An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
The Sowetan reported yesterday that a Cape Town student, Chumani Maxwele, 25,was arrested last week on charges of crimen injuria for “waving away” President Jacob Zuma’s noisy, blue-light convoy. Maxwele says he “waved away” the President’s blue light convoy “as if to say ‘hamba’” because of the noise. The police claim that Maxwele had shown his middle finger to the convoy in that time honoured but slightly rude gesture so beloved in South Africa by drivers with road rage. According to Maxwele:
After that a black BMW X5 pulled up and three guys jumped out, pointing guns at me. They pushed me into their car and shouted at me that I had disrespected the president. They pulled a bag over my head and drove me to Zuma’s residence.
He claims Mowbray police accused him of saying that Zuma had seven wives. They claimed he insulted Zuma – and told him “intelligence” agents would deal with him. The next morning, people whom he believed to be intelligence agents arrived to interrogate him, asking him for his opinion of Zuma and which faction of the ANC he supported at Polokwane. Maxwele said the agents told him “be careful what you do when a convoy passes because people are sensitive. Don’t touch your head or your waist”. In the meantime, plain-clothes officers raided his house, going through his personal diaries and notebooks. Maxwele spent the day in holding cells underneath Wynberg magistrate’s court and was only released 24 hours later.
If any of this is true, the police behaved in a rather shocking and outrageous manner which threatens the dignity and freedom of every South African citizen.
It is true that the crime of crimen injuria does exist in South African law. Traditionally, the crime has been defined as one where a person intentionally and unlawfully impairs the dignity of another person. This means that where someone subjects another person to offensive or degrading treatment, or exposes that person to ridicule or contempt to such a degree that, objectively considered in the light of prevailing norms of society, it is criminally insulting, he or she commits a crime.
Of course, the prevailing norms of society must be judged against the values and norms enshrined in the Constitution. Given the commitment in the Constitution to democratic values, political contestation, the right to vote and free and fair elections, the right to quality and freedom of expression – which includes the freedom to receive and impart ideas and views – hurling racial abuse at another person will probably constitute crimen injuria. Shouting “Jou ma se…..” at your employee might also reach the level of a crime.
However showing the middle finger to a politician or ridiculing a politician in some other way will almost never constitute unlawful behaviour because the prevailing norms in a constitutional democracy allows for robust debate and political contestation. To hold otherwise would be absurd. Imagine in what trouble members of the ANC Youth League would have been for flashing their buttocks at opponents at the Youth league conference, if the court decided that flashing a mere middle finger at someone was unlawful.
In any case, even if a court found that showing someone the middle finger was unlawful, such a person will never be convicted of a crime on the basis of the maxim, de minimis non curat lex (“the law does not concern itself with trifles”). To hold otherwise would be to invite the opening of the floodgates of crimen injuria prosecutions. How many drivers would not find themselves in jail because they lost their tempers? Half the ANC Youth League would have had to be locked up and yours truly would definitely not be a free man for long. A successful prosecution of this case would also invite abuse, as powerful politicians and the police may be tempted to use the crime – as it allegedly did in this case – to stifle legitimate debate and criticism, something that would be in breach of the Bill of Rights.
Maxwele will never be successfully prosecuted. If the allegations are true, he was clearly harassed and intimidated in an unlawful manner by ridiculously overzealous cops. In a constitutional democracy based, inter alia, on the Rule of Law, the President is not entitled to more protection of his dignity than any ordinary person. On the contrary, the President is usually the leader of the majority party in Parliament and as such he should be entitled to less protection of his dignity. If we cannot ridicule the President or flash rude signs at him, our ability to express our feelings as citizens about those who govern us would be severely curtailed. This will infringe on the human dignity of all of us because it will prevent us from expressing our strong opinions about politicians and will thus limit our ability to form and express opinions that are unpopular.
If it is true that the people who interrogated Maxwele asked him about his political views, the police officers or security agents acted in a brazenly partisan manner by asking party political questions with no bearing on the case. This would suggest that the officers were in breach of the provisions of section 199(7) of the Constitution which prohibits any member of the security services from furthering, in a partisan manner, the interests of a particular political party. Maxwele’s political views about Polokwane or his membership of a political party had absolutely nothing to do with the crime he was alleged to have committed. Whether he was a Freedom Front Plus member or a member of Azapo should be of no concern to the police or intelligence services.
The last time I checked, showing someone – especially the President – the middle finger cannot be equated with undermining state security or with a wish to overthrow the state. Instead it shows a healthy disregard for the pomposity and self-importance associated with politicians. A person who flashes a middle finger at the President (or at Julius Malema or Helen Zille, for that matter) might be considered rude by many of us, but such a person is really a good citizen because he is demonstrating an active interest in our political system and the way the country is being run as well as a willingness to express himself about it.BACK TO TOP