Peacock and Others v S [2006] ZAFSHC 136 (19 January 2006)

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[2006] ZAFSHC 136
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Peacock and Others v S [2006] ZAFSHC 136 (19 January 2006)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Appeal No. : A12/2004
In
the appeal between:
LEON THOMAS
PEACOCK
First
appellant
HERCULES
MICHAEL VILJOEN
Second
appellant
ALLEN
RAUTENBACH
Third
Appellant
and
THE
STATE
Respondent
CORAM:
RAMPAI
J
et
MATSEPE
AJ
HEARD
ON:
28
NOVEMBER 2005
_____________________________________________________
JUDGMENT
BY:
RAMPAI
J
DELIVERED ON:
19
JANUARY 2006
[1] The three appellants
were convicted in the Bloemfontein Regional Court on 26 March 2003
despite their pleas of not guilty in respect
of the first charge of
sabotage. The next day on 27 May 2003, they were sentenced as
follows:
*
The
first appellant was sentenced to 8 (eight) years imprisonment of
which 3 (three) were conditionally suspended for 5 (five) years.
*
The
second appellant was similarly sentenced.
*
The
third appellant was sentenced to 5 (five) years imprisonment of which
3 (three) years were conditionally suspended for 5 (five)
years. The
condition imposed on them, was that they should not be found guilty
of the contravention of section 54(3) of the Internal
Security Act
No. 74/1982 committed during the period of suspension.
[2] In the second place
the first appellant was also convicted on his plea in respect of the
second charge which was the unlawful
possession of an unlicensed
firearm in contravention of section 2 of the Arms and Ammunitions Act
No. 75/1969. He was sentenced
to a fine of R1 000,00 or 30 (thirty)
days imprisonment which was wholly suspended for 4 (four) years.
[3] In the third place
the first appellant was convicted in respect of the third charge –
the unlawful possession of ammunition
in contravention of section 36
of the Arms and Ammunitions Act No. 75/1969 despite his plea of not
guilty. He was sentenced to 12
(twelve) months imprisonment.
[4] In
the forth place the first appellant was further convicted despite his
plea of not guilty in respect of the forth charge –
the unlawful
possession of automatic ammunition in contravention of section
32(1)(b) of the Arms and Ammunitions Act No. 75/1969.
He was
sentenced to 2 (two) years imprisonment which was conditionally
suspended for 3 (three) years.
[5] In terms of section
280(2) Act No. 51/1977 the trial magistrate directed that the one
year term of imprisonment imposed in respect
of the third charge,
should run concurrently with the sentenced imposed in respect of the
first charge.
[6] The
three appellants now come to this court on appeal against their
convictions and sentences in respect of the first charge of
sabotage.
In addition to this the first appellant was also aggrieved by the
sentences meted out as regards the second, the third
and the forth
charges. Therefore he also appeals against these sentences.
[7] The version of the
prosecution as to the merits was narrated by several witnesses,
amongst them Ettienne Crouse, George Werner
Smith, Eduard Johannes
Gagiano, Marthinus Petrus Janse van Vuuren, Leon Jacobus Burger,
Petrus Johannes Swart, Jo-Anne Meiring, Elizabeth
Maria Johanna
Britz, Johan Dirk Venter, Evans Kane, Mxolisi Ernest Sono and Naude
Viljoen.
[8] Crouse testified that
he lived in Port Elizabeth. He was a sergeant and an intelligence
officer of the Port Elizabeth commando.
He knew the appellants from
Murraysburg. One day in September 2000 he was accompanying Frikkie
Potgieter from Port Elizabeth to
Bloemfontein. On their way they
stopped over on a certain farm in the Addo district at the request of
Potgieter. There he met the
first appellant.
[9] He recognised the
first appellant. He had previously met him on a few occasions in the
past. They used to meet at right-wing
political meetings. The
meetings were organised by the Afrikaanse Weerstand Beweging. On the
farm at Addo the first appellant told
them about a certain plan. The
first appellant told him that an alliance of right-wing political
groupings was plotting a coup.
The groupings were busy trying to get
certain military vehicles and tanks namely ratels and olifanttenks,
in order to execute the
coup détat. Drums of diesel were already
stored up at strategic places in the country. The first appellant
added that he was doing
exegesis of certain writings for the AWB. At
that stage he understood that the plan of the appellants was a
defensive strategy.
[10] During or about
October 2001 he attended a meeting held at Murraysburg. The first
appellant had invited him to the meeting.
The meeting was convened
by the first appellant. On his arrival there, he met the second
appellant and the third appellant. They
were introduced to him by
the first appellant. About fifteen people attended the meeting. The
first appellant presided over the
proceedings. Among others Werner
Smith and Martin van Vuuren and certain members of the neighbouring
army commandos. The purpose
of the meeting was to eliminate the
traitors among the right-wingers and to forge a bond of loyalty among
the members. The first
appellant urged the people to stand up for
the rights of the whites and to prepare for the war, because the
blacks were planning
an uprising against the whites.
[11] During December 2001
he attended another meeting at Murraysburg. He was invited to the
meeting by the first appellant. The
meeting formed a military
structure called “Die saak”. The first appellant led the
meeting. He was the main speaker. Present
at the meeting were the
first appellant, the second appellant, the third appellant, Werner
Smith, Martin van Vuuren, Eddie Gagiano,
Frikkie Potgieter and
others. The membership was exclusively white and christian. The
first appellant asked the meeting to vote
on the question whether the
biblical prophecy should be hastened or not. The members were
opposed to the idea of hastening the prophecy.
The first appellant
believed that the bombing of the Vaaldam was an act revealed and
sanctioned in the Bible. The first appellant
also gave him a
computer disc which he asked him to study. It contained writings of
Siener van Rensburg. In addition he gave him
a copy of a document
called martial law and a copy of a document described as oath of
loyalty. The press statement was supposed
to be released after the
bombing of the Vaaldam and sent to organisations such as the Klu Klu
Klan in America and the New Christian
Crusade Church also in America.
The first appellant undertook to explain finer details of the plan
at the next meeting. At the
same meeting ranks were allocated. The
first appellant and Eddie Gagiano bestowed the ranks on the members,
for instance the first
appellant was a commodore, the second
appellant a chaplain, the third appellant a sergeant, Werner Smith a
commander, Martin van
Vuuren a battle general, Eddie Gagiano a
general strategist and he Crouse a major.
[12] The oath of loyalty
akin to the Blood River Vow of 16 December and the code of martial
law were presented, read and signed.
The night of terror was also
discussed. The first appellant believed that “die nag van
verskrikking” would dawn upon the country
the day the former state
president, Dr. N.R. Mandela, or the current state president, Thabo
Mbeki, died. On that night of terror
the blacks would rise up
against the whites in this country, appropriate their property and
wipe them off the landscape. The first
appellant warned that the
traitors would be killed by a certain G. The night of terror had its
origin in the theory of the writer
called Siener van Rensburg. From
time to time passages were quoted from the book of this writer and
the Bible. The writer’s theory
was reconciled with the biblical
prophecies.
[13] During
February 2002 the organisation held another meeting at Murraysburg.
The venue of the meeting was a place called “M
& D Huide”
occupied by the first appellant. The third appellant was staying on
the same premises with the first appellant.
He was invited by the
first appellant to attend the meeting. The first appellant, the
second appellant, the third appellant, Werner
Smith, Martin van
Vuuren, Frikkie Potgieter also attended the meeting. He presented
the intelligence plan which was accepted. The
organisation’s
meeting was about taking active actions to realise the objectives of
the movement.
[14] The first appellant
told the members that the plot had been hatched in this country.
Such a deed, the first appellant said,
would make Osama Bin Laden’s
attack of September 11 in the USA look like child’s play. The
targeted groups were blacks, coloureds,
indians, jews and jingoes.
One by one the members were then called into an office where they
were interviewed by the first appellant
in the presence of the
chaplain, the second appellant. The purpose of the interview was to
select the elite corps who would execute
the envisaged plan, the act
of terror. He was selected and placed in the same unit with the
first appellant and the second appellant.
The first appellant tasked
him to ascertain where the organisation could find 200 kg of C4
explosives and some time delaying devices,
rifle silencers and
survival kit to mention only a few military things.
[15] Early in March 2002
the first appellant and the second appellant paid him a visit at his
residence in Port Elizabeth. He reported
to the two that he could
not find a place where the required C4 explosives could be found.
Instead he found a place in Simonstown
where PE4 explosives could be
obtained. The first appellant then told him that the wall of the
Vaaldam was going to be blasted by
group A. The aim was to cripple
the economy by cutting the water supply to the reef, disrupting the
industry, infrastructure and
electricity and causing loss of human
life. He was told that the factories in the vicinity of the Vaaldam
would be rendered inoperative
for a period of four years after the
act of terror.
[16] At the end of it all
there would be so much chaos, starvation and poverty in the country
that it would bring about the night
of terror. The night of terror
would bring about a civil war between whites and blacks. The
objective of the organisation was to
restore white government in
political power in this country. The eventual end of the night of
terror would be the overthrow of the
black majority government.
During such visit the first appellant anointed him as the holy
warrior. The driving force of the organisation
was religious in
character.
