CILIZA V. MINISTER OF POLICE AND ANOTHER.

(NATAL PROVINSIAL DIVISION)

1976. May 24, June 4. JAMES JP and KRIEK J

Appeal from a decision in a magistrate's court. The facts appear from the reasons for judgment.

T. L. Skweyiya, for the appellant.

P. W. Thirion, S.C., for the respondents.

Cur. adv. vult.

Postea (June 4).

JAMES, J.P.: The appellant, who is an adult male Bantu, sued the Minister of Police and a man named Laas, who was at one time a constable in the South African Police, for damages arising out of an incident which occurred in the Old Dutch Road, Durban, at about 11.15 p.m. on 15 February 1973. It is common cause that on this occasion the second respondent stopped a vehicle being driven by the appellant because he observed that although it was a Ford motor car it had Valiant hub caps on it and he decided to investigate the position because he was aware that a number of Valiants had been stolen. Both he and his companion, Constable Groenewald, were in plain clothes. After Laas stopped the appellant's car a conversation took place between Laas and the appellant and appellant so greatly resented remarks which he claims Laas made to him that he instituted action in the magistrate's court against both Laas and the first respondent. Initially he grounded his claim on defamation in the following passages in his particulars of claim:

"4. On 15 February 1973 the second defendant, during the course of his duty and within the scope of his employment, maliciously spoke and published of and concerning plaintiff to one Felizwe Shezi the following words: 'Come out kafir' (sic).

5. As a consequence of the use by the second defendant of the said words plaintiff has been greatly injured in his good name and reputation and has thereby suffered loss in the amount of R1 000."

However during the course of the trial a further paragraph was added to the particulars in which a claim was made in the alternative grounded on injuria. This paragraph reads:

"5. (a) Alternatively the said words uttered by the second defendant constitute injuria and the plaintiff has thereby suffered loss in the amount of R 1 000.

(b) Such words were uttered in the presence and in the hearing of Johannes Pungula and another.''

The evidence of the appellant in outline was that while he was halted at a robot in Old Dutch Road a white Volkswagen drew up on his left hand side and then cut across his path and stopped in front of him. Laas and Groenewald, both in plain clothes, got out of the Volkswagen, came up to the appellant and Laas said in English!

"Come out you Kaffir".

The appellant immediately protested and asked in Zulu:

"Why do you call me a Kaffir, what. have I done?"

to which Laas replied in English:

"Don't you know that you are a Kaffir?' '.

Laas then produced his certificate of appointment, made an inspection of the car and questioned the appellant in English about the hub caps. He exmplained that he had brought them at a scrapyard. Eventually Laas was satisfied that there was nothing amiss with the car but the appellant was extremely upset at being called a Kaffir and felt insulted. He decided to take the matter further but when Laas observed him taking particulars of the car he voluntarily gave him his particulars. On the following day he went to the Point Police Station and there complained to a Captain Groenewald about A Laas' conduct in calling him a Kaffir. The captain told him that if he wanted to take his complaint further he should make a written statement and suggested that he should return to the Station the following Monday. When he came back on Monday he was told that the captain had gone to Pietermaritzburg and it was not known when he would return. He then stopped pursuing the matter through the police.

The appellant's story was supported by one of his passengers named Pungula who stated that Laas' first words to the appellant were:

"Come out, Kaffir",

that the appellant protested by saying in Zulu:

''What have I done, why am I called a Kaffir?''

and that Laas had then said:

"You are a Kaffir, what do you the think you are, come out".

He also confirmed that the appellant appeared very upset over the use of the word and said that he was going to lay a charge against Laas.

Laas denied that he ever used the words complained of. He state that when he first addressed the appellant he spoke in Afrikaans saying:

“Ek is speurder Konst. Laas gestasioneer te Punt. Ek done net navraag in verband met die wielkappe.”

Then when he realised that the appellant could not understand Afrikaans he changed to English. He confirmed that at a later state the appellant had asked him to give him his name and his police station and he had written the information out for him, and he agreed that the appellant complained in his presence to Captain Groeneald on the following day that he had called him a Kaffir. Constable Groenewald gave evidence which, in broad outline, supported Laas.

