S v Bugwandeen

• Jurisdiction: South Africa
• Judge: Van Heerden J and Thirion J
• Judgment Date: 14 October 1986
• Citation: 1987 (1) SA 787 (N)
• Hearing Date: 02 September 1986
• Court: Natal Provincial Division

Thirion J:

The appellant appeals against his conviction of crimen injuria. The conduct laid to the appellant's charge is a statement alleged to have been addressed by him to Constable H Ngcobo of the SA Police in these terms:

'Black bastard. You are a slave. Why are you here while your nation is being killed in Soweto?'

By uttering these words to Constable Ngcobo, the appellant, so the charge alleges, intentionally injured and insulted Constable Ngcobo and impaired his dignity, thereby rendering the appellant guilty of crimen injuria.

I The appellant is an attorney by profession. He is also a director of the company which controls the Asoka Hotel in Mayville in Durban. He lives close to the hotel. Early one morning in March 1985, a detachment of policemen, which included Constables Ngcobo and Govender and Sgt Ramnunan, went J to the hotel to investigate a complaint that dagga was being smoked in a room in the hotel. The police found the room in

Thirion J

question locked and were unable to gain access to it. At some A stage Sgt Ramnunan went to the appellant's house in order to obtain from the appellant a key to the room. The appellant accompanied Sgt Ramnunan to the hotel. On the way there an argument developed between the appellant and Sgt Ramnunan. Apparently the appellant was displeased with what he regarded as an unwarranted invasion by the police of the privacy of the B hotel guests. Constable Ngcobo was standing next to a police vehicle outside the hotel and, according to the State witnesses, it was while the appellant and Sgt Ramnunan were passing in the close vicinity of Constable Ngcobo that appellant uttered the words complained of.

The appellant's defence at his trial was a denial that he had uttered these words. According to the appellant what happened C was that Sgt Ramnunan became angry because of what he looked upon as appellant's refusal to assist the police in gaining access to the hotel bedrooms and consequently Sgt Ramnunan ordered the appellant's arrest. According to the appellant, Sgt Ramnunan's conduct throughout had been high-handed and when he ordered the appellant's arrest he said to the appellant:

'I've heard enough shit from you and I am locking you (sic ) for D failing to assist the police.'

Two Indian policemen then seized the appellant and started to march him off to the police van. According to the appellant he was incensed by Sgt Ramnunan's conduct and as a retort to the obscene remark made by Sgt Ramnunan he (the appellant), said to E Ramnunan: 'Get out, you Black bastard.' The appellant denies that he said anything at all to Constable Ngcobo. According to the appellant he only became aware of Constable Ngcobo's presence after he had already called Sgt Ramnunan a 'Black bastard' and as he was being taken to the police van.

This defence therefore raised two issues. Firstly, it involved F a denial that the appellant had uttered the words 'You are a slave. Why are you here while your nation is being killed in Soweto?' or words to that effect and, secondly, it was a denial that whatever utterances the appellant had made, had reference to Constable Ngcobo. In regard to the second issue, the magistrate had to consider the possibility that the witnesses might be mistaken in thinking that the appellant addressed his G remarks to Constable Ngcobo whereas in fact he might have been speaking to Sgt Ramnunan.

The magistrate rejected as false the appellant's version of the incident and accepted as true the version given by Constables Ngcobo and Govender and Sgt Ramnunan, all of whom were called H as witnesses for the State. In essence their evidence was to the effect that the appellant addressed his remarks to Constable Ngcobo, calling him a 'Black bastard' and a 'slave' and mentioning that his (Ngcobo's) people were dying or were being killed in Soweto. There are certain discrepancies in the accounts of the three witnesses as to what the exact words were I which the appellant used. It would have been surprising if there had not been any differences, because each of the three witnesses had to rely on his memory. What has to be determined is whether the discrepancies are such as to leave a doubt as to what the appellant meant to convey and to whom he directed his utterances.

Such differences as there are between the witnesses' versions J of what the

Thirion J

A appellant said seem to be due mainly to the fact that Govender and Ramnunan have put their own construction on the appellant's words and that they have stated as having been said by appellant, things which can only be implied from the appellant's actual words. For example Constable Govender says B that the appellant used the words 'You are a slave to the South African Police Force' whereas the other two witnesses made no mention of that part which is a reference to the South African Police Force. I agree with the magistrate that the discrepancies are not indicative of falsehood.

The magistrate found that the three State witnesses gave their evidence satisfactorily. He singled out Constable Ngcobo as a C convincing and impressive witness. A reading of the evidence satisfies me that the magistrate's assessment of Constable Ngcobo as a witness is correct. According to Constable Ngcobo the appellant was about five paces away from him when he uttered the words in question and was facing him directly and directed his remarks to him. There was therefore D very little room for mistake. As the appellant was approaching Constable Ngcobo he was engaged in an argument with Sgt Ramnunan and if the offending remarks were directed at Sgt Ramnunan in the course of that argument it is unlikely that Constable Ngcobo would have concluded that they were directed at him. He had not been involved in the argument. What favours Constable Ngcobo's version is that he reacted immediately. The E appellant was arrested there and then and informed of the charge.

It was never put to Constable Ngcobo in cross-examination that the appellant's remark - 'get out you Black bastard' - a remark which appellant admits having made, was made as a retort to offensive remarks addressed by Sgt Ramnunan to the appellant F or that the appellant made that remark only after Sgt Ramnunan had ordered his arrest. Constable Ngcobo's evidence was clearly to the effect that appellant was arrested after he had made the remarks which included the reference to 'Black bastard'.

In argument counsel for the appellant submitted that the evidence of the State witnesses as to whether the appellant was G informed at the time of his arrest of the reason for his arrest was unsatisfactory. Counsel's argument on this point centered round the evidence of Constable Ngcobo. Initially, when testifying through an interpreter, Constable Ngcobo said that the appellant was told at the time of his arrest that he was being arrested for using obscene language, whereas later on H in his evidence Constable Ngcobo said, in English, that the appellant was told at the time of his arrest that he was being arrested on a charge of crimen injuria. This apparent contradiction was however cleared up - to my mind satisfactorily - by Constable Ngcobo himself. He said that the appellant was told the charge in English and the offence mentioned to him was that of crimen injuria. Constable Ngcobo I however gave his evidence in Zulu and he rendered the words 'crimen injuria ' in Zulu as being the equivalent of obscene language because, so he explains, he could not think of a better way of rendering the term 'crimen injuria ' in Zulu...