[17] On 20 March 2002 he
attended a meeting at Murraysburg - only he and the first appellant
were present. The first appellant gave
him the finer details of the
plan. It entailed the blowing of the wall of the Grootdraaidam with
explosives so that its water could
flood the Vaaldam. The
destruction of the floodgates of the Vaaldam by means of explosives
would drive the nail in the coffin.
The first appellant informed him
about a crack in the wall of the Vaaldam and that explosives would be
inserted in the crack and
detonated, causing the floodwater from the
Grootdraaidam to flow into the Vaaldam.
[18] The destruction of
the Vaaldam would attract the attention of the emergency service
providers, the army and the police. The
attack on the Vaaldam would
keep all these agencies so involved in the rescue operation at the
Vaaldam that it would create a opportunity
for other right-wing
organisations or groupings to carry out a coup détat. After the
breakdown of the wall of the Vaaldam the warriors
would retreat to
the P.K. le Rouxdam. The saboteurs, who were supposed to participate
in the Vaaldam operation, were the first appellant,
the second
appellant, the third appellant, Martin van Vuuren and Crouse himself.
[19] On 21 March 2002 the
first appellant, the third appellant and Crouse went to the shooting
range at Murraysburg to test their
weapons. The first appellant and
the second appellant could not find the ammunition behind the
shooting range. The first appellant
suggested that they leave
Murraysburg for Bloemfontein at midnight so that their departure
could be less conspicuous. The first
appellant didn’t intend going
back to Murraysburg after the Vaaldam operation. At midnight they
set out in two vans to Bloemfontein.
The first appellant, the second
appellant, the third appellant, Crouse, the first appellant’s wife
and his two sons travelled
together. They arrived in Bloemfontein
the next morning before sunrise.
[20] In
the evening of Friday 22 March 2002, he attended a meeting behind the
chicken-run at the residence of the first appellant’s
parents in
law at Bloemspruit in Bloemfontein. At this meeting were the first
appellant, the second appellant, the third appellant,
Martin van
Vuuren and Crouse. The explosives were discussed. The seven day
covenant was adopted and the Vaaldam operation plan
was presented.
The main speakers were the first appellant and the second appellant.
See exhibit K for their speeches. The group
slept in Bloemfontein
that night.
[21] The
next morning on Saturday 23 March 2002 they drove away from
Bloemfontein to Parys. The first appellant paid for his fuel.
They
bought food from a shop in town at Parys. From there they proceeded
to a small plot on the outskirt of the town some distance
from the
Vaaldam. The farm was owned by a certain Chris van Zyl. They slept
there in the guest house.
[22] The next day, Sunday
24 March 2002, they with the exception of Mrs. Peacock, travelled to
the two dams on a reconnaissance mission.
They first travelled a
long distance to Grootdraaidam at Standerton. The first appellant
explained the plan as to how the damwall
was to be shot. They drove
right up to the wall where they stopped, alighted and inspected the
floodgates. There was a discussion
concerning the blasting of the
damwall.
[23] On the same day the
group of seven drove away from the Grootdraaidam to the Vaaldam. On
their arrival there Van Vuuren showed
him a small hill outside the
terrain of the Vaaldam where Crouse would have to take up his
position as the sharp-shooter during the
operation. From the hill
they moved on to the terrain of the dam. They turned at the gates of
the camping site. They did not reach
the wall. From there they
returned to Parys.
[24] On
Monday 25 March 2002 the first appellant sent Van Vuuren and the
third appellant out to the mine to look for explosives.
They came
back empty handed. The objective of acquiring explosives was
unattained. They reported back to the group that evening
that
security measures on the mines were very tight and that there was an
intensive monitoring of their movement by the police.
Van Vuuren
told the meeting that because it was impossible to obtain the
explosives and that because his wife was ill, he no longer
wanted to
go on with the operation. The meeting resolved to let him go. The
first appellant gave Van Vuuren a computer disc to
deliver to the
newspaper, Die Volksblad, in Bloemfontein. The first appellant
warned Van Vuuren to wipe off his fingerprints from
the computer disc
before he delivered it to the said newspaper. The delivery was
supposed to be clandestine. The newspaper was
not supposed to know
the identity of the person who delivered the computer disc.
[25] That
evening the members were ordered to have their weapons ready in the
light of the report that the police were closely monitoring
their
movements. The first appellant commenting on such reports vowed to
shoot his family dead first and then himself rather than
to surrender
if members of the South African Police Service should attack them on
the farm that particular night.
[26] The next morning on
Tuesday 26 March 2002, the first appellant gave Van Vuuren R100,00
for fuel back from Parys to Bloemfontein.
When Van Vuuren drove away
the rest of the warriors remained behind. Later that evening the
first appellant’s wife suggested
to the meeting that the group
should rather choose another target instead of the Vaaldam. But the
first appellant’s dismissive
reaction was that such a suggestion
was out of question. He stressed that he was not prepared to break
the vow he had made before
God. He was determined to go on with the
plan to destroy the Vaaldam.
[27] On Wednesday 27
March 2002 the first appellant accompanied by his wife and two sons
drove away from the farm saying to the group
that he was going to get
the explosives, a task which the third appellant and Van Vuuren
should have performed, but failed. Later
on the first appellant went
back to the farm with no explosives, but a welding torch. That
evening the first appellant anointed
the group and the weapons. In
turn the second appellant anointed the first appellant and his
weapons. The first appellant produced
the maps and the photographs
of the Vaaldam and directed the group to study them thoroughly
because the maps had to be destroyed.
On the instructions of the
first appellant Crouse burned the maps and the photographs
afterwards. The farm owner, Van Zyl, was
so frightened when he saw
the firearms and the ammunitions in the guest house that he told the
group he wanted nothing illegal on
his farm. Every evening since the
Bloemfontein meeting a religious devotion service was held. That
evening the devotion service
was quite ritualistic. It was, after
all, supposed to be the last of the seven services before the
symbolic deed – the bombing
of the Vaaldam.
[28] The next morning on
Thursday 28 March 2002, the police raided the guest house on the
farm, arrested the group and seized their
equipment, ammunition,
flags, survival kits, right-wing literature, computer discs and
weapons. Among these were German flags.
The police task force
consisted of Captain P.J. Swart, Superintendent Sevenster and Captain
Alexander among others. The three were
senior detectives. Crouse
was a marine officer and a registered informer for the military
intelligence, in other words he was a
military agent. In the
military intelligence there was an officer who acted as his handler.
He was tasked to maintain constant
contact with the first appellant
in order to keep the South African National Defence Force abreast
with what Peacock’s group was
planning to do. After every meeting
he compiled an intelligence report which he submitted to the South
African Defence Force. His
mandate included the identifying of the
leadership elements of the group and the monitoring of the activities
of the group. As an
intelligence agent he was not paid but
reimbursed for his operational expenses. He did not create an
opportunity for the group to
commit the crime. He did not commit or
promote the commission of the offence.
[29] Smith
corroborated Crouse testimony on material facts. He testified that
he lived in Bloemfontein. In July 2001 the first appellant
telephoned him. They met in Bloemfontein. The first appellant
requested him to do reconnaissance about the enemy forces on the
northern and western borders of the country and to do an estimate of
the costs relating thereto. He gave the information to the
crime
intelligence. He was an undercover agent of the military
intelligence. His mandate was to spy on right-wing groupings. He
was mandated to monitor the first appellant.
[30] In August 2001 he
attended a meeting at Gariepdam. He was invited by the first
appellant. He travelled to the meeting with
a certain Van Vuuren.
He met the second appellant there. He presented his cost estimate of
R100 000,00 for the border operation.
Among the speakers were the
first appellant, Koos du Plessis, Mike du Toit and Hennie Erasmus.
The discussion revolved around the
plans of the whites to deal with
the black enemy forces on the borders. Although some speakers were
militant, the majority advocated
a defensive strategy as opposed to
the offensive strategy. The night of terror would have two phases -
the defensive phase prior
to the enemy attack and the offensive phase
subsequent thereto. At the meeting there was an undercurrent discord
between the southern
group and the northern group.
[31] In September 2001 he
attended another meeting held at a guest house in Bloemfontein. The
first appellant chaired the meeting.
The first appellant invited
people to the meeting. The first appellant assured the members who
came from the Free State, the Eastern
Cape and Kwa Zulu Natal that
God would protect the “boerevolk”. The night of terror was
discussed. Certain passages from the
Bible and particularly Joël 2
were stressed and the prophesy of Siener van Rensburg was
highlighted. Van Vuuren was present at
the meeting.
[32] In October 2001 he
and Van Vuuren visited the first appellant at Murraysburg for
pleasure. They went down there for the fun
of hunting jackals.
During their visit Mike du Toit called the first appellant to let him
know that Lourens du Plessis had been
arrested and that he wanted all
his people to be warned to get rid of all the illegal stuff in their
possession, such as explosives,
ammunitions and weapons. As a result
of that call the first appellant shifted huge quantities of
ammunition to a shooting range
where he buried them away. Besides
the concealed ammunition, the first appellant gave him approximately
600 rounds of ammunition
for an R1 rifle. During that hunting
expedition he met the second appellant again and the third appellant
for the first time.