The magistrate, after considering all this evidence, came to the conclusion that the use of the word did not constitute an injuria. He considered that there were a number of meanings which could be attributed to the word “Kaffir”:

“(a) A religious meaning. Kaffir--one who is not a Muslim, not a believer in Allah.

A racialistic meaning. Kaffir-a Bantu, an African.

A commercial meaning. Kaffir-a share in a company registered in South Africa.

A derogatory meaning. Kaffir-an insult, used by some White persons in Southern Africa towards an African.''

And later said

"19. According to the authorities the approach of the court to the meaning of a word should be 'what does the reasonable man think it means?' In the instant case the word 'kaffir' does not have a single, distinct, simple meaning. The court consequently concluded that the evidence did not establish the meaning of the word 'kaffir'. It was consequently not established that the word 'kaffir' constituted an injuria. It appears to the court that where a word bears more than one meaning and can be understood by the reasonable man in a defamatory and a nondefamatory sense, the particulars of claim should reveal what meaning the plaintiff alleges the offending word bore and in what sense it was used, and of course the evidence must establish that the offending word bore that meaning and was used in that sense.

22. As mentioned above (in para. 15) the wold 'kaffir' bears at least three meanings. The particulars of claim, however, do not indicate the meaning which the plaintiff attached to the word Secondly, the particulars of claim do not indicate whether the word 'kaffir' was used in a derogatory or non-derogatory sense.

23. For this reason the plaintiff's claim would appear to be defective.

24. Another aspect considered by the court was whether-the word 'kaffir' was not mere abuse. The court felt that the word could be regarded as mere abuse and thus could not be regarded as an actionable insult. The court also felt that an old saying was perhaps relevant here-'Sticks and stones may break my bones but names will never hurt me'.”

The magistrate also decided that, even if Laas had used the words complained of, he was acting on a frolic of his own and not as a servant of first respondent. His reasoning was that Laas had received lectures on courtesy at the Police College and that the first respondent could not be expected to do more than that to prevent his servant addressing a citizen in a derogatory manner. This is clearly an untenable proposition which Mr. Thirion, who appeared for the respondents, made no attempt to support. Laas was, on his own admission, performing duties on the night in question connected with the police motor vehicle staff in the Durban area and when he stopped the appellant and spoke to him he did so in pursuance of those duties, and as a servant ·of the first respondent. The first respondent is therefore liable for the acts of Laas during the performance of those duties.

Before us on appeal Mr. Thirion attacked the magistrate's finding that the words complained of were, in fact, used. Mr. Thirion pointed out that the magistrate had found nothing in the demeanour of the witnesses to cause him to prefer the appellant and Pungula's evidence over that of the two policemen and submitted that the general circumstances of the case did not warrant the magistrate's conclusion that the words complained of were, in fact, used. In my judgment Mr. Thirion has failed to demonstrate that the magistrate's conclusion, come to on the balance of probabilities that the words were used, was wrong. It seems to me that it is highly improbable that the appellant would have been as upset as he undoubtedly was if the words complained of had never been used or that he would have decided immediately to complain to Laas' superiors about the use of the word "Kaffir" and in fact did so on the following day, if it had not been used.

This, furthermore, was the whole basis of his complaint for he agreed that m other respects Laas' conduct was not at fault. Mr. Thirion laid stress on the fact that, when the claim for defamation was pleaded, the name of the person who was alleged to have heard the words used was given as Febzwe Shezi and that the appellant said in evidence that he knew no such person and had not given the name to his then attorney. The matter was never satisfactorily cleared up, no doubt because the appellant had changed attorneys before the trial, but it is clear from the record that the appellant stood up well to cross-examination on the matter and certainly did not leave the impression that the introduction of that person's name was a deliberate fabrication.

The final question for determination is, therefore, whether Laas’ use of the word ‘Kaffir’ when addressing the appellant constituted an injuria. I should add in passing that Mr Skweyiya, for the appellant, did not advance any determined argument that the circumstances justified a finding that the appellant had been defamed and, indeed, on the pleadings that might well have been difficult as the words were, in fact, addressed to the appellant himself and he said in evidence he knew nothing about the man Felizwe Shezi to whom the words were said to have been published.

