Criminal Law Assignment: Civil & Political Unrest by a South African Politician

Question

Task: X, a well-know South African politician and leader of the AFF (Azanian Freedom Forum), has a YouTube channel with about 1.2 million subscribers as well as a dedicated audience on TikTok. He posts political comments every day, calling it the “Daily Dose of Dissent” or “DDD”. After the recent unrest in KwaZuluNatal and Gauteng, he posts a rant against the President’s reaction to deploy the army. He makes the following statement “Those so-called judges know nothing; they have not even been elected. They are corrupt idiots who think they are all powerful. Their judgments against our former president caused the problems in our country; they are the ones who should be arrested! We have no reason to take them seriously.” At the end of the clip, he says “Join me in the uprising, let’s take up weapons and show those who think they are in power how the country should be run!” The video goes viral and the next day the “DDD” is used to introduce the AFF’s “War Council” consisting of 5 other men – A, B, C, D and E.

Unbeknownst to X, C is an informant for the Intelligence Services. C reports that X has instructed A and B to start stockpiling weapons and explosives on a farm, but he is not sure exactly where. B also submits an affidavit stating that X and all other members of the AFF War Council are hatching a plan to assassinate the President during a scheduled visit to a public school later that week. During the last AFF War Council meeting D and E indicated that they have the support of two SANDF generals who will simultaneously rush to the Union Buildings with their troops and declare that the AFF is taking control of the Republic. In a joint operation between the SAPS and SANDF, X is arrested while he is addressing a crowd of 300+ persons, in contravention of current Covid regulations. During his speech, X again called on all citizens to show their dissent by taking up arms and following the AFF.

Upon his arrest, X is handcuffed and led to the SAPS van parked outside. Before the group reaches the van, the crowd surrounds the officers and starts pushing, demanding X’s release. In the mayhem that follows, X disappears. Five days later another informant reports that a certain farm bordering Lesotho, is being used to stockpile weapons and explosives and that there are strangers hiding out there. Subsequently the SAPS raid the farm and seize 57 modified hunting rifles and pistols, as well as 250 kg of explosives, hidden in a cave. Two days later, a specialized unit that was posted on the farm, follows an unmarked 4x4 vehicle to a remote cabin in the mountain, where they see the occupants (A and B) handing over food and supplies to X. X, A and B are arrested. X immediately states that he “went underground to await further instructions from the Central Intelligence Services” as he acted “under command of SANDF General Z, who provided the funds for the weapons, explosives and other expenses relating to the operation”. X repeats the statement in an affidavit. Upon investigation, it is found that General Z does not exist and that there is no general in the SANDF fitting the description provided by X.

Go through the above case scenario and prepare a criminal law assignment addressing the following questions:

QUESTION 1: With which crime/s will you charge X, if you are the public prosecutor drafting the charge sheet? Please identify the crime/s, discuss its/their elements and then argue why you deem conviction/s on the specific crime/s possible.

QUESTION 2: What will your approach and strategy is to defend X, should he be charged with the crime/s in question 1 but you are the lead defense counsel?

Answer

Introduction to the case of criminal law assignment
The notion of legislative is to provide security and instill justice among the people and to make sure that any accountable person for breaking the law will be punished. The criminal proceedings taking place anywhere in South Africa can be comprehended in four dimensions. The notion of crime is associated with conduct that separates itself from intention. These dimensions are normative, reality, constrained, and subjective. The case study is directed towards a methodology of uprising by chosen a political entity by the name X through mass aggression and terror causing turmoil. The case reflects the notion of organized crime with a clear instruction to overthrow the government in power through forced measures and terror activities. The case study related with an organized crime being carried out under the confluence of political interest and government’s incompetence. The aspect of democracy provides every individual to claim their narrative regarding the government but not through violent or disturbing act.