[33] In November 2001 he
attended a meeting at Murraysburg. He was invited by the first
appellant. The first appellant, the second
appellant, the third
appellant, Crouse, Smith, Van Vuuren, Magiel Richard and Steyn Smit
attended the meeting. The continued existence
of the southern group,
in other words the Eastern Cape, Northern Cape and the Free State,
and loyalty were two issues discussed.
It was resolved that the
southern group should continue to exist and the members were asked to
be loyal to the cause. The north
and south were disunited.
[34] In
December 2001 he attended a meeting of the southern group. The
meeting was once more convened by the first appellant. It
was
attended by the first appellant, the second appellant, the third
appellant, Crouse, Smith, Van Vuuren, Gagiano and Frikkie Potgieter.

The main point of discussion was whether the southern group should
switch over to the military action. The idea was debated. Various
persons such as Van Vuuren, Potgieter and the first appellant spoke
in favour of the idea. In the end the group resolved to switch
over
to the military action. In addition the first appellant and the
third appellant felt and proposed that the prophesy should
be
quickened. The rest of the members were not in favour of such an
idea. The copies of martial law were circulated, signed and
returned
to the first appellant. The purpose of doing so was to inform the
members more about the military action and to warn traitors
that
betraying the movement would be regarded as treason, punishable by
death. The ranks were designated to the members.
[35] On their way back to
Bloemfontein Van Vuuren told him that the first appellant had tasked
him to do reconnaissance at the Vaaldam
with the aim of blowing it up
later and that Gagiano had to go to the power station at Muldersdrift
for the same purpose. He also
learned from Van Vuuren that the first
appellant had given him R700,00 for the purpose of buying fuel in
connection with the reconnaissance
at the Vaaldam.
One day he accompanied
Van Vuuren to the Vaaldam. Doing reconnaissance entailed buying
topographic maps and aerial photographs which
depicted the whole area
of the Vaaldam. In addition they took photographs of all the
strategic points around the targeted dam.
He took the photographs.
On their way back Van Vuuren called the first appellant and informed
him that the Vaaldam reconnaissance
had been done. The first
appellant then ordered them to proceed to Glen Harvey near
Potchefstroom on a similar mission. They were
unable to do so
because they did not have enough money for fuel.
[36] In February 2002 he
attended a meeting at Murraysburg. The meeting was convened by the
first appellant. It was attended by
the first appellant, the second
appellant, the third appellant, Crouse, Smith, Van Vuuren, Frikkie
Potgieter and Jaco Theron. The
first appellant and Van Vuuren drove
away from the venue of the meeting. On their return Smith learned
from Van Vuuren that Van
Vuuren had handed maps and the photographs
to the first appellant.
[37] The next day the
first appellant and the second appellant interviewed the members one
by one during the cause of the meeting.
The military action
consisted of four operational units, A – D. Each member had to
choose a unit or a plan. He did not know
what each plan really
entailed. He told the first appellant and the second appellant that
he was not in favour of the idea of blowing
the Vaaldam up since
innocent people would be hurt. The first appellant responded by
telling him that if he was 80% successful with
his first plan, it
would not be necessary to blow the Vaaldam up. The night of terror
was due to come during March 2002 according
to the first appellant.
It was resolved that the survivors of the night of terror would have
to come together at Gariepdam in brown
military uniform. The third
appellant was at the meeting. A Sunday meeting took the form of a
public worship led by the first appellant.
He refused to sign the
oath of loyalty on that particular Sunday. But he had already signed
it two days earlier. He recruited
Van Vuuren as an informer and
introduced him to the crime intelligence.
[38] Van
Vuuren testified that he lived in Bloemfontein during 2001/2002. He
was a member of the 32 Battalion at one stage. He knew
the
appellants. He knew the prosecution witnesses Crouse and Smith. His
evidence corroborated the testimonies of these two witnesses
in
several material respects. The first appellant received a call from
Mike du Toit to let him know that the security police had
searched
and arrested Lourens du Plessis. Subsequent to the conversation the
first appellant made a number of calls to inform the
people about the
developments in the north. After doing so the first appellant and
the third appellant took out a trunk full of
an assortment of
ammunition from the first appellant’s room. They emptied the
trunk, sorted out ammunition, packed it into plastic
bags, placed it
into three 5 litre ice-cream buckets, removed it to the local
shooting range and buried it there. He and the first
appellant did
so. Only the legal ammunition remained at the first appellant’s
place of residence.
[39] He was mandated by
the first appellant to do the reconnaissance about the Vaaldam. The
second appellant was present when the
mandate was given to him. He
told Smith about his task on their way back to Bloemfontein. Later
he and Smith did travel to the
Vaaldam in January 2002. He was an
undercover agent. They took photographs, drew up the plans and made
notes. Once they were back
in Bloemfontein he called his handlers.
They came to his house and they took photographs of all the material
he had collected about
the Vaaldam. The photographs were taken in
his house. The first appellant told him about the small crack in the
wall of the Vaaldam.
I deem it unnecessary to summarise the evidence
of the remaining state witnesses, but the evidence was by no means
insignificant.
[40] The first appellant,
Peacock, also testified. He testified that he studied theology,
among others, at the University of the
Free State. He did military
training in 1981. He was a member of the Volksfront. He was invited
to present religious speeches
at the political rallies of the AWB.
He worked for Kirkwood Securities in the Eastern Cape. Before the
national elections in 1994
the right-wing political groupings in the
country were deeply concerned about what they perceived as the
threatening danger. Among
this groupings were the Volksfront,
Herstigte Nasionale Party, Konserwatiewe Party en die Afrikaanse
Weerstand Beweging and certain
Israeli groupings. They formed a
co-ordinating right-wing political structure called an action
committee in Port Elizabeth. He
became the secretary of the action
committee.
The 1994 political
events were a great setback to him. He regarded them as treason. So
much hatred was unleashed that the members
of the right-wing
groupings wanted to resort to violence to achieve their objectives.
However, he did not associate himself with
violence though he was
opposed to the dramatic political change which happened in 1994. He
supported the ideology of separate development.
[41] He was a member of
Kirkwood Commando. His reading of the Bible, the writings of Siener
van Rensburg, the writing of Johanna
Brand together with a military
document called “Opfor” convinced him that a night of terror was
coming. He believed that a plot
was being hatched in this country in
collaboration with foreign countries such as Angola, Mozambique,
Zimbabwe and Lybia to drive
all the whites out of this country. This
was referred to as the snake from the north according to the prophecy
of Siener van Rensburg.
According to the prophecy of Johanna Brand
the night of terror would start in Johannesburg. The martial law and
the oath of loyalty
were the brain-child of the first appellant and
the second appellant. After the meeting which was held in November
2001 he realised
that the majority of the members were militant, he
and the second appellant decided to find a way of deterring their
religious, but
militant members, from embracing the violent strategy.
The martial law was intended to foster discipline.
[42] One day, seemingly
in 2001, he met Lourens du Plessis at Mosselbay. Du Plessis came
from Thabazimbi in Limpopo. He was the
leader of the northern group
of right-wing political structures. Du Plessis asked Peacock, the
first appellant, to mobilise the
right-wing sympathisers in the
Eastern Cape. He actively intensified his mobilisation drive as
requested. At the time he was still
the secretary of the action
committee. He gave a feed-back at a meeting held at Lichtenburg in
June 2001. He reported that the
southern group was interested in a
defensive, but not offensive strategy. According to him the
defensive strategy focussed on protecting
the white folk against the
black enemy forces.
[43] At a joint meeting
held at Gariepdam in October 2001, a sort of a split between the
northern right-wing group and the southern
right-wing group surfaced.
The two groups did not officially cut off ties at Gariepdam. The
southern group subsequently held a
separate meeting where it resolved
to break away from the northern group. Since then, therefore, he was
no longer a member of the
northern group.
[44] The fundamental
difference between the group of Lourens du Plessis and the group of
Leon Peacock was that the northern group
had planned to take the
country over before the night of terror and in so doing, hasten the
prophecy and ignite civil war. The southern
group was opposed to the
take-over. The night of terror was a punitive act willed by God
(omdat die volk nie geluister het nie).
It was impermissible to
anticipate or quicken such a godly plan by human intervention. The
southern group believed that the enemy
forces must first launch the
offensive. The whites must endure pain of the night of terror first
before they can rise up and fight
back in order to defend themselves
against the enemy forces rampant in the streets murdering on a large
scale in order to take over
everything.
[45] He regarded himself
as a reasonable, moderate right-wing. He regarded as aggressively
violent any person with a plan to blow
up the Vaaldam. Blowing the
Vaaldam would be an act of great magnitude which would make the
September 11 attack of the Twin Towers
in the USA look like child’s
play. He made that statement at Parys. He used that analogy as a
strategy to discourage or to persuade
the militants of his group from
going ahead with their plan. He did not hatch such a plan. He was
not in favour of the idea of
hastening the prophecy.
The testimony of the
second appellant is substantially the same as that of the first
appellant. He too did not plan to blow up the
Vaaldam. They wanted
to prevent it. Here lies the critical divergent point between their
evidence and that of the third appellant.
[46] Despite their pleas
and their testimonies the appellants were found guilty. The trial
court found that the appellants were guilty
of conspiracy to blow the
wall of the Vaaldam with explosives in contravention of section 54(3)
of the Internal Security Act No.