The word "Kaffir" is given a number of meanings in the Oxford English Dictionary, namely a man who is not a believer in Allah, a member of one of the South African Bantu tribes and a South African mining share; it makes no reference to it being an insulting or denigrating word when used of a South African of European or non-European stock. The dictionary was, however, published in 1933 and it is notorious how quickly words can take on an added or even a different meaning. For example, to say some years ago that a man was gay suggested that he was a lighthearted and genial person but in recent years the word has taken on an additional meaning and to call a man "gay" may now be tantamount to saying that he is a homosexual.

I have no doubt in my own mind that the word "Kaffir" has over the years taken on an additional meaning and that in the present development of South African society if you call a member of the Bantu race a "Kaffir" this may well constitute an insult. That it has a disparaging meaning in the world generally appears to be recognised in Webster's International Dictionary published in 1966 which gives as one of the meanings of the word “Kaffir"-

"of South African or negroid ancestry usually used disparagingly".

In South Africa itself the Legislature has turned against the use of the word and it has from time to time been removed from legislation (see for example the alteration of the name of Kaffir beer to Bantu beer by Act 63 of 1962). Indeed, the statement in the 1974 South African Year Book under the title

"Peoples of South Africa" at p. 431 that the word

''Kaffir is to-day regarded as derogatory to the Bantu and its usage is therefore officially discouraged''

appears to me to be in accordance with what is generally accepted as the present position in South Africa. In coming to this conclusion I am entitled, as a Judge, to take into consideration public opinion as it exists in Natal on the matter, gained after long residence in this Province, and I do so. Cf. .Brill v. Madeley, 1937 T.P.D. 106 at p. 110. This opinion is confirmed by a reference to the word "Kaffir" in Die Afrikaanse Woordeboek which gives as one of the meanings of the word "Kaffir"-

"Onbeskaafde, onopgevoede, ongemanierde ruwe persoon".

I do not think there is any basic difference -in the meaning of "Kaffir" in Afrikaans and English. 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 cases constitute an injuria. It is clear that the magistrate accepted that the word could have such a meaning as he says in his Judgment that he regards the word as derogatory when used in certain circumstances and gave as one of its meanings "an insult, used by some White persons in Southern Africa to an African" .

It is apparent that he has become aware of this usage through his day-to-day contact with people in and out of the courts. In my view, therefore, “Kaffir” is an ambiguous word capable of a variety of meanings and in these circumstances it was for "the trial court in its dual capacity of judge and jury to decide, in the light of the relevant evidence, the true meaning of the words used; and it would in so doing interpret them in the sense m which they would probably be understood by reasonable men of ordinary intelligence and experience''.

See judgment of INNES, C.J., in Sutter v. Brown, 1926 A.D. 155 at p. 167. I should add that the reasonable men referred to should come from the area of the country where the words were used. In this case in an urban area of Natal.

This is not a case where the appellant was obliged to plead that, although the word in its ordinary sense did not have a defamatory or injurious meaning, there were special circumstances in the case which gave the words used a special or secondary meaning in which sense they were injurious. See Wood, N.O. and Another v. Branson, 1952 (3) S.A. 369 (T) at p. 372; Middellandse Nasionale Pers v. Stahl, 1917 A.O. 630 at p. 636. In such a case the special circumstances must be pleaded and proved. But in this case no special circumstances need be pleaded and it is for the court to decided whether, when the word "Kaffir" was used, it bore its injurious meaning or not. See National Union of Distributive Workers v. Cleghorn & Harris Ltd., 1946 A.O. 984. In doing so it must decide whether the word would have been understood in that sense by members of the public of average intelligence and experience and it cannot make use of what meaning the appellant and his witnesses assigned to it. See National Union of Distributive Workers v. Cleghorn & Harris, Ltd., supra, in the judgment of TINDALL, J.A., at p. 989.

The words complained of in this case were used by a policeman, who was investigating the theft of motor cars, to a Bantu when he called upon him to get out of his car. When the Bantu objected to being called a Kaffir the policeman persisted and said:

"Don't you know that you are a Kaffir?"

