Study Guide - LU 1 PDF

Learning unit 1 Crimes against the state Learningunit1 Contents 1.1 BACKGROUND 4 1.2 TERRORISM 4 1.2.1 Introduction 4 1.2.2 Definition...

Learning unit 1 Crimes against the state Learningunit1 Contents 1.1 BACKGROUND 4 1.2 TERRORISM 4 1.2.1 Introduction 4 1.2.2 Definition 4 1.2.3 Elements of the crime 6 1.2.4 The object or interest protected 7 1.2.5 The act 7 1.2.6 Unlawfulness 7 1.2.7 Intention 7 1.3 PUBLIC VIOLENCE 9 1.3.1 Definition 9 1.3.2 Elements of the crime 9 1.3.3 The object or interest protected 9 1.3.4 Joint action 9 1.3.5 Examples of conduct 10 1.3.6 Serious proportions 10 1.3.7 Unlawfulness 10 1.3.8 Intent 11 3 PART A: CRIMES AGAINST THE STATE AND THE ADMINISTRATION OF JUSTICE LEARNING OUTCOMES When you have finished this learning unit, you should be able to: demonstrate your understanding of the requirements for the two crimes against the state by considering the possible criminal liability of an accused for the crimes of terrorism and public violence. 1.1 BACKGROUND The most important common-law crimes against the state are high treason and sedition. There are also various statutory crimes against the state. Since it is impossible to discuss all the offences in detail, our discussion will be limited to a very brief discussion of the crimes of terrorism and a more detailed discussion of the crime of public violence. We have chosen these two offences because they occur fairly regularly in practice. 1.2 TERRORISM 1.2.1 Introduction The most important statutory offence is that of terrorism in terms of the Protection of Constitutional Democracy against Terrorist and Related Activities Act 33 of 2004, which came into operation in 2005. The Act seeks to prevent acts of terror, to protect the civilian population from acts of terror, and to bring terrorists to justice. It also prohibits South Africa from being used as a haven for terrorism, and obliges the government to cooperate with and support the international community in preventing and combating terrorism. 1.2.2 Definition The Protection of Constitutional Democracy against Terrorist and Related Activities Act 33 of 2004 provides a broad definition of "terrorist activities". The main "terrorist activities" prohibited in section 1 of the Act are summarised below: (a) Any act committed in or outside the Republic which (i) involves the use of violence by any means or method; (ii) involves the release into the environment of, or distributing or exposing the public to any dangerous or harmful substance or organism; any toxic chemical or microbial or other biological agent or toxin; (iii) endangers the life, or violates the physical integrity of any person or causes seri- ous bodily injury or the death of any person or a number of persons; (iv) causes serious risk to the health or safety of the public or any segment of the public; (v) causes the destruction or substantial damage to any property, natural resource or the environmental heritage whether private or public 4 LEARNING UNIT 1: Crimes against the state (vi) is designed or calculated to cause serious interference with or serious disruption of an essential service, facility or system, including an electronic system; telecommu- nication system; banking or financial service or financial system; an essential infrastructure facility or any essential emergency services, such as police, medical or civil defence services; (vii) causes any major economic loss or extensive destabilisation of an economic sys- tem of a country; or (viii) creates a serious public emergency situation or a general insurrection in the Republic. It is further provided that the harm contemplated in (i) to (vii) above may be suffered in or outside the Republic and that the "activity" referred to in paragraphs (ii) to (viii) can be committed by any means or method. The case of S v Okah ZACC 3 illustrates harm suffered outside the Republic. The accused – a Nigerian citizen but a permanent South African resident – was the leader of the militant group Movement for the Emancipation of the Niger Delta (MEND). He masterminded and bankrolled four car bombings in Nigeria. The bombs killed nine people, injured many others and caused extensive damage to property. Mr Okah was in South Africa when he planned and executed some of the bombings. The Supreme Court of Appeal ruled that, under section 15(2) of the Terrorist Act, there was a close nexus between the terrorist acts committed or the accused and South Africa, and convicted Mr Okah of terrorism. The acts described above must be performed with a defined culpability. The culpability that must accompany any of the abovementioned acts is described as follows: (a) An act which is intended, or by its nature and context, can reasonably be regarded as being intended, directly or indirectly, to (i) threaten the unity and territorial integrity of the Republic; 5 PART A: CRIMES AGAINST THE STATE AND THE ADMINISTRATION OF JUSTICE (ii) intimidate or