74/1982. On appeal before us it was
contended on behalf of the three appellants that the trial magistrate
erred in reaching the
aforesaid verdict regarding the actions of the
appellants.
[47] Mr. Bandjes first
contention was that the appellants were wrongly convicted for their
thoughts. This is a very lame submission.
There is overwhelming
evidence that the appellants were prosecuted for their actual deeds
and not mere thoughts. For their deeds
they were prosecuted. For
their deeds they were convicted. The reasoning for this finding will
become apparent as I closely examine
the facts. It suffices at this
juncture to reaffirm the well-known principle that our law
criminalises no thoughts.
The idea of blasting the
Vaaldam with explosives was the brain-child of the first appellant.
Not only did he conceive the idea,
but he also tirelessly propagated
it wherever he went. He incited others to embrace that idea and
galvanised them into action.
[48] “The proper
approach in a criminal case is to consider the totality of the
evidence, that is to say to examine the nature of
the state case, the
nature of the defence case, the probabilities emerging from the case
as a whole, the credibility of all the witnesses
and to ask oneself
at the end of all this, whether guilt has been established beyond a
reasonable doubt.”
S
v MATTIODA
1973 (1) PH H 24 (NPD) at 49;
S
v SINGH
1975 (1) SA 227
(NPD) at 228 G – H;
S
v RADEBE
1991 (2) SACR 166
(TPD) at 182 H.
The three state witnesses
namely Crouse, Smith and Van Vuuren were paid police informers.
Although they were such witnesses whose
testimonies always has to be
approached with caution, it must also be borne in mind that the
exercise of caution should not be allowed
to displace the exercise of
common sense.
S
v SAULS AND OTHERS
1981 (3) SA 172
(AD) at 180 E – H.
[49] The ingredient of
caution in the judicial treatment of the testimony of a police
informer demands that there be some corroboration
of an informer’s
testimony on material facts. However, corroboration of a trap is not
an absolute imperative –
S
v NCANANA
1948 (4) sa 399 (ad) p. 405 – 406 per Schreiner JA.
Upon critical analysis
of the evidence of the aforesaid police informers I found that each
of them gave evidence in a frank, polite
and natural way. They
narrated their stories in a logical, systematic and trustworthy
manner. There were no major contradictions
on material facts. Of
course there were minor discrepancies here and there. But such
discrepancies as there were did little to
detract from their
credibility. They mutually corroborated one another in several
material respects. In addition to the mutual
corroboration their
harmonious version was by and large extrinsically corroborated by the
appellants themselves.
REX
v ZAHLAN & ANOTHER
1951 (1) PH H69 (AD).
[50] Moreover, it must
be readily appreciated that Crouse did not know that Van Vuuren was
an informer. The converse also holds
true. Van Vuuren did not know
that Crouse was an informer. The result of their common ignorance
was that they were spying against
each other, unaware that they, as
secret agents, were serving the same principal for precisely the same
cause. This is a significant
factor which adds the fortifying
feature to their mutual corroboration and individual trustworthiness.
[51] In the first place I
deal with the case for and against the first appellant. The first
appellant approached Smith here in Bloemfontein
in July 2001. He
recruited Smith to become a member of his right-wing political
organisation. The first appellant and not Smith
initiated the first
contact. The first appellant gave Smith a task. The first appellant
met Crouse at Addo in September 2001.
The impression I get was that
the first appellant approached Crouse through Potgieter. He
obviously recruited Crouse as well. The
first appellant and not
Crouse probably initiated the first contact. The first appellant
convened several meetings, invited Crouse,
Smith and Van Vuuren and
chaired those meetings. He mobilised right-wing sympathisers in the
south. He urged people to prepare
for civil war according to Crouse.
At a Gariepdam meeting the first appellant acted as an intermediary
between the southern group
and the northern group. He bestowed
military titles upon the members. He volunteered to provide the
members with finer details
of the plan of terror. The purpose of the
plan was to cripple the economy and to harm the civilians.
[52] The first appellant
interviewed the members to determine the role each member could play,
under which plan or unit in the furtherance
of the Vaaldam plan. He
distributed the martial law, the oath of loyalty, the vow and the
media statement. He made the infamous
chicken-run speech at
Bloemspruit. He declared himself the holy warrior and the commodore
of the group. He sent a spy, Van Vuuren,
to the Vaaldam to obtain
strategic information necessary for the execution of the plan. He
sent Gagiano on a similar errand to Muldersdrif.
He ordered the
spy, Crouse, to acquire explosives. He also ordered Van Vuuren to do
some spying on Glen Harvey. He generously
gave money to his spies to
defray certain operational costs relating to the Vaaldam mission. He
visited Crouse and told him about
the Vaaldam plan.
After the arrest of
Lourens du Plessis he disseminated information to his right-wing
members and warned them to get rid of all their
illegal possessions
such as explosives, arms and ammunitions.
[53] The first appellant
sold his family possessions, removed his sons from school and led his
selected operatives on a long trip
to Parys, closer to the target,
the Vaaldam. He paid for the guest house accommodation of the group.
He drove from there to Grootdraaidam
and then to the Vaaldam where
he identified strategic spots, points or places. Every evening a
religious devotion was held at Parys.
During these services the
first appellant frequently psyched the group to understand the
magnitude of their mission and assured
the group that the Vaaldam
operation had the blessing of God. He sent Van Vuuren and the third
appellant out to get explosives from
the mines. After their abortive
mission he set out to look for the explosives himself. Although he
also failed, he did not abandon
the plan to blow the Vaaldam off.
From this it can be reasonably inferred that this right-wing group
had an alternative plan B to
fall back on in order to destroy the
Vaaldam by means other than the explosives. More compelling evidence
than this to show that
the first appellant was the ring-leader is
hard to find.
[54] The first appellant
did not deny the prosecution’s evidence that his group had a plan
to blast the wall of the Vaaldam. However,
he claimed that such a
destructive plan was hatched by the militant elements within the
right-wing organisation. He was a moderate
man who was trying his
utmost to persuade the militants to renounce violence, to abandon the
offensive strategy and to embrace the
defensive strategy.
[55] The version of the
first appellant is, in my view, beyond reasonable doubt false. He
was the secretary of an action committee,
a militant co-ordinating
right-wing organisation at one stage. He had contact with the leader
of the northern group. The right-wing
grouping which supported or
stood for the offensive strategy of the boerevolk struggle to regain
control of the country and its government.
He and nobody else told
Crouse about the Vaaldam plan. He openly trumped up support for the
blasting operation.
According
to the first appellant he made the informers sign the group’s
martial law, to take an oath of loyalty and to make a vow
in order to
deter them from going ahead with their Vaaldam plan. He also told
them about the cracks in the wall of the Vaaldam for
precise the same
deterrent purpose. Contrary to the first appellant’s claim those
rituals and information could not have been
intended for the alleged
purpose. Instead they were intended to encourage commitment to the
cause of violence. There was even a
threat to kill those who
betrayed the cause.
[56] As the leader the
first appellant refrained from frankly telling his followers that the
idea of blowing up the dam was offensive
and therefore irreconcilable
with the objectives of their group. There is no doubt on my mind
that when the first appellant led
his followers from Murraysburg to
Parys the group was in the offensive mood and not in the defensive
mood. The evidence shows that
nobody wanted to have the plan of
terror executed more than the first appellant did. He readily
rejected his wife’s suggestion
to reconsider the matter. When
Smith withdrew or broke off and thereby disassociated himself with
the violent and destructive plan,
the appellant was relieved and
happy. Smith was apparently regarded as a traitor. Now if the first
appellant was a moderate and
peaceful leader, he claimed he was, he
would have encouraged his group to see virtue in Smith’s stance.
But instead he disliked
Smith, because as he saw things, Smith set a
bad example which could jeopardise the realisation or execution of
the common plan.
He feared more of his operatives might also chicken
out. In my view, the first appellant was not a peacemaker committed
to the
defensive strategy. He was a violent troublemaker committed
to the offensive strategy.
[57] The first appellant
alleged that Van Vuuren was the most militant member of the group.
He was the forefront exponent of the
offensive drive. However, it
was the first appellant and not Van Vuuren who led the heavily armed
group from Murraysburg to Bloemfontein
where Van Vuuren joined them.
In Bloemfontein the first appellant was again in the forefront of
things. He made a highly inflammatory
speech spiced with some
selected biblical passages. Van Vuuren was in the background.
[58] Among others, the
first appellant said:
“
Ek
weet nie almal het sekerlik aan hierdie situasie gedink, maar dit, op
hierdie stadium voel dit vir my asof ons, ons nie net besig
is met ‘n
klein dingetjie in ‘n klein landjie hier in Suid-Afrika nie. Hulle
het gedink die Twin Towers storie sou die Derde
Wêreldoorlog
aangebring het, ek wil volgens die profetiese lyn amper vir julle die
versekering gee dat hierdie die Derde Wêreldoorlog
gaan en kan
begin.”
“
....
ons slaan die groothandel wat van die tien grootste wêreldmaatskappye
is, aandele markte gaan tuimel, hulle gaan inmekaar wetter,
die
dollar gaan seerkry, die rand gaan obviously totaal en al vernietig
wees, so dit wat ons mee besig is kan op hierdie potensiaal
baie
groter wees as wat ons in ons gedagtes dink en selfs na ons sukses
bereik het.”