Answer 1
The case study is about a civil and political unrest created by a South African politician named X. He has a habit of spreading messages and comments against government by criticising their activities through a violent way. He announced through a social media for an uprising with weapon which was set on course to create a huge armed civil unrest. The AFF (Azanian Freedom Forum) have made a War Council that consisted of 5 people. This council was meant to deliver ground level activities for X through his designated instructions. The intelligence services have infiltrated C for taking out information whereas the other men, namely, B and D also claims to provide support to different security organization. Though this was a joint operation between SAPS and SANDF, there is no direct claim or evidence of other men’s activities. The confusing scenario is shown where B is supposed to help the security agency and was accused of stockpiling weapons for X as stated by C to the intelligence services. The rest of the scenario clearly states that X was arrested primarily for creating uprising, although his claim for other people’s involvement remains unproven. This whole act can be considered as a political crime, act of negligence for mass uprisingamidst pandemic, act of terror for provoking and influencing people for a terror act. On the other hand, this case will come under the category of organized crime. The criminal proceeding will involve investigating procedure under the Acts and legal actions under the crime law. Some of the acts and legal framework that will be considered to draft the charge sheet are the following -

Prevention of Organized Crime Act 121 of 1998:
The provocation act of X has caused harm on multiple levels. ‘Sections 5 and 6 of POCA’ will ensure the establishment of the public violence and unlawful activities. Further to administer guilt, ‘section 7 of Act 24’ will be enforced and for taking weapons and concealing, ‘section 6 and section 8 of Act 24’ will be invoked . In the same stream, gang related activities can also be established by getting the support of his people for intimidating violence and getting unground and for this ‘section 9 to section 11 of Act 24’ will be invoked .

International Human Rights:
The act of X can be considered as ‘wrongful’ on many fronts and one of them is an act of negligence citing mass uprising amidst pandemic risking everyone’s health. The act of organized mass uprising has affected social peace and order along side the concerns of viral infection. The human rights commission can place multiple attributes to mark this as a violation of integrity of human rights.

Criminal Procedure Act, 1977:
The criminal proceedings for this case will be taken in a particular set of order as established and stated by CPA, 1977 in assistance with Act 51. X is indulged in a public violence and mass uprising based on intimidation. This act is more decisive to proclaim the case and convict the accused. There are numerous instances of criminal offence taking place. At first, spreading hateful message for provocation and unrest is the misuse of freedom of speech and causing social unjust. ‘Section 8 of CPA, 51’ gives authority to prosecute under statutory right which is unbiased approach to demarcate freedom of speech . The charges will be administered by the court in presence of certain particulars such as evidence which will be considered under ‘Section 15 of Act 139’. The plea of charges will be recorded in accordance with ‘Section 105 to section 109 of the CPA, 51’.

Prevention of Public Violence and Intimidation Act of 1991:
This commission comprises five people appointed by the president which is responsible for inquiring and carrying out judicial activity in the case of public violence or any kind of intimidation. This commission will mark the act of X as intimidation for creating public violence and social unrest. The commission will eventually investigate to garner the depth of impact and then state the necessary legal actions to be taken as a punishment or whatsoever concluded. The commission for enquiry in this scenario is safeguarded by ‘section 10 (1), subsections 3 and 4’ of the Act. These sections describe the functions and powers of the commission to carry out their designated tasks. This commission will consider the social and psychological aspect of the uprising that was led by X.

Dangerous Weapons Act, 1968:
The case study involves X to demand people for armed uprising and protest. This gave a clear indication that he is meant to use the weapons as a medium of terror for the other people and government as well. The uprising involved people coming out with guns and all. Along with that, when X was arrested along side A and B, then there was guns and explosives procured which establishes that X was involved in supplying and storing weapons for terror activities. This would involve the act in a discreet and both aligned way with Criminal Proceedings Act. Dangerous Weapons Act 71 of 1968 is meant for restrictions and prohibition regarding the manufacture and possessions of certain objects that are life threatening and fulfills the parameters of ‘firearms.’ The prohibition of possession comes under ‘section 2 of Act 156, 1993’. The weapons were present in uprising and then further to prevent arrest for which ‘section 1 and section 2 of Act 33, 1977’ is invoked.

Promotion of National Unity and Reconciliation Act 34 of 1995:
This commission will carry out fair and justified investigation of the situation considering the fact that number of human rights violations have taken place. Creating terror and turmoil is an act of people’s right to live in peace and harmony. The Act provides an opportunity of investigating and defining the framework for complete picture of the case. Here, the activities began from X’s daily posts of DDD (Daily Dose of Dissent). Further this act will establish the gravity of everything that followed until his arrest and foresee his involvement in legislative framework . This whole procedure is invoked by ‘section 19 of Act 87, 1995.’ The human rights violation involved in this whole case will be administered in accordance with ‘Section 12 to 15 of the Act 34’ in assistance with ‘section 3 and 4 of Act 87’.

