Salient. Victoria University Student Newspaper. Volume 36, Number 7. 11th April 1973
'Banning in South Africa' — Better to be Dead?
'Banning in South Africa'
Better to be Dead?
Paula Ensor is 20, and like many other South African girls of her age, is thinking of getting married. This is not as easy as it sounds, because Miss Ensor is one of eight student leaders who have been banned by the Vorster Government under the Suppression of Communism Act.
Up to the time of her banning she was vice-president of the National Union of South African Students.
She is now prohibited from any further participation in the union's affairs, but that is not all.
Miss Ensor's banning notice also says she must not attend any social gatherings, and a social gathering, in the opinion of some eminent legal writers, is two persons.
Intercourse "acting for a common purpose" — Banned
If Miss Ensor meets her fiance-to-be, Mr Steve Jooste (president of the Students' Representative Council at the University of Cape Town) is she breaking her ban?
Some other authorities feel that three persons are needed to constitute a gathering, but even if two are enough Miss Ensor and Mr Jooste would be gathered for a common purpose, and this is a specific offence under the banning Act.
The presence of a minister of religion would almost certainly constitute an offence: all three would be gathered to ensure the proper performance of the marriage ceremony.
If Miss Ensor and Mr Jooste, once married, were to go to bed to have sexual intercourse they would be acting with a common purpose.
She could, presumably, be arrested and charged with breaking her banning order.
It could be argued that the State would not prosecute in such a case, or prevent a marriage being entered into, but the State's disposition would not be the point: Miss Ensor would be risking imprisonment. No provision is made for a fine.
Civil and Social Death
The bans imposed on Miss Ensor and her seven colleagues, as well as on eight leaders of the South African Students' Organisation, the black consciousness movement, has served to focus public attention again on the Government's banning powers.
These 16 young people are only the latest in the long list of people who have been banned over the past 22 years. According to the latest available figures, there were 237 banned persons in South Africa on April 30 last year. Of these 28 were whites.
A banning order, it has been said, sentences a person to "civil and social death".
He need have committed no crime to be banned.
All the Minister of Justice has to do is to say that he is satisfied that the person concerned is engaging in activities which are furthering or are calculated to further achievement of any of the objects of communism.
The banned person need not be a communist. He can be anti-communist.
But if the Minister believes that, even unwittingly, he is assisting communism, he can be banned forthwith.
A banned person can be subjected to a variety of restrictions, but generally banning orders follow the same pattern.
They prohibit attendance at gatherings for one thing, including "any gathering at which the persons present also have social intercourse with one another".
This is probably the most crippling restriction in the whole armoury. This is "social death".
May not leave country.
Many banned South Africans, faced with this limitation on their freedom, (banning orders usually last for five years, although some are for two or three years, and frequently are renewed when they lapse) have asked for exit permits and have left the country.
Even this is no longer automatically obtainable. The law says the Government must grant an exit permit to anyone who asks for it, and for many years exit permits in fact were always granted.
Lately, however, a conflict of law has emerged, and the courts have held that the right to an exit permit does not override the restriction (to a given area for example) imposed by a banning order.
A banned person may not be quoted in a newspaper, or anywhere else. The Act says no speech, writing, utterance or statement of a banned person may be recorded, reproduced, printed, published or disseminated.
Baby's Gurgles - Banned
In his recent book "Law, Order and Liberty in South Africa", Professor A.S. Mathews writes: "Assuming that the word 'utterance' refers to noises as well as to words it will be illegal to play a recording of the gurgles made by the restricted person while being bathed as an infant".
This remark, which is made quite seriously, draws attention to the fact that any conceivable utterance, statement, etc, whether political or not, whether momentous or trivial, comes under the silencing provision.
"The fact that the restricted person is a brilliant scientist whose addresses and publications will advance knowledge is legally irrelevant.
"Ministerial assent will be required for the transmission of his findings, and their publication without such consent is a criminal offence".
There are numerous other restrictions that can be imposed on banned persons. They must notify the police of any change of address, for example, either residential or business. Often they must report regularly to the police, failure to do so rendering them liable to imprisonment.
Then, in addition to confining an individual to a certain area, a banning order can also exclude him from specified areas or places. Usually, these prohibited areas include African townships (if the banned person is not an African himself), factory premises, any place where publications are prepared or printed (such as newspaper or printing works), any educational institution, any harbour, any court (unless the banned person is concerned in a case as an accused witness etc.) and so on.
The Minister may grant exemptions from these prohibitions — for example, to allow a student to continue his studies or a factory worker to continue his employment — but the exemptions are not necessarily granted.
No Evidence Needed
Another form of banning, is to impose 12-hour or 24-hour house arrest. A 12-hour house arrest order usually confines the person to his house from 6pm to 6am, during which period he may receive no visitors, while over the weekend he is confined to his house from 2pm on Saturdays to 6am on Monday mornings. A 24-hour house arrest order confines him to his house day and night.
A banning order, of course, effectively prevents a banned person from taking part in the activities of any organisation, not only a political organisation. It also prohibits one banned person from communicating with another banned person.
Severe as these banning orders are, they can be imposed without any evidence whatever being produced of unlawful activity by the person concerned. They are arbitary punishments against which there is no appeal.
by Stanley Uys — Observer Foreign News Service — in Capetown