“
Niks
word uitgestel nie, dit is hoekom ons begin vandag met dag 1 van die
gelofte en as ons die gelofte die sewende keer afgelê het
moet ons
op ‘n plek wees waar ons kan doen.”
“
Ons
moet kyk hoe breek die ding, want dit is belangrik en ek wil nie hê
julle moet julle gaan vasry in ‘n groot gemors nie. Kyk
as julle
weet wat het ons gedoen ons gaan nie terug nie, ons kan nie terug
nie.”
[59] The aforesaid
quotations from the first appellant’s chicken-run speech underlined
his violent, offensive and militant disposition
which perfectly
matched the contention by Mr. Pretorius, that the first appellant was
the mastermind of the Vaaldam plan. What is
even more telling
against the first appellant’s version is that when Van Vuuren, the
most troublesome and militant warrior according
to the first
appellant, withdrew the first appellant did not call off the planned
mission, because its kin-pin was gone. Van Vuuren
or no Van Vuuren,
the remaining members of the group were determined to see to it that
the mission was accomplished come what may.
They had reached a point
of no return.
[60]
It was expected by the group following the first appellant’s
announcement during the course of the chicken-run speech that
Crouse
would not be with the group to witness the violent collapse of the
Vaaldam wall. The point I am making here is that the first
appellant
did not see any of the three secret agents, Smith, Crouse or Van
Vuuren, as a
sine
qua non
of
the execution of the plan. The mission could be accomplished with or
without them.
[61] If the mere idea the
first appellant had, was exploited, developed, driven and promoted by
the secret agents, as Mr. Bandjes
strenuously argued, then the
appellants would at least have gladly abandoned the Vaaldam plan when
its prime architect, Van Vuuren,
pulled out. They did not.
Implicitly they owned up the violent plan. Independently they were
in the offensive mood. Their determination
was in keeping with the
first appellant commandative remark:
“Niks
word uitgestel ....”
[62] The first appellant
lies in court that he postponed the conferring of military ranks or
titles on the members of their group
as well as his lies to Captain
Swart that they were to buy property are factors which must be taken
into account together with the
corroborative evidence of the police
informers. I am convinced that the informers committed no crime.
They lacked the requisite
criminal intent to blow up the Vaaldam with
the explosives. Had the first appellant’s journey to Parys been
prompted by such noble
and innocent motive to persuade, they would be
criminals to have change of heart, he would probably have said so to
Captain Swart.
It would have been in the forefront of his mind, but
it was not. It was not because it was false. It was an
after-thought fabricated
to deceive the trial court. The first
appellant hardly informed the third appellant, the young man he
regarded as his son, about
what he and the second appellant were
really up to, as they now allege, to prevent the blasting of the
Vaaldam. The massive body
of credible evidence suggests that the
first appellant was not at all opposed to the destructive plan but
actively masterminded and
supported it. I accept the evidence that
he was the proponent of the notion of hastening the prophecy. His
denial is also false.
[63] The second
appellant’s version is identical to that of the first appellant.
In a nutshell his defence was that he accompanied
the group from
Murraysburg to Parys in order to persuade the militant warriors to
drop the Vaaldam plan. But despite his alleged
good intentions he
never advised Crouse and Van Vuuren that it was unwise and wrong to
go on with the blasting plan. Instead he
led them all the way to a
farm within a striking range of the target. His claim that he wanted
to convince them by means of gestures
or signs and not words, makes
no sense at all. Generally speaking it is easier for a person to
understand a spoken word than to
decipher or to deduce the meaning of
a sign language.
[64] The third appellant
was unaware of such silent signs or quiet diplomacy allegedly
employed by the first and second appellants.
As far as the third
appellant was concerned, he was under no false impression that the
ultimate purpose of the journey of hundreds
of kilometres was to have
the Vaaldam blasted. He had no illusions about it. He was not under
the impression that the appellants
travelled that considerable
distance closer to the targeted dam, just to convince only two
members of the selected operatives, to
carry the plan no more out.
Throughout the long journey he knew there was only one planned
mission and that was to blow the Vaaldam
up. The version of the
third appellant strongly militates against the version of the second
appellant and indeed of the first appellant.
It clearly corroborates
the version of Crouse and Van Vuuren. That much is beyond any doubt.
[65] The third appellant
now puts up the defence that what he intended doing was practically
impossible because they did not have
explosives and enough manpower.
In this regard I had a look at
R
v DAVIES AND ANOTHER
1956 (3) SA 52
(AD) at 64 A – B where Schreiner JA observed as
follows after a lengthy and thorough analysis of the law relating to
the concept
of absolute impossibility
vis-a-vis
relative impossibility:
“
To
sum up, then, it seems that on principle the fact that an accused's
criminal purpose cannot be achieved, whether because the means
are,
in the existing or in all conceivable circumstances, inadequate, or
because the object is, in the existing or in all conceivable
circumstances, unattainable, does not prevent his endeavour from
amounting to an attempt.”
Therefore, this judgment
is no authority for the argument raised by the third and indeed the
first appellant that it was impossible
for them to blow up the
Vaaldam given the means they had at the time of their arrest.
[66] The allegation of
the second appellant that he, like the first appellant, was under the
domineering influence of Van Vuuren,
failed to impress the trial
court. I was also not impressed at all. The amazing feature of the
second appellant’s version, is
that when Van Vuuren withdrew from
the group, the second appellant just like the first appellant, did
not quit. Instead he remained
on the farm. He waited there the next
day well knowing that the first appellant was driving out to find the
explosives which Van
Vuuren and the third appellant had failed to
obtain the previous day. If the version of the second appellant was
true he would have
confronted the first appellant about his
ambivalent behaviour. After all he and the first appellant did not
need any explosives
as they now claim. The only legitimate inference
that can be drawn from the second appellant’s conduct following the
withdrawal
of Van Vuuren, is that neither he nor the first appellant
were there to discourage anyone from blasting the Vaaldam. He
anointed
the first appellant at Parys, a place from which they could
act. The primary question that has to be determined is whether the
version
of the second appellant was reasonably and possibly true
given the role he had played and all the peculiar circumstances of
this
case. According to the trial court, the answer was in the
negative. That finding was correct.
[67] Mr.
Greyling contended before us that the court below erred in rejecting
the second appellant’s version and convicting him.
He submitted
that there existed a reasonable doubt that the second appellant
conspired with the first appellant to blast the Vaaldam.
According
to counsel there was a reasonable possibility that the first
appellant never discussed the blasting of the Vaaldam with
the second
appellant. I have to stress that whatever I said about Crouse, Smith
and Van Vuuren during my evaluation of the first
appellant applies
equally well to my evaluation of the second appellant. The role of
the second appellant was not merely a supportive
function. He and
the first appellant were co-owners of a business enterprise. There
was regular contact between them at a business
level, social level
and political level. He attended several meetings at the invitation
of the first appellant. He was deeply involved
when the military
ranks were conferred on the members. He executed that duty with the
appellant and Gagiano. He was designated
as the chaplain. He and
the first appellant interviewed the members of the group.
[68] These two events
showed that the second appellant wielded significant authority within
their organisation. When Smith expressed
the concern that the
Vaaldam operation would lead to loss of innocent human life, the
second appellant had nothing to say about it.
A prominent leader and
a spiritual leader for that matter of a non-violent organisation with
defensive objectives would have spoken
out against the obviously
violent plan. He would have shared the concern of Smith. The second
appellant did not. He and the first
appellant induced the members of
the group to sign the martial law, to take the oath of loyalty and to
make the vow.
[69] He and the first
appellant travelled together to Port Elizabeth to visit Smith.
During such visit the first appellant told Smith
about the Vaaldam
plan. The second appellant probably knew about the plan by then. It
is unlikely that the first appellant would
have informed a junior
member like Smith but kept his spiritual leader, his right-hand man
and senior confidante in the dark about
such a serious plan. The
probabilities are quite compelling that the second appellant already
knew about the Vaaldam plan before
he set out to Port Elizabeth with
the first appellant. The second appellant did not condemn the plan,
nor distance himself from
the violent plan of terror.
[70] The second appellant
did not challenge the northern group at Gariepdam when that group
advocated the abandoning of the defensive
and reactive military
strategy and advocated the adoption of the pro-active and offensive
military strategy. He said he believed
in the Bible. However when
he was referred to a passage in Ephesians where God reconciled the
Jews and the Gentiles, he responded
that he did not believe what the
apostle Paul wrote. He incurred the expenses and embarked on a
journey to Bloemfontein where he
met Van Vuuren. He did not use that
opportunity to derail the Vaaldam plan by talking to Van Vuuren. He
made no attempt to hinder
let alone to prevent the execution of the
plan. He could have frustrated the whole plan by simply stopping the
journey from Murraysburg
to Bloemfontein or by pulling out as Smith
had done.
[71] The following
passages from his Bloemfontein speech demonstrate just how much the
second appellant was involved.
