Form a filing sheet for eastern cape judgment



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FORM A

FILING SHEET FOR EASTERN CAPE JUDGMENT
ECJ NO : 008/2004
PARTIES: HENNING APPELLANT
AND
RESPONDENT

THE STATE




  • Registrar: 638/2003

  • Magistrate:

  • Supreme Court of Appeal/Constitutional Court:

DATE DELIVERED: 28/05/2004


JUDGE(S): PICKERING AND SANDI JJ
LEGAL REPRESENTATIVES -

Appearances:

  • for the State/Applicant(s)/Appellant(s): JR KOEKEMOER

  • for the accused/respondent(s): GG TURNER



Instructing attorneys:

  • Applicant(s)/Appellant(s): HORN & LOTZ

  • Respondent(s): NETTELTONS

CASE INFORMATION -



  • Nature of proceedings : CRIMINAL APPEAL



  • Topic: CRIMEN INIURIA



IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION)

CASE NO: CA&R 638/2003
In the matter between
JACOBUS PETRUS HENNING
AND
THE STATE

JUDGMENT
PICKERING J:
Appellant, together with two companions, was charged in the magistrate’s court, Aliwal North, with certain offences. Appellant, who appeared as accused no 1, was charged with drunken driving in contravention of s 122 of Act 29 of 1989 (count 1); reckless or negligent driving (count 2 ); crimen iniuria (count 3); and assault (count 4). His two companions, accused no 2 and 3 respectively, were charged with interfering with a member of the police force in the course of his duties (count 5).
At the conclusion of a lengthy trial accused no 2 and 3 were both acquitted of the charge against them. Appellant was acquitted and discharged on counts 1,2 and 4. He was, however, convicted as charged of crimen iniuria on count 3 and was sentenced to undergo 4 months imprisonment. He appeals now against both his conviction and sentence.
It was common cause at the trial in the magistrate’s court, that appellant, a white male, swore at the complainant, Chief Traffic Officer Kulati, a black male, by, inter alia, calling him “a kaffir”. According to appellant he had uttered words to the effect that “jy is nes ‘n kaffir” whereas according to the complainant, the words uttered by appellant were “los vir my kaffir”.
It was appellant’s defence, as put to the State witnesses, that he did not act unlawfully when he uttered the words directed at the complainant inasmuch as he had acted out of necessity or self defence in the circumstances pertaining at the time. Those circumstances were part of a wider set of circumstances which had their genesis in an incident of alleged reckless driving by appellant during the course of the early evening of 29 April 2000. On that weekend the town of Aliwal North played host to a motor cycle rally known throughout the Eastern Cape as the Buffalo Rally. As a prophylactic measure a number of traffic officers had been dispatched to Aliwal North in order to assist the local traffic police to keep order. Amongst the traffic officers was the complainant, who was ordinarily stationed in King William’s Town, as well as a certain senior traffic officer,

Macaskill.


