anything against him, let it go
unesteemed." To do so is not only a right but also a duty, which should
be
executed
even
if
it
means
losing
one's
life.
It
happened,
for
example, that the Israelites were condemned for being too obedient to
wicked kings. 245 Calvin, consequently, endorsed defensive, integritybased
civil
disobedience
by
individuals
and
result-oriented,
anti-
exploitation resistance by officials.
The Reformers, through their insistence on the separation of state and
church,
prepared
the
way
for
a
more
sceptical
view
of
secular
authority, even though this was not their specific aim. They expanded
the traditional Christian emphasis on personal responsibility and hence
the inviolability of the individual conscience, and restored the idea
of the state as an instrument destined to serve a certain purpose.
Theologians in the Calvinistic tradition would take Calvin’s ideas on
resistance a step further. In a real sense, Calvin can be said to have
opened the sluice-gates for Christian theology to follow a much more
activist approach to political resistance. 246 Particularly influential
in this regard would be the "trilogy" of the Vindiciae (to which we
will presently turn), Hotman and Beza. 247 The Scottish Reformer, John
Knox, would later argue that to remain silent in the face of tyranny
was
tantamount
to
complicity
with
the
tyrant. 248
in
this
Abraham Kuyper further developed the idea of "spheres of
Century,
liberty" and
244
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
Id 4.20.32. See also Hosea 5.13.
246
See Alien
A history
of political thought in the Sixteenth Century
l03ff.
247
In his influential work. Concerning the rights of rulers, Beza outlined
the principle of fundamental law and his justification of the right to revolt.
248
See Vi11a-Vicencio Between Christ and Caesar
foundations of modern political thought vol 2 l89ff.
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
Calvin’s constraint, that only the magistrates could initiate revolt,
was interpreted by oppressed people around the world, including South
Africa, to mean that, where they did not enjoy representation, those
leaders who would probably have represented them if there were free
elections can initiate resistance. 251
(3)
The Vindiciae contra tyrannos
History proved the concerns of Reformers regarding the approach of the
political
rulers
toward
the
Reformation
to
be
well-founded.
The
prosecution of the Protestants reached a climax in the massacre of St
Bartholomew (1572) in which 30 000 Hugenots - the French Catvinists lost their lives.
From
this
tragic
course
of
events
emerged
a
document
called
the
Vindiciae contra tyrannos (1579), which was written by an author whose
identity
Brutus.
252
is
not
certain,
under
the
pseudonym
of
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
249
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
See Van Eikema Hommes Major trends in the history of legal philosophy
251
See Villa-Vicencio Civil disobedience and beyond 94.
343.
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 king’s position is established by two
contracts. In the first place, the
people conclude a contract with
God, to be his people. In the second place, the people conclude a
contract with the king, whereby they promise to obey him if he rules
justly. The king occupies the position of trustee of the people, who
established him as their king. If the king violates his duty to rule
justly, the people are allowed and indeed obliged to resist or depose
him on the basis of their first contract with God. The king is but an
instrument of the law and should rule the people in their own best
interest. A king rules unjustly if he does not rule according to law or
does not serve the commonwealth. 254
Two types of tyrants could
be distinguished. In the first place, there
are those who illegally usurp power. The proper response to this type
of tyrant depends on how he rules, for such a tyrant can rule justly.
The tyrant who has the legitimate title to rule but rules unjustly can
only
be
deposed
by
the
magistrates
and
assemblies
of
estates.
The
"double tyrant", however, who usurps power and rules unjustly, can be
resisted - if there are no other alternatives - by any citizen, even if
that involves tyrannicide. 255
Although the main purpose of the Vindiciae was to
vindicate the right
of protecting one’s religious convictions through non-co-operation in
religious matters, it could also provide a basis for result-oriented
disobedience
in
pursuit
of
non-religious
objectives.
These
ideas,
considered radical at the time, would have a powerful effect on the
development of particularly Dutch and English political thinking.
M.
THE REVIVAL OF THOMISM
The Reformation prompted a revival of Thomism, which manifested itself
most clearly in the work and writings of the "Spanish Schoolmen" or the
"School of Salamanca", who played an important role in the development
of
international
law
and
the
Roman
Dutch
legal
system.
The
most
prominent writers in this tradition were the Dominicans, Francisco de
Victoria (c 1485-1546) and Domingo de Soto (1494-1560), and the later
253
See Murray Acta Juridica 1958 276 at 312, 313.
254
Brutus A defence of liberty against tyrants 71ff.
255
Id 87ff.
Jesuits, Luis de Molina (1535-1600) and Francisco Suarez (1548-1617).
These
Neo-Thomists
delivered
their
contributions
at
a
time
when
Christianity had been split by the Reformation and, in its place, the
new
international
Columbus took
sovereigns,
community
was
emerging.
possession of the New
Victoria
256
Some
forty
years
after
World on behalf of the Spanish
transformed
Christian
morality
into
an
international science - that is, into the law of nations, which would
be endowed with its philosophy by Suarez and its literary form by
Grotius. 257
The prime target of these writers was, what they called, "the heretics
of the age" - meaning the followers of Luther (not Luther himself), who
not only denied the law-making powers of the Pope but also rejected the
natural-law foundation of the Thomist perception of the state and human
nature. Their contention that civil government cannot remain in the
hands of ungodly rulers and that the commands of an ungodly prince were
not binding in conscience, were regarded as particularly dangerous and
subversive. In the hands of the "heretics", the notion of a right to
resist a tyrant was replaced by a right to resist a heretical ruler. At
the same time, the Thomists were concerned about the Spanish conquest
and enslavement of Indians in America, which had been justified on the
basis that the latter were not Christians and that their repression,
consequently, amounted to a war against infidels. 258
In accordance with Romans 13, Victoria expressed the view that all
authority emanates from God, and just as much as it is sinful to
transgress the laws of God, so too is it a sin "in the court of
conscience" to transgress human laws of whatever government. 259 When the
sovereign fails to act in
does not create law.
human
law
was
260
defined
a way "advantageous to the state", he simply
The possibility of conflict between natural and
away:
if
human
law
finds
itself
in
such
a
256
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
See Scott The Spanish conception of international law and of sanctions
258
See Skinner The foundations of modern political thought vo1 2 135.
2.
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
Thomistic natural-law
N.
law. 261
not
This
co-incided
with
the
traditional
approach, which equated morality and law.
JEAN BODIN
The idea of state sovereignty was first explicitly analysed by the
Frenchman,
Jean
(1530-1596), 262
Bodin
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."
and
invades
the
property
of
others
by
treating
it
as
his
266
The king "bases his rule on the love of his people [and the tyrant] on
their fear". 267 In other words, the one depend for political obedience
primarily on authority, the other on control.
Nevertheless, the mere fact that someone was a tyrant did no justify
disobedience. Bodin stated:
I conclude then that the subject is never justified in any
circumstances in attempting anything against he sovereign prince,
however evil and tyrannical he might be. It is however
261
See Koskenniemi From apology to Utopia 77.
262
For a general discussion of his political philosophy, see Ebenstein
Great political thinkers 349.
263
Bodin Six books of the commonwealth 1.8.
264
Id 1.10.
265
Id 2.2 & 3.
266
Id 2.4 & 5.