“
Julle
manne moet nou sê waarheen ons gaan. As ek reg is in die
geskiedenis elke slag as daar ‘n gelofte afgelê was, was daar
sukses behaal en die Almagtige het sy deel gedoen. Tydens die Tweede
Boere-oorlog was daar nie ‘n gelofte afgelê nie, dit is
die rede
waarom die dinge so geloop het. Hierdie is ‘n groter storie as die
Boere-oorlog, dit is ‘n groter storie as enige ander
situasie
,
so ons sal moet ‘n gelofte aflê en sal daardie gelofte moet hou na
die tyd ook, want die volk het nooit by die gelofte gehou
nie en die
leiers van die volk het hulle ook nie gesteur daaraan nie. So
hierdie gelofte gaan ons aflê vir sewe dae lank en dan
stap ons die
paadjie met alle vertroue en met alle eer aan die Almagtige, so kom
ons lê hom af.”
“
As
deel van hierdie boervolk bloei ons harte vir ons broers, susters en
hulle kinders, daarom moet ons ons harte versterk en onderneem
om vir
en namens hulle in te tree en die
daad
by die woord te voeg. Ons besef dat optrede vir ons gaan veg en ek
erken dat ons nie hierdie stryd sonder U uitgestrekte regterhand
kan
betree en oorwinning en vryheid daar te stel nie.”
“
Met
hierdie erkentenis strek ons ons arms na U toe en roep U aan in ons
benoudheid, want ons
vyande
is veel en die daad moeilik, daarom strek o Vader u regterhand uit
oor hierdie seuns van u, versterk ons in hierdie stryd en gee
aan ons
die insig, wysheid en krygsmanskap wat ons nodig sal hê, want sonder
U toetrede sal die stryd nie oorwin kan word nie.”
“
Almagtige
Vader indien een van ons hier vandag omkom, sterf in hierdie stryd,
dat dit deur U hand plaasvind en nie deur ons vyande
nie.”
“
Ons
verklaar dus plegtig onder eed en voor U aangesig vandag dat indien U
gee dat die daad met sukses afgehandel word .....”
[72] These passages prove
beyond any shadow of doubt that the second appellant actively incited
the group to carry on with the plan.
He described the planned
operation as an event of great magnitude – greater than any other
military situation ever seen in this
country. He prayed for the
success and not failure of the operation. He realised that some
members of his group might perish in
that planned military offensive.
There was virtually nothing prohibitive or deterrent in both his
speech or prayer as set out in
exhibit K. In my view, the
magistrate’s finding that the second appellant acting with a common
purpose with others conspired to
destroy the Vaaldam with explosives,
was correct.
[73] The second
appellant’s evidence that had he known that Van Vuuren was a secret
agent, he would never have befriended him was
a further nail in the
coffin. His further journey from Bloemfontein to Parys and his
subsequent expedition to the Vaaldam itself
strengthen the
prosecution’s evidence that he was on the criminal mission to
execute the plan of terror and not to prevent it.
At the time the
appellants were arrested they had gone far beyond the phase of
inciting and the phase of conspiring. By then they
were operating on
a higher sphere of execution.
[74] The argument by Mr.
Greyling that exhibit K constituted inadmissible evidence, falls to
be rejected outright. No such point
was taken on behalf of the
second appellant at the trial. Moreover such an issue was not one of
the grounds of the second appellant’s
appeal. I deem it
unnecessary to particularise the role of the secret agents. Suffice
to say that I hold the firm view that Van
Vuuren’s actions went no
further than affording the appellant an opportunity to commit a crime
as contemplated in section 25(2)(a)(ii)
Act No. 51/1977. The second
appellant’s argument in this regard has no substance. The denial
of the second appellant that he
saw the parallel between the
destruction of the Vaaldam and the vision of Siener van Rensburg, was
false. Implicit in the role he
has played as a whole, is the
inescapable inference that the idea of anticipating the prophecy had
his tacit backing. Therefore,
I am inclined to confirm his
conviction.
[75] The argument that
the second appellant was busy with acts of preparation and not acts
of execution at the time of his arrest,
if of no consequence. It
must be kept in mind that the definitive scope of section 54(3) is so
wide that the mere incitement, conspiracy
or attempt to commit an act
of sabotage is as good as the act of sabotage itself. In other
words, an attempt to commit sabotage
is tantamount to the actual act
of sabotage. There are four distinct ways in which the provisions of
the section may be violated
as set out in section 54(3) namely (i)
any act, (ii) attempt (iii) conspiracy and (iv) incitement. The fact
is that the minimum
benchmark conduct which constitutes the statutory
crime of sabotage is an incitement of one person by another to commit
a certain
act with the specific intent, for instance, by disrupting
the orderly supply of water in order to endanger the health and
safety
of the general public. Whether the second appellant was busy
with acts of preparation or acts of execution, is irrelevant, because
to get to that stage he had already gone beyond the minimum benchmark
of the offence, namely: the incitement phase. The conspiratorial
phase was also an already accomplished fact. He and his fellow
conspirators were on the threshold of destroying or at least damaging
the dam.
[76] The third appellant
knew that it was wrong to blow up the wall of the Vaaldam with
explosives. Despite his knowledge he made
no attempt to distance
himself from the group. He was very excited about it. He was
unaware that the first appellant and the second
appellant wanted to
prevent the plan. The alleged overtures by his senior co-accused did
not alert him that the plan was to be abandoned.
His understanding
was quite correct. I have already found that the first and the
second appellant did not have any genuine intentions
to prevent the
blasting of the dam. He took the vow under the impression that the
blasting of the Vaaldam was the common plan of
the entire group
including the first appellant and the second appellant. He was part
of the group that attended meetings convened
by the first appellant.
He was anointed as a sergeant and a holy warrior. He travelled with
the group to Parys via Bloemfontein.
He went on an expedition of the
Vaaldam. He and Van Vuuren visited a certain mine to get explosives.
He remained attached to the
group even after Van Vuuren had gone
away. This is understandable. He did so because he and his
co-appellants did not consider
it impossible to execute the plan
without Van Vuuren.
[77] On behalf of the
third appellant and the first appellant Mr. Bantjes contended that it
was physically impossible for the group
to blow up the wall of the
Vaaldam, because they did not have the explosives and enough manpower
to do so. In their heads of argument
these two appellants correctly
made a concession:
“
2.14 Appellante
neem deeglik kennis van die feit dat
Artikel
54(3)
van die
Wet
op Binnelandse Veiligheid, Wet 74 van 1982
‘n
sogenaamde ‘pogingsmisdaad’ insluit – met ander woorde die
blote poging om so ‘n misdaad te pleeg word gedek deur die
bogenoemde wet en stel ‘n misdaad daar wat strafbaar is met
dieselfde straf asof a persoon aan die hoofdaad van sabotasie skuldig
bevind is.”
This submission is indeed
correct.
[78] The rest of their
contention is an academic exercise which is not germane to the real
issue in the instant case. If we accept,
as we should, firstly, that
there was incitement of the secret agents and others by one or two or
all of the appellants and secondly
that there was a conspiracy by the
three appellants at least to blow up the Vaaldam, then the crime of
sabotage has been proven.
We need to look no further than the
conspiracy phase of the common criminal enterprise. The mere
conspiracy to blow up the Vaaldam
with explosives was already
sufficient to satisfy the definition of the crime of sabotage in
terms of section 54(3) Act No. 74/1982.
Lack of resources to attain
the contemplated plan is not the real issue. The crux of the matter
is the criminal disposition of
the conspirators. It cannot be
reasonably argued that it was objectively impossible for the
appellants to destroy the Vaaldam at
all. The group was heavily
armed with many lethal military weapons and massive quantities of
ammunition. Therefore, the group was
at least capable to cause some
extensive structural damage if not destruction of the dam.
[79] Mr. Bantjes also
argued that the appellants believed that God would provide them with
some miraculous means and supernatural
powers to break down the
dam-wall. In developing this argument further he contended that the
appellants were convinced from a religious
point of view and not from
a realistic point of view that they could demolish the wall of the
Vaaldam like the walls of Jerigo were
broken down according to the
Bible. This submission is fallacious. Had the appellants been
actuated by such fanatic and religious
convictions, then they would
not desperately have tried to get explosives; then they would not
have been so heavily armed and dangerous;
then they would not have
gone out of their way to obtain the maps and to take photographs of
the Vaaldam; and they would not have
panicked and concealed their
illegal ammunition when they heard about the security police raid on
Lourens du Plessis. No horns,
symbols or trumpets were found in
their possession, but lethal military weapons.
[80] These pieces of
evidence cumulatively and convincingly portray the appellants as
militant political right-wing operatives who
were determined to carry
out their offensive operation at all costs. They knew the illegality
of their activities. They were not
so fanatical that they believed
their actions were perfectly lawful. They fully appreciated the
consequences of their common plan
and reconciled such consequences
with their actions. They conspired together; they worked together;
they travelled together and
prayed together with a common purpose for
the realisation of their common criminal plan. In my view, they were
not religious fanatics
who pinned their hope on some heavenly miracle
or supernatural intervention to break the dam-wall down. They
intended to physically
demolish the dam by actual human action, if
not by explosives then by other means unknown to us. The
maxim
nullum crimen sine lege
has
no room in the instant case.
[81] In my opinion the
actions of each of the appellants fall squarely within the
prohibitive ambit of section 54(3) even though they
were arrested
before they could blast the dam with any explosives. As regards the
conviction the court below came to the correct
conclusion. I am
therefore inclined to confirm the conviction of each of the three
appellants in respect of the first charge.
