Two things about this are fairly obvious - first, the charges are obviously bullshit.

But secondly, they increase the standing of AfriForum and Solidariteit abroad. If you are a critic of the government, sound fairly reasonable, and have committed no crimes, a treason charge goes a long way to persuading people in the international arena that you are being treated unfairly, or at the very least that the political atmosphere is unusually hostile.

The decision seems to have split the parliamentary parties. The ANC has to measure their response carefully, because their base despises AfriForum, and yet cannot be seen to endorse it, because it would be a very bad look internationally.

The Hawks have released public statements which give the impression that they feel that it does at least look treason-y ("They concern 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,"), even if they can’t say or prove anything.

The DA has made no statement about this, oddly enough. Not even a mocking response that dismisses the charges as bogus or damaging to the country. Their recent hostility to the movement and its affiliates, as well as their defences of the ANC’s race policies and land reform, the latter in principle and the former increasingly in practice, point to a pivot in the party’s general strategy.

[Note - since about an hour after this piece was published, the DA did release a statement, but only worried about antagonising America, not about issues of civil rights or moral principles.]

The Vryheidsfront Plus has been so far the only party to condemn the treason charges, and have in fact called the ANC traitors to the country, which is fair comment really, even if it is old news to most of us.

The state is unlikely to prosecute, and this stunt is just humbug. But it opens a conversation on the question, and a significant number of online commentators are rather pleased with the idea, which suggests that, at least among those close to the action, it is increasingly desirable.

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The Law

In South African law, treason is primarily a common-law offense rather than a statutory crime defined in a specific piece of legislation, so legal precedent is stronger than any particular legislative act when dealing with the issue.

The last time anyone was charged with treason in South Africa was in the Boeremag treason trial. The accused were charged with high treason for their plans to overthrow the South African government and establish a Boer republic.

They were arrested in 2002 after a series of bomb attacks including planting bombs in Soweto and planning to assassinate Nelson Mandela (a bit late for that, silly sausages). The charges included high treason, sabotage, terrorism, and murder, for the one person killed in the attack. The trial began in May 2003 in Pretoria and was one of the longest and most complex in South African history. In 2012, 20 of the accused were convicted of high treason by the North Gauteng High Court, with the ringleader getting 30 years.

The last case before that was in 1990, and concerned a group of military officers led by Rocky Malebane-Metsing and warrant officer Mothuloe Timothy Phiri, who tried to overthrow the Bophutatswana government.

In both these cases, violence was an essential feature of the charges.

The key conditions relating to a treason charge include violating one’s allegiance to the state (this applies both to South African citizens and non-citizen residents), and "hostile intent" which is somewhat subjective, but includes: overthrowing the government, coercing the government into action or inaction through unlawful means, violating, threatening, or endangering the “existence, independence, or security” of the Republic, or changing the constitutional structure of the Republic by unlawful means (e.g., through force rather than legal democratic processes).

The thing is, the accused must commit an overt, unlawful act that manifests this “hostile intent”. Words, thoughts, or advocacy alone are insufficient. That means an act of violence, or assisting an enemy during wartime.

Unless Solidariteit killed someone, bombed a building, or went to Rwanda and gave arms to the M23, there really isn’t a charge here. The ANC would be rather unlikely to launch a case that could lose so easily, and unless they managed to get a particularly extreme judge, it wouldn’t even make it to the High Courts, while the Supreme Appeals and Constitutional Courts would almost certainly dismiss the charges.

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The technicalities

While the ANC are unlikely to want to take this any further, the state is given a few interesting lines of authority by this event - as far as I am aware, the charges relate to laws regarding espionage. Now of course, Ramaphosa is unlikely to exploit the full provisions of the Criminal Procedures Act, but just for reference, they do contain some impressive powers in this context.

Police may seize anything (e.g., weapons, documents, electronic devices) that might afford evidence of treason or was used in its commission, with or without a warrant if there’s immediate risk. Warrantless searches are only allowed in urgent cases (e.g., imminent threat), so are not applicable here.

However, police may arrest anyone reasonably suspected of committing treason, a Schedule 1 offense (serious crimes), without a warrant if there’s risk of flight, further harm, or evidence tampering (this was used in the Boeremag case).

S40 does allow stop-and-search powers, and with judicial oversight, police may use undercover agents or controlled operations to gather evidence of treasonous intent or acts. These powers have been expanded recently, especially as relates to RICA and other such laws.

Now, extending most of these provisions to the Solidariteit movement would be a pretty clear abuse of powers, which would expose the government to real legal action, and galvanise a lot of the minority population.

However, access to undisclosed surveillance would certainly be a likely outcome, if they are not using these powers through the SSA already.

This means that Flip Buys and the others should probably be guarded whenever their electronics are nearby (not that they are doing anything illegal, but you don’t need the ANC tracking your moves).

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The politics

Now, the ANC are really in hot water with this charge. The police services (or in this case, the Hawks) are compelled to investigate. The mere fact of the treason charge will be worn as a badge of honour by the accused, but the black nationalists who align with the MK will benefit from the sense that they are doing something, while the ANC sits on its hands.

That seems so far to be the outcome, especially given Kallie Kriel’s cheerful reactions, and the poisonous vitriol hosed over the social media networks the past day or so.

But in the minority bloc, the DA have remained completely silent.

This seems to place the Afrikaners’ representatives in and out of Parliament as the only meaningful opposition in the country.

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