S v F

• Jurisdiction: South Africa
• Judge: FS Steyn J and McEwan J
• Judgment Date: 07 January 1977
• Court: Transvaal Provincial Division
• Hearing Date: 01 November 1976
• Citation: 1977 (2) SA 1 (T)

McEwan, J.:

The appellant was convicted in the magistrate's court at Johannesburg on 3 May 1976 of public indecency. He was sentenced to pay F a fine of R100 or to undergo imprisonment for 50 days. The appeal is against the conviction.

The particulars of the charge on which the appellant was convicted read as follows:

"In that on or about 30 August 1975 and at or near a public place, to wit, The Top of the Town Restaurant, in the district of Johannesburg, the said accused did wrongfully and unlawfully publicly and indecently pretend that a microphone was his sexual organ and handled it and

McEwan J

simulated sexual acts with the said microphone and his body in the sight of one Hans F. Frömm and/or other persons and did thereby commit an act which tended to deprave the morals of others and/or outrage public decency."

A There was an alternative count and two further counts. The further counts need not be mentioned as the magistrate found the appellant not guilty in respect of them. I shall refer to the alternative count later.

The appellant is a professional entertainer. He performs under the name Terry Lester.

B There was only one witness for the State, that is the complainant Frömm. His evidence was to the effect that on 30 August 1975 he took a party of four to The Top of the Town Restaurant in Braamfontein Johannesburg. The party consisted of C himself, his wife and a Mr. and Mrs. Taylor. The Taylors were recent immigrants from England. The restaurant is on the top floor of Lawson's Building and commands extensive and attractive views over Johannesburg, particularly at night. The party had dinner and danced.

At about 11 p.m. a cabaret show was presented. The appellant was one of the entertainers. Part of his act was to ask members D of the audience to name a popular singer. The accused would then perform an impersonation of that singer. In order to be amusing the impersonation would consist of a skit or parody in which he would exaggerate the outstanding characteristics of the person being impersonated.

One of the names called on the evening in question was that of E a person called Tom Jones, who according to the appellant is a well known and popular singer. The appellant said that he frequently receives requests to impersonate this Jones and has a short act prepared in collaboration with the band, which he has performed over 1 000 times in South Africa. He goes off the stage (or at any rate to the side of the performing area if there is no stage as such). He comes prancing back. He takes F the microphone which he is holding in his hand and which is attached to a long cord and thrusts it into the front of his trousers in the area of his private parts. He said that Jones always wears tight trousers with a prominent bulge in that place. The appellant claimed that he did not know whether in Jones' case the bulge was artificial or natural. He said that G Jones attempts to create a "sexy" image.

There was considerable confusion in the evidence, particularly in the questions put to the appellant in cross-examination, between the words "sexy" and "sexual". It may be accepted that "sexy" is a slang word in use among certain classes of persons H which bears a wide range of connotations including "exciting" or "stimulating" and sometimes even simply "first rate" or "excellent."

There is a conflict between the evidence of Frömm and that of the appellant (who was the only witness for the defence) as to what else happened at that stage of the performance.

Frömm said that the appellant while the microphone was in his trousers rubbed it as if it was a male sexual organ. The appellant denied that completely.

McEwan J

Frömm said that the appellant at the same time moved the lower part of his body backwards and forwards in imitation of the movement of the male partner in the course of sexual intercourse.

The appellant was somewhat uncertain and conflicting in his evidence as to the exact form of the movement, but in the main A said that it was a circular movement of the hips.

The appellant said that this movement was also in imitation of Jones, who uses the movement to help his "sexy" as distinct from "sexual" image.

At the end of his evidence the appellant gave a demonstration B of the movement, which is somewhat ineptly described by the prosecutor (see p. 112 of the record), but which the magistrate said in his judgment (p. 119) is in agreement with the description given by Frömm.

Frömm said that the appellant next removed the microphone from his trousers and held it to his nose, made as if to smell it C and then pulled it away quickly as if it had a bad smell.

In this connection the appellant said that Frömm confused this incident with a different impersonation altogether. That impersonation was of one Dean Martin. The appellant said that Martin is or pretends to be an alcoholic and always comes on D the stage with a glass in his hand. The skit on Martin includes confusing in a supposed alcoholic state the microphone and the glass until he attempts to sing into the glass and to sip from the microphone and then realises the mistake and pulls the microphone away from his nose in disgust.

While the impersonation is in progress the appellant sings one of the songs usually sung by Jones. On this occasion it was E "Green, Green, Grass of Home". The appellant, however, put his own words to what is a simple ballad. Those words were of a bawdy character.

Frömm said that the appellant sang a line which ran

"He lay her on the grass and pissed on her."............

The appellant denied that. He said that the last line of one verse was

"And there is that old oak tree that I used to piss on."

The first line of the next verse was

"On the bed I lay with my sweet Mary."

Frömm's version of the words formed the subject-matter of another charge that was not pursued. The magistrate, however, related the words to the count on which the appellant was found G guilty. He said that, whichever version was correct, the use of the word "piss" drew attention to the male organ and drew attention to the fact that the microphone inserted in the appellant's trousers was intended to represent an erect penis.

The appellant said that he had performed this particular H impersonation over...