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[2016] ZAWCHC 175
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Afriforum NPC and Another v Pienaar (4357/16) [2016] ZAWCHC 175; 2017 (1) SA 388 (WCC) (8 July 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
CASE
NO: 4357/16
In
the matter between:
AFRIFORUM
NPC
First
Applicant
MARCUS
CHRISTIAAN
PAWSON
Second
Applicant
and
JOHANNES
PIENAAR
Respondent
JUDGMENT
DELIVERED ON 8 JULY 2016
DONEN
AJ
[1.]
The
first applicant is Afriforum NPC, a non-profit company which is
described in the founding affidavit as a non-profit organisation
with
its main purpose being the promotion and advocacy of democracy,
equality and civil, human, minority and constitutional rights.
It claims to be a well-known public interest litigant. The
second applicant (“Mr Pawson”) is an adult male employed
by Afriforum as the Head of Local Government Affairs.
[2.]
The
respondent, (“Mr Pienaar”) is an adult male who describes
himself as a supporter of certain of the actions of the
Open
Stellenbosch (“OS”) movement and more recently Fees Must
Fall Movement (“FMF”).
[3.]
OS
is a movement that allegedly started in April 2015 in Stellenbosch.
It is described as “
A
collective of students and staff working to purge the oppressive
remnants of apartheid in pursuit of a truly African university.
”
Their aim at this stage is the removal of Afrikaans as a leading
medium of instruction at Stellenbosch. The
language policy at
Stellenbosch is seen by Mr Pienaar, and allegedly others, as being
exclusive and oppressive. The OS movement
is supported by
movements such as FMF, the Economic Freedom Fighters Students Command
(“EFFSC”), The South African
Students Congress (“SASCO”),
and the Stellenbosch Students Representative Council (“SRC”).
[4.]
FMF
is a movement which started at the historically black universities
and then spread to all of South Africa’s universities.
It
is aimed at protesting against financial exclusion of poor, largely
black students, on the basis of affordability and outsourcing
of
labour at universities. Mr Pienaar claims that conflict is
apparent at universities across the country and that it is
part of a
broader movement to move the universities towards the realisation of
the ideals laid down in our Constitution.
[5.]
From
the utterings of Mr Pawson and Mr Pienaar it is apparent that they
both claim to be fulfilling constitutional aspirations,
but they do
so from diamentrically opposed cultural and political perspectives.
[6.]
Mr
Pienaar alleges that whilst Afriforum is not a registered political
party, it is a political organisation. It has a political
purpose, and it achieves its aims publicly, through demonstrations,
on social media and in the main stream media. It has
engaged
the African National Congress on the issues challenging the
university campuses. It is enmeshed in politics and uses its
voice to
speak out on a range of social and political issues which Afriforum
believes demonstrate that Afrikaners are in need of
and deserve
special protection.
[7.]
Mr
Pawson denies that Afriforum is a political organisation.
However, he admits that it acts in the interest of various groupings
and not exclusively for Afrikaners. It speaks for such
groupings. It opposes the groups mentioned by Mr Pienaar mainly
because they seek to violate the constitutional rights of Afrikaans
speaking students and because of alleged violence caused during
their
“violent protests”. Upon a conspectus of all the
facts I agree with Mr Pienaar that Afriforum is a political
organisation.
[8.]
Upon
a conspectus of all the parties, role players and circumstances of
this case the context of applicants’ cause of action
was deeply
mired in politics upon the Stellenbosch University campus. Any
university that aspires to help students grow,
should aim to expose
them to challenging ideas. The world outside the university may
often offend them. They therefore
need to learn to fight back
using peaceful protests, rhetoric and reason. Adult persons
outside university are expected to
have learned this already.
[9.]
Mr
Pienaar is such a person. He claims to have assisted OS
students who had been arrested, assaulted or subjected to what
he
describes as abusive and totalitarian practices. As a result he
has drawn criticism from Afriforum and its supporters.
He is
part of a loose alliance called Protest Observers Alliance (“POA”),
a group formed on Facebook by him and other
individuals, with a view
to mobilise individuals to areas where protest action is taking
place. Their aim is to observe and
record what transpires;
and where necessary to mobilise doctors, lawyers or trauma
counsellors. POA has approximately
260 members across the
country and has mobilised observers at protests on the campuses of
the University of the Free State, Potchefstroom,
Mahikeng,
Pietermaritzburg, Cape Town and Stellenbosch. Mr Pienaar
alleges that he did not participate in the protests after
forming the
POA. Its members try to diffuse violence and prevent human
rights violations when violence breaks out.
[10.]
