S v Molapo (213/2006) [2006] ZAFSHC 90 (10 August 2006)

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[2006] ZAFSHC 90
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S v Molapo (213/2006) [2006] ZAFSHC 90 (10 August 2006)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Review No. : 213/2006
In
the case between:
THE
STATE
versus
SEFABATHO
JONATHAN MOLAPO
_____________________________________________________
CORAM:
RAMPAI,
J
et
C.J. MUSI, J
JUDGMENT:
C.J.
MUSI, J
DELIVERED ON:
10
AUGUST 2006
[1] This is a automatic
review in terms of section 302 read with section 304 of the Criminal
Procedure Act 51 of 1977 (the Act).
[2] The accused was
convicted by the magistrate Edenburg on 15 February 2006 of
contravening
section
17 (1) (a)
of the Domestic Violence Act 116 of 1998 (the DVA). He was sentenced
to 8 months imprisonment which was suspended for three years
on
certain conditions.
[3] The allegations in
the charge sheet were that the accused had on 4 February 2006 at
Edenburg wrongfully and intentionally contravened
a condition of a
protection order issued by the magistrate Edenburg on 30 November
2000 by swearing at the complainant, Loma Afrika
Molapa, by saying to
her “Nywana ya mmao” (jou ma se poes).
[4] The accused pleaded
guilty. The magistrate then proceeded to question him in terms of
section
112 (1)(b)
of the Act. The following was recorded in this regard:
“Ondervraging
in terme van Artikel 112 (1)(b) Wet 51/1977
(V): Verstaan u die aanklag teen u?
(A): Ja.
(V): Is daar op 30/11/2006 ‘n
interdik ingevolge Wet 116/98 teen u uitgereik deur die Landdros
Edenburg?
(A): Ja.
(V): Was die interdik ten gunste van
Loma Afrika Molapo en het dit u onder andere verbied om klaagster te
vloek?
(A): Ja.
(V): Vertel nou asseblief die hof wat
het op 04/02/2006 plaasgevind wat gelei het tot die aanklag teen u?
(A): Daar
het die dag probleme ontstaan omdat klaagster by ons woonhuis drank
verkoop het en sy weet sy mag nie. Die klaagster was
onder die
invloed van sterk drank. Sy het toe op my begin vloek toe ek kos by
haar gevra het. Sy het gesê as ek by ‘n inisiasie
skool was sou
ek geleer kook het. Ek het haar gekeer om nie so met my te praat
nie. Toe sê sy ek kan my moeder by die begrafplaas
gaan wakker maak
dat sy vir my kan kom kos kook. Ek het toe kwaad geword en die
klaagster toe gevloek en die woorde geuiter soos
vervat in die
klagtestaat.
(V): Het u enige reg gehad om
klaagster so te vloek?
(A): Nee,
maar dit was as gevolg van kwaad word.
(V): U weet deur klaagster te vloek
verbreek u die voorwaardes van die interdik verleen ingevolge Wet
116/1998.
(A): Ek het dit geweet.
Hof: Meneer, Molapo na aanleiding van
u pleit van skuldig en na ondervraging in terme van Artikel 112 (1)
(b) Wet 51/1977 is die hof
tevrede en oortuig dit was u bedoeling om
skuldig te pleit en ook dat u al die bewerings vervat in die aanklag
erken. Derhalwe vind
die hof u skuldig soos u gepleit het…”
[5] I requested the
magistrate to furnish reasons for the conviction and sentence. In a
terse reply, in relation to the conviction,
he states that:
“
Nadat die beskuldigde gepleit het
en die landdros hom ondervra het in terme van Artikel 112 (1)(b) Wet
51/1977 was die landdros tevrede
en oortuig dat die beskuldigde al
die bewerings vervat in die aanklag erken. Aldus die
skuldigbevinding.”
[6] I also requested the
Director of Public Prosecutions: Free State to furnish me with his
opinion. Mr Pretorius attached to that
office, supplied me with a
memorandum with which Mr Hiemstra SC (Deputy Director of Public
Prosecutions Free State) agreed. Mr Pretorius
is of the view that
the complainant’s actions amounts to mere provocation and that the
provocation establishes the accused’s
intention. He argues that
there is nothing that indicates that the provocation eliminated the
accused’s culpability. I do not
agree with this argument because
it misses the point completely.