cause feelings of insecurity within the public or a segment of the pub- lic with regard to its security, including its economic security, or to cause feelings of terror, fear or panic in a civilian population; or (iii) unduly compel, intimidate, force, coerce, induce or cause a person, a government, the public or a segment of the public or a domestic or an international organisa- tion or intergovernmental organisation to do or to abstain or refrain from doing any act, or to adopt or abandon a particular standpoint, or to act in accordance with certain principles. It is irrelevant whether the public or the person, government, body or organisation or institution referred to in (ii) and (iii) is inside or outside the Republic. It is further required that (b) the act be committed, directly or indirectly, in whole or in part, for the purpose of the ad- vancement of an individual or collective political, religious, ideological or philosophical motive, objective, cause or undertaking. You do not have to memorise the complete definition above. However, you must read it carefully and be able to identify a set of facts in an assignment or in the examination which amount to an act of terrorism. The definition of terrorism is extremely long and complex. Please do not try to memorise it word for word. Know the elements of the offence as set out below, and try to memorise the core words in the definition, specifically for use in an ap- plication when provided with a specific scenario. Remember that not all the different acts are always applicable to a terrorist scenario. Only apply those acts which are applicable to the scenario provided. 1.2.3 Elements of the crime (1) an act (2) unlawfulness (3) a specific intention 6 LEARNING UNIT 1: Crimes against the state 1.2.4 The object or interest protected The interests protected are the safety and security of the Republic, its institutions and people. 1.2.5 The act The conduct prohibited comprises, inter alia, the use of violence; release of toxic or harmful substances; conduct which endangers the life or physical integrity of any person; the causing of serious risk to health and safety of the public; causing damage to property; an act calculated to cause serious interference with services; causing destabilisation of the economy and the creation of a public emergency or insurgency. 1.2.6 Unlawfulness Where an act is performed under compulsion, this may justify its performance. It is also provided in the Act itself that an act which forms part of a protest, dissent or industrial action and which does not intend the harm contemplated in paragraph (a) (i) to (iv) of the definition is excluded from the prohibition. This is in accordance with the right to freedom of speech and the right to strike (ss 10 and 23(2)(c) of the Constitution). 1.2.7 Intention A specific intention is required for the crime and the intention has two components. It is required that the act should be performed with an intention, or an act which by its nature and context, can reasonably be regarded as being intended, directly or indirectly to – FIRST COMPONENT threaten the unity and territorial integrity of the Republic; intimidate or cause feelings of insecurity within the public or a segment of the public with regard to its security, including its economic security, or to cause feelings of terror, fear or panic in a civilian population; or unduly compel, intimidate, force, coerce, induce or cause a person, a government, the public or a segment of the public or a domestic or an international organisation or intergovernmental organisation to do or to abstain or refrain from doing any act, or to adopt or abandon a particular standpoint, or to act in accordance with certain principles; and SECOND COMPONENT It is required that the act be committed, directly or indirectly, in whole or in part, for the purpose of the advancement of an individual or collective political, religious, ideological or philosophical motive, objective, cause or undertaking. Dolus eventualis is a sufficient form of intention. The words “can reasonably be regarded as being intended” seem to import an objective test to determine intention. However, it is submitted that these words only refer to the recognised practice of our courts of drawing an inference of a subjective intention from the perpetrator’s outward conduct at the time of the commission of his act as well as the circumstances surrounding the event, in cases where there is no direct evidence of intention. 