Reports this week that the Hawks are investigating criminal complaints of treason by leaders of AfriForum or the Solidarity movement does not mean any of their members are facing such a prosecution.
Anyone can walk into a police station and lay a criminal complaint. Our history is replete with examples of politicians “laying charges” that never led to prosecutions — let alone successful ones.
People may understandably be furious about AfriForum and Solidarity’s long-standing and sustained campaign, which seems to be the basis for the Donald Trump administration’s recent executive order that stopped aid to South Africa and hinted at further financial sanctions.
But an investigation does not mean a prosecution, and a successful prosecution for treason may face significant hurdles. In law, the crime of treason requires the state to prove that someone acted unlawfully and with a specific form of “hostile intent” against the state — and it must do so beyond reasonable doubt. The specific allegations — what exactly the AfriForum or the Solidarity leaders are alleged to have done that amounted to treason — are not known.
Hawks spokesperson Godfrey Lebeya was reported as having said: “There are four dockets that have been opened by different people, maybe from different political parties, that concern some individuals that may have crossed the border to go and communicate some of the things that are perceived to be in the direction of high treason.”
It is thus not even clear who made the complaints — except that one of them is the MK Party, which did so publicly.
Speaking outside the Cape Town Central police station, MK deputy president John Hlophe only said that AfriForum had “deliberately lobbied foreign powers to act against the sovereignty and economic interests of South Africa”. This was an act of economic sabotage and a direct assault on South Africa’s independence, he said.
Without more details of the factual allegations, it is difficult to assess the strength of a treason case. Hlophe said “the manner” in which AfriForum had engaged the Trump administration met the definition of treason. “Treason requires an overt act intended to undermine the state ... there must be deliberate conduct aimed at destabilising or coercing the state,” he said.
Solidarity itself said it had “been involved in political engagement in the US for 21 years”. In 2018, during Trump’s previous administration, Al Jazeera reported that Ernst Roets and Kallie Kriel visited the US and met with then national security adviser John Bolton and staffers in the office of Republican Senator Ted Cruz.
In an interview with The New American, Roets said he was in the US to highlight the “persecution of South Africa’s minorities”, the issue of land expropriation without compensation, and that white farmers being “disproportionality” murdered.
The message in the 2018 trip was consistent with what Solidarity said in its “Washington Memorandum” — presented to the Trump administration on its recent trip to the US following Trump’s executive order. The memorandum highlighted “brutal farm murders”, saying their frequency, compared to murders in the rest of the country, “is very high”.
The Afrikaner community was “particularly exposed to a government that expropriates without compensation, while also being exposed to land grabs and land occupations, as well as calls for violence against them”.
These claims have been widely disputed as false.
The memorandum called on support from the US for “infrastructure to settle Afrikaners in a concentrated manner”, and for it to put pressure on South Africa to amend legislation.
Save for the marathon “Boeremag trial”, there have been few treason prosecutions since 1994. “High treason” is an ancient common law offence — brought into South Africa via Roman and Dutch law and developed by our courts during the Jameson Raid, the Rand Revolt and the apartheid years. Though the crime of treason was found to pass constitutional muster during the Boeremag trial, the outer limits of this crime have not been fully tested under the Bill of Rights.
A prosecution today — particularly in a case that involves no overt act of violence but centres on acts of political lobbying — would likely see the law on treason being tested against the right of freedom of expression and the rights to campaign for a cause and to present petitions.
As Hlophe said, one of the elements of the crime of treason is an “overt act”. Another is that the act must be unlawful. It is questionable whether lobbying is unlawful. The ATM party has publicly said that AfriForum was not just lobbying, it was “spreading lies” in a campaign of “deliberate propaganda”.
It may well be that there should be legal recourse for a deliberate campaign of disinformation. But where our constitution protects the right to freedom of expression, freedom of movement and political rights, the law of treason may not be the arena to develop that. In any event, a court cannot convict for treason unless there is an intention to commit treason — a “hostile intent” against the state.
In a leading criminal law textbook, CR Snyman says: “Hostile intent comprises the following, namely an intention (unlawfully) to overthrow the government of the republic; to coerce the government by violence into any action or inaction; to violate, threaten or endanger the existence, independence or security of the republic; or to change the constitutional structure of the republic.”
It could be argued that AfriForum has sought to coerce the government into action. But it has not done so by violence.
It has also been argued that Solidarity’s Washington Memorandum motivates for a return to a form of apartheid-style separate development. Perhaps this could be seen as an assault on the foundational values of the constitution, which says in section 1 that South Africa is “one, sovereign, democratic state” founded on non-racialism.
But an allegation that this is a form of “hostile intent” would likely be looked at by a court in the context of a constitution that provides for its own amendment and for the rights to freedom of expression and other political rights. The irony is that the very constitution that AfriForum and Solidarity seek to undermine would likely protect them from being charged with treason.
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