Should Father Graham Pugin be charged as an accessory to public violence, or is he a hero?

Trinity Parish in Braamfontein, is a campus church best known in media for its thriving LGBT activist group, and for its vocal opposition to the previous more conservative pope on matters of sex and sexuality, a news search reveals. It is also very much known amongst Wits students, for locking its gate to campus, meaning they have to go all the way around to another exit, and for preventing anyone parking in its almost always empty parking lot, unless they are specifically visiting the church. A priest standing defiantly in front of a vehicle of some or other person desperate to find parking, is not an unusual image. For that vehicle to be a police Nyala, sent to deal with violent rioting, arson, intimidation, assault, and malicious damage to property, is a more unusual sight.

Fees Must Fall protests have become increasingly violent of late. From assaults carried out against students who attempted to attend classes, to protestors throwing rocks at security, passers-by, and vehicles in the area, and with protestors even turning to theft from local stores. Videos and voice notes spread by protestors also warned white students that their days were numbered, even calling for the death of a random white student in order to get more media attention. Protestors also bombarded students who called for the academic year to resume on social media, and sought to disrupt a protest by students, against their intimidation tactics, held on campus. An SMS poll the University of the Witwatersrand did of students and staff, found strong support for resuming academic activities, something protestors are dead set against.

On the day Graham Pugin was shot in the jaw by a rubber bullet fired by police, he had been particularly active. Students, denied the opportunity to protest wherever they wanted and to riot freely on Wits East Campus, had taken to the streets of Braamfontein to do so, rather than be confined to designated protest areas. A police Nyala had been assigned to deal with the rioting and looting which followed, as Fees Must Fall protestors broke shop windows, and stole the goods of businesses within.

Protestors even stoned a bus owned by a private company, until its occupants fled, proceeded to set it on fire, and then set about stoning firemen who had attempted to put the explosion danger out. An SABC news crew caught a number of these events live. However, the incident at Trinity Parish was caught by amateur photographers.

'Running clashes between students throwing rocks and police firing rubber bullets, tear-gas and stun grenades continued throughout Braamfontein today and this culminated in students seeking refuge in the church and the police attempting to drive a Nyala into the yard to arrest them.

'While some students threw rocks and others scattered away from the church’s entrance, Pugin stood in front of the gate in his white church robes with his hands raised in the air. Then, police shot him from the Nyala and the rubber bullet struck his mouth.' (Mail & Guardian | '#FeesMustFall2016: Holy Trinity Catholic Church priest shot in face, sparking clashes' by Govan Whittles 10 Oct 2016 17:00).

Father Graham Pugin, of Trinity Parish, had tried to insure that the gate between his church property and the university stayed unlocked and open, impeding police efforts to control the areas in which violent, armed protestors had free reign.

'Earlier in the day he had been instructed by the police to lock the gate between the Wits University campus and the Holy Trinity Catholic Church where he is parish priest. He refused to do, wanting students fleeing from clashes with police on campus to have a route to safety at the church.

'“When I refused to promise to keep it locked, they took my name,” Pugin told Daily Maverick after being attended to by a maxillofacial surgeon on Tuesday morning. 'Later the police returned and locked the gate with their own padlock and posted three officers to stand guard. During the day of high drama, with students intermittently running into the church property to seek cover from the hail of rubber bullets, Pugin found time to carry cups of water to the police officers standing guard.' (Daily Maverick | 'Holy Shield: #FeesMustFall priest tells of his day of terror' by Ranjeni Munusamy 11 Oct 2016 06:10).

The priest also relays to the Daily Maverick how he gave sanctuary to the heavily armed students involved in violent intimidation, stoning of others and other such things. To quote the same article:

'Pugin has a soft spot for the students but also an edge. There are media pictures of him wagging his finger at protesting students carrying makeshift weapons.

'“I insisted they weren’t allowed on the church property with weapons. I told then to put down any sticks and stones before coming in.”

'During Monday’s running battles, there was much pushing and jostling, Pugin says, but the students were never aggressive.' (Daily Maverick | 'Holy Shield: #FeesMustFall priest tells of his day of terror' by Ranjeni Munusamy 11 Oct 2016 06:10).

The video footage of the events, shows a massive crowd of rioters flee into the church with a police Nyala in hot pursuit in an attempt to arrest the violent fees protestors. Father Graham Pugin, however, stands in the way of the police, with the specific intent of allowing the protestors to escape. As the Mail & Guardian relays, protestors began using Trinity Parish as a sanctuary and perhaps a launching pad, assaulting police officers with rocks, knowing they could safely flee into the church, which would also provide for their medical needs. Police seemingly responded with rubber bullet fire, some of which hit the Jesuit.

R v Van Rensburg 1943 TPD 436 sets out that: it is 'sufficient if there is any assistance given to the perpetrator of the crime which in the ordinary course would lead to the perpetrator being helped in escaping detection or in avoiding the consequences of his act' for a person to be accessory after the fact, while of course also taking into account other factors such as intention and so forth. The question as to whether the priest could be charged under common purpose for the acts committed by protestors while under his sanctuary also arises.

