---

NOT REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(NORTH AND SOUTH GAUTENG HIGH COURT, PRETORIA)

CASE NUMBER: A621/2007

DATE:10/09/2009

In the matter between:

SOLLY MATSOBANE APHANE …........................................APPELLANT

and

THE STATE ….........................................................................RESPONDENT

JUDGMENT

SOUTHWOOD J:

[1] On 13 October 2006 the appellant was found guilty of crimen injuria in the Middelburg magistrates’ court and 10 November 2006 the appellant was sentenced to a fine of R1000 or two months imprisonment of which half was suspended for three years on condition that the appellant is not convicted of crimen injuria committed during the period of suspension. With the leave of the court a quo the appellant appeals against the conviction.

[2] The charge sheet alleged that the appellant was guilty of crimen injuria because he said to the complainant, Ms Z J Beukman - “I want to take you home for the night” and “Did you thought about my proposal yesterday?” During cross-examination of the state witnesses it emerged that the appellant denied that he had done so.

[3] The appellant’s counsel argues that -

(1) the court a quo erred in finding that the appellant made the statements alleged and that the state had proved all the elements of crimen injuria; and

(2) even if the appellant made the statements alleged this did not constitute crimen injuria

[4] On this part of the case (there were other counts on which the appellant was discharged in terms of section 174) the state tendered the evidence of the complainant, Ms Beukman, sergeant Lombard and superintendent Smit. The appellant closed his case without giving evidence.

[5] The complainant is a clerk in the general office of the commercial branch of the SAPS, Middelburg. She is friendly with sergeant Lombard who is a member of the SAPS commercial branch. Superintendent Smit is the commanding officer. The state witnesses testified briefly in chief and were then subjected to very lengthy and exhausting cross­examination during which it was put to them that the complaint against the appellant was a fabrication. It was also put to them that they had conspired against him because he had complained about members of the SAPS and other employees smoking in their offices. The witnesses denied this very serious allegation. In an attempt to discredit the witnesses the appellant’s counsel proved and cross-examined the witnesses on their police statements. There were some contradictions between the witnesses’ evidence and some apparent contradictions between their evidence and their statements.

[6] The suggestion that the witnesses conspired to fabricate a completely false charge against the appellant is a very serious allegation, particularly when it is made against police officers. It suggests a very high degree of dishonesty completely inconsistent with the role of a police officer. A court should not make such a finding unless it is demonstrated on the evidence. Significantly, the appellant’s heads of argument do not identify the evidence which supports this contention. Furthermore, on reading the record, I am not persuaded that the allegation has substance. The witnesses denied the suggestion. Their denials were not shown to be untrue and their police statements do not show that they agreed on the facts. They made their statements independently and on different dates. The evidence indicates only that each party recorded what he or she thought was important and that sometimes they were not able to remember detail. There is nothing sinister in this.

[7] The argument that all the evidence should be rejected because of the contradictions is not supported by appropriate references to the record to show the nature and extent and seriousness of the contradictions. It is trite that the mere fact that there are contradictions does not automatically result in the rejection of a witnesses’ evidence. The fact that a witness departs from his police statement does not necessarily affect the witnesses’ credibility. The contradictions must be considered in the context of all the evidence. At the end of the trial the trial court must consider all the evidence to decide whether the truth has been told - see S v Mkohle 1990 (1) SACR 95 (A) at 98f-g; S v Mafaladiso en andere 2003 (1) SACR 583 (SCA) at 593e-594h; S v Bruiners en (n ander 1998 (2) SACR 432 (SEC) at 437g-438a. In my view there were no material contradictions which could affect the credibility of the witnesses. As far as the complainant is concerned she did not contradict herself about what the appellant said to her and on the main issue of what the appellant said to her she is corroborated by both sergeant Lombard and superintendent Smit. The three witnesses gave evidence consistent with the essence of their statements. It is significant that their versions were recorded in writing shortly after the incident and that it was not suggested to them that they had deliberately prepared untrue statements.

