S v Turrell and Others

• Jurisdiction: South Africa
• Judge: Van Zijl, A.J.P., and Steyn, J.
• Judgment Date: 18 October 1972
• Citation: 1973 (1) SA 248 (C)
• Court: Cape Provincial Division

Van Zijl, A.J.P.:

The 11 appellants were convicted in the regional court, Cape Town, on a charge of contravening the provisions of sec. 7 (2) read with secs. 1, 2 and 7 (1) of the Riotous Assemblies Act, 17 of 1956. There were 16 accused in the court below, two were acquitted - Nos. 10 and 14. Of the remaining 14 accused, 11 have appealed, i.e. Nos. 1, 2, 3, 4, 5, 6, 7, 8, 12, 13 and 15. (Accused Nos. 9, 11 and 16 have

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not appealed). With the exception of Nos. 11 and 15 the accused who were convicted were each sentenced to a fine of R50 and in default of payment to 25 days' imprisonment. Nos. 11 and 15, both clergymen, were each fined R150 or 75 days' imprisonment. For purposes of easy reference I will refer to the appellants as accused throughout this judgment.

A The particulars of the charge upon which the State alleges the accused contravened the provisions of the Riotous Assemblies Act read as follows:

'Whereas, on 5 June, 1972, in terms of sec. 2 of the aforesaid Act, a magistrate for the district of the Cape prohibited the assembly of a public gathering in the public place, within the area bordered by Wale B Street, Queen Victoria Street, Government Avenue and the 'Kompanjiestuine', in the aforesaid district, from 12 o'clock on the noon of the aforesaid date to 12 o'clock midnight of the aforesaid date;

and whereas a public gathering had assembled in the prohibited public place aforesaid, during the aforesaid period of time, on the aforesaid date;

and whereas on the aforesaid date, notice of the aforesaid prohibition was, owing to urgency, given by sufficient oral public announcement in C the locality aforesaid;

and whereas on the aforesaid date, and within the aforesaid locality, a police officer of above the rank of Head Constable had called upon the persons thus assembled at the gathering to disperse, and ordered them in a loud voice to depart forthwith from the aforesaid place of assembly, and informed them that if within three minutes they did not so depart, force would be used, and repeated such order and information three times;

D and whereas the accused did, on or about 7.15 p.m. on the aforesaid date, fail so to depart immediately after the order and information had been so given and repeated;

therefore the accused wrongfully and unlawfully failed to comply with the aforesaid order.'

The notice referred to in these particulars reads:

'Notice

E Whereas I, H. van Huyssteen, acting magistrate for the district of the Cape, after consideration of sworn statements which have been submitted to me, have reason to apprehend that the public peace would be seriously endangered by the assembly of the hereunder mentioned public gathering in the therewith mentioned public place, and whereas the Minister of Justice has authorised me to do so, I hereby, in terms of sec. 2 of the Riotous Assemblies Act, 17 of 1956, prohibit the assembly of the hereunder mentioned public gathering in the therewith mentioned public place:

F A protest meeting during the period between 12 noon and 12 midnight on Monday 5 June, 1972, in that place in Cape Town which is bordered by Wale Street, Queen Victoria Street, Government Avenue and the Public Gardens, with the exception of the interior of any building.

(sgd.) H. van Huysteen; Acting Magistrate/Cape Town.; 5/6/72.'

It will be seen that the notice quoted above reflects certain deletions. These deletions in fact appear in the original notice as signed by the acting chief magistrate.

The appellants raised a large number of grounds of appeal which have been set out in the following terms:

'1.

H The magistrate erred in finding that a valid prohibition in terms of sec. 2 was issued inasmuch as -

(a)

the State failed to prove that the Minister had authorised the prohibition;

(b)

the State failed to prove that the magistrate in question had reason to apprehend that the public would be seriously endangered by the assembly of a particular public gathering in any public place;

(c)

the prohibition in question is, in any event, void for vagueness or ultra vires, more particularly by reason of one or other of the following circumstances:

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(i)

the area to which the prohibition was intended to relate was not ascertainable;

(ii)

the area (if ascertainable) is not restricted to public places and includes areas which are clearly not capable of being categorised as public places or as a street, road, passage, square, park, recreation ground or open place within the meaning A of the Act and no process of severance can carve a valid prohibition out of the purported prohibition;

(iii)

the 'meeting' to which the prohibition was intended to relate was not ascertainable;

(iv)

alternatively, if the prohibition was not of a particular meeting, but of any protest meeting during a given period, such prohibition is beyond the competence of a magistrate in terms of sec. 2 of the Riotous Assemblies Act, 17 of 1956.

