The interests that are protected by the crime of public violence are:. i) the maintenance of the community's interest in peace and order; and (ii) the protection against invasion of other people's rights. Any reference to "advocates of the status quo" refers to those who oppose any reform or development of the crime of public violence.
INTRODUCTION
Purpose of the study
Burchell14 argues that the crime of public violence provides a legal sanction for the abuse of the constitutional right to assemble and demonstrate. However, it should be made clear at this early stage that the focus of this dissertation is specifically on the development of the crime of public violence as a means of protecting the rights of non-protesters.
Background to the study
- The prevalence of violent protests and strikes in South
- Service delivery protests
- Industrial action (strikes)
- The policing of protests
- The use of force by the police
In relation to the protection of married women's rights by Hindu rites, see Govender v Ragavayah[2009] 1 All SA 371 (D). Arrests by the South African Police Service (SAPS) have also featured prominently in the wake of violent protests.
Criminalisation of public violence
120This point is made clear in section 4.2.2 below in the analysis of the courts' treatment of the right to freedom of assembly. However, there is a very thin line between the interpretation and development of customary law and its adaptation by analogy.
PUBLIC VIOLENCE
Introductory remarks
Roman law
As criminal law in Rome continued to evolve and more and more laws were enacted to create different criminal offenses, public violence became a subject of the law, known as the lex Julia de vi.142 The law distinguished between public (vis publica) and private violence (vis privata), and punished the various prohibited acts, although not all of these acts would today be considered public violence.143 The common feature of the acts that constituted public and private violence in the lex Julia de vi was that most of these contained an element of violence or the potential to lead to violence144 and many of the examples given in the statute were of mob violence145. Although the descriptions of the crimes established under the lex Julia de vi were largely vague and unsystematic, the statute remains the foundation for the crime of public violence.151 The jurisprudence on public violence that resonated in Rome and was codified in the lex Julia de vi would later become part of the Dutch legal system and therefore part of what became known as Roman-Dutch law, an important subject of commentary by many Dutch writers.152
Roman-Dutch law
One of the Romano-Dutch writers named Van der Linden, however, came up with a somewhat clear and fairly accurate definition of the crime of public violence. Suffice it to mention once again that the Romano-Dutch law recognized dolusion and illegality as elements of the crime.
English law
Public violence in South Africa
It has also been noted as one of the crimes that experienced minimal influence from English law.186. As already mentioned in 2.3 above, the effects of the Romano-Dutch legal phenomenon of writers differing on the classification of crimes are still felt in South Africa even today. The crime of public violence is one of those crimes which has been notably classified differently by different writers.
The classification of public violence as a crime against public order is also acceptable because it is one of the interests protected by the crime of public violence.
The current definition and elements of the crime
- Unlawful
- Number of persons
- Disturbance of serious dimension
- Personal association with the group
- Intention
- Commentary
However, South African jurists have struggled over the years to formulate a precise definition of the crime of public violence. The essential elements of the crime are: (1) unlawful; (2) number of persons; (3) disturbance of serious dimension; (4) personal. Whether a particular act falls within the group's common purpose depends on the facts of each case.
Essentially, only one element of the crime of public violence remains open or vague, and that is the "serious dimensions" element.
Sentencing for public violence
The second part of the Zinn triad involves considering the personal circumstances of each individual offender. The third part of Zin's triad is the interests of society and has a double meaning.289 On the one hand it refers to the community's reaction to the offense (i.e. indignation or disgust of the act) and their subsequent expectations or demands related to to the sentence. The previous meaning does nothing but emphasize that it is society's view of the work that determines its seriousness.
Therefore, when determining an appropriate punishment, the court must always consider the gravity of the crime, the personal circumstances of each individual offender, and the interests of society.
