Chapter 2 PUBLIC VIOLENCE
2.6 The current definition and elements of the crime
2.6.6 Commentary
The purpose of this commentary section is to sum up the discussion of the elements of the crime and highlight some crucial observations which are pertinent to the topic for debate. It will be recalled from the discussion in 2.1 and 2.2 above that neither the Roman nor the Roman-Dutch law recognised as essential elements of the crime of public violence the “concerted action number of persons” and “serious dimensions” elements. Their inclusion in the definition and elements of the crime is, in essence, the creation of the South African jurists following the years of the development of the crime.
Milton269goes as far as to state that the “concerted action by a number of persons”
and “serious dimensions” elements are decisive in determining when conduct amounting to other crimes which overlap with public violence (such as assault, malicious injury to property, arson and robbery) will be elevated to constitute public violence. As for the elements of intention and unlawfulness, Milton270submits that these were recognised as elements of the crime in Roman-Dutch law. Therefore, the law on the elements of intention, unlawfulness and, personal association with the group appears to be reasonably settled.
Despite being once notorious for controversy, the law on the “concerted action by a number of persons” element is now settled following the Thebus271decision which sealed any doubt or speculation with regard to the constitutionality of the common purpose doctrine. In regard to the “number of persons” aspect, the law is settled in that this aspect no longer turns on the consideration of the numerical figure of the number of people involved, but is determined through the consideration of the character and dimensions of the disturbance.272 As such, the seriousness of the dimensions is decisive in determining the number of persons element.
In essence, only one element of the crime of public violence remains open-ended or vague, and that is the “serious dimensions” element. What is even more startling is that the serious dimensions element, vague as it is, is central to the determination of the commission of public violence (i.e. it determines the number of persons element and also determines when certain conduct would constitute public violence).
However, its vagueness is perhaps not entirely a negative feature for it has been utilised to achieve some very fundamental goals.
269Milton op cit (n115) 76.
270Ibid 78.
2712003 (6) SA 505 (CC).
272Refer to the discussion in 2.6.2 above.
For example, the court in Mlotshwa273can be argued to have utilised the vagueness of the serious dimensions element as a loophole or conduit to infuse into the jurisprudence of public violence the recognition of the fundamental right to strike so that the future application of the crime in strike situations is done with restraint given the need to preserve fundamental right to strike. It will be remembered that at the time that the Mlotshwa case came about, South Africa was at the beginning of a transitional era towards democracy and the recognition of human rights. It is submitted that the approach in Mlotshwa of redefining the interpretation afforded to the serious dimensions element was a perfect way of infusing the recognition of human rights so that the application of the crime also reflected this change in society.
Likewise, today South Africa is confronting the scourge of violent protests and strikes characterised by the invasion of the rights of other people and the call being made is that the crime of public violence must be developed in order to reflect that the Constitution and its underlying values endorses the need for the protection of the rights of other people. Following from the finding in the case of K v Minister of Safety and Security274 in regard to the development of the common-law principles of vicarious liability, the purpose of section 39(2) of the Constitution is to ensure that the values of the Constitution are infused into the common law and the procedure for the said infusion entails nothing more than that the common-law principles be understood and applied within the normative framework of the Constitution.
Therefore, all that is required in developing the crime of public violence in light of section 39(2) of the Constitution is to approach the crime and the interpretation of all its elements bearing in mind the values of the Constitution and the protection of the rights of other people sought to be achieved by the crime. Thus, the vagueness of the serious dimensions element in particular, being an element that is central to determining when public violence is likely to be committed, presents an ideal opportunity to infuse into the jurisprudence of the crime of public violence the recognition of the vulnerability of non-protesters, their general plight as well as the role which the crime ought to play in the protection of non-protesters’ rights.
2731989 (4) SA 787 (W). InMlotshwathe striking workers barred the non-striking workers from entering the premises of the employer. They surrounded the vehicle conveying the non-striking workers and opened its doors shouting and hitting the vehicle. The court found that the dimensions of the fracas were not sufficiently serious since neither of the striking workers were armed, nor was there any injury to persons or property and the incident lasted for merely seven seconds. The court
expressed further that the accused were on a lawful strike and the courts should be careful not to make adverse inroads into the right of workers to strike by classifying conduct during a strike as public violence.
2742005 (6) SA 419 (CC).