FORM A

FILING SHEET FOR EASTERN CAPE JUDGMENT

Judgment

MIETA RYAN
vs
RODWIN PETRUS

CASE NUMBER: CA165/08
DATE ARGUED:  19 March 2009

DATE DELIVERED: 27 March 2009

JUDGE(S): Pickering J, Dambuza J

LEGAL REPRESENTATIVES: 
Appearances:
for the State/Applicant(s)/Appellant(s): Mr. Nolte 
for the Accused/Respondent(s): No appearance

Instructing attorneys:
Applicant(s)/Appellant(s): Nolte Smit Attorneys, Grahamstown
Respondent(s): Du Preez Potgieter and Trichardt, Somerset East
CASE INFORMATION: 
2.	Nature of proceedings	:

3.	Topic:

4.	Keywords:

								REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE, GRAHAMSTOWN)

							CASE NO: CA 165/2008

In the matter between

MIETA M RYAN					Appellant

VS

RODWIN PETRUS					Respondent

JUDGMENT

PICKERING J:

Mrs. Mieta Ryan is, by her own account, a God-fearing widow who lives her life according to the tenets of the Christian faith; who attends church regularly; who is the news correspondent for the local Catholic Womens’ League; and who considers herself as being almost indispensable to her congregation.  

Despite this she holds the strong belief that, as a widow, the biblical injunction against adultery, expressed in the Seventh Commandment (Exodus 20:14), is of no application to her.  No doubt fortified by her idiosyncratic view of what constitutes adultery she embarked on an adulterous affair with one Vernon Petrus.  

On 24 December 2005 she was in the company of Vernon Petrus when the latter’s son, Rodwin, arrived, looking for his father.  An unedifying argument ensued in the course of which, according to Mrs. Ryan, Rodwin uttered the following words:

“Jou teef.  Jy is ‘n naaier.  Jy naai saam met my pa en jy en my pa maak van my ma ‘n poes.  Jou kaffir, jy is ‘n hoer.”

 Aggrieved thereby Mrs. Ryan instituted action against Rodwin Petrus in the magistrate’s court, Somerset-East, in which she claimed damages in the sum of R20 000,00.  Her cause of action, as set out in the particulars of claim, was something of a hybrid between defamation and iniuria.  The defendant in his plea denied having uttered the alleged words.  The matter proceeded to trial.  It is relevant that it was never the defendant’s case that he used the words complained of in circumstances where the intention to injure was negatived by provocation.  It appears from the magistrate’s judgment that he considered the plaintiff’s action to be one based on defamation.  He found that the words were uttered by defendant without any justification but that they had not lowered the plaintiff in the estimation of those who had heard them because it was well known that plaintiff was indeed involved in an adulterous affair with defendant’s father.  He accordingly declined to award plaintiff any amount as compensation but ordered defendant to pay plaintiff’s costs of suit.

Plaintiff has now appealed against this order.  There was no appearance on appeal for defendant.  For the sake of convenience I shall hereinafter continue to refer to the appellant and respondent as “plaintiff” and “defendant” respectively.  

It seems to me, having regard to the manner in which the particulars of claim were framed and the nature of the evidence that was led, that plaintiff’s cause of action would be more properly characterised as being one for damages for iniuria.  I shall accordingly treat it as such.  Plaintiff testified that she had been deeply hurt and humiliated by the insults hurled at her.  She stated that the fact that she was involved in an adulterous affair did not give defendant licence to speak to her in such a manner.  Her dignity, she said, had been impaired.  

In Sokhulu v New Africa Publications Ltd t/a “The Sowetan Sunday World” and Others [2002] 1 All SA 255 (W) Goldstein J stated as follows at 259c – d:

“The right to an unimpaired dignity is protected by the actio iniuriarum.  Such can be invoked when a person is subjected to offensive and degrading treatment or is exposed to ill-will, ridicule, disesteem or contempt (Minister of Police v Mbilini 1983 (3) SA 705 (A) at 715G – 716A).  In Brenner v Botha 1956 (3) SA 257 (T) Boshoff AJ (as he then was) said at 261 in fin – 262:
‘In cases of verbal injury, otherwise than in cases of defamation, the words complained of must impair plaintiff’s dignity and must be insulting in the sense that they must amount to degrading, humiliating or ignominious treatment.’ 
There cannot be an impairment of dignitas without unlawfulness and the question whether this requirement is satisfied or not is an objective one answered by having regard to the prevailing norms of society (De Lange v Costa 1999 (2) SA 857 (A) at 862 B – G).”

I shall consider the issue of the alleged impairment of plaintiff’s dignity below.  It is necessary first, however, to have regard to the importance placed by the Courts upon every person’s right to dignity and then to consider the words uttered by defendant against the backdrop of those decisions.

