Sentencing public violence offenders: The conundrum of social context

December 1st, 2021

Subsequent to the decision in Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (Helen Suzman Foundation as amicus curiae) 2021 (9) BCLR 992 (CC), parts of South Africa erupted into mass social unrest, coupled with acts of violence and looting.

There can be no argument with the fact that the social unrest and its accompanying violence reflects a subversion of the rule of law, and with it, a deep social crisis. Economically, the estimated value of theft and damage to property, as well as a loss of productivity has run into the hundreds of millions of Rands.

Public violence has been defined as ‘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’ (CR Snyman Criminal Law 6ed (Durban: LexisNexis 2014) as cited in S v Le Roux and Others 2010 (2) SACR 11 (SCA)).

The crime of public violence bears distinct features:

  • First, the actus reus is ascribed to a unified group action, so the guilt of each participant is attributed to the conduct of all the participants, acting in concert, and as a single unit.
  • Secondly, the crime of public violence is notable in that it must achieve the high-water mark of being regarded as conduct within ‘serious dimensions’. This has been interpreted in different ways by different courts. Acts of public violence are polysemic, and are open to multiple, although not unlimited, interpretations. Therefore, identifying blame or finding the cause is important to explain why people acted so far outside the accepted norms of society.

For those public violence matters that are successfully prosecuted, s 274 of the Criminal Procedure Act 51 of 1977 (the CPA) becomes an important tool in the hands of both litigants, as well as factfinders. Evidence relating to the social, economic, and financial damage caused by public violence and/or other related offences should naturally factor in any financial loss as proved by the impact of the violence (S v Dingiswayo and Others 1985 (3) SA 175 (Ck) at para 178B-C).

Lawyers carry the duty to shape and transform the legal landscape in which the rule of law reigns supreme. Public violence can open kairotic windows through which change is possible, as observed in S v Abrahams 1990 (1) SACR 172 (C), which shifted the sentencing patterns on public violence, arising from the uprisings of the 1980’s, from imprisonment to a suspended sentence. Perhaps a new shift is underway?

It is, therefore, important to understand the inventive possibilities that emerge from the interpretations of violence. The role of social context in defining the legal convictions of the community cannot be disregarded because in a case-by-case analysis, the interpretation of ‘public violence’ is as different between the ideological aspirations of the accused in the dock as that which is entrenched in the mind of the prosecutor, the defender, and the factfinder, especially in the assessment of ‘serious dimensions’.

As much as deterrence is almost always a prime purpose of punishment, legal practitioners are urged to consider restorative justice principles and find creative solutions when arguing for an appropriate sentence.

Naturally, the boni mores or legal convictions of the community as found in the Zinn triad (S v Zinn 1969 (2) SA 537 (A)) cannot be divorced from either the crime or the offender. The natural indignation of the community should be acknowledged in sentencing. As public violence can overlap with other crimes, such as assault, malicious injury to property, arson, and robbery, identifying restorative justice solutions can make for effective sentencing while balancing social context principles within the matrix of the prevailing interests of the community. Examples, such as, community-based sentences involving community service and victim-offender dialogues can and should be pursued with vigour. This will at best, send a strong message to the community that the courts are a model of effective punishment, in turn, reinforcing confidence in the criminal justice system.

In conclusion, like a North Star in the guiding process, the provisions of s 274 of the CPA must, therefore, be wholly embraced by lawyers and factfinders alike, as a ‘hallowed principle’ (S v Mokela 2012 (1) SACR 431 (SCA) at para 14) in the delivery of a fair and balanced judgment that is not in public opinion, but in the public interest.

Chetna Singh LLB LLM (UKZN) Cert Insolvency Litigation and Practice (UP) is an additional magistrate at the Evander Magistrate’s Court.

This article was first published in De Rebus in 2021 (Dec) DR 40.

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