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[2016] ZAWCHC 109
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Van Ieperen v S (A194/2016) [2016] ZAWCHC 109; 2017 (1) SACR 226 (WCC) (26 August 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
CASE
NO: A194/2016
DATE:
26 AUGUST 2016
In
the matter between:
HENRICUS
RENé VAN
IEPEREN
.........................................................................................
Appellant
And
THE
STATE
............................................................................................................................
Respondent
JUDGMENT:
26 AUGUST 2016
ALLIE,
J:
1.
The Appellant was charged in the District
Court, Malmesbury, with one count of contravening the provisions of
section 5(1), read
with
sections 1
,
56
(1),
56A
,
57
,
58
,
59
,
60
and
61
, of the
Criminal Law (Sexual Offences and Related Matters)
Amendment Act 32 of 2007
viz., sexual assault. He was
charged in the alternative, with common assault.
2.
On 21 July 2014 he pleaded not guilty to
both the main and the alternative counts and a trial ensued.
3.
On 8
September 2015 he was acquitted on
the main charge on the grounds that the facts accepted by the trial
Court did not disclose any
act complying with the definition of
sexual violation in section 1 of the Sexual Offences Act.
4.
He was acquitted on the alternative charge
of common assault, on the basis that the State had failed to prove
the necessary intent.
5.
The trial court relied on section 270 of
the Criminal Procedure Act 51 of 1977 (“the CPA”), to
convict the Appellant
and find him guilty of
crimen
injuria,
and sentenced him to a fine of
R2 000.00 or 3 months imprisonment.
6.
The appellant submitted that the trial
Court erred in the following respects:
6.1
finding that the State had proved its case
beyond reasonable doubt;
6.2
finding the Appellant guilty of
crimen
injuria
on the basis that, in terms of
section 270 of the CPA, the essential elements of the offence of
crimen injuria
were included in the original charge under Section 5(1) of the Sexual
Offences Act.
7.
Section 270 of the CPA provides as follows:
“
If
the evidence on a charge for any offence not referred to in the
preceding sections of this chapter does not prove the commission
of
the offence so charged, but proves the commission of an offence which
by reason of the essential elements of that offence is
included in
the offence so charged, the accused may be found guilty of the
offence so proved.”
8.
Section 270 is available to a court only
where the “offence so charged” is not one that is
mentioned in the preceding
sections of Chapter 26 of the CPA.
9.
The trial Court, having found that the
Appellant had uttered certain remarks of a sexual nature, and slapped
the buttocks of the
complainant, drew a connection between the
infringement of dignity that constitutes
crimen
iniuria
, and the inherent infringement
of dignity and/or privacy that accompanies the offence of sexual
assault under section 5(1) of the
Sexual Offences Act.
10.
The offence of contravening section 5 of
the Act is expressly referred to in section 261(2) of the CPA, which
is part of the same
Chapter 26 of the CPA that contains section 270.
11.
The alternative charge of common assault is
referred to in section 267 of Chapter 26 of the CPA. The section
provides that if the
evidence doesn’t prove common assault but
proves sexual assault or compelled sexual or self-sexual assault or
pointing a
firearm, air-gun or air-pistol, a conviction may follow on
those competent verdicts.
Crimen injuria
is not listed as a competent verdict
for common assault.
12.
The court could however apply the
provisions of section 270 of the CPA, to rely on the common law
offence of
crimen injuria
,
if the state had given the appellant notice of its intention to rely
on
crimen injuria
,
by applying to have the charge sheet amended to include a reference
to the allegation that the verbal utterances of the appellant
impaired the dignity of the complainant.
13.
Section 270 is applicable to “
an
offence so charged
“ but since
crimen injuria
was
not an offence raised in the charge sheet, the section can’t be
relied on.
14.
Only two competent verdicts are allowed by
section 261(2) of the CPA on a charge of contravening section 5 of
the Sexual Offences
Act. These are: common assault and having
committed an act of consensual sexual violation with a child.
Crimen
iniuria
is not, therefore, a
statutorily provided competent verdict under s 261(2) of the CPA.
15.
The court
a
quo
found that one of the essential
elements of the offence of assault viz., intent had not been proved.
16.
I am not convinced that, having found that
appellant slapped the buttocks or upper leg of the complainant after
expressing an intention
to do so, the court
a
quo’s
finding that intent was
absent, is correct. The defence throughout the presentation of the
State’s case was a denial that
the appellant touched the
complainant on her buttocks at all.
17.
The appellant raised the defence of having
lightly touched her on her back for the first time when he testified.