267
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 ruler’s reign, but instead a procedural question, namely how did
the ruler acquire power. 270 If he did so illegally, he could be killed;
if not, the question must be asked whether he is sovereign. If he is
not sovereign (for example if he was elected by a sovereign people),
legal channels should be used to dispose of him. If that does not
succeed, the use of force may be appropriate. If he is sovereign, he
cannot be deposed and no amount of injustices on his part can justify
the use of force. 271
In
essence,
Bodin’s
position
consequently
amounted
to
a
radical
positivism which did not allow for an external vantage point from which
the quality of a ruler can be judged. 272
O.
GROTIUS
Hugo de Groot (1583-1645) is widely recognised as one of the greatest
jurists in the Roman-Dutch legal tradition and indeed of the world. 273
He has acquired the reputation of father of international law and as
one of the major proponents of natural law. The enduring appeal of his
most famous work, De jure belli ac pacts, lies, according to John
-----------------------------------------------------------------------------------------------------------------------
273
-----------------------------------------------------------------------------------------------------------------------
268
Ibid.
269
Ibid.
270
Ibid.
271
Ibid.
272
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
consequence
liberal
of
Grotius,
his
who
religious
himself
beliefs,
276
spend
time
arrived
at
in
a
surprisingly restricted view on political resistance.
Grotius accepted that people focus their lives on seeking their own
interest. Hobbes, who proceeded from the same premise, proclaimed that
"justice", insofar as it does exist, is simply a guise in which selfinterest is pursued. 277 Grotius, on the other hand, maintained that
man’s unique rational faculty demonstrates to him that justice is a
virtue,
a
good
in
itself,
apart
from
any
consideration
of
self-
interest. Consequently the natural inclination of humans as rational
creatures is to act justly and to seek social intercourse with others.
The result is the social contract. 278
A ruler might, according to the social contract, be sovereign and not
be responsible to the people. In that case, a general principle of 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
Dugard SALJ 1983 213 at 215.
275
For commentary on his political views, see Strauss & Cropsey History of
political philosophy 360.
276
See Kahn SALJ 1983 192 at 196.
277
See Infra chap five I P.
278
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 [one’s] master, no matter how unjust." He quoted Livy
as saying that "[h]arsh treatment on the part of our country, as on the
part of our parents, we must assuage by suffering and enduring." 280
Through an overview of the history of the early Christians, Grotius
illustrated their refusal to engage in armed resistance in spite of
their being severely persecuted. 281
The general rule of non-resistance does not preclude one, however, from
simply not obeying the authorities in certain cases. Directly invoking
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
would
manifest
itself.
However,
we
are
to
endure
unjust
treatment rather than positively resist the government, at least by
force.
Consequently, in the case of rulers who are not responsible to the
people, there is a general rule against rebellion and in favour of
obedience to the state. This is
based on the fact that the unlimited
licence to defend oneself, which prevails in the state of nature, was
relinquished once the pactum unionis is had been concluded. Without
limitations on the common right of resistance which obtains in the
state of nature, government cannot achieve its end of ensuring public
tranquil1ity. 285
Grotius remarked that the punishment for rebellion, according to Hebrew
law, was death. The only avenue open to the oppressed was that they
279
Grotius De jure belli ac pads 1.4.1.3.
280
Id 1.4.4.6.
281
Id 1.4.5.
282
Ibid.
283
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
Grotlus De jure belli ac pads 1.4.1.3.
285
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 one’s own
advantage are not Irrelevant, however: Ultimately Grotius viewed the
safety
of
the
individual.
Grotius
state
as
the
sine
qua
non
for
the
safety
of
the
288
rejected
the
view
that
subordinate
officials
-
populares
magistratus - were entitled to rebel against sovereign authority, since
the
former
logically
In
are
289
order
also
subject
to
the
and in terms of Romans 13.
to
find
an
answer
to
authority
of
the
latter,
both
290
the
question
whether
the
general
"principle of non-resistance", which has been alluded to above, obliged
people
to
prefer
being
killed
above
offering
violent
resistance,
Grotius asked himself what the opinion of those who formed the original
social compact would have been at the time when they were designing
their future society. His approach can be regarded as a classic example
of recourse to the device of the original position, which we will also
apply
later.
Grotius
argued,
cautiously,
that
they
would
not
have
required such absolute obedience:
If these men could be asked whether they purposed to impose upon
all persons the obligation to prefer death rather than under any
circumstances to take up arms in order to ward off the violence of
those having superior authority, I do not know whether they would
answer
in
the
affirmative,
unless,
perhaps,
with
this
qualification, in case resistance could not be made without a very
great disturbance in the state, and without the destruction of a
great many innocent people. 291
This course of conduct is not denied to minorities or even individuals
286
Id 1.4.3.
287
Id 1.4.4.1.
288
Id 1.4.4.4 & 1.4.4.5.
289
Id 1.4.6.1.
290
Id 1.4.6.3.
291
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
another"
-
intent
that
is,
to
in
destroy
cases
"one
of
people
...
exploitation.
for
the
sake
of
It
can
also
be
295
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
292
Id 1.4.7.4.
293
Id 1.4.7.6.
294
Id 1.4.9 8. 1.4.10.
that
would
ensue
from
denying
the
295
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.
296
Id 1.4.14. See also the
Constitution supra chap two I A.
297
Id 1.4.8.
298
Id 1.4.13.
reference
to
art
20(4)
of
the
German
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
advantageous than civil war."
any
terms
between
citizens
seems
more
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
belligerency
Years
War
(1618-1648)
which
brought
widespread
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
Id 1.4.15.1 & 1.4.15.2.
300
Id 1.4.16; 1.4.17 & 1.4.18.
301
Id 1.4.19.
302
Id 2.22.11.
303
Id 1.4.20. Grotius also argued that agreements reached with tyrants
should be honoured. Id 3.19.2.
304
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.
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.
defence
of
In
it
Hobbes
absolute
political philosophy,
provided
government.
306
In
an
elaborate
this
and
his
and
well-reasoned
other
works
on
Hobbes, following Machiavelli, broke with the
tradition of Socrates, Plato and Cicero, which he believed had failed
to secure peace since it tried to achieve too much. It had focused,
Hobbes and the new generation of political theorists believed, on what
humans could be and aspired to, instead of on what they were. Hobbes
wanted to establish a theory of government on a scientific basis, which
dealt with goats people actually pursue and attain. In the process, he
would proclaim an even more constricted view of resistance than the
Stoics.
Hobbes did not accept as his point of departure the usual premise of
absolutist rule, namely the inequality of men, but on the contrary
adopted
as
persons.
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
305
violent
death,
reason
For a discussion of Hobbes' political thought, see Ebenstein Great
political thinkers 362ff; Strauss & Cropsey History of political philosophy
370ff; Höffding A history of modern philosophy vo1 1 259ff; Vorlander
Geschiedenis van de wijsbegeerte vo1 3 62ff; Van Eikema Hommes Major trends
in the history of legal philosophy 104ff and MacPherson's introduction in
Hobbes' Leviathan 9ff. His approach to legal and political obligation is
discussed in Macfarlane Modern political theory 98.
306
The elements of law (1640) and De cive (1642).
307
Hobbes Leviathan 1.13.
308
Id, 1.11.
309
Id 1.13.
310
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
unassailable: "[N]o man
that
hath soveraigne power
can justly be put to death, or otherwise in any manner by his subjects
punished,"
because
through
the
social
regarded as the authors of these actions.
contract
313
the
subjects
are
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
Id 1.14.
