About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

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
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

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.

Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Contact us for annual subscription options:

Already a HeinOnline Subscriber?

profiles profiles most