Although the appellant objected to this remark in Zulu he used the word "Kaffir" in his objection and I have little doubt that the policeman, even if he was not fluent in Zulu, understood that he was complaining about being addressed as a Kaffir. It follows that, although the appellant objected to the use of the word, Laas persisted in calling him a Kaffir. It was argued that when Laas addressed the appellant as a Kaffir he was merely referring to him as a member of one of the indigenous Bantu tribes of South Africa and was, in effect, saying "Come out you Bantu (or black man)". I do not consider that the evidence as a whole bears this out. Laas simply denied that he used the word "Kaffir", he never admitted that he had used it and then explained that he was addressing the appellant as a member of an indigenous tribe, and his evidence regarding his knowledge of the word "Kaffir" and his account of his interview with Captain Groenewald after the complaint had been made, suggest to me that he was aware that the word was an insulting one. His companion, Constable Groenewald, was indeed of the opinion that the use of the word could be offensive.

The magistrate in fact found that the words complained of were used but in my view he should have gone further for, even if the evidence of the appellant and his witness Pungula as to what they understood by the word is excluded, the acceptable evidence points inevitably to the conclusion that the word “Kaffir” was used in its injurious sense of uncivilized, uncouth and coarse. This was an unlawful aggression upon the appellant’s dignity and the law presumes that the aggressor was aware of the natural consequences of his conduct until the contrary is proved. Whittaker & Morant v. Roos and Bateman, 1912 A D. 92 at p. 124.

Mr Thirion, however, submitted that there was no causal connection between the word used and the appellant's understanding of it, and that in the circumstances it could not be said that the appellant's dignity had been affected by its use. It was argued that, if the appellant entirely misunderstood what the word meant, he had no genuine complaint against Laas for using it. In evidence-in-chief the appellant said:

"The word Kaffir is an insulting word which further means l am nothing and I am not a believer in God".

Later under cross-examination he said that he knew it to be an insult and later again he said he would feel insulted because the use of the word would be tantamount to saying

"that I am nothing and I wouldn't know that there is such a person as God".

Later he expressed the belief that if the word was uttered to a person who knew nothing about God and was not a Christian that person would not be likely to take the use of the word as an insult. I think it is clear from this evidence that the appellant considers that he is a person of consequence because he is a Christian and he feels that Laas, by calling him a Kaffir, was inferring  that he was a person of no consequence who was uncivilised and unenlightened . In my view the appellant's understanding of the derogatory meaning of "Kaffir" is substantially the same as the meaning I have already attributed to it, and I am satisfied that by using the word "Kaffir" in the circumstances present in this case the appellant was fully justified in feeling that his dignity had been impaired.

I consider, therefore, that the magistrate should have granted judgment to the appellant against both respondents. The appellant has claimed damages in the sum of R1 000. Mr. Thirion argued that this is not a case for substantial damages. He submitted that the appellant did not suffer any great indignity since, although he was a Christian, he had only passed Standard 2 at school and worked in a comparatively humble position as a driver of a delivery van. Furthermore, apart from using the word "Kaffir" to the appellant, Laas had behaved correctly and courteously towards him and, when he observed that the appellant was upset and was endeavoring to write down his particulars, he voluntarilly wrote out his particulars and handed them to the appellant.

I agree that these are factors that have a bearing on the subject of damages.  However, in my opinion, this is not a case in which the use of the G word "Kaffir" should be treated as mere vulgar abuse or in which it should be held that the insult was of such a minor nature that damages should be purely nominal. Members of the public of all races are entitled to be treated with courtesy by the police, and if their dignity is impaired by the improper use of insulting or denigratory words they are entitled to receive monetary compensation. In all the circumstances of this case I consider that the magistrate should have awarded damages to the appellant in the sum of RI5O.

In the result the appeal succeeds with costs. The magistrate's judgment is set aside and there is substituted therefor:

Judgment for the plaintiff against both defendants, jointly and severally, the one paying the other to be absolved, for R150 with costs.

KRIEK, J., concurred.