Summary of Judgment

1. Introduction

These proceedings concerned a criminal appeal against conviction in the High Court of South Africa (North and South Gauteng High Court, Pretoria). The appellant, Solly Matsobane Aphane, appealed (with leave from the magistrates’ court) against his conviction for crimen injuria. The respondent was the State.

The procedural history was that the appellant was convicted on 13 October 2006 in the Middelburg magistrates’ court and sentenced on 10 November 2006 to a fine of R1000 or two months’ imprisonment, with half of the sentence suspended for three years on condition that he was not again convicted of crimen injuria during the period of suspension. The appeal before the High Court was directed only at the conviction (and, consequentially, the sentence).

The general subject-matter of the dispute was whether two statements allegedly made by the appellant to a female colleague over the telephone at their workplace constituted crimen injuria, and in particular whether the State proved the elements of the offence given the complainant’s evidence about her understanding of the statements.

2. Material Facts

The appellant and the complainant, Ms Z J Beukman, were both employed at the Middelburg police station. The complainant worked as a clerk in the general office of the commercial branch of the South African Police Service, while the appellant was an inspector in the commercial branch. The complainant was friendly with Sergeant Lombard, and Superintendent Smit was the commanding officer. The interactions giving rise to the charge occurred in the course of workplace communications relating to contacting a superintendent.

On 3 May 2005, the appellant telephoned the complainant and asked her to get Superintendent Nkosi on Nkosi’s cell phone, which the appellant was obliged to do in terms of rules applicable at the police station. The complainant could not reach Nkosi and telephoned the appellant to report this. During that second call, the appellant said: “I want to take you home for the night.” The complainant immediately responded “Are you mad?” and ended the call. The complainant testified that the statement shocked, insulted, and humiliated her.

The next day, the appellant again telephoned the complainant to ask her to contact Superintendent Nkosi. During this conversation, the appellant asked: “Did you thought about my proposal yesterday?” The complainant responded “Do you want to be assaulted” and ended the call. She testified that she was again upset by this conversation.

It was not suggested to the complainant that she had done anything to entice the appellant or arouse his interest. On her version, the statements “came out of the blue.” It was common cause in the evidence as accepted by the court that the complainant and the appellant were not and had never been in a relationship.

A key aspect of the complainant’s evidence, elicited when the magistrates’ court questioned her, was that she did not know what the words meant and did not understand them as having a sexual connotation. She testified that she did not know what the appellant wanted and did not interpret the statements as a suggestion of sexual intercourse; she simply regarded being asked in that manner as insulting.

There were disputes raised at trial (and argued on appeal) about whether the statements were made at all, and whether the State witnesses had fabricated the complaint. The High Court recorded that during cross-examination it had been put to State witnesses that the complaint was a fabrication and the product of a conspiracy against the appellant. The High Court was not persuaded that this allegation had substance. The High Court further considered contradictions between evidence and prior statements, and concluded that there were no material contradictions undermining credibility on the central issue.

The appellant closed his case without giving evidence.

3. Legal Issues

The appeal required determination of two central questions, one primarily factual and the other involving the application of legal elements to the facts.

First, the court had to decide a factual question: whether the magistrates’ court had erred in finding that the appellant in fact made the two statements attributed to him.

Second, if the statements were made, the court had to determine whether those statements satisfied the elements of crimen injuria, including whether they amounted to a serious and unlawful impairment of dignity under both the subjective test (the complainant’s awareness of the offending meaning and her experience of humiliation) and the objective test (whether the conduct would offend the feelings of a reasonable person).

This was therefore a dispute involving fact (whether the statements were uttered) and the application of law to fact (whether the statements, on the accepted evidence including the complainant’s understanding, constituted crimen injuria).

4. Court’s Reasoning

On the factual dispute about whether the statements were made, the High Court addressed the defence contention that the evidence should be rejected due to contradictions and alleged conspiracy. The court treated the suggestion of a fabricated complaint and conspiracy—especially against police officers—as a serious allegation requiring support in the evidence. It noted that the appellant’s written argument did not identify supporting evidence, and that, on the record, the court was not persuaded that the allegation had substance. The witnesses denied conspiring, their statements were made independently on different dates, and the variations were seen as reflecting what each person regarded as important and limitations in memory rather than sinister collusion.

