R v Cele and Others

• Jurisdiction: South Africa
• Judge: Milne J and Kennedy J
• Judgment Date: 20 November 1957
• Court: Natal Provincial Division

R v Cele and Others
1958 (1) SA 144 (N)

1958 (1) SA p144

Citation	1958 (1) SA 144 (N)
Court	Natal Provincial Division
Judge	Milne J and Kennedy J
Heard	October 21, 1957; October 22, 1957
Judgment	November 20, 1957

Flynote : Sleutelwoorde

Criminal law — Public violence — What amounts to — Tests to be applied — Strikers with sticks constituting themselves into an H armed force to prevent non-strikers carrying on with their duties.

Headnote : Kopnota

In considering what constitutes public violence the Court must have regard to the following: (1) The acts complained of need not occur in a public place. (2) The crime is committed when a considerable body of persons, armed with sticks and stones, act in concert, though not necessarily with premeditation, so as forcibly (a) to disturb the public peace or security or (b) to invade the

1958 (1) SA p145

rights of others - obstructing the police in the performance of their duty is a case of invasion of rights in this sense. (3) If the numbers involved are small and the locality and the nature of the quarrel is private and restricted, the acts will not constitute public violence. (4) Conversely acts which, if committed by individuals, might be regarded as mere assaults, whether venial or otherwise, will, if they assume gravely dangerous proportions because of the numbers involved, take on the quality of public violence. (5) The crime of private violence, if it still exists, is no longer charged as such, and acts A which were formerly charged as private violence should simply be charged as assault, or malicious injury to property, or robbery, or obstructing the police in the performance of their duty, as the case may be: violence becomes public violence when the factor referred to in (4) is present. (6) In view of the 'elastic nature' of the crime of public violence and the fact that, by dealing with the accused as a mass, their relative degrees of guilt, if any, may be obscured, none should be found guilty of the crime merely because some acts of violence have been B committed by some members of the crowd, unless it is shown that he was a party to those acts.

If a considerable body of men who are armed, by intentionally terrorising unarmed men with a threat of using its combined force, interferes with their going about their lawful business, the members of the body are guilty of public violence, assuming that there was, on the part of the victims, a reasonably apprehended fear of personal harm. The fact that the conduct of the armed body of men would constitute striking as defined in section 18 of Act 48 of 1953, as amended, cannot absolve C them from liability to be charged with public violence if the factors are present which constitute the latter crime, e.g. where there is a forcible invasion, by a considerable body of armed men, of the rights, not only of other employees to carry out their duties, but of their employers to use their services.

On a charge of public violence a magistrate's court had found (1) that the accused, a body of delivery boys at a dairy, whose claim for higher wages had been refused, had armed themselves with sticks and driven away other employees, i.e. workers at the factory of the dairy, who were D lawfully engaged in the performance of their duties; and (2) that, shortly afterwards, when the police had been called to restore peace and order, the same body of natives, armed with sticks and other weapons, had advanced in a hostile body on the police singing war cries and throwing stones and other missiles at the police. He had accordingly convicted them all of public violence in respect of both phases and sentenced them to a fine of £5 with an alternative of one month's imprisonment with hard labour and, in addition, to undergo a further one E month's imprisonment conditionally suspended for three years. In an appeal, the Court found that the evidence was not sufficient to establish the second phase beyond a reasonable doubt.

Held, that the conduct of the accused set out in the first phase constituted public violence and that in the circumstances the sentence should not be disturbed. F

Case Information

Appeal from a conviction in a magistrate's court. The facts appear from the reasons for judgment.

C. C. Cowley, for three of the appellants.

A. Wilson, for the remainder of the appellants.

D. L. Pape, for the Crown.

Cur adv vult.