Cybercrimes Bill B6 - 2017:
This bill is set to become law and incorporates the acts that are being carried on any online platform. The primary notion of this bill is to provide evidence and sufficient elements for assisting the criminal proceedings. In this case, one can use the video as an evidence that has been used to spread hate message and demand of armed mass uprising which is completely unlawful and terror act. In 2020, the cybercrimes were enacted which has complete authoritative control over the provocation of criminal proceedings . The ‘section 14, 15, and 16 of Cybercrimes Act’ administers the public violence through data or message.

The case of mass uprising and public violence committed in the light political objective is the part of organized crime. Though it would be tough to convict the accuse of the exact crimes as he is involved only in intimidation and provocation. His act of negligence and conduct of activities is limited to speeches and narratives which isn’t exactly a crime until foretold in the form of related actions. Despite all this, it’s a strong case for which he can be convicted under South Africa criminal law but it will involve comprehensive investigation and commissioned inquiry.

Answer 2
There are many elements that are considered decisive while proving someone convicted of some crimes. But the same law and constitution safeguard the interest and rights of the individual which provide them withan opportunity to save themselves. Since the occurrence of any event is subjective in nature while the laws are portrayed with limitations as all the possibilities remain unexplored. This creates an opportunity for the accused to defend themselves and legislative authorities to amend the existing law and make them better. Cyber Law in South Africa is still in the development phase. Though in the whole case only X’s speech on YouTube and other social media is the direct and proven evidence that created mass uprising in a dangerous way. That video can be used as proof to claim a case against him with a clear distinction of charges for the terror influence. And yet there are numerous possibilities at all levels to bypass that in a different way.

X can foresee and claim ‘DolusIndirectus ’ to proclaim that he meant to create a psychological impact on the government as well as the people against the government with no intention of harming anything else (Grant). Apart from that ‘Section 105(A) of CPA’ allows X to plead for ‘negotiation’ or ‘not guilty’.X can also choose to plead mercy from the president who has ultimate authority to grant innocence. This can be done by provoking ‘section 15 of Act 107’ and ‘section 44 of Act 105’ . On the other hand,the ‘Promotion of National Unity and Reconciliation Act 34 of 1995’ also allows the accused to seek amnesty. The grant of amnesty will be done in accordance with ‘section 18 and section 8 of Act 87’ .

The public violence and terror act is quite heinous and non – avoidable and yet the rights and constitutional interventions allow every individual an opportunity to do so before law. Here in this case, the objective isn’t completely established, that is whether X’s intention of overthrowing the government is right or wrong. But it is surely established that the series of events and his way of conduct is unjustified and considered crime. Though in defense, he can proclaim that he hasn’t committed any crime directly. He has only made a video of the uprising which is considered as a part of freedom of speech and expression. And the harmful implication of making hatred speech cannot be considered as terrorism or public violence. And apart from that there are other measures too such as PNURA that allows him to plead forgiveness.

Conclusion
The crime is obvious to take place when there is an unjustified venture of self – interest and a dime to fulfil through forced and unethical means. This criminal law assignmentis focused on the criminal proceedings based on a case study depicting organized crime and public unrest amidst political ventures. The accused in the case study is X who goes on social media to spread consistent hate and demands mass uprising with weapons. X was involved in creating civil unrest based on political ventures and has created a huge level of intentional harm to people. This kind of act does not involve the person directly in conduct but is considered as the person of influence. That’s why despite the level of problems created, there is a chance that X can be defended and proven innocent or lesser punishment. The case study represents the whole scenario whereas this assignment establishes the proceedings and assistance of acts and legal administration.

Bibliography
CRIMINAL PROCEDURE ACT 51 OF 1977. https://www.justice.gov.za/legislation/acts/1977-051.pdf

PROMOTION OF NATIONAL UNITY AND RECONCILIATION ACT 34 OF 1995. https://www.justice.gov.za/legislation/acts/1995-034.pdf

CYBERCRIMES ACT. https://www.justice.gov.za/legislation/acts/2020-019-Cybercrimes.pdf PREVENTION OF ORGANIZED CRIME ACT 121 OF 1998. https://www.justice.gov.za/legislation/acts/1998-121.pdf

PREVENTION OF PUBLIC VIOLENCE AND INTIMIDATION ACT 139 OF 1991. https://www.justice.gov.za/legislation/acts/1991-139.pdf

DANGEROUS WEAPONS ACT 71 OF 1968https://www.justice.gov.za/legislation/acts/1968-071.pdf Grant, J. Critical Criminal Law. https://africanlii.org/book/critical-criminal-law