[7] In terms of
section
17 (1)(a)
of the DVA, it is an offence not to comply with a prohibition,
condition, obligation or order imposed in terms of section 7
1
.
____________________________________________________
Section 17 (1)(a) of the
DVA reads as follows:
Notwithstanding the
provisions of any other law, any person who-
(a) contravenes any
prohibition, condition, obligation or order imposed in terms of
section 7;
(b) contravenes the
provisions of section 11 (2) (a)
(c) fails
to comply with any direction in terms of the provisions of section 11
(2)(b); or
It is clear from the
penal provision that contravening
section
17 (1)(a)
is indeed a very serious offence.
[8] In
casu it is common cause that the accused swore at the complainant.
The fact that he swore at her should however not be the
end of the
enquiry. The magistrate should inter alia, enquire whether the act
was committed unlawfully and intentionally.
[9] In our law three
interest of human personality are protected. These are the physical
integrity, the reputation
(fama)
and dignity. Violations of a person’s dignity are prosecuted as
_____________________________________________________
(d) In an affidavit
referred to section 8 (4)(a), wilfully makes a false statement in a
material respect,
is guilty of an offence
and liable on conviction in the case of an offence referred to in
paragraph (a) to a fine or imprisonment
for a period not exceeding
five years or to both such fine and such imprisonment, and in the
case of an offence contemplated in paragraph
(b), (c), or (d), to a
fine or imprisonment for a period not exceeding two years or to both
such fine and such imprisonment.
Section
7 reads as follows:
(1) The court may, by
means of a protection order referred to in section 5 or 6, prohibit
the respondent from
committing any act of
domestic violence;
enlisting the help of
another person to commit any such act;
entering a residence
shared by the complainant and the respondent: Provided that the
court may impose this prohibition only
if it appears to be in the
best interests of the complainant;
entering a specified
part of such a shared residence;
entering the
complainant’s residence;
entering the
complainant’s place of employment;
preventing the
complainant who ordinarily lives or lived in a shared
residence as contemplated
in subparagraph (c) from entering or remaining in the shared
residence or a specified part of the shared
residence; or
committing any other
act as specified in the protection order…”
crimen injuria.
Impairment of
fama
is prosecuted as defamation and violation of the interest in corpus
is prosecuted as assault.
2
The interest that the magistrate sought to protect with the
prohibition was clearly the complainant’s dignity. Dignitas is
broadly
speaking a person’s “self respect, mental tranquillity
and privacy.”
3
The transgression of the prohibition in the protection order should
not be seen in isolation. A protection order cannot deprive
an
accused person of a defence, that is good in law, against an
allegation or charge. In essence what the accused was prohibited
from doing was not to impair the complainant’s dignity thereby
committing the offence of crimen injuria. It must therefore be
proved that his conduct amounted to crimen injuria. In my view, if
the alledged transgression of a prohibition – in a protection
order
– is tantamount to an offence (statutory or common law) then all
the elements of that offence as well as the elements of
transgressing
section 17(1)(a) have to be proved beyond a reasonable doubt in order
to render a conviction of contravention of section
17(1)(a) of the
DVA tenable.
___________________________________________________
2. Milton JRC: South
African Criminal Law and Procedure 3
rd
Vol II page 492.
3. S v Jana
1981 (1) SA
671
(TPD) at 674 A – 675 A.
Put differently, if on
the same facts the accused would have a valid defence if charged with
a specific offence – other than contravening
section 17 (1)(a) of
the DVA – then that defence should also be valid if he/she is
charged with contravening section 17 (1)(a)
of the DVA. Therefore if
the accused would have a valid defence if he was charged with crimen
injuria that same defence should be
good in law if he is charged with
contravening section 17 (1)(a) of the DVA by impairing the
complainant’s dignity.
[10] Dignity is a
fundamental constitutional right. Everyone has a right to have their
dignity respected and protected
4
.
In
Dawood,
Shalabi and Thomas v Minister of Home Affairs
2000
(2) SA 936
(CC) at paragraph 35 O’Regan J puts it thus:
“
Human dignity is also a
constitutional value that is of central significance in the
limitations analysis. Section 10, however makes
it plain that
dignity is not only a value fundamental to our Constitution, it is a
justiciable and enforceable right that must be
respected and
protected.