2.

B The magistrate erred in finding that the prohibition in question was properly promulgated within the meaning of sec. 2 (2) of the Act.

3.

The magistrate erred in finding that the steps of the Cathedral and/or the vestibule was a public place within the meaning of secs. 1, 2, and 7 of the Act, inasmuch as -

(a)

it is neither a street, road, passage, square, park, recreation ground or any open space;

(b)

C it was not proved that all members of the public habitually or by right have access thereto.

4.

The magistrate erred in finding that the prohibited meeting ever took place.

5.

The magistrate erred in finding that the 'gathering' to which the charge sheet and the evidence refers is the 'protest meeting' to which the prohibition refers.

6.

D The magistrate erred in finding that Brig. Heyns had complied with the provisions of sec. 7 (1) and (2) of the Act or, alternatively, he erred in finding that compliance with those provisions was unnecessary.

7.

The magistrate erred in not acquitting the accused in the ground that on the State's case the 'information' prescribed by sec. 7 (1) and alleged in the charge sheet (at p. 2) was never communicated to those assembled.

8.

The magistrate erred in finding that the State had proved a E repetition of the order and information three times.

9.

The magistrate erred in respect of accused No. 1 and No. 3 in accepting the evidence of Sergeant Smith and Constable de Kock, having regard to the inherent improbabilities in the evidence, the conflicts in their evidence and the conflicts between their evidence and the other credible and reliable evidence.

10.

The magistrate erred in finding in respect of all the accused, except No. 15 - Theodore Kotze - that they were present F when the order and information (if any) were given and/or repeated.

11.

The charge sheet was fatally defective in failing to allege that the accused had assembled at the gathering and such deficiency was not cured by evidence to that effect.

12.

The sentences imposed are unduly severe in the circumstances.'

G These grounds of appeal involve an interpretation of certain of the provisions of the Riotous Assemblies Act as well as a consideration of some of the evidence that has been placed in issue. Before doing so it is necessary to set out shortly not only the happenings of 5th June, but also the facts that led up to these events.

On Thursday, 1st June, 1972, certain Cape Town University students were H arrested for parading with placards in Parliament Street. On the day following, i.e. on Friday, 3rd June, a crowd of students assembled on the steps of St. George's Cathedral to protest against the Government's educational policy and the arrests that had taken place the day before. The students attracted a large crowd. The Police considered it necessary to disperse the students and in doing so used their batons, as a result of which certain students and members of the public were hurt. In view of the fact that the events of this Friday have not been canvassed in this Court or in the court below, I express no opinion as to the lawfulness

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or otherwise of the violence used by the Police. What has emerged, however, is that this violence was resented by a section of the student body at the University of Cape Town. To give expression to this resentment the Students Representative Council of the University of Cape Town organised a meeting to protest against 'the violence of the Police' A and to assert their 'right to hold peaceful protests'. Notice of this meeting was given through the daily Press and also by means of pamphlets which were issued by the Students Representative Council and distributed in Cape Town inviting the public to attend the meeting and to show their solidarity with the students. Two of these pamphlets were handed in in the court below. The shorter of the two reads:

B 'Ondersteun ons Maandag.

U as inwoners van Kaapstad weet wat Vrydagmiddag op die trappe van St. George's-Katedraal gebeur het toe ons vreedsame studente, toeskouers en verslaggewers aangerand is. Ons vra u as verantwoordelike Suid-Afrikaners om ons in ons doel teen hierdie brutaliteit te ondersteun.

Ons vertrou op u ondersteuning

U is die publiek - die mense wat tel

C St. George's-Katedraal

1.15 nm. Maandag 5 Junie,

Univ. Kaapstad.; Studenteraad.'

(This was duplicated three times upon the sheet). ('Brutaliteit', I assume, was intended to be a translation of 'brutality').

D The other pamphlet concluded:

'We call for your support of the right to hold peaceful protest.

Please support a gathering of concerned Christians on Sunday afternoon at 4.00 p.m. in St. George's Cathedral. Please express your support for the right to protest -

On Monday on the Cathedral Steps at 1.15...