It
is common cause that, on 3 March 2016, Mr Pienaar posted the
following statement on his Facebook page:
“
I
witnessed Afriforum supporters threaten to rape women today and then
when they found out that the one protestor was a rape survivor
mocked
her by shouting ‘don’t rape her again she’s been
done.’ I will just leave this here for all
you guys who
told me about the good work Afriforum is doing.
”
[11.]
Applicants
allege that this statement was defamatory, and falsely suggested that
supporters of Afriforum had threatened to rape
women on that day.
Mr Pawson denies that any Afriforum supporter threatened anyone with
rape. He alleges that he is
unaware of any rape survivor that
was in the vicinity of the area of conflict and that he did not hear
any supporter or member
of Afriforum indicating that someone should
not be raped again as they might have been raped before. He
states that six other
employees of Afriforum were all in the vicinity
of a statue, and/or busy washing the statue at the time of the
incident, and that
all of them confirm that no “
rape
survivor
”
or victim of rape was identified by anyone on the scene. What they
confirm is that Mr Pawson merely indicated that respondent
was
hurting a woman and nothing more happened. All of them confirm
that respondent’s statement is blatantly false.
[12.]
Two
observations arise. Firstly, that a material dispute of facts
exists between the parties as to what Mr Pienaar observed
and
commented on. Secondly, the publication of Mr Pienaar’s
statement, if it was defamatory, does not refer to either
of the
applicants. However, a requirement for Mr Pienaar to be
held liable for the delict of defamation is that the
applicants must
allege and prove that the statement complained of refers to the
applicants personally. [See
Goodall
v Hoogendoorn, Ltd
1926 AD 11
at 15
].
[13.]
It
is also common cause that, on 7 March 2016, another post appeared on
respondent’s Facebook page reading as follows:
“
Look
at how Marcus Pawson from Afriforum uses rape to intimidate a rape
survivor. This happened on Thursday and this is what
Afriforum
is desperately trying to cover up with spurious criminal charges and
fake civil action.
“
[14.]
A
video was posted with this text. Mr Pawson alleges that it is
inaudible and that he could not hear the word “rape”
(or
any similar word) anywhere in it. As appears below, alleged eye
witnesses to the event deposed to affidavits confirming
Mr Pawson’s
use of the word “rape”. Material disputes of fact
again arise. In any event Mr Pawson
alleges the publication is
vexatious and unfounded.
[15.]
On
6 March 2016 Mr Pienaar posted the following on his Twitter account:
“
Watch
how @MarcusAfr of @Afriforum uses rape to intimidate a rape
survivor.
”
Mr
Pawson states that @MarcusAfr is his personal twitter account and
@Afriforum is the official twitter account of Afriforum.
[16.]
It
is also common cause that, on 8 March 2016, and via his Twitter
account, Mr Pienaar posted the following statement:
“
Well
@Afriforum supporters get to shout rape threats and the media focus
on the mud on the statue.
”
This
statement too does not refer to the applicants.
[17.]
Pursuant
to these publications, on 14 March 2016, applicants filed papers
claiming an urgent order that respondent remove the postings
from his
Facebook and Twitter accounts within two hours of the court’s
order; as well as any other posting on his Facebook
and Twitter
accounts to the effect that any of the applicants support, condone,
incite, commit or threaten/threatened anyone with
the crime of rape
or any other crime of a sexual nature. The applicants also
sought an interdict against respondent posting
any statement on
Facebook or Twitter or any other form of social media, or from making
or spreading any statement in any other
way via any other medium, to
the effect that any of the applicants support, condone, incite,
commit or threaten/threatened anyone
with the crime of rape or any
other crime of a sexual nature pending the finalisation of an action
for defamation and possible
further interdicts to be instituted by
the applicants against respondent within 30 days of the Court’s
order. The applicants
required this order to have immediate
effect and enforceability.
[18.]
The
first-mentioned order above is a final order. The second would
have final effect on Mr Pienaar. In the alternative
to such
orders the applicants sought a
rule
nisi
incorporating the relief in the orders above which should operate
with immediate effect and enforceability pending a return date
as an
interim order. As the issues were fully ventilated before me on
the basis of a full set of papers filed by both sides
it would serve
no purpose to consider granting the alternative relief. What
needs to be considered is whether the applicants
are entitled to the
mandatory interdict claimed in their first prayer and the prohibitory
(interim) interdict claimed in their
second.
[19.]
There
is no dispute that the Mr Pienaar posted the four statements above.
Disputes of fact have arisen on the affidavits in
relation to the
incident which gave rise to the postings and which is referred to
therein.
[20.]