18.
During cross examination, the appellant
conceded that he touched the complainant on her thigh.
19.
The defence raised the following
hypothetical scenario: “
I want to
put the hypothesis to you. This is not the accused’s version
and it is not my instructions. The hypothesis is the
following: If I
walk behind you…. And I touch you on your buttock and tell you
get a move on I am in a hurry here. And I
realise listen, this is a
bit too low and I say sorry, I did not mean to do that. Would that
have been acceptable to you?
” The
complainant answered as follows: “
Okay.
If he apologised for touching me in the wrong place, it would have
been fine if he apologised. He --- But you don’t
hurry someone
up on their buttocks. You wouldn’t do that to someone you don’t
know. Maybe a child if it is your child
but you don’t do that
to a-a stranger
.”
20.
During his evidence in chief, the
appellant, for the first time revealed that he lightly touched the
complainant’s back to
hurry her on. This allegation wasn’t
put to the complainant during cross examination. The defence counsel
simply questioned
the complainant on what would be considered to be
appropriate and acceptable touching. At the end of the cross
examination of the
complainant, the prosecutor raised the fact that
the defence counsel didn’t put the appellant’s version of
how he would
have hurried her. The defence didn’t avail itself
of the opportunity to do so at that stage.
21.
The appellant admitted that he touched the
complainant in the manner that she described but he alleged that he
didn’t have
the intention to sexually assault her.
22.
The appellant couldn’t provide a
reasonable explanation for why he thought it was necessary to touch
the complainant to hurry
her on when she was already in the doorway
in the process of exiting the courtroom.
23.
Despite the complainant feeling humiliated
and undermined, she was prepared to accept an apology from the
appellant at court after
Mr Swarts, the regional court prosecutor
informed the appellant of the complainant’s allegation against
him. The appellant
chose to dismiss the allegation as nonsense. In so
doing, he demonstrated a callous disregard for the complainant’s
feeling
of impaired dignity.
24.
In my view, intent was clearly
established. The trial Court entirely dismissed the alternative
charge from consideration with
the following words: “
die
hof gaan nie verder daarop uitbrei nie”
.
25.
The court
a
quo
, failed to apply the law relating
to common assault correctly. The State could therefore have appealed
against the acquittal on
common assault on a question of law. The
State however elected not to appeal the acquittal on common assault
and the conviction
on
crimen injuria
under
section 310(1)
of the
Criminal Procedure Act. In
S v Zoko
1983(1) SA 871 (N) at 875 C
the court held that the magistrate’s decision that his factual
finding supports a conviction of a crime that the accused
was not
charged with, is a decision on a question of law. This court is
therefore, not in a position to interfere with the court
a
quo’s
finding that the State
failed to prove the necessary intent required to establish that the
appellant assaulted the complainant.
26.
Appellant’s counsel argued that if
the court
a quo
couldn’t
find intent to assault, it could also not have found intent to commit
crimen injuria
.
I disagree for the following reasons.
27.
The intent to commit
crimen
injuria
in this case, clearly relates
to the verbal utterances of the appellant, whereas the assault
relates to slapping the buttocks of
the complainant.
28.
The trial Court relied upon the verbal
utterances that the appellant allegedly made to the complainant,
namely that he wanted “to
smack her bum”; that “she
wore sexy shoes” and “she needs a man.” The court
a
quo
relied on those words to conclude
that the appellant harmed the dignity and reputation of the
complainant.
29.
Crimen
injuria
is
a crime under South African common law, defined as the act of
"
unlawfully,
intentionally and seriously
violating
of the dignity or privacy of another
.“
[1]
What is protected by the crime is dignitas, all the rights of
personality other than reputation and bodily integrity
30.
There are no reported
cases where sexist utterances have been found to amount to
crimen
injuria
.
It is a serious oversight on the part of the State that it failed to
charge the appellant with
crimen
injuria
nor did it refer to the verbal utterances that the complainant
alleged the appellant had made to her and which were clearly a source
of grave injury and offense to her.
31.
In
section 1 of the Constitution,
human
dignity is expressed as a foundational value of our democratic state
and section 10 of the Constitution provides:
‘
Everyone
has inherent dignity and the right to have their dignity respected
and protected
.’
32.
The
State bears the onus of alleging and proving, both objectively and
subjectively, in which respects the words uttered impaired
the
dignity of the complainant. In
S
v Jana
[2]
the court said: “
Crimen
injuria is concerned generally with impairments of dignitas and not
with impairments purely of fama or bodily security.
