Cartoonist Zapiro’s work printed in the Cape Argus in 1997 was used as evidence. Supplied image
A legal domestic dispute between two siblings involving the term ‘Ma Se P**S’ has become the basis of a trial in which the accused had his conviction and sentence set aside stating that the swear word had not caused abuse or harm but that it was a form of colloquial expression in the Coloured community.
A newspaper reference relating to cartoonist Zapiro, who had famously captured the deflated spirit of a caricature depicting a deserted Grand Parade, Cape Town, in the Argus Newspaper publication in 1997 after the announcement that South Africa’s bid to host the 2004 Olympics had failed, was also used as evidence.
Greece was the successful bidder.
“ATHENS SE MA SE @+#&” was a satirical humorous sketch aptly reflecting the use of the term within the coloured community to express exclamation, disappointment or frustration, the court papers read.
“The cartoon still reflects decades later on the sale of t-shirts and other paraphernalia,” it stated.
This week, the Western Cape High Court reviewed judgement in the matter between two siblings from Caledon, who cannot be identified due to it being a domestic dispute in terms of the Domestic Violence Act and two charges relating to it and contravention of a protection order.
The accused, who was the brother in the case, had been convicted of count one and acquitted of count two in which he had been sentenced to 12 years for a charge relating to the Domestic Violence Act and was suspended for five years.
Judge Gayaat Salie in her findings found that the brother had not contravened the protection order by making use of the p-word during a verbal altercation between him and his sister and her teenage daughter in June 2023 at their home in Caledon.
The argument had ensued over music volumes and the sister and her daughter claimed that the accused had used the following terms according to court papers:“The accused thereafter increased the volume and expressed profanities in a similar vein, and is alleged to have stated: “vat weer aan my p… se musiek, julle is in julle p…,” meaning that if she again interferes with the music then they would be in trouble.”
The police had been contacted and he had been detained and arrested overnight.
Upon his return, the women claimed he further made abusive remarks, threatening to burn down the house.
During representation by himself, the accused testified in respect of count one, and detailed his version of events claiming one of the complaints said she was going to put the “damn” music off and that he was angry and stated: “los my ma se p**s se ding.”
Salie said in her findings she found that the trial had initially been misdirected and ordered that the conviction and sentence be set aside: “On these facts and given the circumstances herein, I am not persuaded that the use of the p-word by the accused to describe or give definition to the music (the thing) amounted to hurling abuse at the complainant and thus contravention of the interdict.
“The complainant was not threatened to be assaulted or beaten with the illustration of the p-word.
“Had it been the case that the p-word had been used as in the latter two examples, that being as a noun or a verb, the position would be different.
“I am satisfied that his version is reasonably possibly true and in the circumstances the trial court was misdirected in its findings.
“For these reasons, I am of the view that the trial court was flawed in its reasoning and misdirected in its findings and incorrectly found that the charge had been proven beyond reasonable doubt.
“The conviction and sentence of the accused is set aside and the order of the trial court us substituted by the following order
“The accused was acquitted on count 1.”
Salie said the p-word as it was found to have been used by the accused must be considered in grammatical context.
“Whilst the word is indeed used as an offensive one in the Afrikaans language, it has also evolved over a number of years and has come to be colloquially used across our society and within various community circles,” she stated.
“The culture if using it as a verb, noun or adjective has become prevalent and the term is used interchangeably depending on the context and phrasing of the sentence….the question is whether the State had proven beyond reasonable doubt that the accused had in fact sworn at the second complainant and in doing so had verbally abused her.”
genevieve.serra@inl.co.za