SAYING “KAFFIR” IS A PUNISHABLE OFFENCE IN SOUTH AFRICA

Extracts from legal and court papers below:

REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE, GRAHAMSTOWN)

CASE NO: CA 165/2008
In the matter between
MIETA M RYAN Appellant

VS
RODWIN PETRUS Respondent
JUDGMENT
PICKERING J:
I turn then to consider the words uttered by defendant. It will be convenient to commence with the use of the highly offensive word “kaffir”.
As far back as 1976 James JP in Ciliza v Minister of Police and Another 1976 (4) SA 243 (N), after having referred to various dictionary definitions of the word, stated at 247H:
“It follows that in my opinion one of the recognised meanings which the word ‘Kaffir’ now bears in South Africa is that such a person is uncivilised, uncouth and coarse and that if one calls a person a ‘Kaffir’ this will in certain circumstances constitute an iniuria.”
In that matter a white policeman had used the word in addressing the plaintiff, who was a black man. Plaintiff was awarded the sum of R150,00 as damages.
In Mbatha v Van Staden 1982 (2) SA 260 (N) the plaintiff, a black man, sued the defendant, a white man, for iniuria after the defendant had repeatedly called him a “kaffir” and assaulted him. At 262 H – 263A Didcott J stated as follows:
“The tirade’s worst feature was the use of the epithet ‘kaffer’. Such alone can amount today to an actionable wrong, according to the decision of the Full Bench here in Ciliza v Minister of Police and Another 1976 (4) SA 243 (N). Everything depends, of course, on the context in which the word is uttered. Settings which make it innocuous can no doubt be imagined. Ordinarily, however, that is not the case when, in South Africa nowadays, a Black man or woman is called a ‘kaffer’ by somebody of another race. Then, as a rule, the term is a derogatory and contemptuous one. With much the same ring as the word ‘nigger’ in the United States, it disparages the Black race and the person concerned as a member of that race. It is deeply offensive to blacks. Just about everyone knows that by now. The intention to offend can therefore be taken for granted, on most occasions at any rate.”
The plaintiff was awarded the sum of R2 000,00 as damages.

In S v Puluza 1983 (2) P.H. H150 (E) van Rensburg J (with whom Jennett AJ concurred) referred with approval to the Ciliza andMbatha cases, supra and added:
“(W)hen a black man is called a ‘kaffir’ by somebody of another race, as a rule the term is one which is disparaging, derogatory and contemptuous and causes humiliation.”
See too: S v Steenberg 1999 (1) SACR 594 (N).
In the present case neither party is a black African. It may well be that if the word is uttered pejoratively by a white person to a black person the amount of damages which would be awarded to compensate the latter for the affront would be greater than when the recipient of the insult was not a black African, because of the racial overtones involved. It is, however, not necessary to determine this issue. In the present case it is abundantly clear from the context in which the word was used that defendant intended to give offence and used the word in its injurious sense of uncivilised, uncouth and coarse. As was stated in Ciliza’s case, supra at 248H such a use of the word constitutes an unlawful aggression upon appellant’s dignity.
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The actio injuriarum is a civil claim where a wronged party sues for monetary compensation.
Race based insults that are directed at individuals have traditionally been dealt with under this head. For example, compensation was given to a victim for derogatory use of the word ‘kaffir’ in Mbatha v Van Staden.
Racist insults can also be criminal and result in criminal penalties and a criminal record. ‘[P]rovided the required intention is proved, … calling a person a ‘kaffir’ is a violation of that person’s dignitas and constitutes the crime of crimen injuria’.

In S v Steenberg the view was expressed that the decision to criminalise the intentional degrading use of the word ‘kaffir’ is ‘today under the newdispensation even more valid’ than it was under apartheid.
While derogatory language is reprehensible and reflects appallingly on the perpetrator rather than the victim, it seems thatthe more disempowered a group, the more its members need legalprotection. 
The Judge compared the case with S v Steenberg where a white accused insulted a black complainant by calling him a ‘kaffir’ and was sentenced to R1 000 or six months conditionally suspended for five years.
The Steenberg case was regarded as more serious because:
‘Steenberg was of a previously advantaged class who gratuitously without any kind of provocation from the complainant, delivered a stinging insult to a man of previously disadvantaged class who was bound to feel severely hurt by it. There is no reason to doubt that if the suspended sentence were to be put into operation, Steenkamp was in a position to pay the fine and escape the alternative prison
sentence… 
But the delivery of insults often says more about the person who delivers them than about the person to whom they are delivered. Having due regard to the complainant’s high standing, this was in my view a clear case in which he was well placed to withstand the insults on the basis that they reflected much greater discredit on the accused than on the complainant. .’


Saying “KAFFIR” is a punishable offence