[8] The court a quo therefore correctly held that the appellant had said what he was alleged to have said. Against that background the relevant facts may be briefly summarised: The complainant and the appellant both work at the Middelburg police station. The complainant works in the general office and the appellant is an inspector in the commercial branch. On 3 May 2005 the appellant telephoned the complainant and asked her to get superintendent Nkosi on his, ie Nkosi’s, cell phone. The appellant was obliged to do this by the relevant rules in force at the police station. The complainant could not get Nkosi and telephoned the appellant to tell him. During the second conversation the appellant said to the complainant: “I want to take you home for the night”. The complainant’s immediate reaction was to say: “Are you mad?” Immediately afterwards she put the phone down. In evidence she testified that the appellant’s statement shocked, insulted and humiliated her. The next day the appellant telephoned the complainant and again asked her to get superintendent Nkosi on his cell phone. During this conversation the appellant asked the complainant: “Did you thought about my proposal yesterday?” This time the complainant said to him “Do you want to be assaulted”. She then put the phone down. This conversation upset her again. The complainant and the appellant knew each other from the police station. They were not, and never had been, in a relationship. It was not suggested to the complainant that she had done anything to entice the appellant or arouse his interest in her. According to the complainant the statements “came out of the blue”. Despite testifying that she was shocked, insulted and humiliated the complainant did not say how she understood the statements. When the court a quo questioned the complainant to find out why they had upset her it emerged that she did not know what the words meant. She did not understand - as sergeant Lombard clearly did - that it was a suggestion that she go the appellant’s home and have sexual intercourse with him. She said that she did not know what the appellant wanted and she did not think the words had a sexual connotation. She simply regarded it as insulting to be asked.

[9] Crimen injuria may be defined as the unlawful, intentional and serious violation of the dignity or privacy of another - Criminal Law Snyman 4ed 453. What is protected by the crime is the dignitas, all the rights of personality other than reputation and bodily integrity - R v Umfaan 1908 TS 62 at 66-67. To determine whether a person’s dignity has been violated a subjective and an objective test are applied. The subjective test requires that the victim must be aware of the offending behaviour and feel degraded or humiliated by it. R v van Tonder 1932 TPD 90 at 94; S v A 1964 (3) SA 319 (T) at 321 B; S vA 1993 (1) SA CR 600 (A) at 610e-f. The objective test requires that the accused’s conduct must be of such a nature that it would offend the feelings of a reasonable person. If the complainant is hyper-sensitive the law does not presume that the crime has been committed -Criminal Law Snyman 456. It is accepted that crimen injuria can be committed where there is a suggestion or invitation of sexual immorality or impropriety. S v Olakawu 1958 (2) SA 357 (C) at 360 C; S v K 1975 (3) SA 446 (N) at 449 C-D. Whether or not such a suggestion has been made is a factual question - S v Olakawu supra 359 D-F; S v K supra.

[10] In the present case the evidence does not satisfy either the subjective or the objective test. Objectively, at face value, the statements are innocuous and do not refer to any sexual activity. If the complainant was offended by the statements alone she was unreasonable. The real problem arises with regard to the subjective test. The complainant clearly did not understand what the appellant was saying to her: ie she was not aware that the statements were offensive because they suggested sexual activity with the appellant. The Appellant was therefore wrongly convicted.

[11] ORDER:

The appeal is upheld and the conviction and sentence are set aside.

B R SOUTHWOOD

JUDGE OF THE HIGH COURT

K MAKHAFOLA

JUDGE OF THE HIGH COURT

JUDGMENT

CASE NO.:A621/07

PARTIES: S M APHANE vs THE STATE

DATE OF HEARING APPEAL: MONDAY 7 SEPTEMBER 2009

JUDGES: SOUTHWOOD et MAKHAFOLA JJ

ATTORNEY FOR APPELLANT: MAUBANE ATTORNEYS

507 PREMIUM TOWERS

5th FLOOR CNR VD WALT & PRETORIUS

STREET

PRETORIA

COUNSEL FOR APPELLANT: ADV MATUNYANE

ARTTONEY FOR THE RESPONDENT: DIRECTOR FOR PUBLIC PROSECUTION

PRIVATE BAG X300

PRETORIA

COUNSEL FOR RESPONDENT: ADV D P HUGO

JUDGMENT DATE: 10 SEPTEMBER 2009

---