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.
It is all getting a bit out of hand, what with every second politician threatening or taking legal action after having been mocked or insulted. I always thought one expects to be mocked and insulted when one enters politics and that one is happy when this happens because at least this means that one is being noticed. (Imagine launching a political party or giving a political speech and no-one showed up.)
But no, some of our politicians seem to think that we live in a country where so called “insult laws” protect their exulted dignity — as is the case in many authoritarian states across the world — and that they should therefore be able to rely on our courts to protect them from insults and ridicule.
The latest politician (sometimes masquerading as a stand-up comedian) who has jumped on the bandwagon is Minority Front leader Amichand Rajbansi – also affectionately known as the Bengal Tiger – who has vowed to push ahead with criminal charges against an ANC leader who he said called him a “stooge”.
According to news reports Mr Rajbansi laid a charge of crimen iniuria against “a certain ANC member who called me a stooge. I will continue with the charges if the leader does not apologise publicly.” The charge of crimen iniuria against Chatsworth Youth Centre co-coordinator Clive Pillay stems from a remark Pillay allegedly made in October last year at an Indian cultural event in Chatsworth which they both attended. Said Rajbansi:
I cannot tolerate an insult from him. In court the issue was left for mediation between the two parties and no court date was set.
The report is unclear about whether the state has decided to proceed with the prosecution of Mr Pillay. If a prosecutor has indeed decided to proceed with this case, this would be rather surprising. Maybe Mr Rajbansi is just being over-exuberant and has told the journalist something that might strictly speaking not be entirely correct.
Now, Mr Rajbansi has been called many things in his “colourful” political career. Being called a stooge is just the last in a long line of insults he has had to endure — and by no means the most damaging. Why, some cruel journalist has even alleged that his mop of black hair is not his own, but in fact a toupee. In any case, it remains a bit of a mystery why he is now pursuing completely fruitless crimen iniuria charges against someone we have never heard of. He has had to suffer far worse “affronts” to his dignity in the past.
My favourite story about him (which is probably not true, but still funny) relates to his days as a politician in the “House of Delegates”, one of the three houses of the so called tricameral Parliament. (Those were the days when the ANC still opposed any co-operation with “stooges” like Mr Rajbansi who worked within the apartheid political system — long before they made Martinus van Schalkwyk a Minister in the cabinet, invited former homeland politicians to join the ANC and even co-operated with Mr Rajbansi in the Kwa-Zulu/Natal Legislature.)
Mr Rajbansi was a serial floor-crosser and was infamous for jumping from one political party to the other. When rumours started spreading that he was about to cross the floor again, a journalist asked him whether this was indeed true and whether he was going to change parties again. To which he allegedly responded: “Well, I will double-cross that bridge when I get there.”
In any case, this crimen iniuria charge is not going to stick. Yes, the crime of crimen iniuria does exist in South African law. As I have explained before, 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 intentionally 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 equality 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 iniuria. Shouting “Jou ma se *@%!.” at your employee might also reach the level of a crime. But saying that a certain politician is a stooge (a rather standard charge to make against any politician) is never going to be considered unlawful by our courts.
Maybe the Bengal Tiger even knows this. Surely his lawyer must have told him that the chances of a crimen iniuria charge sticking in this case is almost zero? Why would he then continue with the case? Ego, perhaps? A need for (more) publicity? Or maybe he is merely using (or is it abusing?) the legal system in an attempt to intimidate a political opponent and make that opponent think twice before insulting him again? Who knows what the motivation for such actions might be.
But it is not a healthy trend, these attempts by politicians to use the legal system to settle political scores. It requires judges or magistrates to become involved in what are essentially private squabbles between potentially powerful, politically connected, individuals. When they invariably find against the politician, he or she (or his or her supporters) will be tempted to malign the presiding officer and may allege that some political conspiracy or political bias on the part of the magistrate or judge can be blamed for the entirely predictable outcome of the case. This, in turn, would undermine public confidence in the judiciary.BACK TO TOP