7 PART A: CRIMES AGAINST THE STATE AND THE ADMINISTRATION OF JUSTICE Apart from the offence of terrorism, there are other offences created in the Act of which you must be aware. These are: Offences relating to harbouring and concealment of a person committing acts of terrorism (s 11) Failure to report the presence of persons suspected of intending to commit or having com- mitted an offence (s 12) Offences relating to “hoaxes” (s 13) ACTIVITY X, Y and Z have all been retrenched by the mining company for which they worked. They have been looking for jobs for six months without success. They bear a grudge against the government because they have lost their jobs. They are of the view that the government does not properly enforce immigration laws; that millions of people enter the country illegally and that the citizens of the country are unemployed because these illegal immigrants are employed by the mines as they are prepared to work for very low salaries. X, Y and Z feel that the government ought to be encouraged to deport all illegal immigrants. They decide that this can only be achieved by violent means. They plan an attack on a certain neighbourhood which they know is inhabited by illegal immigrants. In the early hours of the morning, they set alight the homes of these people. Many are injured and some die as a result of the attack. Can X, Y and Z be charged with the crime of terrorism? FEEDBACK Yes, they can be charged with terrorism. It would be fairly easy to prove that they carried out a "terrorist activity". At the very least, they have committed acts involving the use of violence, endangering the lives or physical integrity of other persons, and causing substantial damage to property inside the Republic of South Africa. They performed these acts with the intention of intimidating a segment of the public (illegal immigrants) so that they would leave the country or of compelling the government to adopt a policy of deporting all illegal immigrants (the first component of the requirement of intention). But the state will also have to prove the second component of the intention requirement, namely that these acts were performed with the purpose of the advancement of a political, religious, ideological or philosophical motive, objective, cause or undertaking. One may argue that X, Y, and Z had a collective political motive, namely to force the government to arrest and deport illegal immigrants. Terrorist or freedom fighter? Now that you know the definition of terrorism, how would you differentiate be- tween terrorists and freedom fighters? Both groups have political objectives and commit violent, destructive crimes in the eyes of the governments of the countries they reside in; However, freedom fighters claim to be the liberators of the op- pressed, and many countries only came into existence after long struggles for freedom. Is the difference between the two concepts simply a matter of percep- tion, in other words, do the labels depend on the one doing the labelling? Or is it a difference in motive? Do freedom fighters fight for a noble cause while terrorists’ acts are purely destructive? Wat is your opinion? 8 LEARNING UNIT 1: Crimes against the state 1.3 PUBLIC VIOLENCE (Criminal Law 311–314) 1.3.1 Definition Public violence is the unlawful and intentional performance of an act, or acts, by a number of persons which assumes serious proportions and is intended to disturb the public peace and or- der by violent means, or to infringe the rights of another. 1.3.2 Elements of the crime The elements of the crime are the following: (1) an act (2) performed by a number of persons (3) which assumes serious proportions (4) which is unlawful, and (5) intentional, and, more specifically, includes an intention to disturb the public peace and or- der by violent means, or to infringe the rights of another 1.3.3 The object or interest protected The interest protected in the case of public violence is the public peace and order. A certain measure of overlapping may occur between this interest and the interests protected by the other crimes against the state. A watertight division is not always possible. 1.3.4 Joint action The crime cannot be committed by an individual acting alone. The public peace and order must be disturbed by a number of persons acting in concert. It is impossible to specify the number of persons required; this will depend on the circumstances of the case, taking into account factors such as the seriousness of the threat to peace and order. In Terblanche 1938 EDL 112, five persons were considered sufficient, while, in other cases where the disturbance of peace and order was not serious, for example as a result of the limited scope and duration of the disturbance, six, eight and ten persons were considered insufficient for the commission of the crime (Nxumalo 1960 (2) SA 442 (T)). Those participating in the disturbance of the peace must act in concert, that is, with a common purpose (S v Whitehead 2008 (1) SACR 431 (SCA)). Once it has been established that the accused knowingly participated in an uprising with the aim of threatening the public peace and order, the prosecution need not prove precisely what acts were committed by which of the participants (Mashotonga 1962 (2) SA 321 (SR) 327). However, in S v Le Roux 2010 2 SACR 11 (SCA), the Supreme Court of Appeal emphasised that in the absence of proof of a prior agreement or plan to commit transgressions, the state must prove active association with the acts of public violence of each individual accused. Therefore, proof of mere presence at the scene of the crime is not sufficient. The crime can be committed both in a public place and on private property (Segopotsi 1960 (2) SA 430 (T) 435-437). The participants need not be armed. The act must be accompanied by violence or a threat of violence. The crime is committed even if there is no actual disturbance of the public peace and order, or no actual infringement of the rights of another. It is sufficient if the action is aimed at the disturbance of the peace or the infringement of the rights of another (Segopotsi supra 433 (E)). 