According to Macaskill he was the driver of an unmarked patrol car in which complainant was the passenger. He testified that whilst he was approaching a certain intersection in Aliwal North a Toyota Conquest, the driver of which later turned out to be the appellant, and in which accused no 2 and 3 were passengers, entered the intersection against the red traffic light. Macaskill immediately switched on the siren and flashlights of his motor vehicle whereupon the Toyota Conquest performed a 180 degree turn in the intersection thus facing back towards the direction from whence it had come. The driver thereof ignored the siren and flashlights of the patrol car and sped off back down the street. Macaskill set off in pursuit and radioed for assistance. The Toyota Conquest was eventually stopped by two other traffic officers namely, Mulder and Van Vuuren, who were driving a marked traffic police motor vehicle.
Complainant’s evidence on this aspect of the case was entirely confused. Whilst he testified to having been a passenger in a patrol vehicle on that evening he had no recollection of Macaskill having been the driver thereof and he stated that he himself had not witnessed the alleged or any incident of reckless driving at the traffic lights. According to him he had heard over the radio that Macaskill required assistance with the apprehension of a driver who had entered an intersection against the red traffic light and who had then performed a 360 degree turn whilst inside the intersection.
For his part, appellant denied having driven in the manner alleged by Macaskill. According to him the traffic officers had no reason whatsoever to chase after him but had done so because they were in all probability bored, wanting excitement, and looking for work.
Faced with the above contradictions in the State evidence the magistrate afforded appellant the benefit of the doubt and acquitted him of reckless or negligent driving on count 2. I agree with Mr. Turner, who appeared for the State, that appellant was perhaps fortunate that the magistrate did not subject the evidence to a more rigorous analysis than he did. A reading of the record reveals that on this aspect of the case Macaskill was an excellent witness and the suggestion that he had fabricated his version as to appellant’s manner of driving on the day in question merely in order to alleviate his boredom was, in my view, spurious. It is relevant that appellant himself confirmed that complainant was indeed a passenger in the motor vehicle with Macaskill. It must be remembered too that complainant was testifying more than two years later as to the events of that evening. Be that as it may, I am satisfied, despite appellant’s acquittal on this count, that an incident of such a nature occurred at the traffic lights as to cause Macaskill to set in train the events leading up to the arrest of appellant.
The evidence of the State witnesses, namely Macaskill, complainant, Mulder and Van Vuuren, as to what precisely occurred once appellant’s motor vehicle had been stopped was also somewhat confused and contradictory. What does emerge clearly from their evidence, however, is that as a result of resistance put up by appellant they used such force as was reasonably necessary to subdue and to handcuff him. In this regard it was appellant’s case that he never resisted arrest and that he was in fact subjected to a gratuitous assault by the four police officers. It was, so he said, during this struggle with the officers that he uttered the words upon which the crimen iniuria charge was based.
According to complainant he went to the assistance of Macaskill and Van Vuuren who were wrestling with appellant. When he took hold of appellant’s arm appellant looked at him and said “los vir my kaffir.” Complainant then decided to leave appellant and deal rather with accused no 2 and 3. It was appellant’s case, however, as put to complainant by the defence attorney under cross-examination, that complainant “grabbed him by the private parts, the testicles, and were also trying to strangle him in the process of this so-called arrest” and ”it is my instructions by accused no 1 that when you grabbed him by the private parts, by the testicles, and he was in extremely pain, and while he was being unlawfully assaulted, he uttered the words to you, and I must say this with respect, but to simply quote what he has told me ‘jy is nes ‘n kaffir’, ‘you are just like a kaffir’. And then, you grabbed him by the throat and strangled him and to say ‘fok jou boer’ which is again a swear word or insult to his side.” (My underlining).
As will have been seen from what was put to complainant it was appellant’s case that he uttered the words in question at a time when he was being grabbed by the private parts and before he was grabbed by the throat. The defence, as put by the defence attorney, was therefore to the effect that the assault upon him by the complainant was of such a nature as to justify the words used by appellant. In other words, appellant’s conduct was alleged to be commensurate with the requirements of forcing restraint upon the complainant. (See S v Ndlangisa 1966 (4) SA 324 (E).)
In his evidence, however, appellant, asked what his version was as to what had happened, stated as follows:

Toe hy my gewurg het, het hy vir my gesê ‘fok jou boer’ en ek het vir hom gesê ‘ja jy is net soos ‘n kaffir’ die oomblik toe hy my gelos het. My woorde toe hy my keel gelos het, het ek vir hom gesê ‘jy is net soos ‘n kaffir’.”


Under cross-examination appellant stated further in this regard:
Toe hy my begin slaan, en wurg en skop het en vir my boer sê, dan is dit mos ook rassisties so ek wou maar net van hom ontslae raak bo-op my.

Q Okay, so you said the word has a racial element?

A Dis reg.

Q So does the word ‘kaffir’ also has (sic) a racial element?

A Dis reg.

Q So you were hitting back in other words?

A Dis reg. With my mouth.
It appears from this evidence of the appellant that in effect his case was that he used the word “kaffir” in circumstances where the intention to injure was negatived by provocation such provocation being the use by complainant of the racist appellation “boer”. This differs materially from the version put by the defence attorney to the State witnesses and must cast considerable doubt upon the veracity of appellant’s evidence.
There was a further material discrepancy between what was put on appellant’s behalf to complainant and his own evidence. In his evidence appellant stated that he was thrown to the ground whereupon complainant “het bo-op my kom sit.” This version was, however, never put to Macaskill, complainant or Mulder, the first three State witnesses, being raised by the defence for the first time during the cross-examination of Van Vuuren who, in the event, expressed no knowledge of such incident. Appellant further stated that it was in fact Kulati who had thrown him to the ground whereas this allegation was also never put to complainant.