Of course, being that he is a priest, this is South Africa, and protestors have tended to avoid any real long term side effects from their actions:

'On Tuesday, a police delegation led by Deputy National Commissioner Gary Kruser visited Pugin at the home of the Jesuit Fathers in Auckland Park to “apologise unconditionally for what happened”. After meeting with Pugin, Kruser told Daily Maverick that he had instituted an official investigation into the incident, which is to be led by the Gauteng provincial commissioner. He said there had been no command to shoot Pugin and he himself had been calling for religious leaders to intervene to defuse the situation.

'“I can’t speak on the merits of the case while it is under investigation. We have a responsibility to ensure there is no loss of life. The police are under a lot of pressure and the levels of violence are high,” Kruser said. He said provocation and criminal elements were exacerbating the situation.

'Pugin’s order, the Society of Jesus, is still considering possible legal action against the police. But they said in a statement that they were willing to continue facilitating negotiations at Wits and participate in national mediations to resolve the fees crisis.' (Daily Maverick | 'Holy Shield: #FeesMustFall priest tells of his day of terror' by Ranjeni Munusamy 11 Oct 2016 06:10).

So it looks like Father Graham Pugin is more likely to be in court to claim monetary compensation from the police force, than to defend assisting rioters, seemingly the same ones involved in stone throwing, arson, looting, intimidation, and public violence.

In other words, for Fees Must Fall, and the Jesuits, a hero and martyr is born.

That said, a statement by the Southern African Catholic Bishops Conference, posted to the Trinity parish website on 11 October 2016 states:

'What the students desire is more equality in access to good education at university level. We support this request. But we don’t condone the violence, looting, and vandalizing of property by students and the use of force by police army.

'By now we feel that the students have made their protest.  The whole society, other students, universities, and the government are very aware of the student’s protest.  It is time now for the disturbances to end and for the academic year to continue and for exams to be written.'

Perhaps not quite the martyrdom event after all.

Nothing in this article constitutes legal advice. Any mention of law or legal principles is made purely for topic interest purposes. For legal advice, please make an appointment with your attorney, and appraise him or her of all the facts in your situation.

Sonke Gender Justice's Patrick Godona falsely claims that a man cannot be raped in RSA law.

Concerning words hit the website of South Africa's national public broadcaster, the South African Broadcasting Corporation, on Thursday. The gender NGO,  Sonke Gender Justice, has claimed that women who raped a man on video could not be charged with rape, because men, its spokesman said, can't be raped.

Here's the quote, now:

"Rape as it stands it's about penetrating and in the case of a man it is not a women who penetrates the man but the man is actually forced to penetrate and therefore it becomes a sexual assault because this man has been unwillingly without consent forced to this sexual act." says Sonke Gender Justice's spokesman, Patrick Godona, as quoted by the SABC ("Three women charged with sexual assault, not rape", Thursday 6 October 2016 06:16)

In the now repealed common law, 'the crime of rape consists in a male having unlawful and intentional sexual intercourse with a female without her consent' (LAWSA).

However, s 68 (b) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act No. 32 of 2007 clearly repeals the common law definition of rape, allowing the act's definition to be the definition which counts in all rape cases.

To quote LAWSA's apt summary of the Act (which causes penetration to be considered irrespective of who is penetrating whom):

'The statutory crime of rape has been expanded to include all forms of non-consensual sexual penetration, and makes no distinction in terms of gender with regard to perpetrator or victim.7

'Any person who unlawfully and intentionally commits an act of sexual penetration with a complainant, without the consent of such complainant, is guilty of the offence of rape.8 “Sexual penetration” includes any act which causes penetration9 to any extent whatsoever10 by: (a) the genital organs of one person into or beyond the genital organs, anus, or mouth of another person; (b) any other part of the body of one person or, any object, including any part of the body of an animal, into or beyond the genital organs or anus of another person; or (c) the genital organs of an animal, into or beyond the mouth of another person.11 The use of the word “causes” denotes the shift from the formally defined common-law crime of rape, where a certain type of act was criminalised, to the materially defined statutory version of the crime, in terms of which a certain situation, that is, sexual penetration, is brought about.12 Thus, rape is no longer a crime which can only be committed personally. ' (Volume 6 - Second Edition Replacement Volume by W A Joubert SC MA LLB LLD LLD(hc) Founding Editor; JA Faris BA LLB LLM LLD Attorney of the High Court of South Africa, Professor of Law, University of South Africa, Planning Editor; LexisNexis Editor: Ashleka Kanjan.)

Please be aware that:

This article, while written by an attorney of the High Court, is provided for topic interest purposes only, and is not legal advice. For legal advice, please book an appointment with your attorney and explain your own legal matters in the proper context for your attorney to provide you with such.