______________________________________________________________
4. Section 10 of
the Constitution of the Republic of South Africa 1996 states that:
“
Everyone has inherent
dignity and the right to have their dignity respected and protected.”
In
many cases, however where the value of human dignity is
offended, the primary constitutional
breach occasioned may be
of a more specific right such as the right to bodily integrity, the
right to equality or the right not to
be subjected to slavery,
servitude or forced labour.”
5
In
S v
Makwanyane and Another
[1995] ZACC 3
;
1995 (3) SA 391
(CC) at at paragraph 146 Chaskalson P (as he then
was) held that the right to life and the right to dignity are the
most important
rights in chapter 3 of our constitution.
[11] Therefore in dealing
with domestic violence, and other matters, due regard must be given
to the fundamental rights of the complainant
as well as the accused.
In this matter the complainant in effect called her 37 year old
husband an uninitiated man. This is tantamount
to calling him a boy.
In many, if not all South African black cultures on initiation a boy
acquires the status of a man. Initiation
therefore confers a
socially approved status of adulthood on a boy.
__________________________________________________________________________
5. Footnotes omitted.
This status confers
certain rights and responsibilities on the man.
6
It has been held – albeit in another context – that it is
offensive to call a grown man a child.
7
When the accused admonished the complainant she continued with her
vituperative language, with reference to his deceased mother.
It is
clear, that the complainant uttered the words in order to impair the
accused’s dignity.
[12] If the magistrate’s
questioning of the accused was informed by these social context
realities he would have questioned the
accused with more insight and
awareness. The fact that the accused said that he swore at the
complainant because he was “kwaad”
should also, in my view, have
solicited more questions from the magistrate. The fact that he was
angry does not, without more, mean
that he had no lawful reason to
act in the manner that he did.
[13] If the right to
dignity is a justiciable and enforceable right that is worthy of
respect and protection then a person has the
right to act –
proportionally – in defence of that right.
_________________________________________________________________________
6. See TW Bennett:
A sourcebook of African Customary law for Southern Africa, Juta &
Co,
Ltd 1991 at page 174 -5; 342.
7. S v Mostert
2006
(1) SACR 560
(WPD) at 573 a – b.
In fact this principle
has long been recognised in our law.
In
R
v Van Vuuren and Another,
1961 (3) SA 305
(E) at
308 B – C Van der Riet
J said the following:
“
But
it seems to me that provided that the force
is
strictly commensurate with the requirements of restraint in the
prevailing circumstances, defence against injury should include
both
injury to the person and dignity, for injury to the latter may be
even more serious than the former and less easily remedied.”
I agree fully with this
view. The complainant was not kind and considerate, she was
insultative and demeaning. She used or rather
misused the protection
order as a convenient devise to inflict the very same pain that the
law protected her against. Physical wounds
heal but those inflicted
by words often last forever. In the midst of the attack on his
dignity the accused had, in my view, all
the right to defend it by
retorting in the manner that he did. In the context of this case it
is clear that the accused acted in
self defence. The magistrate
should have entered a plea of not guilty in terms of section 113 of
the Act.
[14] There is another
reason why this conviction should be set aside. It is not clear
whether the complainant’s dignity was indeed
impaired. In
S
v Jana
(supra)
at 675 A – B Human J correctly concluded that:
“
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.”
It is therefore
essential that the charge sheet should allege what effect the words
of the accused had upon the complainant. See
R
v J
1953 (3) SA 495
(EDLD) at 496 A. One cannot infer, in this matter,
that the effect of the words is implied by the words used if one has
regard to
the words used by the complainant. The accused did not
admit that his words impaired her dignity. The conviction ought to
be set
aside and the matter remitted to the magistrate so that he
should act in terms of section 113 of the Act.
[15]
In
the circumstances, I make the following order:
(a) The conviction
and sentence are set aside.
(b) The matter is
remitted to the magistrate to act in terms of section 113 of the Act
and proceed with
the trial.
________________
C.J. MUSI, J
I
concur.
________________
M. H. RAMPAI, J
ms