James Grant

There is some suggestion that charges of crimen injuria for the racist insults of Penny Sparrow (and others) cannot attract liability in criminal law in SA because crimen injuria requires the relevant insult to be directed at an individual rather than a group.
Crimen injuria is defined as the intentional unlawful impairment of the dignity or privacy of another (Burchell, 2013, 4ed, 632).
The essential requirements of the offence are as follows:
1. Intention;
2. Unlawfulness;
3. Impairment of the dignity of another.
Some definitions include a qualification that the impairment must be serious (Milton, 1996, 492). However, it is clear that this qualification is accounted for under the requirement of unlawfulness – since the law does not concern itself with trivialities (de minimis non curat lex).
The suggestion under discussion here – that the the relevant insult must be directed at an individual rather than a group – would seem to be addressed to the intention requirement. That is, one may expect that this is a suggestion that the accused must intend to infringe the dignity of a particular specified victim. However, there appears no suggestion that the general principles relating to intention, according to which the identity of the actual victim is irrelevant, S v Pistorius 2015 SCA) do not apply to crimen injuria.
Our law recognises that one intends to kill whoever is killed if one throws a bomb into a crowd – even though one does not know who is in the crowd. This is known as dolus indeterminatus – general intention – in our law. In the same way, there seems not basis to suspect that this “bomb” could not take the form of an offensive social media post.
The application of general principles of intention to crimen injuria is supported in the leading text on common law offences in SA, South Africa, JRL Milton, South African Criminal Law and Procedure (vol II, 1996, p 516 n274) – although Milton was endorsing the view that general principles make dolus eventualis a valid form of intention for crimen injuria.
The authority for the proposition that the relevant insult must be directed at an individual rather than a group appears to arise out of Snyman (6th ed, p463). Snyman states:
“An attack, not against Y himself, but against some group to which he is affiliated (eg his language group, his religion, race or nationality) will normally not constitute a violation of his dignitas, unless there are special circumstances from which an attack on his self-respect can be deduced.”
Snyman cites the case of S v Tanteli 1975 2 SA 772 (T) as authority for this proposition.
It is a tragic irony, that this cases appears to be a possible obstacle – albeit a small one – to successful prosecution of statements such as “all black people are monkeys”. The alleged insult in Tanteli was that the language, Afrikaans, was only suitable to be spoken to or with black people [described, in that case, by the accused using the pejorative k* word].
The insult or sting arising out of the Penny Sparrow social media post – in case this has escaped some – that “black people are monkeys” is that it suggests that black people are, in themselves, inferior as of a lesser species.
There are several points to be observed here.
The first is that this case is a Transvaal Provincial Division case – now the Gauteng Provincial Division (situated in Pretoria). If it contains any precedent (and I will below argue it does not), that is, anything binding on cases that follow, it would in any event be restricted to Gauteng. Even in Gauteng, since the Tanteli case was a single Judge judgement, it does not bind courts sitting with more than one Judge (“higher” courts). It may, on the rules of precedent, be persuasive in “higher” courts in Gauteng or in other jurisdictions (provinces), but it is certainly not binding in “higher” courts or other jurisdictions.
Also, while the judgement is mentioned and relied upon in Snyman’s text on criminal law in South Africa, it is not mentioned in the other leading general text on criminal law – written by Burchell. Perhaps more importantly, it is mentioned in what is arguably the leading text on common law offences in SA (Milton, South African Criminal Law and Procedure (vol II, 1996) only as a case to be distinguished from the general principle. This may itself be read as an indictment on the case.
The second is that Snyman’s rendition of the case authority is in one respect not a true reflection of what the court held. The third is that, in another respect, Snyman’s rendition is true, which requires in turn some analysis of the judgement in the Tanteli case.
To begin, Snyman’s rendition is not correct in that Nicholas J in Tanteli did not say that only in exceptional circumstances can an insult against a group with which one associates provide a basis for a conviction of crimen injuria. He found that, on the facts in that case, the dignity of the victim was, in fact, not injured. He said as follows: “There may, of course, be cases in which an insult to a person’s language, or race, or religious persuasion or national group may, in the circumstances, constitute also an impairment of his dignitas, but this is not such a case.” (p. 775). There is not mention of a requirement of special circumstances.
Snyman’s rendition is correct however insofar as he reflects that the judgement did seem to distinguish between an attack on a person as opposed to an attack on an attribute of a group, with which s/he associates him/herself. It is worth considering if this is a valid distinction, or, at least, one that could possibly prevent a conviction of crimen injuria in scenarios where a group, as a whole, is insulted, where the victim is part of that group.
Already a difficulty becomes apparent in trying to distinguish between an insult against:
1. an attribute of a group with which the victim associates; and
2. a group to which one belongs.
The vague distinction between these two seems to turn on the distinction between associating with an attribute of a group as opposed to being part of a group.
The question being begged here is what it means to be part of a group. It is at least possible to regard belonging to a group as associating with the attributes of that group. Arguably, under this description, to “belong to a group” may require that it’s members associate with more than one attribute of a group – but this does not seem to be necessarily true. A group may, conceivably, be defined by a single attribute which it’s members have in common. That being so, the distinction drawn in Tanteli is unsound.
Apparently the crux of the judgement is not in its attempt to distinguish between individual and group insults, but rather between insults that can be considered to strike at a superficial level as opposed to an insult which strikes at one’s core. As dear as our languages may be to us, it must in a different league to suggest that my language is inferior, as opposed to that I am inferior.
This is revealed or reinforced if one imagines what the outcome would have been if, instead of an insult to the language of the complainant to the effect that his language was inferior, the insult was to the effect that he was inferior. There can be little question that a conviction for crimen injuria would have, and probably should have, followed.
The example above also illustrates the point made above – that there can be no valid distinction based on an insult to a group attribute versus the individual. It would scarcely have helped the accused to have argued that she had only said that say, Afrikaners are inferior, as opposed to that Afrikaans is inferior. The proposed distinction between an insult directed at a group as opposed to the individual breaks down because it is clear that the true distinction is between an insult that may be hurtful, but superficial, compared with one that goes to the core of the person.
In conclusion, the only authority for the proposition that an insult must be directed at a specified person as opposed to a group appears to come from the case of Tanteli. This case is limited in its binding effect – to single Judge courts in Gauteng. It is apparently identified by the leading text on common law crimes in South Africa as an anomaly. Finally, the distinction described in the case between an insult to group to which the complainant associates him/herself as opposed to one directed at the individual appears to break down on analysis. The true distinction appears to be whether insult is superficial as opposed to one that goes to the core of a person’s sense of self worth. The Tanteli case, and the suggestion that an insult must be directed at a specified person, cannot possibly stand in the way of a conviction for crimen injuria in cases where an insult was directed against a group, where the insult offends the very core of the members of the group. In such a case, far from providing a defence that no individual was insulted, the insult is aggravated in that it offends an entire group of individuals.