312
Id 2.18.3.
313
Id 2.18.5.
314
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",
definition the state cannot act illegally.
315
because
per
To put it bluntly: The
state is above the law. This amounts to the position that even if a
weak right of resistance could be recognised, there is no room for a
strong right.
If, then, it is the task of the state to bring security, the next
question is what form of government is most likely to render that
result. On practical grounds, Hobbes opted for a monarchy, since it is
not susceptible to competition for office as are aristocracies and
democracies and it is easier for one to reach a decision than for many.
Nevertheless, Hobbes was willing to submit to Cromwell’s rule, because
he considered it the most effective at the time.
From Hobbes’ point of departure of the all-pervasive requirement of
security, the need for the state to be all-powerful followed naturally.
There
should
be
no
absolutely obedient.
division
316
of
powers,
and
the
subjects
must
be
No private judgments on what is good and what is
evil should be tolerated. If compliance with a command of the sovereign
is sinful, it is the sovereign’s sin, not the sin of the subject. Not
being a religious believer himself, Hobbes viewed religion as a serious
threat to the authority of the state. 317
In his quest to make government unassailable, Hobbes sought to destroy
the tools by which it could be attacked and criticised. He rejected the
traditional notion of natural law as a higher law, whether based on
religion or reason, and denied the validity of any universal values.
The judgment that something is "good" or "evil", for Hobbes, merely
indicated the personal emotional disposition of the person expressing
that opinion. Consequently, the judgment that a particular ruler is a
315
Id 2.18.4.
316
Id 2.18.8 & 2.20.
317
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
which
that
person
governed. It merely indicated a personal preference, and an unwarranted
preference at that, because it undermines the authority of the state.
The doctrine that tyrannicide is lawful, according to Hobbes, amounts
to saying that it is lawful to murder a king as long as he is called a
tyrant first.
If
he
wanted
to
stay
in
legislation from becoming
power,
the
sovereign
should
prevent
his
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,
completely
at
however,
the
mercy
that
of
the
the
citizen
state.
in
Hoboes’
Political
state
is
not
obligation
is
not
entirely absolute in the sense that the subject that considers himself
wronged can do nothing about it. Not all natural rights are transformed
through the social contract, for it is deemed a voluntary act, "and of
the voluntary acts of every man the object is some good to himseife". 319
Because "[t]he end of obedience is protection", 320 one retains the right
to defend one’s own interests, for the protection of which the state
was established in the first place.
Consequently, Hobbes argued that "[i]f the sovereign command a man
(though
justly condemned), to kill, wound, or mayme himselfe ... yet
hath that man the liberty to disobey." 321 No one can be obliged to bring
about his own destruction, either in battle, by submitting peacefully
to execution, or testifying against himself in court. Each person,
consequently,
has
an
inalienable
right
to
life,
resistance insofar as one’s own life is threatened.
and
a
right
of
322
This right can be exercised if the state does not properly protect
318
See the discussion in Van Eikema Hommes Major trends in the history of
legal philosophy 105.
319
Id 1.14. (Original emphasis.)
320
Id 2.21.
321
Ibid.
322
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 one’s own life and body. Hobbes
regarded as "seditious" and "repugnant to civil society" the doctrine
"that whatsoever a man does against his conscience is sin [because] it
depends on the presumption of making him the judge of good and evil."
Instead, it must be accepted that "the law is the public conscience."
Failure
to
adhere
to
this
principle
is
the
reason
for
political
instabi1ity.
In spite of his rejection of the traditional Stoic-Christian notion of
integrity-based
resistance
civil
disobedience,
nevertheless
did
provide
Hobbes’
notion
of
limited
protection
justified
for
moral
convictions. According to him, one is also "not obliged not to resist"
if one is forced to contribute to the conviction of one’s own parent,
or a benefactor, or to do any act that is so shameful that it would
result in one’s being so miserable that one would grow weary of one’s
own
life. 326
His
primary
focus,
however,
was
on
the
protection
of
physical and not moral integrity.
In a word, it may be said that Hobbes restricted his endorsement of
disobedience (violent or otherwise) to that which is necessary for the
defence and preservation of bodily integrity, with a very limited scope
323
Ibid.
324
Id 1.14.
325
See the discussion of this point by Macfarlane Political disobedience
25.
326
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.
for the protection of spiritual integrity. 327 The basis of such a right
was the state’s breach of contract.
No doubt, Hobbes has been an inspiration to totalitarian regimes rather
than
to
democracies,
and
he
can
rightfully
be
described
as
an
authoritarian. Nevertheless, it would be unfair to altogether dismiss
him as a totalitarian. Hobbes’ great contribution was to identify the
protection of the interests of the individual as the touchstone of
political obligation. By doing this, he wrested political theory from
the grasp of metaphysical speculation (such as the divine right of
kings) and from being completely determined by
the common good.
He narrowly interpreted the interests of the individual that had to be
protected, which led to a conservative view of the position of the
individual.
almost
Hobbes’
obsessive
important,
preoccupation
view
though,
of
is
the
his
with
need
notion
physical
for
a
of
the
security
powerful
led
state.
inalienability
to
an
What
is
of
the
individual's right to survival. This right cannot even be alienated by
the all-powerful state, since the latter’s function is to serve the
former. The state, according to this approach, is merely an instrument
for serving human and specifically individual needs. Where the state
does not reach this goal, it loses its legitimacy and may be resisted.
Soon theorists like Locke
would use this same construction, but would
afford a wider interpretation to those interests of the individual
which
are
to
be
regarded
as
inalienable.
This
resulted
in
a
more
liberal view of the relationship between the state and its subject. In
this
new
development,
the
contribution
of
Hobbes,
in
spite
of
his
of
law
at
absolutist tendencies, was crucial.
Q.
SAMUEL PUFENDORF
In
Germany,
Samuel
Pufendorf
(1632-1694),
professor
Heidelberg, made an important contribution towards the establishment of
natural law thinking in the Seventeenth Century. 328
Pufendorf’s acceptance of a natural social inclination among humans led
him to regard the social contract theory as the basis of political
327
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
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
sovereignty
states". 329
in
With
regard
to
sovereign
rulers,
Pufendorf maintained that it would be "to mankind’s greatest interest"
that
supreme
civil
sovereignty
be
held
sacrosanct.
There
is
an
"obligation of non-resistance" and "immediate obedience" of rulers as
long as they remain within the limits of their power. 330
Pufendorf rejected Hobbes’ premise that there was no pact between state
and
citizen,
and
that
the
citizen
should
be
regarded
as
having
consented to whatever the state might do. Instead, Pufendorf maintained
that
such
a
contract
existed
in
terms
of
which
the
subjection
by
citizens of their will to the state is limited by the objectives of the
state. Only the state can do what is needed for its own preservation. 331
However,
Pufendorf
claimed
that
"there
is
always
a
presumption
of
justice on the part of the prince." 332 The general duty of obedience may
not readily be disregarded. Allowance must be made for the state’s
inability to satisfy all the demands of everyone, and not every cause
for
discontent
should
be
seen
as
an
"injury".
Articulating
the
traditional Stoic position, Pufendorf declared that "even Jupiter does
not suit everybody whether he sends fair weather or foul. " 333
However,
the
state
can
"injure"
the
citizen
because
there
is
a
"community of natural law between them". "Injuries" can take one of two
possible
forms.
