On the 7th of March 2019, the East London High Court ruled in favour of an aggrieved East London businessman for an action founded in injuria, after an incident of reckless driving resulted in the man being called a “p***”.
Injuria is where one party unlawfully, intentionally and seriously impairs the dignity of another.
On 23 July 2016, the plaintiff drove his vehicle in Gonubie, an affluent suburb in East London, in such a manner that attracted the attention of other road users. It was common cause that the plaintiff exceeded the speed limit and erratically drove his vehicle.
At a parking lot near the Gonubie Hotel, other drivers proceeded to reprimand the plaintiff based on the reckless manner of how he drove his vehicle. Thereafter, the defendant parked next to the plaintiff’s vehicle and joined in the reprimand. The defendant uttered the words “Go back to Duncan Village (an area that was designated for black and coloured people in East London during Apartheid) and drive like that there you p***. You will be f***** up here.” The plaintiff alighted from the vehicle and approached the defendant’s vehicle, aggressively, to enquire as to why he was being threatened. Observing this, the defendant proceeded to pepper spray the plaintiff.
The defendant’s legal counsel contended that to call somebody a “p***” is essentially a meaningless abuse and to say to another “you will get f***** up here” conveys only that some aggression will be metered out to someone, but does not infringe on the dignity of a person. It was also contended that it is difficult to ascribe damages to the words flowed from the words ‘go back to Duncan Village’. If any damages should flow from there, they deserve to be minimal.
Acting Judge Victor Nqumsa (Nqumsa AJ), was of the opinion that in order to have an appreciation of the effect of the offensive words uttered, he must find it necessary, as a point of departure, to consider the imperatives of the Constitution of the Republic of South Africa, 1996 (“the Constitution”).
The value of human dignity is safeguarded and promoted by the recognition of the right to dignity in the Bill of Rights. Human dignity, the achievement of equality and the advancement of human rights and freedom, are the foundational values of the Constitution and these values enjoy the first spot in the ranking of rights enshrined in the Bill of Rights.
Nqumsa AJ went on to evaluate the word p*** by referring to the “HAT Verklarende Handwoordeboek van die Afrikaans Taal” by Odendaal et al which defines “poes” as meaning, “vroulike skaamdele vulva”. In the “Reader’s Digest Afrikaans – Engelse Woordeboek” “skaamdele” is defined as meaning “genitalia, private and sexual parts of a woman.” From these definitions, Nqumsa AJ found, undoubtedly so, that a man who is referred to as being a “private part” of a woman must surely find it insulting and his dignity impaired thereby.
Similarly in Brenner v Botha 1956 (3) SA 257 (TPD), the words “bloody bitch” was used and the court found that “although the word “bitch” might be meaningless as affecting the reputation of the person to whom it is applied, the words “bloody bitch” used in the context complained of by the plaintiff was certainly offensive and was intended to “humiliate the plaintiff”.
In the case of Ryan v Petrus 2010 (1) SA 169 ECG, Judge Pickering stated that “In a case of verbal injury, otherwise in cases of defamation, the words complained of must impair the plaintiff’s dignity and must be insulting in the sense that they must amount to degrading, humiliating or ignominious treatment.” Nqumsa AJ thus found that the word “p***” in the circumstances was not used in an innocuous sense but was intended to be harmful to humiliate the plaintiff, thereby impairing his dignity.
The court then went on to deal with the appropriate damages that need to be awarded. In Ryan v Petrus it was held that, in assessing damages, regard must be had to a range of factors arising from the circumstances and facts of the case, including the nature and gravity of the violation of the plaintiff’s dignity, the social standing of the parties and the absence of an apology by the defendant.
The court also took cognisance of the fact that one should not lose sight of the general circumstances under which the injuria was committed, in that the plaintiff alighted from his vehicle and confronted the defendant aggressively. If this did not happen, an altercation most probably would not have ensued, as well as the use of pepper spray and insults that followed from the defendant. Nqumsa AJ stated that “A lack of restraint by the plaintiff contributed to the unacceptable behavior of the defendant but this does not, in any way, excuse the wrong committed by the defendant, even more so in the absence of remorse from the defendant.”
Taking the above facts into consideration, the court awarded the plaintiff for the claim of injuria in the amount of R 50 000.00 and R 10 000.00 for the assault of being pepper sprayed.
“Don’t be a push”, watch your words.
Author: Mikhael Cain