The court then applied the principle that contradictions do not automatically warrant rejection of evidence and that departures from police statements do not necessarily affect credibility. The court emphasised that contradictions must be considered in the context of all the evidence, and that the ultimate enquiry is whether the truth has been told. On this basis, the court held that there were no material contradictions affecting the witnesses’ credibility on the central issue. In particular, the complainant did not contradict herself about what was said, and her version about what the appellant said was corroborated by Sergeant Lombard and Superintendent Smit. The court therefore accepted that the appellant did say what the charge alleged.

Turning to whether those statements constituted crimen injuria, the court set out the definition and the protected interest. It treated crimen injuria as requiring an unlawful, intentional, and serious violation of another’s dignity or privacy, and identified that the crime protects dignitas (rights of personality other than reputation and bodily integrity). The court explained that determining impairment of dignity involves both a subjective and an objective component.

The subjective test, as articulated in the authorities cited, requires that the victim must be aware of the offending behaviour and feel degraded or humiliated by it. The objective test requires that the conduct must be of such a nature that it would offend the feelings of a reasonable person, and that the law does not presume commission of the crime merely because a complainant is hypersensitive. The court accepted that crimen injuria can be committed by a suggestion or invitation of sexual immorality or impropriety, but also noted that whether such a suggestion has been made is a question of fact.

Applying these principles, the court concluded that the evidence did not satisfy either test on the facts as found. Objectively, the statements were described as, at face value, innocuous and not explicitly referring to sexual activity. The court reasoned that if the complainant was offended by the statements alone, without more, that reaction would be unreasonable for purposes of the objective test.

Crucially, the court found the subjective requirement unmet because the complainant clearly did not understand what the appellant was saying in the allegedly offensive sense. On her evidence, she was not aware that the statements were offensive because she did not perceive them as suggesting sexual activity with the appellant. The court therefore held that the elements of crimen injuria were not proved, and that the conviction was wrong.

5. Outcome and Relief

The High Court upheld the appeal. It set aside both the conviction and the sentence for crimen injuria imposed by the Middelburg magistrates’ court.

No separate order as to costs was recorded in the judgment.

Cases Cited

The judgment referenced the following cases, in the citations appearing in the text: R v Umfaan 1908 TS 62; R v van Tonder 1932 TPD 90; S v A 1964 (3) SA 319 (T); S v A 1993 (1) SACR 600 (A); S v Olakawu 1958 (2) SA 357 (C); S v K 1975 (3) SA 446 (N); S v Mkohle 1990 (1) SACR 95 (A); S v Bruiners en (’n ander) 1998 (2) SACR 432 (SEC); S v Mafaladiso en andere 2003 (1) SACR 583 (SCA).

Legislation Cited

Criminal Procedure Act 51 of 1977, section 174.

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that, although the evidence justified the factual finding that the appellant made the two statements attributed to him, the State failed to prove that the conduct constituted crimen injuria because the evidence did not satisfy the subjective and objective requirements for impairment of dignity. In particular, the complainant’s evidence showed she did not understand the statements as conveying an offensive sexual meaning, with the result that the necessary subjective awareness of the offensive import was absent. The appeal was upheld and the conviction and sentence were set aside.

LEGAL PRINCIPLES

Crimen injuria consists of the unlawful, intentional, and serious violation of another person’s dignity (dignitas) or privacy, with dignitas understood as encompassing personality rights other than reputation and bodily integrity.

Whether dignity has been impaired requires both a subjective and an objective assessment. Subjectively, the complainant must be aware of the offending behaviour and must in fact feel degraded or humiliated by it. Objectively, the conduct must be such that it would offend the feelings of a reasonable person, and the law does not infer the commission of the offence merely because a complainant is hypersensitive.

Contradictions in evidence, including differences between viva voce testimony and prior police statements, do not automatically justify rejection of a witness’s evidence. Contradictions must be evaluated in the context of all the evidence, and the ultimate question remains whether the truth has been told.

A suggestion or invitation of sexual impropriety can found a charge of crimen injuria; however, whether such a suggestion was made is a factual question, and the offence still requires proof of the subjective and objective components on the evidence.