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WHAT CONSTITUTES TREASON (AND WHAT DOESN’T) IN SOUTH AFRICA

By Daily Maverick | 2025-03-05

The uMkhonto Wesizwe (MK) party on Monday, 10 February filed a complaint of treason against the Afrikaans interest group AfriForum, accusing it of lobbying “foreign powers to act against the sovereignty and economic interests of South Africa”.

This followed US President Donald Trump’s executive order that all foreign assistance to SA be stopped and that his administration promote the resettlement of Afrikaner refugees escaping “government-sponsored, race-based discrimination, including racially discriminatory property confiscation”.

Trump’s order, along with threats of further “sanctions” against the South African government, was seen as stemming from sustained lobbying from certain groups in SA, which leads back to the Solidarity Movement, reported Daily Maverick. The Solidarity Movement is the umbrella body for a range of interest groups, including AfriForum and the union Solidarity. Fast forward to Monday, 3 March, when the Directorate for Priority Crime Investigation (Hawks) boss Godfrey Lebeya told the SABC that the Hawks were at the initial stage of investigating complaints of high treason against an “organisation”, relating to the alleged spreading of misinformation.

He stopped short of naming the organisation.

“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,” he said.

In response to the announcement that the Hawks were investigating four charges of treason against the organisation, AfriForum CEO Kallie Kriel said on Monday, he wouldn’t “lose any sleep over it” and that the organisation was ready for the Hawks to investigate the charges.

“There are simply no legal grounds for the charges, but should the state decide to continue with their actions against AfriForum, it will strengthen our position as it will show that there are indeed ANC leaders who abuse their power to govern against certain sections of the population,” said Kriel.

What is treason?
What is treason and who has been found guilty of it in the past?

In South Africa, the crime of high treason is a common-law offence, says Pierre de Vos, head of the University of Cape Town’s (UCT) department of public law.

He explained that only an individual who owes allegiance to a state can commit treason against that state. All South African citizens, whether by birth, naturalisation or descent, owe allegiance to the state.

The South African Police Service (SAPS) describes high treason on its website as one of the “common-law offences still applicable within the South African legal system”.

It is defined as any unlawful conduct by a person who owes allegiance to the state, with the intention of:

“Overthrowing the government of the Republic;
Coercing the government through violence into any action or inaction;
Violating, threatening, or endangering the existence, independence, or security of the Republic;
Changing the constitutional structure of the Republic.”
The SAPS definition of high treason is modelled on a judgment delivered by Judge Gerald Friedman in S v Banda and Others 1990 (3) SA 466 (BG), reported Daily Maverick’s Marianne Thamm.

In that case, motive was deemed irrelevant to the act of treason. The core element was “hostile intent”, which may exist “while achieving some further purpose, such as economic advantage, or the fulfilment of personal ambition”.

Who has been found guilty of it?
Boeremag ringleader Mike du Toit became the first person to be convicted of treason in post-apartheid South Africa when he was found guilty in 2012 of plotting to overthrow the ANC-led government and expel black people from the country.

Du Toit, along with other leaders of the far-right white supremacist organisation, was sentenced to 35 years in prison. He and 21 other men were charged with 42 counts of treason, murder and illegal weapons possession.

The trial was one of the lengthiest in SA’s legal history, lasting nearly a decade.

The group had claimed responsibility for a string of bombings in Soweto in November and December 2002, which killed one person, and extensively damaged railway lines running through the township. The white supremacist organisation wanted to chase black people out of the country and replace the government with a military Boer leadership.

Du Toit and five of the Boeremag accused also plotted to assassinate former president Nelson Mandela with a car bomb while he opened a school in Tzaneen, Limpopo.

In that case in the North Gauteng High Court in Pretoria, Judge Eben Jordaan rejected an argument by the 22 accused that the description of high treason was so wide that it violated several of the rights guaranteed by the Constitution.

Handing down his sentence, Jordaan said there would have been bloodshed and chaos in the country had the Boeremag plot succeeded.

Unsuccessful attempts
Over the years, there have been several unsuccessful attempts in SA to charge people with treason.

In October 2015, six UCT students, participants in mass #FeesMustFall protests outside Parliament, were arrested and taken to the Bellville police station in Cape Town, where they were charged with trespassing, illegal gathering and high treason, reported Daily Maverick’s Rebecca Davis. While the Hawks denied the students were being charged with high treason, police paperwork showed this to be the case.

However, the students were ultimately not charged with high treason.

In another instance, the ANC lodged treason charges against EFF leader Julius Malema after he suggested, in an interview with Al Jazeera in April 2016, he would be prepared to overthrow the ANC-led government “through the barrel of a gun”.

Forensic investigator Paul O’Sullivan was also threatened with charges of treason during his interrogation by the Hawks, following his arrest at OR Tambo International in April 2016. The charges were later dropped.

According to the Helen Suzman Foundation (HSF), none of these charges or allegations has ever been prosecuted and it is unlikely that they ever will be.

“With the exception of Malema’s comments, all these actions merely challenge the government. None of these acts shows a desire to overthrow the government through unlawful means and it is highly unlikely that any court would convict them,” said the HSF.

How does treason differ from sedition and terrorism?
Remember, treason can only be committed by an individual who owes allegiance to a state.

“It is a crime that is specifically based on the expectation that if you owe allegiance to the state because you’re a citizen, you would not do things that are attempting to destroy the state; to end its existence; to take away its independence and so on,” said De Vos.

Whereas treason is defined as “a crime of attacking a state authority to which one owes allegiance”, sedition is defined as “conduct or speech inciting people to rebel against the authority of a state or monarch”.

Sedition relates to the act of “inciting people to rebel against the authority of the state,” said De Vos. “But it is broader [than treason], so anybody who incites other people to rebel against the state — whether they are loyal to South Africa or not — they commit sedition.”

In South Africa, terrorism is defined under the Protection of Constitutional Democracy Against Terrorist and Related Activities Act (Pocdatara) 33 of 2004.

The prescribed minimum sentence for the contravention of Pocdatara and incitement to carry out terrorist attacks in SA is life imprisonment.

The Act has a lengthy definition of what constitutes terrorist activity.

Among those found guilty of terrorism in SA was right-wing extremist pastor and Crusaders member Harry Johannes Knoesen, who plotted to overthrow the government in 2019.

In 2022, Knoesen was convicted of contravening Pocdatara. He had cells in parts of the country ready to attack national key points and kill as many black people as possible.

More recently, the daughter of former president Jacob Zuma, Duduzile Zuma-Sambudla appeared in the dock in the Durban Magistrates’ Court, where she was released on a warning, following charges of incitement to commit terrorism and public violence in the July 2021 riots.

The case was postponed to 20 March and she was released on bail.

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