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12 S. Afr. J. Crim. Just. 238 (1999)
Specific Crimes

handle is hein.journals/soafcrimj12 and id is 252 raw text is: SACJ (1999) 12 SAS Specific crimes RONALD LOUW University of Natal, Durban Crimen Injuria In S v Steenberg 1999 (1) SACR 594 (N) the appellant had been convicted of crimen injuria for having called the complainant a 'kaffir'. The incident took place in the Eshowe police canteen where the appellant was drinking with members of the South African Police Services following a Farm Watch meeting. The appellant testified that the conversation had been about racially derogatory words and whether there was any equivalent description to degrade whites to the extent that the word 'kaffir' degraded blacks. Shortly thereafter the complainant, a black police constable, entered the canteen. The appellant turned to him and said to him, in Zulu, 'Good afternoon kaffir'. The complainant's immediate reaction was to turn around and, in the words of the appellant, 'storm out of the room'. Although the appellant raised the defence that he lacked the intention to impair the dignitas of the complainant, the court held that in the context of a discussion of derogatory terms the appellant had at least subjectively foreseen the possibility that the complainant would be insulted by the term, and regardless of that foresight proceeded to insult him. The more difficult question raised by the court was whether the conduct satisfied the requirement of unlawfulness. Hunt's test for unlawfulness is that the injuria should 'constitute a serious invasion of the dignity of the complainant' (see JRL Milton South African Criminal Law and Procedure vol II Common Law Crimes, 3 ed, (1996) 500). The test was, however, criticized in S v Bugwandeen 1987 (1) SA 787 (N) where the court held that it provided no yardstick to determine the degree of seriousness required. Such a test the court held was so nebulous that it would lead to 'arbitrariness in its application'. The court accepted, however, that trivial injuriae could be excluded on the basis of the de minimis defence. In determining the unlawfulness of the conduct, the Bugwandeen court held that it would have 'to some extent pass a value judgment in regard to the reprehensibility of the offending conduct, viewed in the light of the principles of morality and conduct generally accepted as the norm in society' (see Steenberg supra at 596e-f). The response in Milton (op cit 502) is that there is little difference in the two approaches. Nevertheless, the court in Steenberg accepted the 'value judgment approach'. In applying the test the court relied principally on the

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