For some, the f-word rolls quite easily off the tongue, but this can land a person in hot water, especially if one’s neighbour is a devoted Christian and does not tolerate swearing, as an artist living in Komatipoort, Mpumalanga, discovered.
Wayne Barker and his neighbour, Arthur Flemix, were at loggerheads for some time as Flemix could not handle Barker’s antics. He eventually obtained a protection order against Barker for “verbal, emotional, or psychological abuse.”
Sometime later, Barker’s neighbour overheard him shouting the word “f**k” loudly at someone in his yard, which turned out to be his worker called Eric.
He was upset as Eric had demolished a bee’s nest on his property. Flemix said he heard Barker say: “Eric, my favourite song is ‘f**k f**k f**k’.” Flemix, from his yard, screamed at him to stop swearing,but Barker replied “Arthur, f**k you”.
Not long after, Barker was arrested for contravening the protection order. He was convicted of violating the order by “verbally abusing the complainant by swearing at him. Barker was sentenced to six months’ direct imprisonment or a R3,000 fine, suspended for five years.
Barker then turned to the Mpumalanga High Court, sitting in Mbombela, to appeal against the sanction.
Judge Malefsane Kgoele remarked that the two characters’ personalities are strikingly different, leading to the dispute between them.
Flemix, a former battalion commander, is a devout Christian, and does not like swearing. Barker is an artist … and like many artists, he might be somewhat eccentric, the judge said.
Barker described himself as “a little bit dyslexic” and as a result, he paints as his form of communication. “It is common cause that he wears a sarong when in his yard, and loves music and swearing,” the judge said.
Flemix obtained a protection order against Barker after the latter offended him by being half-naked (he allegedly wore a sarong without underwear), playing loud music, and against verbal, emotional, or psychological abuse.
Armed with top lawyer Richard Spoor, Barker defended the claims against him. He argued that the expression “f**k you” did not constitute harassment in terms of the Harassment Act. Spoor said Barker is a world-renowned artist who moved to “conservative” Komatipoort.
He did not fit in and, within months, faced a protection order. Spoor said the Harassment Act was passed to combat intolerable levels of harmful harassment in society.
Spoor said Barker’s appeal follows an established tradition. When Paul Robert Cohen was convicted for maliciously and wilfully disturbing the peace and quiet of a neighbourhood by wearing a jacket bearing the words ‘F**k the Draft’, the Supreme Court of the United States (Scotus) set aside this conviction.
This was because of the importance of protecting the right to freedom of expression. About the word f**k, Scotus ruled: “The four-letter word … is perhaps more distasteful than most others of its genre, but it is often true that one man’s vulgarity is another’s lyric. If Mr Barker’s favourite song really is ‘f**k, f**k, f**k’ … that seems particularly fitting here,” Spoorargued. He said Barker ought to be as protected from criminal liability as Mr Cohen was before him.
Spoor said his client wears a sarong and loves music, but,according to Flemix, Barker “ cannot play guitar”. Apart from swearing, Flemix complained that Barker disturbed the peace and defamed him with allegations of theft. Thus, he obtained the harassment order against him.
But Barker said the orders were obtained in his absence; he was never served with either the interim or final orders. Thus, he had no opportunity to tell his side of the story.
In vindicating Barker, Judge Kgoele said the State needed to prove that the protection order it relied upon for the contravention was served properly. The court that convicted him did not apply the law correctly as it should have afforded Barker the benefit of the doubt on whether he received the protection order or not. The court overturned the conviction.
Pretoria News