Chapter 2 PUBLIC VIOLENCE
2.6 The current definition and elements of the crime
2.6.3 Disturbance of serious dimension
throwing stones. Accordingly, it seems that the common purpose of the whole group is imputed even to sub-groups if the members of the sub-group perform some act sufficiently associating them with the conduct of the main group.
While the state is generally required to prove all the elements of the crime beyond a reasonable doubt, the application of the common purpose doctrine in public violence cases renders it unnecessary for the state to establish the specific act of violent disturbance of the peace and order or the invasion of the rights of others committed by each individual member of the group.238
The disturbance or intended disturbance must assume serious or dangerous dimensions. The inclusion of the serious dimensions element in the definition of the crime of public violence is a result of the innovation of South African jurists in carving out a uniquely South African public violence jurisprudence which is distinct from the Roman and Roman-Dutch law approach. It is noteworthy that in R v Salie243the court acknowledged as one of the reasons for the difficulty of precisely defining the crime of public violence and the vagueness of some of its elements the impossibility of drawing boundaries between assault by a group and public violence and that this led the courts to have recourse to a vague criterion of serious dimensions.
Therefore, in essence, the serious dimensions element came about in order to determine when certain conduct would be elevated to constitute public violence.
To further illustrate that the serious dimensions element is central to the determination of when public violence would be committed, it will be recalled that even the “number of persons” element244is also determined with reference to the seriousness of the dimensions. The factors taken into account in order to establish the seriousness of the dimensions include the number of persons involved in the fracas, time, locality, duration of the fight, the cause of the quarrel, the status of the persons engaged in it, the way which it ended, whether the participants were armed or not, and whether there were actual assaults on people or damage to property committed.245 The seriousness of the dimensions element thus plays a significant role in ensuring that the crime of public violence is not abused to bring to book the offenders in instances particularly where a large number of people are involved and identification is not easy.246
It is unfortunate that the cases of public violence which were decided on the basis of threatened violence were decided in terms of the old definition of public violence advanced by Gardiner and Lansdown and thus did not factor in the serious dimensions element. 247 Assuming that the dimensions in those cases were sufficiently serious, the immediate consequence is that the act of marching on the streets carrying sticks and other dangerous weapons, chanting slogans, singing and dancing (all of which amounts to conduct which is common during the course of protests and strikes in South Africa) would amount to public violence as there is an apprehension of harm on the part of the members of the neighbouring community
2431938 TPD 136. See also Milton op cit (n115) 74.
244Refer to the discussion at above 2.6.2 above.
245Snyman op cit (n115) 313. See also Skeen op cit (n33) para 185). For a further discussion of each of these factors see Milton op cit (n115) 94.
246Skeen op cit (n33) para 185.
247See R v Xybele and Others1958 (1) SA 157 (T);R v Segopotsi and Others1960 (2) SA 430 (T) ; R v Cele and Others1958 (1) SA 144 (N),R v Pungula and Others1960 (2) SA 760 (N),R v Kashion 1963 (1) SA 723 (SR).
(thus qualifying as a threat of violence). It also means that the protesters in Marikana could have been apprehended and charged with public violence for gathering on the mountain carrying traditional weapons and other objects since so doing had elements of threats of violence.
However, the loophole was rectified in Mlotshwa248where there clearly was a threat of violence, but the court held that the threatening conduct did not assume serious dimensions because it lasted for a mere seven seconds, the striking workers were not armed and there was no injury to any person or property. The court also expressed the need for the courts not to make adverse inroads into the right of workers to strike by categorising conduct during strikes as public violence. A further stamp of approval for the Mlotshwa case is that it pushed out of the ambit of the crime of public violence the criminal conduct of carrying weapons during strikes and protests into the ambit of statute, the Dangerous Weapons Act.249
Public violence can take place on public or private property,250 it being an aggravating factor that it took place in public. Furthermore, the cases of public violence can be organised into the following non-exhaustive categories of instances where it normally arises:251 faction fighting,252 rioting,253 violent resistance to the police acting lawfully,254 forcible coercion by strikers of other workers,255 and breaking up or taking over a meeting.256 Milton257goes further and adds two more categories, these being a gratuitous group attack on members of the public or their property258 as well as stone-throwing259and disruption of traffic.260
2481989 (4) SA 787 (W).
24915 of 2013.
250Milton op cit (n115) 87. See alsoR v Tshayitsheni1918 TPD 23;R v Tailor1920 EDL 318;Dabee v R (1928) 49 NLR 50; andR v Mjoli1934 EDL 236.
251See Burchell op cit (n14) 759; Skeen op cit (n31) para 184 and Milton op cit (n110) 89.
252SeeR v Tshayitsheni and Others1918 TPD 23;R v Mjoli1934 EDL 236;R v Salie1938 TPD 136;
R v Ngubane1947 (3) SA 217 (N);R v Xybele and Others1958 (1) SA 157 (T);R v Ndaba and Others1942 OPD 149;R v Mcunu1938 NPD 229;R v Mvelase1938 NPD 239; andS v Usayi and Others1981 (2) SA 630 (ZA).
253SeeR v Tailor1920 EDL 318; S v Katsande, S v Mahlangu, S v Mutisi 1974 (1) SA 355 (RA); R v Ndaba;R v Samuel and Others1960 (4) SA 702 (SR) andR v Mashotonga and Others1962 (2) SA 321 (SR).
254SeeR v Ndwardwa and Others1937 TPD 165;R v Marthinus and Others1941 CPD 319;R v Lekoatha and Seven Others1946 OPD 6;R v Mathlala and Another1951 (1) SA 49 (T) andR v Segopotsi and Others1960 (2) SA 430 (T).
255SeeR v Celeand Others 1958 (1) SA 144 (N);S v Mlotshwa1989 (4) SA 787 (W) andS v Whitehead2008 (1) SACR 431 (SCA).
256SeeR v Wilkens and Others1941 TPD 276 andR v Claassens and Another1959 (3) SA 292 (T).
257Milton op cit (n115) 89.
258SeeR v Terblanche1938 TPD 229;S v Solani en Andere1987 (4) SA 203 (NC);S v Quandu en Andere1989 (1) SA 517 (A); andS v Khumalo en Andere1991 (4) SA 310 (A) andS v Le Roux2010 (2) SACR 11 (SCA).
259SeeS v Mbuyisa1988 (1) SA 89 (N); andS v Mei1982 (1) SA 299 (O).