MOGOENG CJ
properly so because assault is correctly defined by Burchell and Milton as the unlawful
and intentional application of force to the person of another or inspiring a belief in that
person that force is immediately to be applied as threatened. 32 This accords with the
definition our courts have given to assault, like the intentional application of unlawful
force to the person of a human being.33
[38]
The dictionary meaning of violence is “behaviour involving physical force
intended to hurt, damage or kill someone or something”.34 And this is the ordinary
grammatical meaning that ought to be ascribed to the word “violence” within the
context of section 12(1)(c) of the Constitution.
More importantly, even when
contextually and purposively interpreted, as it should, the definition of assault by
Snyman, Burchell and Milton converges on the same meaning. Violence is not so much
about the manner and extent of the application of the force as it is about the mere
exertion of some force or the threat thereof.
[39]
Turning to the language of section 12, the operative words are “free from all
forms of violence”. The first question is whether we ascribe a highly technical meaning
to the word “violence” or give it its ordinary grammatical meaning which connotes any
32
Burchell and Milton above n 3 at 423. See also Snyman Criminal Law 6 ed (LexisNexis, Durban 2014) at 455,
in which he states––
“[a]ssault consists in any unlawful and intentional act or omission––
(a)
which results in another person’s bodily integrity being directly or indirectly impaired,
or
(b)
which inspires a belief in another person that such impairment of her bodily integrity
is immediately to take place.”
33
S v Ntuli 1975 2 All SA 1 A at 435-6 H. See also Rex v Jolly 1923 AD 176 at 179 where Innes CJ said that:
“The definition of assault in South African practice as given by Gardiner and Lansdown (vol 2,
p 1010) is as follows: ‘The act of intentionally and unlawfully applying force to the person of
another, directly or indirectly, or attempting or threatening by any act to apply that force, if the
person making the threat causes the other to believe that he has the ability to effect his purpose.’
The definition is substantially taken from the Transkeian Penal Code; it commended itself to
the Trial Court, and would appear to be satisfactory for all practical purposes. It recognises that
the application of force may be indirect as well as direct – a conclusion which is logically
unassailable, for it is evident that a person may cause force to be applied to the body of another
without himself touching that other. Such application of force would be properly described as
indirect. A may cause B to fall from his bicycle, either by pushing him off or by overturning the
bicycle; in one case he applies force to B’s body directly; in the other indirectly; but in both
cases the result, actual and legal, is the same. In each instance A has assaulted B.”
34
Oxford English Dictionary 6ed (Oxford University Press, Oxford 1936) at 3535.
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