NO, SIPHO PITYANA HAS NOT COMMITTED TREASON

Mzwanele Manyi, head of the Mzwanele Manyi Decolonisation Foundation, has laid treason charges against Sipho Pityana, ANC stalwart and chairperson of AngloGold Ashanti. According to Mr Manyi, Mr Pityana has been ‘promoting anarchy’ and ‘planting the seeds of regime change’. These are grave accusations. They are also patently ridiculous. Mr Pityana is not guilty of treason or any of the other crimes Mr Manyi has accused him of.

What has Mr Pityana done to attract these charges? Three things. First, at the funeral of Reverend Makhenkesi Stofile, Mr Pityana called for President Zuma to step down. He has since repeated this call. Secondly, he has pleaded with South Africans in general, and business in particular, to take action to get the President to step down. Finally, he has called on businesses to pull out of investor roadshows at which they claim that government is dealing with the country’s problems. This is because, according to Mr Pityana, government is not fulfilling ‘its side of the bargain’ and is led by a person who has ‘no integrity’.

Mr Manyi claims that this is treason. He also claims that it violates ‘several clauses’ of the Protection of Constitutional Democracy against Terrorist and Related Activities Act (let’s call it the Terrorism Act) because it is ‘economic terrorism’. Why do Mr Pityana’s actions amount to these crimes? First, because he is ‘mobilising business’ to ‘basically remove the state … to do a regime change by means that are unconstitutional’. Secondly, because what he is doing ‘can result in both local and international business disinvesting from South Africa and therefore plunging the Rand and also ensuring that we get a junk status’.

Much of this is hyperbole. Mr Pityana is not advocating an unconstitutional ‘regime change’. The law permits Mr Zuma to step down. And when he calls on South Africans to put pressure on the President to resign, he has emphasised that this be done ‘within the framework of the law and the Constitution’.

So, given all of this, has Mr Pityana committed a crime? Definitely not.

First, let’s look at treason. For this charge to stick, Mr Pityana must have acted with the intention to overthrow the government or to change its constitutional structure, both through unlawful means. Mr Pityana clearly has not done this. For the President to step down is perfectly lawful. As is putting pressure on him to resign. And business is not required to participate in investor roadshows.

Treason is fighting for the enemy in wartime, or taking part in an armed revolt, or planning an unlawful secession, or plotting the President’s assassination. It is not criticising the government of the day. In Mr Manyi’s universe, a vote of no confidence is treasonous, and Musi Maimane commits several acts of treason before breakfast. We do not live in such a universe.

What about ‘economic terrorism’? The Terrorism Act was passed in 2005 to, unsurprisingly, combat terrorism. Most of the Act deals with what one would conventionally understand terrorism to be – the use of violence for an ideological purpose, planting a bomb, hijacking a plane, taking hostages and so on. Unless there is something very wrong with AngloGold Ashanti’s vetting process, Mr Pityana is not doing any of these things.

However, under section 1(1)(xxv)(a)(vii) of the Act, terrorism includes any act which ‘causes any major economic loss or extensive destabilisation of an economic system or substantial devastation of the national economy of a country’. This might be the ‘economic terrorism’ Mr Manyi is referring to. So is Mr Pityana an ‘economic terrorist’? No.

In the first place, it is not clear that what Mr Pityana is advocating for would harm the economy at all. Moody’s might be heartened by the robustness of South Africa’s democracy, and investors might look positively on a business community that does not lick the boots of politicians.

But let’s assume for the sake of argument that Mr Pityana’s campaign pushes us towards a downgrade. Even if this is the case, the section requires more than mere economic harm. It requires major economic loss, extensive destabilisation or substantial devastation of our economy. Put differently, it requires economic harm that is analogous to conventional terrorism – the economic version of activating a chemical weapon or bombing a restaurant. While a ratings downgrade or disinvestment would undoubtedly be bad for us, to compare them to actual terrorism is a stretch.

But let’s assume further in Mr Manyi’s favour that the required economic harm is present. There are two further problems with his argument. First, the crime of terrorism requires terrorist intent. Mr Pityana must intend to ‘threaten the unity and territorial integrity of the Republic’, or to terrorise the populace, or to unduly coerce compliance with his agenda. Of course none of this is the case.

The final, fatal problem is that the Act contains an explicit exception to the definition of ‘economic terrorism’, one that was clearly created with campaigns like Mr Pityana’s in mind. Section 1(3) provides that any act of advocacy or dissent is not terrorism, economic or otherwise, if it does not intend the harm associated with conventional terrorism. This is so even if it results in the harm required for economic terrorism. Thus, even if Mr Pityana’s actions result in the required harm to the economy and even if we assume the other elements of the crime of terrorism are present, he would have committed no crime because he is obviously not plotting conventional terrorism.

So Mr Pityana is not guilty of treason or terrorism. This is the common-sense conclusion – in no democracy is it treason to organise against the government of the day. But the hollowness of Mr Manyi’s allegations should not stop us from condemning his actions. To lay charges against someone for criticising the President, or for rallying his fellow citizens around a chosen cause, is to disrespect our constitutional democracy and our hard-won freedoms. It recalls a different time in South Africa, when political opponents were not only charged but prosecuted for treason. Thankfully, times have changed.

Piet Olivier is Legal Researcher at the Helen Suzman Foundation.

This article first appeared as an HSF Brief.