Postea (November 20th). G

Judgment

Milne, J.:

The appellants, some thirty-six in number, were charged H before a magistrate with committing, at the Durban Combined Dairies, Escombe Road, Pinetown, the crime of public violence on 10th November, 1956, in that they did wrongfully and unlawfully and riotously assemble and gather together a crowd of persons with intent by violent and forcible means to disturb and endanger the public peace and security, and by such means to invade or interfere with the rights of

1958 (1) SA p146

Milne J

the people there being, or there carrying on business and to make a riot and affray, and by the said means to assail or set at defiance the authority of the police and others in public authority of the police and others in public authority there established to maintain law and order. They all pleaded not guilty but were found guilty and sentenced to pay a A fine of £5 each or to undergo one month's imprisonment with compulsory labour and, in addition, to undergo a further one month's imprisonment conditionally suspended for three years. They now appeal both against the convictions and sentences.

The appellants were employed by the Durban Combined Dairies at Pinetown B as milk-delivery boys whose duties commenced at 11.30 p.m. each day, including Sundays and public holidays. On 5th November, 1956, a deputation from the delivery boys, the total number of whom was about forty-five, approached the manager, Mr. Chambers, with a request that they should be accorded one day per week off duty. He told them that, as they were delivering food, they could not be given a day off every week C and suggested that, instead of asking for this, they should ask for an increase in pay. They later came back to him with a request to see the chairman of the company and an arrangement was made for them to see him the following day. On 6th November, when they asked for more money, the chairman told them that the Durban delivery boys of the same company had D agreed to work on an incentive system. They said that they did not want to adopt the incentive system but wanted an increase of £3 per month in their wages, which were £8 18s. 2d. per month. The chairman indicated that he had no authority to approve such an increase but would submit the matter to a meeting of the board which was to take place on 8th November. On 9th November the general manager of the company told them E that the board would not pay them the increase which they asked for but would pay them on the incentive system. They were aggrieved because the chairman had not himself come to speak to them. It appears that the chairman was away in Pietermaritzburg. On the afternoon of 10th November, according to the evidence of Mr. Chambers, all the accused came to him and asked why the chairman had not come and he had told them F that the chairman could not be there to see them until the following week. He said that they then went back to their compound, which appears to be on the company's premises, and that they returned later at about 4.30 p.m. and said that they were not turning out for duty that night. G He said that he then rang up Sergeant Vermaak who came down and addressed all the accused and advised them not to go on strike but to do their work and come back with their complaints after they had finished with their work, otherwise they would get into trouble. It appears that he warned them that they were liable to be charged if they went on H strike. The accused indicated that they 'were not frightened of trouble' and all marched away back to the compound. Mr. Chambers then went to the compound himself with a view to persuading them to do their appointed work, but they were adamant. He said that he then told them that they should go to bed and sleep, that would have the milk delivered by van and that he warned them not to interfere with his factory boys. He then organised lorries and drivers for milk delivery and said that, whilst the factory boys were loading the lorry, all the

1958 (1) SA p147

Milne J

accused came out armed with sticks and shouted, 'Who is loading milk here - the place has to be closed' and that, thereupon, the factory boys ran away. He then again rang up Sergeant Vermaak who, it appears, despatched to the scene a police van with some European and some Native policemen. It appears that these policemen did not go to Mr. Chambers but went straight to the compound. Mr. Chambers said that, shortly after A they went to the compound, he saw the police running away, that the police van then went out of the factory yard and returned again about ten minutes later. He said that when the van left the factory yard, the boys (all the accused) chanted and that he knew there was trouble as soon as he heard the chanting, and actually rang up another police B station to report what was happening. He said that the original police van then came back with reinforcements and that, as it stopped and the police got out, 'the natives (all the accused)' then attacked the police van with bricks and stones, that he heard the police shout, 'Stop or we shoot', that the accused replied, 'Shoot, we are not frightened' and that, thereupon, the police fired on them. In cross-examination he said that it was getting dark and that he could not C say that all the accused were there attacking the van, that he did not see stones being thrown at the police van and did not see anyone throwing stones or attacking the van...