The
concepts of self-respect, mental tranquillity and privacy are judged
both objectively and subjectively in that it depends upon
the
particular person and the circumstances whether it can be said that
his dignitas has in fact been impaired.”
33.
The complainant testified about how shocked
she was that the appellant spoke to her in that way because she is an
attorney of 11
years standing, the manager of the Legal Aid Board’s
Judicare offices in Malmesbury, Atlantis and Vredenburg and,
therefore,
a professional person, who was engaged in rendering
professional services to her clients at the time when those words
were uttered.
The complainant considers herself to be on an equal
footing with the appellant. She had difficulty understanding why the
appellant
humiliated her and attempted to diminish her standing.
34.
In my view, the offending words
collectively, used in the context where both the appellant and the
complainant are attorneys present
in a court room where other
colleagues and members of the public were present, had the effect of
humiliating and belittling the
complainant.
35.
The State’s case is, however,
hamstrung by a substantive irregularity, namely, the absence of an
allegation in the charge
sheet that the complainant’s dignity
was impaired by certain verbal utterances of the appellant and by the
alleged slap on
the complainant’s buttocks.
36.
The State has an obligation to set out the
facta probanda
that it intends to rely on to prove the existence of the
essential elements of the offence because the accused is entitled
to
know the nature of the charges and what alleged misconduct the state
intends relying on to prove its case.
37.
Section 84 of the CPA provides as
follows:
“
84
Essentials of charge
(1) Subject to
the provisions of this Act and of any other law relating to any
particular offence, a charge shall set forth the
relevant offence in
such manner and with such particulars as to the time and place at
which the offence is alleged to have been
committed and the person,
if any, against whom and the property, if any, in respect of which
the offence is alleged to have been
committed, as may be reasonably
sufficient to inform the accused of the nature of the charge.
(2) Where any of
the particulars referred to in subsection (1) are unknown to the
prosecutor it shall be sufficient to state that
fact in the charge.
(3)
In criminal proceedings the description of any statutory offence in
the words of the law creating the offence, or in similar
words, shall
be sufficient.”
38.
In
S
v Mashinini
[3]
the Supreme Court of Appeal repeated the warning that it made in
Legoa
[4]
and
Makatu
[5]
that a charge sheet should
be drawn up with great care to ensure that the correct and essential
averments are embodied in it.
39.
Concerning
the need to set out in the charge sheet, the facts necessary for the
accused to prepare his/her defence without him/her
suffering
prejudice in trial preparation, the court in Mashinini held as
follows at paras 11 & 12:
“
[
11]
To my mind, the solution to this legal question lies in s 35(3) of
the Constitution. Section 35(3)(a) of the Constitution provides
that
every accused person has a right to a fair trial which, inter alia,
includes the right to be informed of the charge with sufficient
detail to answer it. This section appears to me to be central to the
notion of a fair trial. It requires in clear terms that, before
a
trial can start, every accused person must be fully and clearly
informed of the specific charge(s) which he or she faces. Evidently,
this would also include all competent verdicts. The clear objective
is to ensure that the charge(s) is sufficiently detailed and
clear to
an extent where an accused person is able to respond and importantly
to defend himself or herself. In my view, this is
intended to avoid
trials by ambush.
[12]
In S v Legoa,
Cameron
JA stated with regard to the constitutional right to a fair trial:
'Under
the common law it was therefore "desirable" that the
charge-sheet should set out the facts the State intended to
prove in
order to bring the accused within an enhanced sentencing
jurisdiction. It was not, however, essential. The Constitutional
Court has emphasised that under the new constitutional dispensation,
the criterion for a just criminal trial is "a concept
of
substantive fairness which is not to be equated with what might have
passed muster in our criminal courts before the Constitution
of the
Republic of South Africa Act 108 of 1996 came into force". The
Bill of Rights specifies that every accused has a right
to a fair
trial. This right, the Constitutional Court has said, is broader than
the specific rights set out in the sub-sections
of the Bill of
Rights' criminal trial provision. One of those specific rights is "to
be informed of the charge with sufficient
detail to answer it".
What the ability to "answer" a charge encompasses this case
does not require us to determine.
But under the constitutional
dispensation it can certainly be no less desirable than under the
common law that the facts the State
intends to prove to increase
sentencing jurisdiction under the 1997 statute should be clearly set
out in the charge-sheet.
The
matter is, however, one of substance and not form, and I would be
reluctant to lay down a general rule that the charge must
in every
case recite either the specific form of the scheduled offence with
which the accused is charged, or the facts the State
intends to prove
to establish it’.”