In Minister of Police v Mbilini 1983 (3) SA 705 (A) the following was stated at 715G-716A:

“It is trite law that one of the rights which is protected by the actio injuriarum is the right to an unimpaired dignity.  Dignity was defined by Melius de Villiers in 1899 in his well-known work The Roman and Roman-Dutch Law of Injuries at 24 as – 
‘that valued and serene condition in his social or individual life which is violated when he is, either publicly or privately, subjected by another to offensive and degrading treatment, or when he is exposed to ill-will, ridicule, disesteem or contempt.’
	Further on at 24 and at 25 the following is stated:
‘Every person has an inborn right to the tranquil enjoyment of his peace of mind, secure against aggression upon his person, against the impairment of that character for moral and social worth to which he may rightly lay claim and of that respect and esteem of his fellow-men of which he is deserving, and against degrading and humiliating treatment; and there is a corresponding obligation incumbent on all others to refrain from assailing that to which he has such right.’
These passages have repeatedly been approved by the courts of this country as an accurate statement of the law in regard to the concept of injuria.  See eg R v Umfaan 1908 TS 62 at 66 and 67; Walker v Van Wezel 1940 WLD 66; S v A and Another 1971 (2) SA 293 (T) at 297.”

In Dawood and Another v Minister of Home Affairs and Others; Shalabi and Another v Minister of Home Affairs and Others; Thomas and Another v Minister of Home Affairs and Others 2000 (3) SA 936 (CC) the following was stated in paragraph 35:

“The value of dignity in our Constitutional framework cannot therefore be doubted.  The Constitution asserts dignity to contradict our past in which human dignity for black South Africans was routinely and cruelly denied.  It asserts it too to inform the future, to invest in our democracy respect for the intrinsic worth of all human beings.  Human dignity therefore informs constitutional adjudication and interpretation at a range of levels.  It is a value that informs the interpretation of many, possibly all, other rights….Human dignity is also a constitutional value that is of central significance in the limitation 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.”

See too NM and Others v Smith and Others (Freedom of Expression Institute as Amicus Curiae) 2007 (5) SA 250 (CC) at para 48 – 51.

In Dendy v University of Witwatersrand and Others 2007 (5) SA 382 (SCA) Farlam JA stated as follows at 387J – 388B:

“Although as pointed out by the Constitutional Court (in National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others 1999 (1) SA 6 (CC) 1998 (2) SACR 556; 1998 (12) BCLR 1517) in para [28]) – ‘(d)ignity is a difficult concept to capture in precise terms’ – it is clear, as was pointed out by the Court a quo (in para [14] of its judgment) that ‘(f)or present purposes …there is little difference between the right to dignity as it is comprehended under the Constitution and its Common Law counterpart.’
That is because what the appellant is claiming is an award of damages to assuage his wounded feelings arising from the insult and humiliation he suffered…”

I turn then to consider the words uttered by defendant.  It will be convenient to commence with the use of the highly offensive word “kaffir”.

As far back as 1976 James JP in Ciliza v Minister of Police and Another 1976 (4) SA 243 (N), after having referred to various dictionary definitions of the word, stated at 247H:

“It follows that in my opinion one of the recognised meanings which the word ‘Kaffir’ now bears in South Africa is that such a person is uncivilised, uncouth and coarse and that if one calls a person a ‘Kaffir’ this will in certain circumstances constitute an iniuria.”

In that matter a white policeman had used the word in addressing the plaintiff, who was a black man.  Plaintiff was awarded the sum of R150,00 as damages.  

In Mbatha v Van Staden 1982 (2) SA 260 (N) the plaintiff, a black man, sued the defendant, a white man, for iniuria after the defendant had repeatedly called him a “kaffir” and assaulted him.  At 262 H – 263A Didcott J stated as follows:

“The tirade’s worst feature was the use of the epithet ‘kaffer’.  Such alone can amount today to an actionable wrong, according to the decision of the Full Bench here in Ciliza v Minister of Police and Another 1976 (4) SA 243 (N).  Everything depends, of course, on the context in which the word is uttered.  Settings which make it innocuous can no doubt be imagined.  Ordinarily, however, that is not the case when, in South Africa nowadays, a Black man or woman is called a ‘kaffer’ by somebody of another race.  Then, as a rule, the term is a derogatory and contemptuous one.  With much the same ring as the word ‘nigger’ in the United States, it disparages the Black race and the person concerned as a member of that race.  It is deeply offensive to blacks.  Just about everyone knows that by now.  The intention to offend can therefore be taken for granted, on most occasions at any rate.”

The plaintiff was awarded the sum of R2 000,00 as damages.

