Category Archives: Criminal Law

WHAT CAN YOU DO ABOUT PUBLIC NUISANCES?

Persons who commit disruptive acts of unacceptable behaviour in public places may be warned, arrested and subsequently prosecuted by the authorities. The offender could be liable for a fine, imprisonment or both upon conviction. How is this enforcement of our rights achieved by an ordinary citizen?

What is a public nuisance?

A public nuisance is an act or omission that obstructs, damages, or inconveniences the rights of the community. The term public nuisance covers a wide variety of minor crimes that threaten the health, morals, safety, comfort, convenience or welfare of a community.[1]

What are the consequences?

With regards to public nuisances, one would look to By-law Relating to Streets, Public Places and the Prevention of Noise Nuisances, 2007[2]. The main body of this by-law lists certain acts that are deemed prohibited behaviour and are therewith criminalised. Various acts including begging, using abusive or threatening language, being under the influence of drugs or alcohol and causing a disturbance by shouting, screaming or making any other loud or persistent noise or sound, including amplified noise or sound are listed therein.[3] A by-law is a law that is passed by the council of a municipality to regulate the affairs and the services it provides within its area of jurisdiction[4].

What should you do about a public nuisance?

Should anyone and their conduct fall within this definition and perform any or multiple prohibited acts of public nuisance, the authorities are to be alerted immediately. The authorities have the power to instruct the offender to immediately cease the behaviour. If they don’t stop they will be guilty of an offence.

Section 23 states that any person who contravenes or fails to comply with any provision of this by-law or disobeys any instruction by the authorities enforcing this by-law, will be guilty of an offence. This offender will be liable to a fine or imprisonment for a period not exceeding six months, or to both a fine and such imprisonment.

Conclusion

By identifying certain acts of unacceptable, aggressive, threatening, abusive or obstructive behaviour of people in public, the offender may be ordered to immediately cease the offending conduct or be arrested for not complying with any order to do so.

References:

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

TO PROSECUTE OR NOT

A1_bAn action may be a crime or a delict but where your actions were trivial, a court may decide not to prosecute you or a judge will not entertain a claim against you due to the de minimis non curat lex rule.

If you find yourself charged with a minor crime such as theft for taking one small sweet from a store then the de minimis non curat lex rule (de minimis), which means “the law does not concern itself with trifles”, may come in handy for you.

De minimis is a decision of a court to allow unlawful conduct to go unpunished due to its triviality. An example of such a decision is where the Appellate Division in S v Kgogong refused to convict a person of theft because the accused stole a worthless piece of paper. Another example would be from the case of S v Dane where a person accused of malicious damage to property was acquitted because all he had done was to cut a small portion of another person’s hedge.

The application of the de minimis maxim is very limited in regard to statutory offences. This was discussed in the case of DPP (EC) v Klue in which the High Court overturned the Magistrate’s decision that the offence of driving a vehicle on a public road with a blood alcohol concentration exceeding the prescribed minimum was de minimis.

The High Court held in the abovementioned case that the aims and objectives of the legislation containing the offence are important and that the Road Traffic Act, in particular the provision offended, is aimed at reducing road accidents. The High Court also held that there was no room for the Magistrate to apply the de minimis maxim because the minimum amounts had already been determined after careful consideration by the Legislature.

The de minimis maxim also applies to criminal assault charges and delictual claims. In regard to delictual claims, when a person’s bodily integrity has been wrongfully and intentionally infringed, he or she can claim satisfaction with the actio iniurarum unless the de minimis rule applies to his or her claim. In regard to criminal assault charges trivial assaults, such as a slap on the back or a shove in a crowd may be disregarded in terms of the de minimis rule. This would have to be seen in context of the nature of the act, especially where one is dealing with sexual assault, as a mere touch could be very serious and in these circumstances the de minimis rule would not come into play.

The purpose of the de minimis rule is to avoid the burdening of the courts with minimal complaints which would result in wasted costs, resources and time. It is further to avoid the situation where more serious crimes and delictual claims take even longer to be dealt with due to these trivial issues taking up the court’s time. This will result in the criminal justice system and the court system being brought into disrepute for not being able to deal with serious matters efficiently.

Bibliography
• Burchell J: Principles of Criminal Law 2006 (3rd ed) 355 – 356
• S v Kgogong 1980 (3) SA 600 (A)
• S v Dane 1957 (2) SA 472 (N)
• DPP (EC) v Klue 2003 (1) SACR 389 (E)
• Road Traffic Act 93 of 1996

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.