S v Madubela

• Jurisdiction: South Africa
• Judge: D Pillay J
• Court: KwaZulu-Natal High Court, Pietermaritzburg
• Citation: 2014 JDR 0135 (KZP)
• Docket Number: 28/12

D. Pillay J (dissenting)

[1]

I have had the privilege of studying the opinion of my colleague Madondo J. I respectfully agree with his summary of the facts but disagree with his conclusions. Our point of departure is whether the acts proved against the appellant were of serious dimensions to constitute public violence for which

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the learned magistrate convicted him. Madondo J proposes that he should have been convicted of the less serious alternative offence of malicious damage to property. Respectfully, I disagree. The appellant's acts assume serious dimensions and he should be convicted of public violence because:

a.

He abused his freedom of expression, of assembly and to demonstrate.

b.

He trenched on the rights of members of the public unnecessarily, unjustifiably and irrationally.

c.

The state proved all the elements of the charge of public violence.

I elaborate on these reasons below.

[2]

Madondo J has cited several definitions of 'public violence'. In the interests of certainty, I take my cue from the following definition from Snyman [1] adopted in Le Roux, [2] which differs insignificantly for the purposes of this judgment from the earlier SCA decision in Whitehead: [3]

'Public violence consists in the unlawful and intentional commission, together with a number of people, of an act or acts which assume serious dimensions and which are intended forcibly to disturb public peace and tranquillity or to invade the rights of others.'

[3]

Preventing disorder and crime and protecting the rights of others are the legitimate aims of the common law prohibition against public violence. Endorsement for this objective is sourced from s 17 the Constitution of the Republic of South Africa, 1996 which permits peaceful and unarmed assemblies to demonstrate and to picket. At international law, article 10(2) and 11(2) of the European Convention for Protection of Human Rights and Fundamental Freedoms 1950 spell out the peaceful objectives of the rights to freedom of expression and assembly more fully. [4] Time and brevity constrain me from exploring and analysing international and foreign instruments further.

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[4]

The appellant's conduct falls under the microscope because he, amongst others in a group of 20 striking municipal workers, emptied refuse bags and bins onto the streets in central Durban. He rolled a concrete bin onto the street where it broke. The group pushed two tree trunks on to the street and obstructed the flow of traffic. Did his acts 'assume serious dimensions'?

[5]

Counsel for the appellant cited the following sets of facts from reported cases to set the standard for what she submitted should constitute 'serious dimensions':

1.

A mob of school children went on a premeditated rampage with their stated goal being to 'smash up everything they came across'. The acts of public violence included the 'wrecking' of a number of school buildings and a serious assault on the headmaster; [5]

2.

A policeman was stoned and his house attacked by a mob; [6]

3.

Hand grenades thrown at the home of a member of a rival political party; [7]

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4.

A mob pelted a school with stones and then invaded the school premises and poured petrol on the walls with the intention of settling it alight; [8]

5.

A mob attacked a house with petrol bombs and killed one of the occupants by setting him on fire; [9]

6.

During the course of an illegal march a mob stoned the police, set tyres alight and disrupted the traffic on a road. [10]

[6]

Unsurprisingly, in none of the cases cited above was there any doubt that the acts were of 'serious dimensions'. Significantly, all the authorities cited predate the Constitution. The 1980's, when all but the first case cited above were decided, is remembered for the repression that accompanied several states of emergency. The intensity of peoples' suffering correlated with the degree of violence used to ventilate their anger and frustration. Violence as the option of last resort was a tactical tool in the struggle for freedom from apartheid.