The
ruler
can
citizens, or (ii) not as "men".
334
either
treat
his
people
(i)
not
as
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
See Pufendorf On the law of nature and nations book 5.
330
Pufendorf On the law of nature and nations 7.8.1. See also Pufendorf
The elements of universal jurisprudence 2.5.21.
331
Pufendorf On the law of nature and nations 7.8.2.
332
Id 7.8.6.
333
Id 7.8.3.
334
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, one’s first attempt should be to
flee and if necessary to leave the country. 338
When it is impossible to flee but the ruler requires one to commit a
sin, even if one has agreed to being ruled by a political sovereign,
one would remain subject to God’s sovereignty, since the latter is
superior to the former. Consequently, one can never have the duty to
commit a sin or to do that which is "worse than death itself". Because
the ruler in such cases acts as an enemy instead of a prince, "he is
understood to have released the citizen also from the obligation by
which
the
latter
was
held
bound
to
him". 339
In
effect,
the
social
contract is dissolved through non-compliance by the ruler with his
obligations under the agreement.
Yet, this does not imply that the individual subject has a right to
resist the ruler through the use of - force. If a ruler claims to act
"under a plea of right" - that is, if he maintains that he is punishing
a citizen for a breach of law - and it is impossible to flee, one has
no right to defend oneself. According to Pufendorf, in such cases "a
man should be killed rather than kill." 340 The reason for this is that
using violence against the sovereign under such circumstances would
threaten the whole commonwealth with "grave tumults", 341
335
Ibid.
336
Ibid.
337
Eg by disgracing an honourable man, denying a promised reward or debt,
etc. Ibid.
338
Id 7.8.5.
339
Ibid.
340
Ibid.
341
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
applies.
343
against
individuals
like
an
enemy,
the
same
principle
Pufendorf hastened to add, however, that "it is scarcely
possible for it to happen that a prince should assume such a mind
towards the whole people." 344
Pufendorf further argued that, even if there were cases in which it was
not wrong for some one citizen to defend his safety by force against
the most open injuries of a superior, yet it will not be allowable
for the rest of the citizen on that account to drop their obedience
and protect the innocent person by force. [A]n injury done to on
citizen in no wise releases all the rest from their obligation
towards their prince. The reason for this is that each citizen
bargains originally on his own behalf for the prince’s care and
protection, and doe not lay down as a condition of his subjection,
that he will treat each and every other citizen justly. 345
The
above
applies
to
sovereign
rulers.
Like
Grotius,
Pufendorf
recognised a far-reaching right of resistance against those "who bear
the name of king but are in fact subject to the power of the people".
Pufendorf did not state dearly under what circumstances this right
could be exercised, but stated explicitly that the citizens could, if
necessary, oppose him with force. 346
There
is
no
obligation
to
obey
usurpers
or
"unlawful
invaders
of
sovereignty". Necessity might require compliance with such a person's
rule, but someone who does that "is not chargeable with a fault in case
he throws off that unjust necessity". 347 In practice, however, the need
for order might preclude active resistance. 348
342
Pufendorf The elements of universal jurisprudence 2.5.22.
343
Ibid.
344
Ibid.
345
Pufendorf On the law of nature and nations 7.8.5.
346
Id 7.8.8.
347
Id 7.8.9.
348
Id 7.8.10.
Consequently, Pufendorf’s views may also be seen as extremely cautious
as far as the recognition of a right of resistance is concerned. He
advanced
two
reasons
for
his
conservative
approach
to
resistance.
Citizens, on their part, do not always obey their ruler; and violent
resistance
often
leads
to
"the
great
slaughter
of
citizens". 349
Nevertheless, he contributed towards the development of the idea that
political resistance can be justified in terms of natural law and a
right of self-defence.
R.
JOHN LOCKE
The Englishman, John Locke (1632-1704), 350 is commonly regarded as the
father of modern liberalism, and one of the most influential figures in
the
emergence
of
contemporary
democracies.
His
influence
nowhere
appears more clearly than in the foundation of the American system of
government. The Declaration of Independence of 1776, both in language
and
in
underlying
features of the
philosophy,
is
purely
Lockian,
as
are
the
main
American constitution: limited government based on the
consent of the people, and the recognition of inalienable individual
rights. In its turn, the United States constitution, the first to give
extensive recognition to the ideas of liberty, especially in its Bill
of Rights, had an immense influence on the promotion in the world of
liberal and egalitarian ideals.
Locke’s most important work on political philosophy. Two treatises of
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
Id 7.8.5.
350
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; Vorländer
Geschiedenis van de wijsoegeerte vol 3 109; Laslett's introduction in Locke
Two treatises of government ixff and Van Eikema Hommes Major trends in the
history of legal philosophy 133ff. His approach to legal and political
obligation is discussed by Macfarlane Modern political theory 98.
351
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.
352
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
Written several years before the "Glorious" or "Bloodless" revolution
of
1688,
it
intellectual
was
published
justification
only
for
after
the
that
event.
transition
from
It
provided
royal
the
absolutism
under the Stuart Dynasty to a constitutional monarchy under William of
Orange in which parliament would be supreme. Locke substituted the
principle
of
consent
of
the
governed
as
the
ultimate
source
and
delimitation of political power for the concept of the divine right of
kings.
The point of departure for Locke - as for Hobbes - was the state of
nature where there was no civil government. 353 A "state of nature" can
manifest itself in a variety of ways: it can exist before a civil
government
is
formed
in
a
particular
region,
it
can
exist
between
states, or after a government has been formed to the extent to which
that government is ineffective (for example where one encounters a
robber on a deserted road), or insofar as government has degenerated
into lawlessness.
In the state of nature everyone is free and is bound only by his own
consent. 354 For Hobbes, the absence of government implied the absence of
any law and an ongoing struggle
for survival. In the state of nature,
said Hobbes, there is no law of nature. Locke, on the other hand,
maintained that the law of nature applied in the state of nature.
Reason - the law of nature - taught human beings that, as equal and
independent persons, "no one ought to harm another in his life, health,
liberty,
or
possessions." 355
It
is
in
the
self-interest
of
every
individual to accept as a basic rule that these interests of everyone
must
be
protected.
They
are
inalienable
natural
rights
which,
violated, may be avenged by anyone, not only the injured party.
if
356
In the state of nature, the law of nature depends for its execution on
the protection by each person of his own interests. This will obviously
give rise to problems. Because each person is a judge in his own case,
his reason might be clouded, and even if he rightfully claims to have
the kingdom May, June 1979 6 at 7 and Van Zy1 & Van der Vyver Inleiding tot
die regswetenskap 163. See also Van der Vyver Die juridiese sin van die
leerstuk van menseregte vol 1 165ff.
353
Locke Two treatises of government 2.1.4.
354
Id 2.11.119.
355
Id 2.2.6.
356
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 "establish’d, settled, known law"; 358 a "known and indifferent judge,
with
authority
established law";
to
359
determine
all
differences
according
to
the
and "the power to back and support the sentence
when right, and to give it due execution". 360 The "inalienable" rights
can therefore in practice be alienated.
To remedy these defects of the state of nature and to protect each
person’s inalienable rights (collectively called "property" by 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
Id 2.2.13.
358
Id 2.9.124. (Original emphasis omitted.)
359
Id 2.9.125. (Original emphasis omitted.)
360
Id 2.9.126. (Original emphasis omitted.)
