Protecting dignity under common law and the Constitution: The significance of crimen iniuria in South African criminal law

• Jurisdiction: South Africa
• Author: Jonathan Burchell
• Citation: (2014) 27 SACJ 250
• Pages: 250-271
• Published date: 16 August 2019
• Date: 16 August 2019

Protecting dignity under common

law and the Constitution:

The signicance of crimen iniuria1

in South African criminal law

JONATHAN BURCHELL*

1 Introduction

Implicitly or explicitly, the core of the protection of fundamental

human rights can be found in the value of individua l dignity – in the

sense of the self-worth, uniqueness, identity, autonomy, privacy and

freedom of all human beings. Th is concept of dignity lies at the hear t

of equal respect for human worth (equality) that underpins a ll human

rights ideologies .

A signif‌icant facet of the South Afr ican Constitution of 1996 is that

the Bill of Rights (Chapter 2) explicitly, not just impliedly, respects and

protects such human dignit y.2 Furthermore, it is important to bea r in

mind that the South A frican concept of dignity, in its constitutiona l,

civil and crimi nal setting, is not completely comparable with that in the

German Basic Law. Under South African law, dignity is of fu ndamental

worth, but it is not inviolable – it can be limited a nd, as will be seen,

for convincing reasons.

South African cr iminal theor y is founded on the premise that State

intervention in the form of crim inal conviction and sanction must respect

and protect this inherent i ndividual dignity of al l. Thus, individual

dignity, autonomy and freedom, constitute both the foundation of the

* BA LLB (Natal), LLM D ip Comp Leg Stud (Cantab), PhD (Wits); Emeritu s Professor

of Crimina l Law and Fellow of the University of Cape Town.

1 According to Wikipedia, the ter m crimen injuria seem s to involve a misunderst anding

of the Latin phr ase crimen iniuriae, wh ich should mean ‘accusation o f abusive

behaviour’; apparently, the word ‘crimen’ never me ans crime per se. Howev er, South

African cou rts have used the ter m crimen iniuria to describe the cri me of iniuria.

In this art icle, the spelling ‘iniuria ’ is preferred to that of ‘injuri a’ as the former

spelling ref‌lect s the origina l Latin. However, it is acknowledged th at the South

African cou rts have, for many years, us ed the anglicised sp elling of ‘injuria’.

2 In s 10 of the Constitution of South Af rica of 1996. L Ackerman n Human Dignity:

Lodestar for Equalit y in South Africa (2012) 115 reminds us th at the German Ba sic

Law protects dign ity (menschenwürde) and H Botha ‘Human dign ity in comparative

perspective’ (2009) 20 Stell LR 171 at 175 points out that digni ty is central i n other

constitutions, s uch as those of Greece, Por tugal, Spain, Na mibia, the Russia n

Federation and Poland.

250

(2014) 27 SACJ 250

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essential element s of crim inality3 and the preci sion of their def‌inition.4

Furthermore, respect for f undamental rights must not only underlie

the def‌inition of crim inality, but also the entire cri minal process5 and

indeed the sentencing phase as well.6 Respect for human dignit y must,

and does, permeate all stages of cr iminal prosecution.

The manifestation of respec t for, and protection of, human dignity

in the South Afric an, post-constitutional cr iminal tr ial has been

examine d by Shannon Hoc tor,7 and so will not be canvassed in this

article. The focus of this piece is more on a speci f‌ic, unique feature of

substantive crimin al law in South Africa – t he crime of crime n iniuria

that provides the source of the actual protect ion of human dignity in

crimin al prosecutions.

After brief mention of the origi n of this crimen iniuria and its

development by the courts, a clearer meaning of the concept of

dignity in the cr iminal law should begin to emerge. Fur thermore, the

compelling justif‌ication for the specif‌ic protect ion of dignity in the

criminal law – not just i n the common law of crime, but also in the

South African st atutory crimi nal law that only some twenty years ago

emerged from an apartheid system premis ed on the comprehensive

denial of human worth – wi ll also become apparent. This paper wi ll

then turn to crim en iniuria’s special potential as a means of protecting

human dignity with in crimin al theory.

Given the fundamental role of dignity i n the crimin al trial, it is

perhaps surprising that only t he South African cr iminal law, unlike the

criminal law of ot her countries, contains a description of a spec if‌ic,

non-statutor y crime encompassing the unlawf ul and intentional

3 The element of voluntariness of conduct, c ausation, criminal capacit y (especially in

its form of conative capacit y) and intention are based on free will o r autonomy: see J

Burchell Principle s of Criminal Law 4ed (2013) 67-8, 92, 247-50, 344-5 respectively.

4 Under the principle of legality, on which see Burche ll op cit (n3) 33-44.

5 See section 35 of the Constitution of S outh Africa, 199 6, for these due process

rights. The fu ndamental presu mption of innocence an d the right to a fair tr ial

clearly ref‌lect th is emphasis on the human dignit y of all: S Hoctor ‘Dignity, crimin al

law, and the bill of rights’ (200 4) 121 SALJ 30 4 at 307-8.

6 The dignity of all indiv iduals lies at the heart of the prohibit ion on ‘cruel, inhu man

and degrading’ pu nishment and pose s a fundamenta l challenge to the uti litarian-

based approaches to puni shment, such as that of ge neral deterrence: Ho ctor op cit

(n5) 308. Sentencing pri nciples based on proportional ity (just deserts), rehabilitat ion

(reformation) or restorative jus tice would be more compatible wit h the imperatives

of human dignit y.

7 Op cit (n5).

Protecting dignity under common law and the Constitution:

The signif‌icance of crimen iniuria in South African criminal law 251

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