- A restaurant owner forcefully pushed a 65-year-old patron who was trying to get back his cellphone after it was taken from him during an argument.
- The High Court found that the patron was not attacking the owner and that the push caused a chest bruise and another injury when the patron hit a deck railing.
- The judgment states that courts should apply the de minimis principle cautiously in assault cases where constitutional rights, power dynamics and community interests are involved.
The High Court in the Western Cape has emphasised that using force against a restaurant patron cannot simply be brushed aside as minor when the situation shows a real violation of a person’s bodily integrity and dignity.
The case involved Paul John Richards, the owner of Sandown Blues restaurant in Kleinmond, and Michael Green, a regular patron who was 65 years old at the time. What began as a disagreement about the restaurant escalated when Richards took Green’s cellphone and pushed him as he tried to get it back.
The court had to decide not only whether the push was common assault, but also whether the circumstances were so trivial that the law should overlook it under the principle known as de minimis non curat lex. Judge MW Janisch, with Judge V Saldanha, found this was not just a harmless or technical breach.
A dispute over a cellphone triggered the confrontation
Green was sitting with a female friend on the raised wooden deck at Sandown Blues on 26 December 2021, when Richards joined them. Their conversation shifted from how busy the restaurant was to its turnover. Richards became unhappy with where the conversation was going and eventually told Green to leave.
Green then took out his cellphone, saying he wanted to record the situation because he felt uncomfortable about the argument. Richards grabbed the phone from his hand, hurting Green’s thumb in the process. Green immediately tried to get his phone back. Security footage recorded the incident and became important evidence, showing how both men moved and the force used.
The footage showed Green standing up and reaching for his phone. Richards then forcefully pushed Green in the chest, knocking him backwards. Green fell against the wooden railing at the edge of the deck before regaining his balance. Medical evidence noted a bruise on Green’s chest, as well as cuts on his thumb and elbow.
Self-defence failed because the patron was retrieving his phone
Richards denied unlawfully assaulting Green. He claimed that Green lunged at him, grabbed his forearm and moved toward him in a threatening way. Richards said he instinctively pushed Green away to protect himself.
But the evidence did not support this. The video showed that Green was simply trying to get his cellphone back, not attacking Richards. Richards eventually admitted that Green was trying to retrieve his property.
Judge Janisch found this was fatal to Richards’ self-defence argument since private defence only applies when there is an attack or threat to a legally protected interest. “The first and most fundamental requirement for private defence – that there was an attack on a legally protected interest – was therefore not present,” Judge Janisch said.
The court also dismissed Richards’ claim that he acted in the interests of his father or the restaurant. Richards said he took the phone as “leverage” to get Green to leave, but the court found this did not justify the force he used when Green tried to get it back.
The raised deck turned a push into a serious risk
The court looked beyond just the injuries Green suffered when considering the de minimis principle. It examined how the force was used, where the incident happened, the relationship between the two men and the possible consequences.
Richards’ push was strong enough to knock a man of about 100 kilograms off balance as he stood up from his chair. Green not only suffered a painful chest bruise but also hurt his arm when he hit the railing.
The location mattered. The confrontation happened right next to the edge of a raised deck. The railing stopped Green from falling further, and the court noted things could have been much worse. Judge Janisch found this assault was not the kind of conduct that could genuinely be seen as too trivial for criminal charges.
The owner had power that the patron did not
The court also focused on the relationship between Richards and Green. As the owner and person in charge, Richards had authority over the premises, while Green was simply a guest.
That difference mattered because Richards had lawful options if he wanted Green to leave. He could have asked him to go or called the police if needed. Using physical force was not the only way for Richards to exercise his authority.
“Instead of exercising it properly and proportionately, he misused that power by resorting to a violent act,” Judge Janisch said.
Green’s age was also important. At 65, he qualified as an older person under the Older Persons Act, while Richards was about 17 years younger. The court also found that Green had not done anything to provoke the confrontation before the assault.
Constitutional values must inform triviality decisions
The judgment makes it clear that deciding whether an assault is too minor to prosecute is not just about the extent of the physical injury.
Judge Janisch said courts must consider constitutional values like equality, human dignity, personal security and access to justice. These must be balanced with the need for an effective justice system and responsible use of public resources.
The court looked at previous cases where assaults were considered trivial enough for the de minimis principle to apply. It found key differences in this case, including the force used, the location, the complainant’s age and the power dynamic between the parties.
The court also rejected the idea that Green’s actions had really caused the confrontation. Green only moved toward Richards after his cellphone was taken, and the court found he was just trying to recover his property, not to start a fight.
The public interest outweighed the claim of triviality
Judge Janisch found that ignoring this assault would have consequences beyond just these two men. “The behaviour of the appellant, viewed in its entirety and context, materially infringed the interests of the community,” Judge Janisch said.
The court said that while there are times when prosecuting a technically criminal act might not serve the public interest, assault cases involving power dynamics and vulnerable victims require special care before the de minimis principle is used.
“In cases involving assault, especially those with power imbalances or more vulnerable victims, I believe the de minimis principle should be used sparingly,” Judge Janisch said.
In the end, the court upheld Richards’ conviction for common assault and dismissed his appeal. He had been sentenced in the Magistrate’s Court for the District of the Overberg at Caledon to a R6,000 fine or six months in prison, fully suspended for five years on the condition that he was not convicted of assault again during that time.
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