[7]

Today in South Africa, unlike some jurisdictions where the legitimacy of protests continues to be debated, [11] the rights in s 16 to freedom of expression, in s 17 to freedom of assembly, and in s 18 to freedom of association, limited by s 36 in our Constitution recognise collective action as supplementing rather than subverting democracy. Communicative protests such as marching through streets are accepted as a typical organising tool in a democracy to rally support from a participatory and active electorate. People assemble to associate around a cause or an idea to express their views more actively as a collective using the sheer force of their numbers to persuade and demonstrate dissent, and to stake a forum for public debate and free expression. Protests although inevitably obstructive and disruptive are a legitimate response to perceived deficits within democracy. A march for better wages is as much about wage increases as it is about redistributing wealth to achieve an egalitarian society in which democracy means more than universal franchise and majority rule. However, imposing ones will unto others through violent and coercive conduct exceeds the exercise of democratic rights.

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[8]

Supervening over our popular nascent democracy with its developmental agenda, our Constitution is a break from the past. It brings about such changes that compel us to revisit our approach to interpreting and applying the definition of 'public violence'. Fighting for freedom from apartheid was not considered a violation of the rule of law by the human rights community here and abroad when the law itself was illegitimate. Today the Constitution is supreme, the rule of law sacrosanct. Whereas apartheid prohibited even peaceful protests and proffered no effective avenues to ventilate grievances, our Constitution generously protects the rights to assemble, to demonstrate, to exercise political rights and the freedoms of expression and association as constitutive of our democracy.

[9]

However, rules set the parameters for the exercise of these rights and freedoms in ways that do not trench unduly on the rights of others. Compliance with the most important rule, namely, that gatherings, demonstrations and protests must be non-violent and peaceful is elementary, reasonable and hardly onerous. Unlike under apartheid, there can be little justification for non-compliance. For our constitutional democracy to work, the rule of law must be observed and applied rigorously and consistently.

[10]

Obeying the rules set for legitimate protests protects, promotes and preserves these rights and those who exercise them from unlawful attacks by security and opposition forces alike. Law abiding organisers and participants in protests have less reason to fear civil claims for damages and criminal prosecution. Strict observance of the rules minimises the risk of a few dissidents and agent provocateurs derailing an otherwise disciplined protest. Hence obeying the rules is in the interests of protestors, the law enforcement agencies and the public.

[11]

Recognising civil disobedience on conscientious grounds as having a long and honourable history, Lord Hoffman observed in R v Jones: [12]

'People who break the law to affirm their belief in the injustice of a law or government action are sometimes vindicated by history. … It is the mark of a civilised community that it can accommodate protests and demonstrations of this kind. But there are

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conventions which are generally accepted by the law-breakers on one side and the law-enforcers on the other.'

[12]

Contrary to the proposition above, protestors in South Africa are not automatically law-breakers simply because they protest. They become law-breakers only when they break the rules for protesting. Trenching on the rights of others during protests is not unlawful so long as it is proportional and justified. The manner in which protestors break the rules determines whether they commit the crime of public violence and what the punishment should be. Proportionality prevails when assessing the acts committed against the encroachment upon the rights of members of the public to determine whether the acts are sufficiently serious to constitute public violence.

[13]

Another difference between the approach to public violence pre-and post- apartheid is that the aspirational objectives of the Constitution hold out the promise of a better life for all. Tolerance for the hardships and inconvenience of violations of the rule of law can no longer be presumed to exist amongst those seeking a better life.

[14]

In the nature of public violence it often tends to have political and social overtones. Not all protests and gatherings would be supported equally by the diverse population they impact on. Public opinion differs not only on what causes but also what forms of protest are tenable. Disparities in the forms of protest, conduct during protests and the impact of protests may be explained by reference to cultural and political differences as to what might be acceptable levels of protest, different levels of deference to political institutions, differences to political mainstreaming of protest and institutional responsiveness to dissent. [13] To manage diversity and disparities the rule of law strikes the balance. The Constitution and the laws it spawns set the ground rules for protests for all protestors on all sides of the cultural and political divide, to be applied uniformly without fear or favour. Non-compliance, non-enforcement or inconsistent enforcement of the rule of law upsets the balance which the rule seeks to establish.

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[15]

The...