9 PART A: CRIMES AGAINST THE STATE AND THE ADMINISTRATION OF JUSTICE Please remember that the difference between public violence and terrorism is not only that public violence must consist of a joint action, while terrorism can be com- mitted by one or more individuals, but also that terrorism requires a specific intent, which is not a requisite in the crime of public violence. 1.3.5 Examples of conduct The following are examples of behaviour amounting to public violence: faction fights (Xybele 1958 (1) SA 157 (T)) joint resistance to police action by a group of persons (Samaai 1986 (4) SA 860 (C)) rioting (Dingiswayo 1985 (3) SA 175 (Ck)) violent coercion of other workers by a group of strikers (Cele 1958 (1) SA 144 (N)) disrupting and taking over a meeting by a gang (Claassens 1959 (3) SA 292 (T)) 1.3.6 Serious proportions The crime is only committed if (in addition to the other requirements) the action of the group assumes serious proportions. One of the reasons for the existence of the crime is that the safety of persons not involved in the disturbance is threatened, and this will only be the case if the disturbance is serious. Although this requirement may be somewhat vague, it is nonetheless essential to distinguish public violence from cases of, for example, rowdy behaviour and family feuds which do not threaten public peace and order. Whether or not the act can be classified as serious will depend on various factors, or a combination of them, examples of which would be the following: (1) the number of persons involved (2) the time (3) the place (4) the duration of the disturbance (5) the cause of the disturbance (6) the status of the participants (7) whether or not they are armed (8) whether persons or property are injured or damaged (9) the way in which the disturbance is settled (if it is settled) It was decided in Mei 1982 (1) SA 301 (O) that the mere placing of stones in a road at a spot where a group of people assemble does not amount to violence, and therefore does not constitute public violence. The fact that an individual threw a stone at a police vehicle is not sufficient to convict that person of public violence. 1.3.7 Unlawfulness Both the actions of the group of persons or crowd as such and the actions of the individual accused must have been unlawful. The participation of the individual may, for example, be justified on the ground of compulsion (Samuel 1960 (4) SA 702 (SR)), while the behaviour of the group may be justified, for example, by private defence (Mathlala 1951 (1) SA 49 (T) 57-58). 10 LEARNING UNIT 1: Crimes against the state In S v Mlungwana and Others 2019 (1) SACR 429 (CC), the Constitutional Court ruled that no notice is required for a demonstration, making section 12(1)(a) of the Regulation of Gatherings Act of 1993 an unconstitutional limitation of the section 17 right to freedom of assembly in the Constitution. However, demonstrations should be peaceful and unarmed. 1.3.8 Intent Intent is the form of culpability required. The individual accused must have been aware of the nature and purpose of the actions of the group, and her participation in the activities of the group must have been intentional (Aaron 1962 (2) PH H 177 (SR)). Furthermore, a common purpose of disturbing the public peace and order must exist between the members of the group. ACTIVITY A political party holds a meeting in a hall. The leader of the party, Y, opposes abortion, is in favour of the death sentence and has, on numerous occasions, made derogatory remarks about gay people. A large number of gay-rights activists decide to break up his meeting. Almost 150 members of this group are gathered in front of the hall on the evening the meeting is held. As people arrive for the meeting, the activists obstruct the entrance to the hall. Y (the leader of the political party) calls the police on his cellphone. The police arrive with dogs and tear-gas. They request the protesters to disperse peacefully. One woman shouts that the police will have to remove her forcibly. The others all agree with her. Because the crowd refuses to disperse, the police throw tear-gas canisters and the protesters 11 PART A: CRIMES AGAINST THE STATE AND THE ADMINISTRATION OF JUSTICE run away. The