R v Chipo and Others

• Jurisdiction: South Africa
• Judge: Centlivres CJ, Greenberg JA, Van Den Heever JA, Hoexter JA and De Beer AJA
• Judgment Date: 03 October 1953
• Citation: 1953 (4) SA 573 (A)
• Hearing Date: 21 September 1953
• Court: Appellate Division

E Hoexter, J.A.:

The respondents, four Native juveniles between the ages of 14 and 16 years, were convicted by the assistant magistrate for the district of Umtali in Southern Rhodesia on a charge of criminal injuria and were sentenced each to receive one stroke with a light cane. In accordance with the practice obtaining in Southern Rhodesia the record in the case was submitted for review to a Judge of the High Court, who F directed that certain questions of law should be argued on review before the High Court. Argument was accordingly heard by TREDGOLD, C.J., MORTON and QUENET, JJ. The High Court (QUENET, J., dissenting) quashed the convictions and sentences. The Minister of Justice of Southern G Rhodesia is now appealing, with the leave of this Court, against the judgment of the High Court.

The nature of the charge against the respondents and the relevant facts appear sufficiently from the following passage in the judgment of MORTON, J.:

'The accused, four Native youths aged from 14 to 16, complained to the police that, because they had grumbled at the conditions of their H employment, their employer, a European farmer, had twice fired a rifle towards them. Two of them said that their employer had not intended to kill them but wished to frighten them to work; the others expressed no opinion but said that one bullet struck a tree six feet from the ground when they were sitting on the ground under it. On investigation at the farm the police were satisfied that the complaints were false and consequently the employer was not prosecuted. The accused were then jointly tried and convicted by a magistrate's court on a charge of having committed criminal injuria against their employer.

Hoexter JA

The substance of the charge was that they wrongfully, unlawfully and wilfully made this complaint to the police with intent thereby to injure and insult their employer, whereas in truth and in fact they well knew that the complaint was false and thus the employer was injured and insulted; to this charge all the accused pleaded not guilty. Besides the facts already mentioned the magistrate found that the accused had intended that their employer should be prosecuted, A that the complaints were false and that the accused had subsequently admitted to the police that their complaints were false.'

The charge proved against the respondents contains all the elements of an injuria as defined in the Roman-Dutch Law; their act was wrongful, it B was intentional, and it violated the real rights, related to personality, of the complainant. (See the judgment of INNES, C.J., in R v Umfaan, 1908 T.S. 62 at p. 66.) In that case it was pointed out that in the Roman-Dutch Law an injuria gave rise not only to a civil action but also to criminal proceedings. 'But,' said the learned CHIEF JUSTICE, C 'I do not wish to be understood as saying that in all cases of injuria the courts nowadays would sanction criminal proceedings. Some of the jurists remark that it was unusual, even in their day, to prosecute for the lighter species of injuria; and I have no doubt there are many cases D in which this Court would say that criminal proceedings have by our practice become obsolete'. (See also the judgment of DE VILLIERS, J.P., in R v Terblanche, 1933 OPD 65 at p. 69.) One of the cases which readily comes to mind is that of adultery, which is also a species of injuria. (See Foulds v Smith, 1950 (1) SA 1 (AD) and Viviers v. E Kilian, 1927 AD 449.) Adultery in our law still gives rise to a civil action, but it is no longer regarded as a crime. (See Green v Fitzgerald and Others, 1914 AD 88.) I propose to consider, therefore, whether the charge against the respondents discloses an offence in our modern practice.

F It seems to me that the charge against the respondents is in essence one of laying a...