361
Id 2.3.25; 2.3.51 & 2.9.123.
362
Id 1.7.77.
363
Id 2.8.110.
364
Id 2.8.95.
365
Id 2.9.127.
366
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; Locke’s
notion of the state as trustee placed the people above the state. To
him, the state was a mere servant of the people. 369 Government finds
law, to which itself is subjected - it does not create law.
As pointed out earlier, there is a certain continuity between the views
of Hobbes and Locke. Hobbes saw the pursuit of life by the subject as
an inalienable right, while Locke extended that right to include the
pursuit of not only life but also of the much wider concept of liberty.
As a result of this difference, however, Locke had a perception of
political resistance which was qualitatively different from that of
Hobbes.
To Locke, an absolute monarchy was "no form of civil government at
all", because it entails the use of force without authority, as was the
367
Id 2.11.142.
368
Id 2.13.149.
369
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,
370
Locke Two treatises of government 2.7.90.
371
Id 2.19.222. (Original emphasis omitted.)
372
Id 2.19.204. (Original emphasis omitted.)
373
Id 18.202.
374
Id, where Locke Quoted Barclay to this effect.
and
to
resist
the
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
political
anarchy
and
obligation.
377
revolution
People
by
any
more
nature
do
than
not
other
easily
views
of
engage
in
revolution, and revolution "happen not upon every little mismanagement
in
public
affairs". 378
At
the
same
time,
no
divine
or
theoretical
foundation can prevent revolution when people are "made miserable" and
are
ill-treated. 379
strong.
To
The
provide
human
people
drive
with
towards
the
freedom
opportunity
is
of
simply
too
changing
the
government peacefully when they so wish is indeed "the best defence
against rebellion". 380
In Locke, then, we find a major watershed in the way in which political
and legal obligation was perceived. Justice was no longer regarded
merely as an ideal of which the non-realisation should be lamented,
while nothing could be done about it. Justice and more particularly
natural
rights
resistance,
was
now
intricately
associated
with
a
right
of
which meant that its pursuit was not only left in the
hands of the state, but it was also the prerogative of the people.
Natural law would no longer merely justify
the existence of the state:
it would also be seen as the basis of the rights of the people against
the state, including, where necessary, their right to resist. While
Augustine maintained that an unjust law was no law at all, and could be
disobeyed passively, Locke recognised a right actively to resist an
entire governmental structure. Locke’s ideas would, however, take some
time to be incorporated into mainstream jurisprudence.
S.
ULRICH HUBER
A prominent figure in the discussions about the Dutch Revolt was the
Frisian jurist Ulrich Huber (1636-1694), who espoused views similar to
375
Id 2.19.232.
376
Id 2.19.240.
377
Id 2.19.223.
378
Id 2.19.225. (Original emphasis omitted.)
379
Id 2.19.224.
380
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.
GERARD NOODT
The
Dutch
humanist,
Gerard
Noodt
(1647-1725),
entered
the
debate
concerning the real implications of the lex regia, also as far as the
Netherlands
was
concerned,
when
he
delivered
his
first
rectorial
address at Leiden in 1699. It was an intellectual defence of the Dutch
Revolt,
much
along
the
lines
of
Locke’s
defence
of
the
Glorious
Revolution. In this address, Noodt argued that a careful analysis of
the lex regia would reveal that it never granted the ruler unqualified
sovereign power. Instead, it enumerated a series of precisely defined
matters that were placed under his control, but which could be revoked
whenever the ruler became a tyrant. 382
Natural
law
also
limits
the
power
of
the
ruler.
Rulers
are
not
instituted by nature and can be deposed if they destroy the people.
Noodt rejected Ulpian’s adage princeps legibus solutus est. According
to Noodt, this maxim was contrary to reason and was in conflict with
other texts of Ulpian. Noodt pointed out that the lex regia explicitly
subordinated the Emperor to those laws which bound his predecessors. 383
Noodt’s address received international fame after its translation from
Dutch
into
French
(1707)
and
English
(1708),
and
was
one
of
the
Important intellectual sources of the rising idea of sovereignty of the
people in the Europe of the Eighteenth Century. 384
U.
CHRISTIAN WOLFF
Christian Wolff (1679-1754) was deeply influenced by the natural law
approach
of
Pufendorf.
He
dominated
during the greater part of the
the
German
intellectual
world
Eighteenth Century and is today widely
381
On Huber, see id 82ff and Van den Bergh The Life and work of
Gerald Noodt 193.
382
0n Noodt's contribution in this regard, see Van den Bergh The life and
work of Gerard Noodt.
383
384
Id 202.
Van den Bergh argued that the importance of Noodt's contribution should
be ranked equal to that of Locke. Id 198.
founders of modern natural law ideas. 385
regarded as one of the
According
to
Wolff,
by
nature
all
persons
are
equal
and
all
have
certain innate rights. By nature, no one has the right to dominate over
the
actions of others. Civil society involves the subordination of the
individual by a ruling will, and it can therefore only
be founded on
an express or tacit contract. Only in pursuit of the common welfare
(procuring the means of subsistence and ensuring internal and external
security) may liberty be curtailed. The ultimate source of governmental
authority and of legal obligation is the consent of the citizens. 386
Wolff insisted that there was not a duty of obedience to the government
when
it
demanded
anything
that
contradicted
the
laws
of
nature
or
imposed obligations that would violate the fundamental laws of human
society. He also recognised an extensive right of resistance that could
be exercised whenever government encroached upon the rights expressly
reserved by the constitution for the people or for certain classes of
the
people.
The
constitution
is
the
fundamental
law
and
Wolff
maintained that the government has no right to command its subjects to
act contrary to fundamental laws. 387
In spite of these liberal points of departure, Wolff "made concessions
to the spirit of his times" by claiming that wherever absolutist forms
of government prevail, people have voluntarily renounced their power. 388
A
number
of
authors
contradictory,
have
because
of
described
his
Wolff's
simultaneous
absolutism and the doctrine of human rights.
V.
approach
as
adherence
inherently
to
state
389
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
385
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
Wolff The law of nations vol 2 xxxi.
387
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
obligation.
How
can
citizenship
and
individual
freedom be reconciled: "Man is born free; and everywhere he is in
chains." 395
As
he
association which
the
person
and
put
it:
"The
problem
is
to
find
a
form
of
will defend and protect with the whole common force
goods
of
each
associate,
and
in
which
each,
390
while
On his philosophy in general, see Höffding A history of modern
philosophy vo1 1 485ff and Vorlander Geschieden1s van de wijsbegeerte vol 3
l59ff. On Rousseau's political philosophy, see Masters The political
philosophy of Rousseau; Ebenstein Great political thinkers 438ff; Strauss &
Cropsey History of political philosophy 532ff and Cole's introduction in
Rousseau The social contract and discourses viiff. On his legal philosophy,
see Van der Vyver Die juridiese sin van die leerstuk van reenseregte 251 and
Van Eikema Hommes Major trends in the history of legal philosophy 157ff. His
approach to legal and political obligation is discussed in Macfarlane Modern
political theory 106.
391
Reprinted in Rousseau The social contract and discourses 125ff.
392
Id 155ff.
393
Id 247ff.
394
Id 1ff.
395
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
social contract involve
"the total alienation of each associate, together with all his rights,
to
the
whole
396
Id 1.6.
397
Id 1.3.
398
Ibid.