Having regard to the evidence as a whole I am satisfied that the magistrate was correct in his finding that the appellant was in fact not subjected to a gratuitous assault and that his evidence concerning the alleged assault upon him by complainant was correctly rejected as not being reasonably possibly true.



In my view therefore the appellant was correctly convicted of crimen iniuria as charged.
I turn then to consider the appeal against sentence.
In S v Puluza 1983 (2) P.H. H150 (E) Van Rensburg J with whom Jennett AJ (as he then was) agreed, stated as follows:
At the present time in South Africa when a black man is called a ‘kaffir’ by somebody from another race, as a rule the term is one which is disparaging, derogatory and contemptuous and causes humiliation.
Van Rensburg J then referred with approval to the following observations made by Didcott J in Mbatha v Van Staden 1982 (2) SA 260 (N) at 262 H – 263 A:
The tirade’s worst feature was the use of the epithet ‘kaffir’. Such alone can amount today to an actionable wrong, according to the decision of the Full Bench here in Ciliza v Minister of Police and Another 1976 (4) SA 243 (N). Everything depends, of course, on the context in which the word is uttered. Settings which make it innocuous can no doubt be imagined. Ordinarily, however, that is not the case when, in South Africa nowadays, a Black man or woman is called a ‘kaffir’ by somebody of another race. Then, as a rule, the term is a derogatory and contemptuous one. Its usage in this part of the world has seen to that, whatever its original connotations may have been. With much the same ring as the word ‘nigger’ in the United States, it disparages the Black race and the person concerned as a member of that race. It is deeply offensive to Blacks. Just about everyone knows that by now. The intention to offend can therefore be taken for granted, on most occasions at any rate.
In S v Steenberg 1999 (1) SACR 594 (N) Van Der Reyden J referred to the judgment of Ciliza v Minister of Police and Another supra at 247 G – H where James JP stated, inter alia, as follows:
It follows that in my opinion one of the recognised meanings which the word ‘kaffir’ bears in South Africa is that such person is uncivilised, uncouth and coarse and that if one calls a person a ‘kaffir’ this will in certain cases constitute an injuria.”
Van Reyden J, with reference to this passage stated as follows at 597 c – d:
The sentiment expressed by James JP in 1976 during the apartheid era is today under the new dispensation even more valid.
Having regard to the mores and attitude of our society today, and applying the value judgment referred to, I am satisfied, provided the required intention is proved, that calling a person a ‘kaffir’ is a violation of that person’s dignitas and constitutes the crime of crimen iniuria.
It is clear from a reading of complainant’s evidence that he was deeply offended, distressed and humiliated at being so insulted by appellant. As stated by him, the use by appellant of the epithet “kaffir” was such as to remind him of “the cruel things of the past that we survived under the people who called us ‘kaffirs’”.
In imposing an effective term of imprisonment upon appellant the magistrate stated, correctly, that his conduct was “totally unacceptable”. He stated further that not only had appellant committed the offence of crimen iniuria but that his conduct had also to a great extent strained racial relations in South Africa. The conduct of appellant was such he said, that an effective term of imprisonment was called for. Mr. Koekemoer who appeared at the hearing of the appeal for appellant has submitted that he erred in so doing and that the sentence imposed by him is so unreasonable as to induce a sense of shock.
Before dealing further with the appeal against sentence there are two matters arising from the address on sentence of the defence attorney and from the magistrate’s further reasons for sentence which require comment.
The defence attorney, in the course of his address, stated that the accused, “being a young white South African male in the present system today, the Court is well aware, and in the light of media reports, the Court can virtually take judicial notice of the fact that the aids pandemic is spreading so fast in prisons, that drastic steps have to be taken. Your Worship, should we place ourselves in the hypothetical position where the accused during his imprisonment would have contaminated or contracted HIV aids, all because of the offence of crimen iniuria.
The magistrate rejected this submission in forthright and well-justified terms. As pointed out by him the race of the perpetrator of an offence is quite irrelevant in the assessment of the sentence to be imposed upon that offender. The suggestion by the defence that because appellant was a young white male he should therefore not be sentenced to a term of imprisonment for fear of exposing him to the HIV Aids pandemic is, in my view, devoid of any merit and it is regrettable that the defence attorney should have seen fit to import a further racial element into an emotionally charged case already laden with racial overtones.
It is, however, unfortunately also necessary to comment adversely on the emotionally charged remarks made by the magistrate during the course of his further reasons for sentence. It can be accepted that the magistrate was affected by the evidence. Nevertheless, he had a duty as a presiding officer to remain above the fray and to dispense justice dispassionately and objectively without allowing his emotions to affect his judgment. As was stated by Schreiner JA in R v Karg 1961 (1) SA 231 (AD) at 236 C, “righteous anger should not becloud judgment”. The magistrate’s conduct of the matter falls short in this regard. He states, inter alia, as follows:
In my view, the appellant did not want to be touched by Mr. Kulati, a BLACK AND A KAFFIR according to him because his distorted mind and twisted mentality told him that his blood and skin is far superior to be touched by a black person (KAFFIR). In my view the appellant acted like a racist Maniac, whose lunatic behaviour is despicable and revolting to the extreme in the New South Africa and must be treated with revulsion. It is my humble submission, whether one accepts it or not or whether one likes it or not that the word ‘kaffir’ as used, is an INSULT TO AN ENTIRE NATION. UNDER THESE CIRCUMSTANCES I STRONGLY FEEL THAT DIRECT IMPRISONMENT WAS JUSTIFIED AND I SHALL URGE THE HIGH COURT TO CONSIDER INCREASING THE PERIOD OF IMPRIS0NMENT I IMPOSED.” (sic).
It is unfortunately clear from the above remarks made by the magistrate, who up until that stage had handled a difficult trial with impeccable fairness and impartiality, that he had lost the requisite degree of objectivity required from a presiding officer. However reprehensible the conduct of the appellant it has to be remembered, as indeed was conceded on behalf of the State at the hearing of the appeal, that the words were uttered by him on the spur of the moment in the course of the scuffle to effect his arrest at a time when he had clearly lost his temper and was in an emotional state. Indeed, in the course of the incident appellant also threatened Mulder, a white traffic officer, saying to him “ek sal jou dood moer”.

