S v Mostert (AR 842/03) [2005] ZAKZHC 27; [2006] 4 All SA 83 (N); 2006 (1) SACR 560 (N) (8 March 2005)
- Citation
- [2005] ZAKZHC 27
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- High Courts - Kwazulu Natal
- Panel
- Theron, Van der Reyden
- Case number
- AR 842/03
More details
- Court
- High Courts - Kwazulu Natal
- Panel
- Theron, Van der Reyden
- Case number
- AR 842/03
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court held that the defence of obedience to orders is applicable to traffic officers, provided the order is lawful and not manifestly unlawful. In this case, the order to bring the complainant to the office was lawful, but there was no authority to use force. Both the appellant and his superior understood that force could not be used, and no permission to use force was given. The appellant's intention was to comply with the order, not to assault the complainant, and the State failed to prove beyond reasonable doubt that the appellant had the requisite intention for assault. Therefore, the conviction and sentence for common assault (count 1) were set aside. Regarding crimen injuria (count 2), the court found that the appellant's utterances, specifically calling the complainant 'pickannin', were racially offensive and constituted a violation of dignity. The conviction and sentence for crimen injuria were upheld.
Court disposition
Appeal upheld in respect of count 1 (common assault); conviction and sentence set aside. Appeal dismissed in respect of count 2 (crimen injuria); conviction and sentence confirmed.
Orders
- The appeal in respect of count 1 is upheld, and the conviction and sentence are set aside.
- The appeal in respect of count 2 is dismissed.
02
Material facts
Parties
Johannes Hendrik Mostert
Appellant Counsel: L BarnardThe State
Respondent Counsel: D B JoubertAmounts and remedies
- Fine Imposed for Count 1 (common Assault): ZAR 1,000
- Fine Imposed for Count 2 (crimen Injuria): ZAR 200
03
Procedural history
Posture
Criminal Appeal / Appeal Against Conviction in the Magistrate's Court
04
Questions and positions
Legal issues
- 01
Whether the appellant's conduct constituted common assault under the circumstances.
- 02
Whether the defence of obedience to orders applies to traffic officers outside the military context.
- 03
Whether the appellant had the requisite intention (mens rea) to commit assault.
- 04
Whether the appellant's utterances constituted crimen injuria and violated the complainant's dignity.
Party arguments
- Applicant
- The appellant argued that he acted under the lawful orders of his superior, Rothman, and did not intend to assault the complainant. He asserted that he used only the force necessary to comply with the instruction and that any injury was superficial and incidental to the execution of the order. The appellant further contended that he lacked the power to arrest the complainant and did not intend to cause harm, but merely to bring the complainant to the office as instructed.
- Respondent
- The State maintained that the appellant exceeded the bounds of lawful conduct by using force against the complainant, resulting in bruising. The State argued that the appellant's actions constituted assault and that the defence of obedience to orders did not justify the use of force in these circumstances. Regarding crimen injuria, the State submitted that the appellant's racial insults were intentional and violated the complainant's dignity in public.
05
Court’s reasoning
Legal principles
- 01
R v Smith (1900) 17 SC 561; S v Banda 1990 (3) SA 466
Obedience to orders is a recognised defence, but only applies if the order is lawful and not manifestly or palpably unlawful. The subordinate must do no more harm than necessary to execute the order.
- 02
LAWSA, Para 254; R v Wallendorf and Others 1920 AD 383; S v Mini 1963 (3) SA 188 (AD)
Assault requires unlawful and intentional application of force or threat of immediate personal violence. The test for intention is subjective and must consider the accused's state of mind at the time.
- 03
LAWSA, Para 275; Snyman, Criminal Law (2002) Fourth Edition at 453
Crimen injuria consists in the unlawful and intentional violation of the dignity or privacy of another, where such violation is not trivial.
- 04
Constitution of the Republic of South Africa Act 108 of 1996, Section 10; Dawood and Another v Minister of Home Affairs and Others [2000] ZACC 8; 2000 (3) SA 936 (CC)
The right to dignity is protected under the Constitution and is both a fundamental value and enforceable right.
- 05
S v Steenberg 1999 (1) SACR 594 (N); Ciliza v Minister of Police and Another 1976 (4) SA 243 (N)
Racial slurs such as 'kaffir' and 'pickannin' are offensive and may constitute crimen injuria if they impair dignity.
06
Ratio, limits and disposition
Ratio decidendi
The court held that the defence of obedience to orders is applicable to traffic officers, provided the order is lawful and not manifestly unlawful. In this case, the order to bring the complainant to the office was lawful, but there was no authority to use force. Both the appellant and his superior understood that force could not be used, and no permission to use force was given. The appellant's intention was to comply with the order, not to assault the complainant, and the State failed to prove beyond reasonable doubt that the appellant had the requisite intention for assault. Therefore, the conviction and sentence for common assault (count 1) were set aside. Regarding crimen injuria (count 2), the court found that the appellant's utterances, specifically calling the complainant 'pickannin', were racially offensive and constituted a violation of dignity. The conviction and sentence for crimen injuria were upheld.
Obiter and limits
- The defence of obedience to orders is not limited to military personnel and may extend to other hierarchical relationships, such as traffic officers.
- Expressions with racial overtones must be eliminated in South African society to protect the constitutional right to dignity.
- The seriousness of injuria should be assessed in light of societal norms and the principles of morality, not solely on historical parity with other slurs.
Court disposition
Appeal upheld in respect of count 1 (common assault); conviction and sentence set aside. Appeal dismissed in respect of count 2 (crimen injuria); conviction and sentence confirmed.
- The appeal in respect of count 1 is upheld, and the conviction and sentence are set aside.
- The appeal in respect of count 2 is dismissed.
Source and reliance status
High Courts - Kwazulu Natal
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Full judgment text is not available for this record.
Case-aware research
Ask AI about this case
The judgment and available research above are public. New questions open in a separate private conversation grounded in this case.