399
community". 401
This
means
that
each
individual
places
See Rousseau "A discourse on the origin of inequality", reprinted in
Rousseau The social contract and discourses 155 at 236.
400
Id 1.6.
401
Ibid.
himself under "the supreme direction of the general will". 402 People
thus
do
not
surrender
themselves
to
the
state
but
to
all
other
citizens. Rousseau's commitment to liberty led him to demand direct
popular
rule
in
which
"each
man,
in
giving
himself
to
all,
gives
himself to nobody ... he gains an equivalent for everything he loses,
and an increase of force for the preservation of what he has." 403
True freedom is not to be found in the state of nature, because under
it one is enslaved by uncontrolled
appetites. In contract, in the
civil state, one can acquire moral liberty, which makes one master of
oneself, because one then submits to a law which one prescribes to
oneself.
Self-imposed
law
is
legitimate
law.
Rousseau
rejected
representative democracy, and held that people could be bound only to
laws in the formation of which they had participated directly.
Central to Rousseau's thinking, is
the concept of the "general will",
which aims at the general good and comes from all and applies to all.
It is more than the sum of the
wills of the individuals concerned - it
is that which, all things considered, best serves the common interest.
However, once a state has been established, one cannot obey the law
selectively. "The citizen gives his consent to all the laws, including
those which are passed in spite of his opposition, and even those which
punish him when he dares to break any one of them." 404 According to
Rousseau "whoever refuses to obey the general win shall be compelled to
do so by the whole body. This means nothing less than that he will be
forced to be free:" 405 Whereas Kant would demand total obedience to the
moral law, Rousseau demanded total obedience to the "general will".
The demands of the general will can be far-reaching. At the end of the
final version of "The social contract", Rousseau inserted a section on
"civil religion". 406 He believed that the state should banish as "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
Ibid. (Original emphasis omitted.)
403
Id 1.6.
404
Id 4.2.
405
Id. 1.7.
406
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
government and self-
408
concept
of
the
"general
will"
has
been
subjected
to
severe
criticism. Because of the total surrender of the individual to the
group
-
of
individualism
to
collectivism
Rousseau
has
been
held
responsible for dictatorships and tyrannies, ranging from the excesses
of the Jacobines to the Bolshevist doctrines of this Century. 409
It seems fair to say that, according to Rousseau, fundamental rights
could not be surrendered to the state, but it could be surrendered to
the group. His ideas can consequently be used to justify only a limited
form of anti-exploitation civil disobedience - only civil disobedience
by
the
majority
against
a
minority
government
(as
in
the
Defiance
Campaign in South Africa) but not by a minority against a majority (as
in
the
Civil
Rights
Movement
in
the
United
States)
would
be
permissible.
W.
WILLIAM BLACKSTONE
The liberal ideas of Locke were embraced and popularised by William
Blackstone (1723-1780), 410 in his Commentaries on the laws of England
(1765-1770). Although his natural law approach was vigorously attacked
by Bentham in his Fragment on government, and was described by others
as shallow, it proved to be highly influential in England, the United
407
Ibid.
408
Ebenstein Great political thinkers 448.
409
See Duguit Sovereignty and liberty 135.
410
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
from
a
natural
law
position,
Blackstone
proclaimed
the
rights of human beings in ringing terms. He maintained that individuals
"merely
as individuals or single persons" had absolute rights, which
"would belong to their persons merely in a state of nature, and which
every man is entitled to enjoy, whether out of society or in it." 411 He
proceeded: "This natural liberty consists properly in acting as one
thinks fit, without any restraint or control, unless by the law of
nature; being a right inherent in us by birth." 412
In accordance with
his view that the law of nature "is of course
superior in obligation to any other", Blackstone endorsed a right of
political resistance against a corrupt ruler. 413 One has a right to
vindicate
one's
rights
when
they
are
"violated
or
attacked".
He
recognised "the natural right of resistance and self-preservation, when
the sanctions of society and laws are found insufficient to restrain
the
violence
of
oppression". 414
In
order
to
be
able
to
meet
such
eventualities, English subjects have "the right of having and using
arms for self-preservation and defence". 415 When James II "invaded the
fundamental
constitution
of
the
realm",
natural
law
prevailed
over
positive law and "the convention declared an abdication, whereby the
throne
was
crown."
At
rendered
vacant,
which
induced
a
new
settlement
of
the
416
the
position
same
time,
in
respect
however,
of
Blackstone
political
also
obligation
defended
on
the
an
absolutist
basis
of
the
hypothetical social contract. He maintained that government must be "a
supreme, irresistible, absolute, uncontrolled authority, in which the
jura
summi
imperil,
or
the
rights
of
sovereignty,
reside[s]". 417
Moreover, "society cannot be maintained ... without obedience to some
foreign power: and obedience is an empty name, if every individual has
411
Blackstone Commentaries on the laws of England 1.1.
412
Ibid.
413
Id intro s 1.
414
Id 1.1.
415
Ibid.
416
Id 1.7.
417
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
general
survey
would
political
of
be
some
aspects
required
obligation.
Kant
for
of
Kant's
an
understanding
distinguished
philosophical
the
of
world
notions
in
views
on
his
of
theoretical
reason - the Sein of nature - and the world of practical reason - the
Sollen of freedom. At the height of the Enlightenment, the question was
418
Id 1.7.
419
See G Jones in Blackstone The sovereignty of the law xxxviii.
420
See Reiss Journal of the History of Ideas 1956 179 at 179.
421
Kant "Grundlegung zur Metaphysik der Sitten", reprinted in Sämmitliche
Werke vol 5 269.
422
Id 227.
423
See Williams Kant's political philosophy 198ff.
how can
could
these two worlds co-exist without destroying each other? How
the
determinism
of
natural
science
be
reconciled
with
the
autonomy required by morality?
Turning
first
to
nature,
Kant
brought
about,
what
he
called,
a
"Copernican revolution", by insisting that the laws of nature do not
reside in the reality outside us, but that they are founded in the
synthesis of sensual experience and our categories of understanding.
Nature does not prescribe its laws to human understanding - instead,
understanding is nature's law-giver. 424 At the same time, however, the
categories of understanding can only apply to the reality
as revealed
by the senses. The mathematical method could not be used to penetrate
the
realm
of
unconditioned.
This
metaphysics,
the
world
of
the
Dina
an
sich
or
the
425
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,
consequently
pain,
categorical
etc).
(or
The
nature
deontological)
of
and
the
not
moral
law
is
hypothetical
(consequentialist or conditioned). True freedom lies in obedience to
the moral law.
The contents of moral legislation is given to us as a fact of pure
reason, of which we have an a priori awareness. It is constituted of
rules of conduct or maxims which may be elevated to the status of
universally valid legislation
for all of mankind.
Logic demands the absence of contradiction. The principle that one
should
never
make
a
false
promise
can
be
universalised
without
contradiction; however, the principle that in emergencies one can make
424
See Kant Critique of pure reason 12.
425
Id 13ff.
426
Id 16.
promises
without
intending
to
keep
them
cannot
be
universalised,
because in such a case all faith in promises win be destroyed. "Thus my
maxim
would
necessarily
universal law."
427
destroy
itself
as
soon
as
it
was
made
a
Consequently, the first principle is a rule of the
universal moral law, the second not.
Reason indicates to people that only by forming a civil society can we
escape
the
insecurity
of
the
state
of
nature,
can
justice
be
established in human relationships and can individuals enjoy freedom.