40.
The
purpose of setting out the essential elements of an offence and the
alleged misconduct of the accused that brings it within
the ambit of
the offence, is to safeguard an accused person’s fair trial
rights. The accused person must be armed with sufficient
information
to make a decision concerning the conduct of his/her defence.
41.
An
accused person cannot be expected to infer, without an express
allegation of that nature, that his/her conduct caused harm/prejudice
to the complainant.
[6]
42.
The
state led the evidence of the appellant concerning how she felt after
the incident to lend support for its contention that the
complainant
was unlawfully assaulted. The complainant’s testimony about how
she felt provides support for the impairment
of dignity she suffered.
Although the state can supplement the allegations in the charge sheet
with evidence led at the trial,
it cannot create a new offence by
virtue of such evidence.
43.
Turning
to the offensive nature of the appellant’s conduct, it is
incumbent upon attorneys and legal practitioners generally,
to
develop a consciousness about Constitutional rights and obligations
which they ought to apply in the course of practising their
profession. It is necessary for legal practitioners to be alert to
the imperative of upholding the dignity of others and to refrain
from
humiliating a colleague with sexist and undermining innuendos.
44.
The
appellant, in denying that he was guilty of a sexual offence, said
the following: “
Inteendeel
ek het in my lewe nog nooit iemand anders as ‘n witvrou
uitgeneem as dit, as ek iemand wou uitneem nie
.”
The appellant appears to be labouring under the misapprehension that
sexual offences are committed by a man who takes a
fancy to a woman.
Sexual innuendos and gratuitous sexually offensive misconduct rarely
arise from flirtation. They are made with
a view to treating a person
condescendingly and patronisingly.
Glick,
Fiske et al
describe
benevolent sexism as “
subjective
positive attitudes that put women on a pedestal but reinforce their
subordination
,”
while “
hostile
sexism ascribes negative traits to women
”
[7]
45.
The
Registrar ought to ensure that a copy of the record and judgment be
sent to the Law Society of the Cape for consideration of
appropriate
measures to address the appellant’s apparent misunderstanding
of how sexism impacts upon the recipient of such
treatment. It is
important that the appellant appreciates that there is a need for him
to bring his conduct in line with what is
acceptable behaviour.
46.
Turning to the conviction on
crimen
injuria
, I am of the view that the
conviction and its accompanying sentence, should be set aside.
R.
ALLIE
BINNS-WARD
J:
46.
I agree that the appeal should be upheld
and the conviction and sentence set aside.
47.
The magistrate’s reliance on section
270 of the CPA to bring in a conviction of crimen injuria as a form
of competent verdict
was fundamentally misdirected. According
to its tenor, section 270 can apply only if the charge put to the
accused person
is not in respect of an offence referred to in the
preceding sections of Chapter 26 of the Act. The main charge of
‘sexual
assault’ put to the appellant is referred to in
section 261(2), and the alternative charge of common assault in
section 267.
Both of those sections are in Chapter 26.
The magistrate was therefore not empowered to invoke section 270.
On that
ground alone the conviction cannot be sustained.
48.
In view of the narrow legal basis upon
which the appeal must be upheld I have not found it necessary to
consider or analyse the
evidence adduced at the trial or the factual
findings of the trial court. I, however, agree with my learned
Colleague that
allegations of the nature raised in this matter have
implications bearing on the integrity and reputation of the
attorneys’
profession and that therefore, if it has not already
been done, the matter should be independently investigated by the Law
Society.
I think it appropriate in the circumstances not to
express any view on the merits of the case so as not to influence the
findings
in any such investigation.
ORDER
The
appeal is upheld and the conviction and sentence are set aside.
2.
The Registrar is directed to send a copy of
this judgment, together with a copy of the record on appeal, to the
Director of the
Cape Law Society.
R.
ALLIE
A.G.
BINNS-WARD
[1]
Criminal
Law by Snyman 6th ed at 461
[2]
1981
(1) SA 671
(T) at 675 A –B
[3]
2012
(1) SACR 604
(SCA)
at 614 b-c
[4]
[2002]
4 All SA 373 (SCA)
[5]
2006(2)
SACR 582 (SCA)
[6]
Essop
v S [2014] ZAKZPHC 45
[7]
Beyond
Prejudice as Simple Antipathy: Hostile & Benevolent Sexism
Across Cultures by Glick, Fiske,et al-Journal of Personality
and
Social Psychology 2000 Vol 79 No, 5 763- 775