Unfortunately, as most of us know, we do not live in a perfect society and dealing with crime, violence and/or the threat of violence is unfortunately a reality. Often we hear of, or become the victims of, individuals with or without an agenda who act in a threatening manner, attempt or even successfully inflict violence or the use of force and/or harm to innocent people or generally upset the peace. Below we briefly discuss certain instances in which you may find yourself the victim of such unlawful conduct, how such conduct is legally defined, and some of the remedies available to you.
Assault is the unlawful and intentional application of force whether directly or indirectly to the person by another, or inspiring a belief in another person that force is immediately to be applied to that person. One example which most motorists have experienced is where a burly chap driving in the lane next to you rolls down his window and, for a reason of which you may or may not be aware of and may or may not be at fault for, utters words to the effect that he is going to physically harm you. Such behaviour falls within the definition of assault.
The test for assault is subjective and, therefore, it is committed not only when force is applied to you (i.e. to your person, not to your property), but also when you believe that a threat of immediate force is to be applied to you (accompanied by the belief that the perpetrator has the present ability to apply that harm to you). We emphasise that a court, in deciding whether or not to convict an accused of assault, will inter alia look at the victim’s state of mind (i.e. whether or not he or she truly believed that harm to his/her person was an immediate threat) and not at the accused’s actual ability or opportunity to immediately apply that harm threatened.
If you are the victim of such conduct it is necessary that you immediately report the assault to a member of the South African Police Services (the “SAPS”) so that the matter can be investigated and charges laid against the suspect if the Director of Public Prosecutions or the officials employed by him or her decide that the suspect be prosecuted, in which case, in terms if SAPS directories the suspect will be summonsed to appear in court.
Assault is often incorrectly confused with the crime of “intimidation”. Whereas assault as defined above is a common law offence, intimidation is a statutory offence defined in the Intimidation Act No. 72 of 1982. In most cases intimidation occurs when a person uses the threat of violence, or takes any steps in relation to that threat of violence, in order to induce a victim to do something he is legally not entitled to do or to induce the victim to abstain from doing something which he is legally entitled to do. A classic example of intimidation is where the complainant in a criminal matter or a state witness is threatened with harm by the accused if such complainant or witness should continue to give evidence against him or her. As it is the complainant or witness’ legal right to give such evidence (in fact, there may be a legal duty on him or her to do so) the accused has committed the crime of intimidation. If this is the case the matter must immediately be reported to the SAPS and, in the example used above, brought to the attention of the Prosecutor dealing with that matter.
“Orders to keep the peace”
A person may act in a detestable fashion and threaten you with harm and continues to do so in circumstances where there is not only a direct threat against you, but the activity in general, seen as a whole, is of a threatening nature.
There is a lesser known remedy contained in the Law of Criminal Procedure, which is highly effective and not as costly as other civil procedures, known as an order to keep the peace. Interestingly, this is one of the only two remaining sections of the old Criminal Procedure Act No 56 of 1955 (the “Old CPA”), the latest Act being Act 51 of 1977 (the “New CPA”). In terms of Section 384 of the Old CPA, whenever a complaint on oath (i.e. in the form of an affidavit) is made to a Magistrate stating that any person is conducting himself in a violent manner or is threatening to cause another person, or the property of that person, damage and harm or has used language and behaved generally in a manner which is likely to cause a breach of the peace or an assault, the Magistrate may, upon receipt of such a complaint order that that person must appear before him, and may even cause the arrest of that person to ensure that he appears before him, so as to enquire and determine whether such complaint has merit. It is possible that in these circumstances a witness will be called to testify on behalf of each party.
Should the Magistrate uphold the complaint, the person against whom the complaint was made will be made to give recognisance, even with financial sureties, for a period not exceeding 6 months that he will keep the peace towards the complainant and be ordered to refrain from such threatening behaviour or injury to the victim’s person or property. Further, the Magistrate may order that the perpetrator pay the costs of the enquiry should the complaint have merit and be upheld. Should the person thus ordered to give recognisance, refuse or fail to do so the Magistrate may order him to be committed to jail for a period not exceeding 6 months.
There is a wide array of incidents of actual or threatened acts of violence and other activity which is not discussed herein but which constitute various other crimes.