protesters are charged with public violence. Their legal representative argues that the actions of the protesters were not serious enough to justify a conviction for the crime. You are the state prosecutor. What should your response be to this reasoning? FEEDBACK You would rely on the Segopotsi case, arguing that actual disturbance of the peace is not required for a conviction for this crime. All that is required is that the actions of the protesters were intended to disturb the public peace and order. You will argue that there is ample evidence before the court in this respect. You could also argue that, because the entrance to the hall was obstructed by the protesters, and tear-gas was used to disperse the crowd, the actions were serious enough to justify a conviction for public violence. Do public brawls constitute public violence? If a group of individuals visiting a restaurant start assaulting restaurant patrons and damaging restaurant furniture and utensils, will their acts constitute the crime of public violence? What about a group of soccer supporters who run onto the field after their team has lost, and damage television equipment and assault the opposing team’s supporters? To answer this question, you need to consider the definition of public violence. The conduct was clearly unlawful and intentional, and performed by a number of persons. The act also assumed serious proportions as assault is a violent crime, and they did infringe the rights of the other restaurant patrons. However, did they act with a common purpose? If no prearranged plan to, for instance, assault, can be established, is there active association? Here, each particular accused person must be held liable on the ground of active participa- tion in the achievement of a common purpose that developed at the scene. What would your answer be? SUMMARY Terrorism (1) Various types of conduct are prohibited, for example, the use of violence; conduct that en- dangers the life or physical integrity of any person; conduct causing substantial damage to property; major economic loss or destabilisation of an economic system or, even an act that is merely calculated to cause serious interference with essential services or systems. (2) The conduct may be committed inside or outside the Republic. (3) The acts must be unlawful and performed with a defined intention. The state must prove two components of the intention: The intention to: First component threaten the unity and territorial integrity of the Republic; or intimidate or cause feelings of insecurity within the public with regard to its security, includ- ing its economic security; or intimidate or compel a government or the public or an organisation to do or refrain from doing an act; and 12 LEARNING UNIT 1: Crimes against the state Second component the prohibited acts must be committed with the purpose of advancement of an individual or collective political, religious, ideological or philosophical motive, objective, cause or undertaking. Public violence (4) Definition of public violence – see definition above. (5) The interest protected in public violence is the public peace and order. (6) Public violence can only be committed by a number of people acting in concert; in other words, a number of people acting with a common purpose. (7) The act must be accompanied by violence or threats of violence. (8) The action of the group must assume serious proportions. Whether this is the case will de- pend upon several factors or combination of factors. FURTHER READING For more information on terrorism and public violence, read: (1) Burchell Principles of Criminal Law (2016) 777–782. (2) Kemp, Walker, Palmer, Baqwa, Gevers, Leslie & Steynberg Criminal Law in South Africa (2018) 477–479; 662–668. TEST YOURSELF (1) Name four types of activity that amount to "terrorist activities" in terms of section 1 of the Protection of Constitutional Democracy against Terrorist and Related Activities Act 33 of 2004. (2) Broadly define the two components of the requirement of intention for the crime of terrorism. (3) Can public violence be committed by a single person? Substantiate your answer. (4) The following statements refer to public violence. Indicate whether these statements are cor- rect or incorrect: (a) Explain what is meant by the requirement for public violence that the acts of the group must assume serious proportions. (b) The participants in public violence must act in concert; in other words, with a common purpose. (c) Public violence can only be committed in a public place. (d) Once it has been established that the accused knowingly participated in a disturbance with the aim of threatening the public peace and order, the prosecution need not prove precisely which acts were committed by which of the participants. (5) Public violence can only be committed if there is an actual disturbance of the public peace and order, or an actual infringement of the rights of another. 13