In S v Puluza 1983 (2) P.H. H150 (E) van Rensburg J (with whom Jennett AJ concurred) referred with approval to the Ciliza and Mbatha cases, supra and added:

“(W)hen a black man is called a ‘kaffir’ by somebody of another race, as a rule the term is one which is disparaging, derogatory and contemptuous and causes humiliation.”

See too: S v Steenberg 1999 (1) SACR 594 (N).

In the present case neither party is a black African.  It may well be that if the word is uttered pejoratively by a white person to a black person the amount of damages which would be awarded to compensate the latter for the affront would be greater than when the recipient of the insult was not a black African, because of the racial overtones involved.  It is, however, not necessary to determine this issue.  In the present case it is abundantly clear from the context in which the word was used that defendant intended to give offence and used the word in its injurious sense of uncivilised, uncouth and coarse.  As was stated in Ciliza’s case, supra at 248H such a use of the word constitutes an unlawful aggression upon appellant’s dignity.

The use of the word “hoer” or “whore” also clearly constitutes an unlawful aggression upon appellant’s dignity.  “Whore” is defined in the Concise Oxford English Dictionary as meaning “prostitute” and “prostitute” is defined in turn as meaning “a person, typically a woman, who engages in sexual activity for payment”.  In my view, to call any woman, who is not a prostitute, a whore, regardless of whether or not that woman is conducting an adulterous affair, is, absent any innocuous context, to degrade and humiliate her.

The use of the word “teef” or “bitch” was, in my view, similarly injurious in the context in which it was used by defendant.

In Brenner v Botha supra, at 262 A Boshoff AJ stated that although “the word ‘bitch’ might be meaningless as affecting the reputation of the person to whom it is applied, the words “bloody bitch” used in the context complained of by the plaintiff was (sic) certainly offensive and intended to humiliate the plaintiff.”

In S v S 1964 (3) SA 319 (T) Marais J dealt with a contention that the word “bitch” was meaningless abuse to which no insulting connotation could be ascribed.  He rejected the proposition as being untenable, stating at 322 E – F that:

“In the case of crimen injuria, otherwise than in the case of defamation, we are more concerned with the emotional values of words than with their intellectual connotations; the dubious or inadequate nature of the latter rarely affects the impact of the former.”

I interpose here to state that although S v S supra was a matter in which the appellant had been convicted of crimen injuria it is clear that the elements of injuria are the same “whether it be punished civilly or criminally” (Walker v Van Wezel 1940 WLD 66 at 69; R v Walton 1958 (3) SA 693 (SR) at 695 B) although every insult to dignity which is serious enough to found a civil action will not necessarily be serious enough to warrant criminal prosecution.  (R v Walton, supra, at 695 G – H).

In S v Sharp 2002 (1) SACR 360 (CkHC) the accused had called a policewoman a “bitch” in front of her colleagues and was convicted of crimen injuria.  In finding that the dignity of the complainant had not been impaired Ebrahim J, with whom Peko J concurred, stated at 372 e – g:

“By the very nature of her work as an inspector in the SA Police Services it is more than likely that she had been exposed to situations previously where individuals had used rude or abusive language in her presence and probably even directed it at her.  Such language, I dare say, may even have made a sailor blush.  One of the meanings in The Concise Oxford Dictionary (10th ed, 1999) ascribed to the word ‘bitch’ is that it refers to ‘a woman who one dislikes or considers to be malicious or unpleasant.’  Further, the word ‘bitch’ is now also part of every day parlance and scarcely raises an eyebrow in conversations.  If (as the magistrate claims) the accused had been subjected to a body search at the police station by the complainant it is hardly surprising that the accused called the complainant a ‘bitch’.  The utterance, it seems, was made in anger and is nothing more than idle abuse by the accused or a forthright, if unflattering, description of the complainant.”

(Compare: too Logan v Jessup 1987 SCCR 572, referred to in Burchell, Principles of Criminal Law, 3rd Ed, at 752 n 57, in which it was held that the police should be sufficiently battle-hardened not to be affected by vulgar swearing).

The facts of these cases are obviously distinguishable, involving as they do members of the Police Services.  

I would, however, with great respect, take issue with the statement by Ebrahim J to the effect that the word “bitch” is now part of every day parlance, and would scarcely cause an eyebrow to be raised in conversation, if the learned Judge intended to convey thereby that the use of the word “bitch” has become innocuous or could never amount at the most to more than meaningless or idle abuse.  In certain circumstances and in certain communities the word may well be used in an innocuous sense.  The Concise Oxford Dictionary, for instance, gives as one of the meanings of the word “black English: a woman (used in a non-derogatory sense).”  On the other hand the Shorter Oxford English Dictionary gives as a meaning “applied to a (lewd) woman.”  Everything depends on the context in which the word is employed.