Statutory forms of public violence
- Statutory public violence
- Prospects of a legislative response violent protests
In the period of transition to the democratic era, the Law on the Prevention of Public Violence and Threats 139 of 1991 should be mentioned; Act 135 of 1992 on Internal Peace Institutions; Law on the Regulation of Meetings 205 of 1993; and the Dangerous Weapons Act 15 of 2013 (formerly the Dangerous Weapons Act 71 of 1968 and similar acts of various independent (homeland) states). While on the subject of statutory forms of public violence, it is worth commenting on the position of the legislature regarding the possibility of a legislative response to violence during protests and strikes. In the recent past, some of the proposed changes to the LRA, which COSATU was not happy with, were removed from the law at the direction of the ANC.319 .
321 Snyman provides a concise account of some of the main advantages of codification (which, in essence, can be used to justify the preference of legislation over the common law) in the introductory part of his book entitled: CR SnymanA Project Code of Law criminal for South Africa (1995).
FREEDOM OF ASSEMBLY
General
Furthermore, the Bill of Rights can be applied directly to vertical and horizontal relationships or disputes. These changes or additions paved the way for the direct application of the Bill of Rights even to horizontal disputes. When the court complies with the latter, the Bill of Rights is said to be applied indirectly.
Therefore, the present debate is based on the indirect application of the Bill of Rights.
Background to assembly jurisprudence
The framers of the Union Constitution in 1910 and again in 1961 rejected a constitution with an entrenched bill of rights. Freedom of assembly has been recognized in international treaties, especially in Articles 17, 19 and 20 of the Universal Declaration of Human Rights; . A major innovation of the Goldstone Commission was the passing of the Gatherings Regulation Act (RGA).349 The RGA is praised for striking a balance between.
Hjul further argues that the collapse of the Commission may have played a role in the re-emergence of violent protests and strikes.
The importance of free assemblies
The subsequent cases in S v Budlender,355 and Seeiso v Minister of Home Affairs et al.356 also promote the preservation of the fundamental right to freedom of assembly. Therefore, in the absence of convincing evidence to sustain the restriction of the right to freedom of assembly, it was found insufficient that the right to freedom of assembly be restricted in favor of the maintenance of the security of the state, the protection of the public interest and the maintenance of law and order. This also ties in with the Constitutional Court's views on the importance of the right to freedom of assembly expressed in SATAWU and Another v Garvas and Others.360.
363 Article 17 of the Constitution guarantees the right to freedom of assembly, but it also has its own internal modifiers that the assembly must be peaceful and the assembly participants unarmed.
- Background
- Facts
- Findings of the High Court and SCA
- Findings of the Constitutional Court
- Analysis of the case
The Court also rejected that the requirements of Article 11(2) of the RGA had a chilling effect on the exercise of the right to freedom of assembly. The court then considered how the right to freedom of assembly was limited by section 11(2) of the RGA. It ruled that the imposition of civil sanctions on protest organizers by the RGA was a justified restriction of the right to freedom of assembly.
While the right to freedom of assembly is undoubtedly a very important right, the importance of the purpose of the restriction is just as crucial.
SUMMARY OF ARGUMENTS AND CONCLUSION
Introductory remarks
Preliminary issues
Intimidation, assault and other acts of violence directed at non-protesters adversely affect the non-protesters' right to liberty and security of person. Of course there are other rights that may be implicated depending on the facts of each case. There are also some conclusions that I reached during the development of the dissertation.
Second, the statistics and media reports cited in the thesis are included for the purpose of portraying a picture of the prevalence of violent protests and strikes in South Africa.
Presentation and consolidation of arguments
- Is the crime of public violence failing to adequately protect the
- Does the crime fall short of the spirit, purport and objects of the
- Further arguments for and against development
It has been established that the term "spirit, purport and purposes of the Bill of Rights". The development of the crime of public violence also has the advantage of erasing any contradictions and doubts in the definition and elements of the crime. However, there is great doubt that the threat of rebellion, violence and anarchy should the right to freedom of assembly be further restricted by the development of the crime of public violence is a legally sound argument.
Defenders of the status quo would also claim that the development of the crime of public violence exposes the country to the risk of abuse of crime by the authorities to stifle dissent. This means that the crime of public violence must be developed to promote the spirit, intent and objects of the Bill of Rights. In this way, the values of the Constitution (which emphasize the protection of the rights of non-protesters) are introduced into the jurisprudence of the crime of public violence.