[82] The sentencing of an
offender is first and foremost a matter that falls within the
discretion of a trial court. The court seized
with an appeal, as we
are, is not at liberty to interfere. Such a court can only interfere
if the sentence is shockingly inappropriate
or if there was a
material misdirection on the part of the trial court.
S
v SILIMELA
1999 (2) ALL SA 619
(CPD).
In the exercise of such
discretion, a trial court has wide judicial powers. Firstly, in
deciding which factors should influence
the court in determining a
appropriate measure of punishment and secondly, in determining the
weight to be attached to each factor
taken into account.
S
v KIBIDO
1998 (2) SACR 213
(SCA) at 216 g – h per Olivier JA.
[83] To start with, the
personal circumstances of the first appellant. He was 42 years old.
He passed matric. He dropped out at
university. He was a proprietor
of a canvass enterprise at Murraysburg. He is a married man. His
wife is a teacher. She is currently
unemployed. He is the father of
three dependent minor children aged 15 years old, 9 years old and
1year old. These children and
their mother presently stay with their
maternal grandparents on a plot at Bloemspruit. The first
appellant’s parents-in-law are
both 78 years old. They are
indigent. They live on pension. They are sickly persons. His
biological father died on 19 April 2003.
His biological mother is
also indigent and struggles to make ends meet. Apparently all these
people were dependent on the first
appellant for their necessaries of
life in one way or the other. The first appellant is a first
offender. He has been in custody
for 477 days. He is currently out
on bail. The court below regarded him as a good human material.
[84] As regards the first
appellant Mr. Bantjes contended that the court below under-emphasized
the offenders’ personal circumstances.
If his contention is
correct, then the court below misdirected itself. He submitted that
a suspended sentence in respect of each
of the four charges on which
the first appellant had been convicted, would have been an
appropriate sentence. But Mr. Pretorius
disagreed. He contended
that the court below under-emphasized the gravity of the offence and
overemphasized the first appellant’s
personal profile. If this
contention is correct, then the court below misdirected itself. A
material misdirection, be it a misdirection
as contended for by
counsel for the first appellant, or a misdirection as contended for
by counsel for the state, calls upon us to
interfere.
[85] The trial court did
not spell out the first appellant’s personal circumstances as I
have done here. However, the magistrate
stated that he took into
account the personal circumstances of the three accused as placed
before him. Mr. du Plessis was a seasoned
magistrate. He probably
took into account, among others, the following mitigating factors in
favour of the first appellant: that
he was 42 years old; that he was
the breadwinner with extended family dependants; that he was a first
offender and that he was in
custody for 477 days. What weight he
attached to all the mitigating factors, which he took into account,
was a matter for his discretion.
In my view, the mitigating factors
in this instance were not as mitigating as to overshadow the
aggravating factors. More about
the aggravating factors, below.
[86] As regards the
second appellant Mr. Greyling contended that the trial court erred by
failing to take the personal circumstances
of the second appellant
into account while considering an appropriate sentence. In addition
to this, counsel contended that the
trial court also erred in finding
that the role played by the second appellant was just as blameworthy
as the role played by the
first appellant. However, Mr. Pretorius
again disagreed. He still contended that the court below
overemphasized the personal circumstances
of the second appellant and
under-emphasized the seriousness of the crime.
[87] I turn now to the
personal profile of the second appellant. The second appellant was 54
years old. He studied law at the University
of Port Elizabeth where
he obtained a B-Juris degree. He served articles as a candidate
attorney. He also studied theology. He
at one time became a pastor
of the Christian Crusade Church. He farmed on a certain farm at
Hexvallei in the district of Worcester
in the Western Cape. He
abandoned farming after the death of his father. He was an ex-member
of the Afrikaanse Weerstand Beweging.
He moved to Murraysburg from
Worcester where he became a court sheriff. He had no wife or
dependants. He was a first offender.
He had been in custody for 477
days. He is currently on bail. The court below regarded him as a
good human material.
[88] As in the case of
the first appellant the trial court did not spell out the personal
profile of the second appellant. However,
the personal circumstances
were taken into account. An experienced trial court, such as the one
we are dealing with, would have
taken into account, among others, the
following points as mitigating factors: that the second appellant was
54 years old; that he
was a first offender and that he was in custody
for 477 days. Precisely which facts he treated as mitigating factors
and what weight
he attached to such factors, was entirely his
discretion. Bearing in mind the aggravating factors present in this
case, I am of
the opinion that the trial court over-emphasised the
mitigating factors in this regard. More about the aggravating
factors will
follow.
[89] The appellants have
been found guilty of conspiring with other persons to blow up the
Vaaldam with explosives with the common
purpose, in other words
common intent to interrupt, impede or endanger the storage,
generation, distribution, rendering or supply
of water in the RSA.
The possible consequences of such an act of sabotage are frightening.
I shudder to think of the devastating
adverse impact of such a
criminal plan on the citizens and the economy of the country as a
whole. The form of
mens
rea
here present was undoubtedly
dolus
directus
.
[90] The appellants have
expressed no remorse. Remorse is a fundamental ingredient of the
rehabilitative process of an offender.
A remorseless offender has no
insight into his wrong. Unless an offender appreciates his mistake,
any contention that he is rehabilitable,
is hollow. Apart from being
remorseless, the first appellant and the second appellant still
persisted before us with their ridiculous
version that they
disapproved of the offensive plan; that they went along the entire
journey in order to persuade or to convince
their militant fellow
members by silent signs and not spoken words as to how ill-conceived,
unattainable and impractical the whole
plan was. None of them could
give any sound answer as to why they played dumb. This is a typical
case where the interests of the
general public strongly surge forward
and demand for effective protection against men so dangerous. The
offence we are here dealing
with was in fact aimed at
indiscriminately jeopardizing the interests of the society in
general. Undoubtedly the sequence of events
the under cover agents
had witnessed in this province and in the Eastern Cape Province a
while ago had been the result of carefully
co-ordinated planning with
the first appellant, the one who had devised the plan of terror.
[91] The retributive and
deterrent elements of sentence strongly shift to the forefront and
the rehabilitative element to the background
in a case of this
magnitude. The offence was planned over a long period. The group
was indoctrinated that the black majority government
in collaboration
with the Jews, Indians, coloureds and the so-called jingoes, in other
words Afrikaner traitors, was planning to
eliminate “die
boerevolk”. The propaganda was disseminated that the government
was behind the spade of farm murders in the country.
The state
witnesses were given specific tasks, for instance, to obtain
explosives, photographs and plans of the Vaaldam.
[92] The appellants were
a small faction which was part of a bigger group whose political
objective was to destabilise the country
economically, militarily and
otherwise in order to achieve their unlawful aim, namely the
restoration of the purely white sovereign
boerevolkstaat. Secret
meetings and tiny cadre units are extremely difficult to police.
They travelled under cover of darkness;
they used various cellular
phones; they confiscated cellular phones of the subordinates and they
mooted out an idea of a secret simcard
and threatened to kill
traitors.
[93] The motive of the
appellants was nothing else but high treason. The foundation of the
entire plan was deep racial hatred and
sheer racism. By means of
selective and distorted mixture of religion and politics the
appellants thrived to create a new legal
order - a pure white
government; a white separatists political dispensation; a lily white
state in which there would be no room for
blacks, jews, jingoes or
any non-believer. The appellants misused the Bible and distorted its
religious teachings to draw analogies
and to find justification for
the controversial writings of Siener van Rensburg, Johanna Brand and
other white supremacists. Counsel
for the State argued, in my view
correctly so, that the use of the Bible by the first appellant and
the second appellant to sugar
coat a plan so evil and criminal, was
not supposed to be regarded as a mitigating factor.
[94] The effect of this
right-wing uprising is far reaching for our young democracy. It
polarises the nation. On the one hand there
are people who
sympathise with the right-wing groupings and give them logistical
support, for instance, arms, ammunition and sanctuary.
The
harbouring of criminals impedes effective policing. The right-wing
activists solicit support by citing and politicising a number
of
issues, such as the incidents of crime especially the farm murders,
the perceived inequitable affirmative action, the perceived
destruction of the Afrikaans language and so on and advance these
sort of issues as reasons for the establishment of a separate and
autonomous Afrikanerstaat, an exclusive white state for white
purists. Given the high crime rate, the rising unemployment of
whites,
the illegal acts of land dispossession against the white
landowners in Zimbabwe and the official support of such campaign by
the
government over there, the right-wing cause finds fertile ground
among the conservative whites. All these and perhaps more issues
heighten the political esteem in which right-wing activists are held
and earn them sympathy among the ordinary and conservative
Afrikaners.
Such sympathetic sentiments by the ordinary people are
then politically exploited by the ultra right-wing organisations to
gain
support for the sabotage campaign. The court cannot allow
right-wing villains to project themselves as martyrs and thereby
become
heroes.
[95] On the other hand
the right-thinking citizens loose respect for the armed national
forces on account of the right-wing activities,
actions or false
propaganda, all of which are aimed at undermining their loyalty,
capabilities and efficiency. They create the false
impression, the
perception that the armed national forces in sinister cahoots with
the democratic government were pursuing a clandestine
agenda to
victimise, marginalise and exterminate the white minorities. The
government has recently abolished the farm commando system
precisely
because the system has been seriously manipulated and abused by the
right-wing prophets of doom. The abolition has left
the farming
community exposed to violent attacks by the general criminal
elements. The right-wing distortion of the truth has sewn
seeds of
mistrusts between whites and blacks. That is a regrettable state of
affairs. It hampers the programme of national reconciliation.