In these circumstances, Mr. Turner has conceded that he cannot support a sentence of direct imprisonment. In my view this concession was fairly and properly made. Nevertheless the offence committed by appellant was a serious one. The appellant singled out for insult the only black Traffic Officer present without any justification but merely because of the colour of his skin.


In justification of the sentence imposed by him the magistrate referred to a submission by the defence attorney, made during an application for bail pending the hearing of the appeal, to the effect that the sentence was “the heaviest for crimen iniuria he had ever come across”.
The magistrate then remarked as follows:
This could be so as far as he is concerned, but in our Court more heavier sentences for crimen iniuria have been passed and confirmed by the High Court.”

The magistrate unfortunately did not refer to any specific such case in support of this statement.


Neither Mr. Koekemoer nor Mr. Turner were able to refer us to any decision of the High Court in which an effective term of imprisonment was imposed or confirmed on review or appeal in a case of crimen iniuria of this nature. In this regard Mr. Turner stated that he had researched all records of unreported decisions as far back as 1998.
I too am unaware of any such matter and my own research in this regard has proved fruitless.
Both Mr. Koekemoer and Mr. Turner were agreed, correctly in my view, that an appropriate sentence in the circumstances would be one of a fine.

I have had regard to the type of sentence imposed in similar matters, such as S v Steenberg supra. In Steenberg’s case a sentence of R1 000,00 or 6 months imprisonment conditionally suspended for 5 years was confirmed on appeal but in my view, the facts of the present case warrant a heavier sentence.


Accordingly the appeal against conviction is dismissed. The appeal against sentence succeeds. The sentence imposed by the magistrate is set aside and substituted by the following sentence:

“R3 000,00 or 6 months imprisonment of which R1 500,00 or 3 months imprisonment is suspended for 5 years on condition the accused is not convicted of the offence of crimen iniuria committed during the period of suspension.”


_______________

J.D. PICKERING

JUDGE OF THE HIGH COURT


I agree,
_______________

B. SANDI

JUDGE OF THE HIGH COURT


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