In the present case the defendant, a man, knew that the use of the word towards plaintiff, a woman, would insult her and it is clear from the circumstances in which the word was uttered, in conjunction with all the other vulgar epithets hurled at the plaintiff, that he intended deliberately to insult and humiliate her.  

The word “naai” is defined in the Groot Woordeboek: Kritzinger et al as meaning, inter alia, to “have sexual intercourse with”.  “Naaier” is not defined.  It was common cause at the trial, however, that the Afrikaans word “naaier” is a vulgar rendition of the English word “fornicator.”  “Fornication” is defined in the Shorter Oxford English Dictionary as meaning “voluntary sexual intercourse between a man and an unmarried woman.  In Scripture extended to adultery.”

Despite the fact that plaintiff’s conduct falls within the ambit of the above definitions the crude and vulgar word used by defendant to categorise her behaviour was offensive and intended to humiliate her and to impair her dignity.  Both objectively and subjectively it succeeded in doing so.  Compare S v Lewis 1968 (2) P.H. H367 (T) in which the accused was convicted of crimen injuria for addressing the words “Haai jou steker” to a pregnant woman who was a complete stranger to him.

The remaining words uttered by the defendant, namely, “Jy naai saam met my pa en jy en my pa maak van my ma ‘n poes” are clearly more concerned with the effect of plaintiff’s conduct on defendant’s mother than with plaintiff herself and in these circumstances, although they may border on being injurious it seems to me that they amount to idle abuse by the defendant.  It is, fortunately, not necessary to translate them.  Suffice to say that the earthy robustness of the Afrikaans vernacular loses something in translation.

In all the circumstances plaintiff has established that her dignity has been impaired.  She is accordingly entitled to an award of damages to compensate her for the hurt and humiliation suffered by her.

In assessing damages regard must be had to a range of factors arising from the circumstances and facts of this case including the nature, extent and gravity of the violation of the plaintiff’s dignity; the social standing of the parties and the absence of an apology by the defendant.  In this latter regard defendant stated in his evidence that plaintiff could not demand respect when she was guilty of committing adultery and that he could therefore, in any event, never apologise to her.  

The fact that plaintiff is committing adultery does not mean that she has thereby forfeited her right to respect and to be treated with dignity  I have referred above to certain cases dealing with the importance of dignity as a foundational value of the Constitution.  To these may be added S v Makwanyane and Another 1995 (3) SA 391 (CC) where at 422 G – 423 B, Chaskalson P referred with approval to what was stated by Brennan J in Gregg v Georgia 428 US 153 at 230, namely that “even the vilest criminal remains a human being possessed of common human dignity.”  

However aggrieved and upset defendant may have been at plaintiff’s conduct that did not afford him licence to speak to her in terms redolent of the gutter, as if she were a valueless and worthless member of society.  That she clearly is not.  Indeed, apart from her affair with defendant’s father she is obviously a useful member of her community.  Nevertheless evidence relating to plaintiff’s mode of living and character is relevant in this context.  Sight cannot be lost in the assessment of damages of the fact that plaintiff is unrepentantly and openly committing adultery with defendant’s father.  In these circumstances the affront to plaintiff’s dignity and the sting of the insults, viewed from both a subjective and objective perspective, are less in my view than they would have been had plaintiff’s actions been beyond reproach.  

However, the words uttered by defendant (and especially the use of the word “kaffir”) to the plaintiff, a middle-aged woman who is employed as a hostel matron at a school in Somerset East, constituted a serious violation of the plaintiff’s dignity.

I have had regard to awards in other cases including awards made in certain of those cases to which I have referred above.  I have also had regard to the awards made to the various plaintiffs in the matter of Pieterse en Andere v Minister van Veiligheid en Sekuriteit en Andere [2009] JOL 23107 (T) where the respective plaintiffs were each awarded the amount of R10 000,00 in respect of their claims for iniuria arising out of extremely vulgar language couched in crude gynaecological terms addressed by certain policemen to them.

The offensive words must also not be viewed in isolation when assessing the award but regard must be had to the cumulative effect thereof on plaintiff.

In my view, having regard to all the circumstances, an appropriate award would be one of R15 000,00.

1.	Accordingly the appeal succeeds with costs.  

2.	The magistrate’s judgment is set aside and the following is substituted therefor:
	Judgment for the plaintiff in the sum of R15 000,00 with costs.

_______________ 
J.D. PICKERING
JUDGE OF THE HIGH COURT
I agree. 

_______________ 
N. DAMBUZA
JUDGE OF THE HIGH COURT

Appearing for appellant: Mr. A. Nolte, attorney
Appearing for defendant: No appearance 

Attorneys for appellant: Nolte and Smit
Grahamstown

Date of hearing: 19 March 2009 
Date of judgment: 27 March 2009