Individual judgment has to be suspended and transformed to the state,
which must then
on our behalf make laws. In this regard, Kant used the
fictional notion of the social contract to explain the existence - and
necessity - of the state. Because reason dictates the necessity of the
state, and the state cannot survive if it is not obeyed, the moral law
demands obedience to the laws of the state, whatever the contents of
these laws might be. 428
It would, of course, be best if the law-giver modelled the positive law
on the rational or moral law. However, as Kant readily acknowledged, in
practice that does not always happen. However, in respect of positive
law,
the
law
of
reason
has
a
regulative
and
not
a
constitutive
function. Even if positive law conflicts with rational law, it remains
law and must be obeyed. Kant
restated Romans 13 as follows: "It is a
duty to obey the law of the existing legislative power, be its origin
what it may." 429
The essence of Kant's argument against a right of resistance turns on a
point of logic. Sovereignty is indivisible. The sovereign is he who
judges and coerces, and if the sovereign is judged or coerced by the
citizen, it is no longer the sovereign. The law cannot outlaw itself,
and can consequently not allow resistance. 430 Just as it would undermine
the worth of a promise if it can be
made with no intention to keep it
in an emergency, so too would it undermine the sovereignty of the state
if one were to be allowed to disobey the state when its laws are
427
428
Id 64.
See also
philosophy 170.
429
430
Van
Eikema
Hommes
Major
trends
in
the
history
of
legal
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
See Reiss Journal of the History of Ideas 1956 179 at 190
432
Kant The philosophy of law 175. (Original emphasis.)
433
See Schwartz Ethics 1963 126 at 130.
434
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
in
the
utilitarian
tradition.
Bentham's
philosophy
developed
naturally from the opening lines of An introduction to the principles
of
morals
and
legislation
(first
printed
in
1780
and
published
in
1789): "Nature has placed mankind under the governance of two sovereign
masters, pain and pleasure." 437
Like other utilitarians, Bentham saw political obligation in terms of
this basic philosophical premise. Whether such an obligation exists,
has to be established in terms of the "principle of utility", which
Bentham regarded as the fundamental directive of moral and political
science. "By the principle of utility is meant that principle which
approves or disapproves of every action whatsoever, according to the
tendency which it appears to have to augment or diminish the happiness
of the party whose interest is in question." 438
Bentham popularised Hutchinson's phrase, "the greatest happiness for
the greatest number", and took that as the ultimate measure of worth,
of right and of wrong. The guiding star for the legislature in framing
legislation should be the question how effective that legislation would
435
See infra chap five I EE 2.
436
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.
437
Bentham An introduction to the principles of morals and legislation
1.1. (Original emphasis omitted.)
438
Id 1.2.
be in promoting happiness, and the question as to what extent that
legislation should be obeyed or disobeyed should be
answered on the
same basis.
In A fragment on government (1776), Bentham attacked the hypothetical
contract
theory
explanation
for
as
advanced
political
by
Blackstone
obligation.
439
To
as
a
Bentham,
philosophical
the
difference
between a political society and a natural society lay in psychology,
not in a fictitious social contract. In the one society, according to
Bentham, exists a "habit of obedience", in the other not. 440 Whether
such a habit should be followed in any particular case, does not depend
on
fictitious
ideas
like
natural
law
or
concepts
declared that the "season of fiction is now over".
of
441
justice.
He
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
Bentham A fragment on government 1.1 & 2.
440
Id 1.12-14.
441
Id 1.37. (Original emphasis omitted.)
442
Id 1.43. (Original emphasis omitted.)
443
Ibid. (Original emphasis omitted.)
444
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
its own nature. There then occurs an aufheben of
entirely abandoning
both
-
a
"lifting
constitutes a new
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
naturally.
447
-
is
In
a
necessary
spite
of
vehicle
his
of
social
conservative
progress
views
on
the
follows
German
constitutional dispensation, Hegel was consequently a philosopher of
revolution. 448 To Hegel the French Revolution
of
the
inner
contradiction
of
destructive effects, the Revolution
the
was the final culmination
Enlightenment.
Despite
its
was necessary to make room for the
replacement of the and en regime by new structures. 449
AA.
ANARCHISM
Anarchy, or the absence of government, according to most political
philosophies, is the long-term ideal and the short-term enemy of human
society.
Anarchy
political
reasons
is
theorists
for
the
the
who
ideal
in
the
contemplated
existence
of
the
opinion
the
of
eventual
state
-
a
range
of
disappearance
of
and
wide
therefore
the
disappearance f the state itself - as the ultimate goal. Both Adam
Smith and Karl Marx envisaged this eventuality. On a different level,
Augustine, Luther and Calvin regarded the state as a consequence of sin
and as a temporary institution. Eventually, in the life hereafter, the
state will become redundant. This approach can be described as Utopian
or long-term anarchism. Its prevalence reveals a widespread sense of
discomfort
with
coercion,
associated
with
the
state
and
political
power. Democracy will later in this study be defined, in idealistic
philosophy 686ff.
446
Hegel Philosophy of right paras 341-360.
447
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
of
the
state,
not
only
in
the
distant
future
but
immediately. To them, the state as an institution has no legitimacy.
These
theorists,
the
anarchists,
did
not,
like
other
political
theorists, reject certain manifestations of governmental authority and
propose alternatives - they rejected
did
not
propose
conditions
of
sovereigns
could
a
political
legitimate
be
political authority as such. They
theory
which
resistance
resisted:
they
by
carefully
out
the
what
kind
of
general
right
of
describing
advocated
a
sets
resistance against the state as an institution.
Anarchism in many respects represents extremes in political thinking.
It is at the same time one of the oldest, the
most unsuccessful, and
the most persistent political doctrines. Its roots can be traced to the
Chinese
Taoists,
Christianity.
Although
the
Cynics
of
Greece,
the
Stoics
and
to
early
term,
some
450
anarchism
is
a
wide
features common to anarchistic
(and
often
misunderstood)
thought can be identified:
451
450
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.
451
See D T Wieck "Essentials of anarchism", reprinted in Hoffman Anarchism
86 and Carter The political theory of anarchism 13ff
-
The state is seen as inherently an instrument of exploitation. It
legitimises oppression. Democratic government simply entails the
oppression of the minority by the majority.
-
People do not need the state, because they are basically good
when not corrupted by the state. Voluntary institutions are best
suited to express humankind’s natural social instincts.
-
Anarchists,
mostly
on
the
basis
conscience, do not recognise a
qua law.
-
of
an
inalienable
right
to
moral obligation to obey the law
452
Social reforms must be initiated from below by the people and not
from
above
by
the
state.
The
state
cannot
be
expected
to
orchestrate its own demise.
Some
of
the
most
influential
proponents
of
anarchism
will
next
be
considered.
(1)
William Godwin
Although
he
never
used
the
term
"anarchy",
the
first
systematic
453
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
eventually to reach perfection.
of
human
beings
to
improve
and
454
Government, by taking decisions on behalf of individuals and forcing
them to obey, deprives these individuals from finding truth and virtue
for themselves. Hence, their actions become worthless. Only in the
absence of external coercion can individual actions mean anything. 455
452
See in this regard Richards Georgia Law Review 1984 vol 18 771 at 771.
453
See Joll The anarchists 31ff and Bose A history of anarchism 78ff.
454
See Godwin An enquiry concerning political justice vo1 1 6ff.
