Practice Relating to Rule 107. Spies
South Africa’s LOAC Manual (1996) states that espionage “entails acting clandestinely in order to obtain information for transmission back to one’s own side”.
South Africa’s Revised Civic Education Manual (2004) states: “Espionage entails acting clandestinely in order to obtain information for transmission back to one’s own side.”
South Africa’s LOAC Manual (1996) states that espionage “is not a violation of the law of war but there is no protection under the Geneva Conventions in respect of acts of espionage”.
South Africa’s Revised Civic Education Manual (2004) states: “Espionage … is not a violation of the law of war but there is no protection under the Geneva Conventions in respect of acts of espionage.”
In its judgment in the Lombo case in 2002, South Africa’s Supreme Court of Appeal stated:
 The next question that arises is whether the appellant’s detention continued to be lawful … The parties accepted that the provisions of the Geneva Conventions of 1949 and Additional Protocol I of 1977 (“the Protocol”) were applicable to the conflict between the ANC [African National Congress] and the South African Government and regulated the appellant’s detention, despite the doubts expressed in this regard in Azanian Peoples Organisation (AZAPO) & Others v President of the Republic of South Africa & Others 1996 (4) SA 671 (CC) at 689 C - D. (I express no view on the matter.) It is common cause that the ANC in 1980 publicly subscribed to their provisions. The only existing issue in this respect is whether they entitled the ANC, without anything further being done, to detain the appellant as a suspected spy until the cessation of hostilities (as the ANC claimed) or whether it was obliged to afford him the benefit of a trial within a reasonable period. In this respect the appellant sought to rely upon art 75 of the Protocol while the ANC invoked articles 43 to 46 of the Geneva Conventions.
 I do not consider it necessary or advisable to attempt an interpretation of the relevant provisions of the Geneva Conventions and the Protocol, which are complex and, in some respects, obscure. The argument before us on the point was limited and not supported by authority. I shall accept in the appellant’s favour that, having lawfully detained him on suspicion of being a spy, the ANC was obliged to afford him the benefit of a trial within a reasonable time. The purpose of a trial would have been to establish whether he was a spy, in which case he could, at best for him, have been detained until hostilities had ceased or, failing proof that he was a spy, to oblige his release.