The
appellants had contact with the right-wing northern group alleged to
have been behind the series of explosions in Soweto on
30 October
2002 where many lives were endangered and a mosque extensively
damaged. The court must punish the saboteurs preventatively
in an
endeavour to curtail repeat of acts of sabotage similar to those of
Soweto.
[96] The appellants with
their commendable clean records are not rehabilitable in my view.
Their political views on the world, and
the global race relations
clearly demonstrated that their claims that they have discarded their
right-wing views and that they have
terminated their membership of
right-wing organisations, are not genuine claims. No significant
weight must be attached to such
claims as mitigating factors. The
first appellant and the second appellant were involved in the AWB for
a few years. Although they
were religious to a certain extent, the
submission by Mr. Bantjes that they were so fanatic about their cause
that they did not realise
the illegality of their actions, is devoid
of any merits. There is no religious fanaticism here to serve as a
mitigating factor.
However, there is evidence to show that the
appellants themselves were victims of a misguided and discredited
political ideology.
That must certainly be taken into account as a
strong mitigating factor.
[97] Having considered
the personal profile of each appellant, their individual involvement,
the interest of society and the gravity
of the crime, I could find
nothing to justify the submission of the defence that the sentence
imposed on any of the appellants was
shockingly severe. On the
contrary I am inclined to agree with counsel for the State that the
sentence imposed on the first appellant
and the second appellant was
so disturbingly lenient that no court on the facts could reasonably
have imposed it, regard being had
to the seriousness of the offence.
[98] As regards sentence,
therefore, the three appellants never had any reasonable prospect of
success on appeal. It is evident that
the aggravating factors
exceedingly overshadow the mitigating factors in respect of each of
them. I am inclined to agree with the
principal submission by
counsel for the State that the court below over-stressed the personal
circumstances of the appellants. The
sentences handed down in
connection with the first charge were very disproportionate to the
gravity of the crime and the wide spectrum
of the interests of
society. Therefore, I would dismiss the second leg of the appeal for
the reduction of all the sentences in respect
of all the charges.
The maximum sentence for sabotage is 20 years imprisonment. That
gives one an idea of the seriousness of the
offence of which the
appellants have been convicted. Mr. Bantjes could cite no authority
in support of his plea for wholly suspended
sentences. In my view,
such a sentence would be an unbalanced, unfitting and inappropriate
punishment for the offence so serious.
[99] The question which
now arises is whether a proper case has been made out for the
increase of the sentence in respect of the first
appellant and the
second appellant. The State had conceded that a distinction has to
be made between the third appellant and his
two co-appellants. He
was relatively young. He was clearly under the domineering influence
of the first and the second appellants.
The submission by Mr.
Greyling that a distinction ought to have been made between the
second appellant and the first appellant holds
no water, in my view.
Like the first appellant the second appellant was an active
ringleader and not a mere passive follower or
an observer. His
Bloemspruit speech puts the matter beyond doubt. As I see it the
marginal differences in the roles played by the
second appellant and
the first appellant does not justify any differentiation between them
as far as sentence is concerned. In this
regard the trial court was
correct.
[100] In the instant case
the notice of respondents’ intention to apply for the increase of
sentence, was served on the attorney
for the first appellant and the
third appellant, Mr. F.J. Retief of the lawfirm Webbers on 14
November 2005. It would seem the same
notice was also served on
counsel for the second appellant, Mr. J. Zietsman on the same day, it
seems, although Mr. Greyling and
not Mr. J. Zietsman appeared for the
second appellant. I say it seems the notice was served on the
lawyers on the day in question,
because I could find no written proof
or acknowledgement of service. The notice was signed by Mr.
Pretorius, counsel for the State
on 14 November 2005. It was filed
with the Registrar on the same day. It was filed with the Registrar
simultaneously with the respondents’
heads of argument. The appeal
was enrolled for hearing on Monday 28 November 2005. The notice was
filed two weeks prior to the
date of hearing.
[101] Mr. Bandjes argued
in
limine
and Mr. Greyling supported him that the notice was defective since it
had not been served on the trial magistrate, Mr. W.A. du Plessis.
A
simular situation arose in
REX
v COETZER
1937 TPD where on p. 222 Greenberg J as he then was remarked:
“
I
do not propose to lay down a hard and fast rule that the Court will
require in every case that such notice should be given, but
it seems
to me desirable in most cases that an appellant should be warned that
an increase of sentence will be asked for, and that
the magistrate
should be notified, so that he can give his reasons for imposing the
sentence which the Crown says is insufficient.”
The passage was quoted
with unanimous approval in
REX
v SWANEPOEL
1945 AD 444
on p. 451. In that case the bench of the appellate
division consisted of seasoned judges, namely Watermeyer CJ, Tindall
JA, Greenberg
JA, Schreiner JA and Davis AJA. The increased sentence
by a provincial division was set aside on the grounds that the
requisite
notice had not been served on the magistrate who had
imposed the sentence. The original sentence was restored.
[102] In
S
v DU TOIT
1979 (3) SA 846
(AD) at 855 H Rumpff CJ stated:
“
Vanselfsprekend
sal hierdie Hof nie ligtelik oorgaan om 'n vonnis te verswaar nie,
selfs al sou hierdie Hof bevind dat hyself 'n swaarder
vonnis as die
opgelegde vonnis sou opgelê het.”
The procedural rule of
practise which has its fons of origins in section 309(3) Criminal
Procedure Act must have been observed in
all its facets before an
increase of sentence can be duly considered.
[103] Although the
sentence was increased in
S
v DU TOIT
supra
and in
S
v MASILELA
2000 (1) SACR 571
(WLD) the issue which confronts us here did not
arise there. In the former, as in the case of
S
v KIRSTEN
1988 (1) SA 415
(AD) the court was called upon to decide at what
point in the appeal process an appellant was entitled unilaterally to
withdraw his
appeal subsequent to the date of set down.
For practical and
equitable consideration it is desirable to have a written intimation
by the Director of Prosecution that the court
would be asked to
consider increasing the sentence served on the appellant and the
trial magistrate as soon as practically possible
after the filing of
a notice of set down. The facts in
S
v KELLERMAN
1996 (1) SACR 78
(CPD) demonstrate this procedure very well.
[104] In the instant case
it is apparent
ex
facie
the director’s written intimation that such notice was never served
on the trial magistrate. The practical consequence of the
omission
is that we, sitting in the appellate mode, were deprived of the input
of the very court that imposed the sentence we are
now urged to
increase. We shall never know which way the magisterial contribution
would have gone and to what extent it would have
persuaded or
influenced our thinking on the issue.
[105] Although the
sentence imposed by the magistrate was disturbingly lenient and
shockingly inappropriate, we are bound by the decision
in
R
v SWANEPOEL
supra
.
We cannot as a result of such misdirection alone, which ordinarily
justifies interference by this court to correct an injustice,
invoke
our inherent discretionary powers to interfere with such sentence to
the detriment of the appellants by imposing a stiffer
sentence. To
do so would be seen as an attempt to circumvent the procedural
omission or pitfall in the prosecutions case. In my
view, the
omission cannot be remedied without doing an injustice to the
appellants. If I am wrong in reaching this conclusion, then
I take
solace in the knowledge that I shall have erred in favour of the
subject. The point
in
limine
was well taken. Therefore I am inclined to uphold it. This court is
not entitled to increase the sentence imposed on the appellants
in
the circumstances of this case.
[106] I turn now to the
final issue. It is evident from what I have previously said about
the appellants that they are very dangerous
persons. In view of
their unrepentant and militant attitudes, they still pose a serious
threat to the internal security of the country.
The interest of the
nation as a whole demands that they be declared unfit to possess
firearms. Such a declaration is necessary
to assure the general
public that the courts will not let lethal weapons to remain in the
hands of dangerous individuals. The underlying
idea is a relentless
attempt by the courts to protect society. The court below erred in
finding that they were not unfit. Such
a finding cannot be allowed
to stand.
[107] Accordingly I make
the following order:
The appeal of all the
appellants in respect of the first charge fails
in
toto
.
The convictions and the sentences are confirmed.
The appeal of the first
appellant in respect of the second, the third and the forth charges
fails. The sentences are confirmed.
107.3 The respondent’s
application for the increase of the sentences in respect of the first
charge, in other words sabotage, fails.
The original sentences
stand.
107.4 The finding of the
magistrate that the appellants were not unfit to possess firearms is
hereby set aside.
______________
M.H. RAMPAI, J
I concur.
________________
T.V.
MATSEPE, AJ
On
behalf of first and third appellant: Adv. B.L. Bantjes
Instructed by:
Webbers
BLOEMFONTEIN
On behalf of second
appellant: Adv. P.J.J. Zietsman
Instructed by:
The
Legal Aid Board
BLOEMFONTEIN
On behalf of
respondent: Adv. D.J. Pretorius
Instructed
by:
Director
Public Relations
BLOEMFONTEIN
/sp