455
Id vo1 2 77.
(2)
In
Pierre-Joseph Proudhon
contrast
to
the
radical
individualistic
anarchism
advanced
someone like Max Stirner, Pierre-Joseph Proudhon (1809-1865)
456
by
proposed
mutualist anarchism, and opened the way for anarchism to become a mass
movement.
To
the
question
robbery",
457
"what
is
property?",
Proudhon
answered
"[i]t
is
indicating his opposition to the abuse of property through
its exclusive allocation to some. Proudhon, nevertheless, based his
economic approach on individual possession of the means of production
by
peasants
and
small
craftsmen
united
in
a
framework
of
credit
arrangements, who would exchange goods on the basis of labour notes.
(3)
Michael Bakunin
The
exiled
Russian,
collectivism
Michael
although
he
Bakunin
rejected
(1814-1876), 458
communism.
459
Bakunin
propagated
and
his
followers advocated public ownership of all the means of production,
and regarded the workers as the basic unit of society. He rejected the
role Marx envisaged for the authoritarian state.
In God and the state, Bakunin described religion as the weapon whereby
the state enslaves and annihilates humanity, which must be smashed to
make
self-determination
possible. 460
Bakunin
introduced
into
anarchist movement the idea that society could rid itself of the
through the use of violence only - an
the
state
element which through the years
would greatly stigmatise anarchism.
(4)
Peter Kropotkin
Anarchistic
1870's
by
Russian,
collectivism
anarchistic
Prince
Peter
was
largely
communism,
Alexander
as
replaced
in
introduced
Kropotkin
Europe
by
during
another
(1842-1921).
461
the
exiled
Kropotkin,
however, also rejected authoritarian communism, and envisaged a new
456
See Jo11 The anarchists 61ff and Bose A history of anarchism 115ff.
457
Proudhon What is property 37.
458
See Joll The anarchists 84 and Bose A history of anarchism 179ff.
459
See his essay "Statism and anarchy", reprinted in Bakunin Bakunin on
anarchy 325.
460
Bakunin stated: "[I]f God really existed, it would be necessary to
abolish him." Bakunin God and the state 28.
461
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
remunerated
to
the
according
to
latter
the
approaches,
hours
he
the
worked.
worker
had
Anarchist
to
be
communists
introduced the influential slogan "From each according to his means, to
each according to his needs." They envisaged open warehouses to which
everyone should contribute what they could, and from which anyone could
take what they needed. 462
(5)
Leo Tolstóy
Whereas
most
anarchists
rejected
religion
as
an
impediment
emancipation of mankind. Count Leo To1st6y (1828-1910)
463
to
the
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
referred to earlier.
brand
of
pacifist
anarchism
on
Gandhi
was
465
In essence, anarchism can consequently be described as a theory of
radical
human
freedom
based
on
a
highly
idealistic
view
of
human
nature. It does, however, serve the important goal of highlighting the
coercive nature of the state as an institution, and it keeps the ideal
of full human autonomy and a non-repressive society alive.
BB.
MARXISM
Much of the political debate and developments of the Twentieth Century
centred
upon
communism,
which
to
a
greater
or
lesser
extent
was
regarded as a revolutionary ideology. Without going into the general
nature
of
the
Marxist
thought
as
initially
developed
by
Karl
Marx
(1818-1883) and Friedrich Engels (1820-1895), some fundamental aspects
462
Kropotkin's ideal society is set out in his books, Fields, factories
and workshops and The conquest of bread.
463
See Joll The anarchists 152ff and Hoffman Anarchism 70ff.
464
See L Tolstóy "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
obligation, should be noted.
relevant
to
the
issue
of
political
466
Marx proceeded from the Hegelian premise of the dialectical development
of
society.
However,
whereas
Hegel
maintained
that
ideas
or
the
"absolute spirit" were the driving force in history, Marx regarded the
"productive forces", the material means of existence, as "the real
foundation, on which rises a legal and political superstructure and to
which correspond definite forms of social consciousness". He went on to
explain that "the mode of production of material life conditions the
social, political and intellectual life process in general. It is not
the
consciousness
of
men
that
determines
their
being,
but,
on
contrary, their social being that determines their consciousness."
the
467
Human history is the history of class conflict, and in this process law
is used by the bourgeoisie to repress the workers and to protect its
own
privileges. 468
changing
the
The
key
material
to
social
conditions
change,
of
consequently,
living.
However,
lies
in
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.
communistic revolution."
locomotives of history."
469
Let
the
ruling
classes
tremble
at
a
To Marx, therefore, "[r]evo1utions are the
470
466
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.
467
Marx "Preface to A contribution to the critique of political economy"
in Marx & Engels Selected works vol 1 327 at 329.
468
For extracts from the work of Marx and Engels on the
function of law, see Cain & Hunt Marx and Engels on law 165ff.
repressive
469
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.
470
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
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.
471
For a discussion of the views of Marcuse in this regard, see Paust
Emory Law Journal 1983 545 at 577.
472
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.
473
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
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 1640’s, the right to resist was cautiously canvassed by
jurists like Grotius. It was John Locke’s formulation of the right to
resist, however, which came to serve as the principal justification for
the American Revolution of 1776; that is, as a defence of fundamental
human rights against tyranny and oppression. The American Declaration
of
Independence
475
stated:
"Whenever
any
form
of
government
becomes
See Van Zy1 Geskiedenis van die Ronieins-Hollandse reg 296.
476
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.
477
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.
478
See Kossmann Po1itieke theorie in net Zeventiende-eeuwse Nederland 36,
50, 69.
destructive of [the protection of fundamental rights], it is the right
of
the
people
government."
to
alter
or
to
abolish
it,
and
to
institute
new
479
This commitment to freedom is deeply embedded in the American psyche.
In his inaugural address in 1861, President Abraham Lincoln said:
This country, with its institutions, belongs to the people who
inhabit it. Whenever they shall grow weary of the existing
government, they can exercise their constitutional right of
amending, or their revolutionary right to dismember or overthrow
it. 480
The French Revolution of 1789 permanently changed human history, and
was
widely
democracy.
regarded
481
as
the
unequivocal
announcement
of
he
age
of
Even if it remains controversial, the French Revolution
gave the concept of revolution in pursuit of basic freedoms a glory and
credibility which it retained to a large extent up to this day. 482 In
1791, Thomas Paine, in his Rights of man, announced a new age in which
revolutions would for the first time challenge the very foundations of
society.
In 1917, the Bolshevik Revolution put the Communist Party in power in
what became known as the Soviet Union. Many East-European countries
followed suit, and in the-middle of the century, in the early 1990’s,
nearly
a
third
of
the
world
population
was
under
Marxist
rule.
Revolutions also served to undo much of the influence of communism in
Eastern Europe.
An act of resistance that failed but which nevertheless gripped the
imagination of the world, was that of the German theologian, Dietrich
Bonhoeffer.
He
opposed
the
Nazi
regime
and
was
involved
in
an
assassination attempt on the life of Hitler. Bonhoeffer was arrested
and executed just before the end of the war. This and other attempts to
take
the
life
of
Hitler
made
a
lasting
impression
on
the
world’s
understanding of the right to resist. The only regret most people felt
in respect of these attempts was that they had failed. 483
479
Quoted from Hammond "We hold these truths ..." 43.
480
Id 206.
481
See Tilly et a1 The rebellious cent