DEVELOPING THE CRIME OF PUBLIC VIOLENCE AS A REMEDY TO THE VIOLATION OF THE RIGHTS OF NON-PROTESTERS DURING VIOLENT PROTESTS AND STRIKES – A CRITICAL ANALYSIS OF THE SOUTH AFRICAN JURISPRUDENCE

Abstract

While section 17 of the Constitution guarantees the right to freedom of assembly, the violence that accompanies the exercise of this right often culminates in the violation of the rights of non-protesters to, inter alia, life, dignity, equality and freedom and security of the person. The crime of public violence is the primary measure in place for the maintenance of the community’s interest in public peace and order, as well as for affording protection against the invasion of the rights of other people during protests and strikes. Therefore, the apparent failure of the crime to adequately safeguard the rights of non-protesters begs the question whether the crime falls short of the objectives of section 39(2) of the Constitution and thus requires to be developed in order to promote the spirit, purport and objects of the Bill of Rights. If so, how must the development take place in order to meet these objectives? Addressing the foregoing questions invariably leads to an assessment of the
jurisprudential direction the South African courts are likely to take in the question of developing the crime of public violence as a remedy to the erosion of various rights of non-protesters during violent protests and strikes.