A
final interdict may only be granted if the facts averred in the
applicants’ affidavits which have been admitted by the
respondent, together with the facts alleged by the respondent justify
such order. (See
Plascon-Evans
Paints v Van Riebeeck Paints
[1984] ZASCA 51
;
1984 (3) SA 623
(AD) at 634 H –
I.)
Insofar as a final interdict is prevented by a genuine or
bona
fide
dispute
of fact the applicants may seek an interim interdict pending the
finalisation of an action for a final interdict.
In order to
obtain this they would have to show (a) a
prima
facie
right;
(b) a well-grounded apprehension of irreparable harm if the relief is
not granted; (c) that the balance of convenience
favours the
granting of the interim interdict; (d) that they have no other
satisfactory remedy.
[21.]
In
the practice note filed on behalf of applicants their counsel
correctly predicted that Mr Pienaar would attempt to justify his
conduct as fair comment. I assume in this regard that where the
respondent sets up a defence excluding unlawfulness, he must
state
sufficient particulars to enable the Court to evaluate the defence
and to exercise its wide discretion in considering whether
an interim
interdict should be granted. A respondent’s
ipse
dixit
that
such a defence is available to him will not suffice. (See
Hix
Networking Technologies CC v System Publishers (Pty) Ltd and Another
[1996] ZASCA 107
;
1997 (1) SA 391
(A).
)
[22.]
Mr
Pienaar alleges that during February 2016 the Stellenbosch SRC
obtained permission from the University to launch an “
End
Rape Culture
”
campaign (“ERC”) which was intended to draw attention to
certain incidents on campus which had, in the view
of the SRC, led to
what they described as a ‘
rape
culture
’
being experienced on campus by women and trans women. The
respondent uses the word “womxm” in his affidavit;
as does the ERC campaign, in order to respect the fact that gender
identity is not binary, and the compartment between “
man
”
and “
women
”
is not watertight. The term “
rape
culture
”
refers to an institutional treatment of rape as a phenomenoun as
being a problem for women to solve, rather than a social
problem
requiring men to take responsibility for their behaviour.
[23.]
The
SRC claimed that the following incidents on campus led to the
campaign,
inter
alia
,
23.1
sexist
and derogatory comments by members of a men’s residence during
a performance of “
Molassesêr
”;
23.2
the
ineffectiveness of university social services in reducing the
incidents of rape on campus, and the way they treat rape cases;
23.3
under-reporting
of rape cases by the university in order to protect the institutional
culture;
23.4
the
neglect of equal representation of women in their organisational
structure which is overwhelmingly male and white.
[24.]
The
SRC sought and obtained permission from the University to campaign
against rape culture and in this pursuit to write “
End
Rape
Culture
”
in chalk on the statue of JS Marais and all over the campus.
[25.]
Afriforum,
which is not a student organisation, arranged to visit the campus of
the University of Stellenbosch on 3 March 2016.
According to Mr
Pawson the purpose of this visit was to celebrate its heritage and to
clean up the campus and various features
on the campus that had
recently been damaged by,
inter
alia
,
the OS. The statue of Mr J H Marais, a large benefactor
of the University a century ago, was amongst the features
on the
campus that had been allegedly damaged by the OS movement, and the
EFF. Mr Pawson states that he was present at the
statue on 3
March 2016 and helped to clean it. He alleges that a crowd of
protestors, whom he presumed to be from the OS
movement, tried to
stop the representatives of first applicant from cleaning the
statue. Mr Pienaar was among the protestors.
Mr
Pawson alleges that Mr Pienaar pretended to shield a woman who was
standing with her back to the statue. No one was attacking
the
woman and she was not in any type of danger. Mr Pawson
states that it was clear to him that Mr Pienaar was pulling
some
publicity stunt as he knew that the incident was being filmed.
[26.]
A
commotion resulted, when protestors attempted to prevent members of
Agriforum from cleaning the statue. Protestors and Afriforum
members became physically engaged. Mr Pienaar was
pushed “
closer
to/against the women
”.
Without naming Mr Pienaar, Mr Pawson allegedly shouted that Mr
Pienaar was hurting the woman. He claims that
there is video
footage available on which his shouts are clearly audible.
However, the authenticity of this video was placed
in dispute.
It was filmed by a certain Willem Nikolaas Swanepoel. He filed
a confirmatory affidavit stating no more
that he had read Mr Pawson’s
affidavit and confirmed the content insofar as it referred to him.
This was insufficient,
in my view, to prove the authenticity of the
video. Mr Pawson claimed that Mr Pienaar had left his position
next to the statue
after the commotion and had slapped Mr Pawson.
Allegedly this can clearly be heard in the video. However,
Mr Pawson
does not allege that it can be seen.
[27.]
In
answer to Mr Pawson, Mr Pienaar alleges, without contradiction in
Pawson’s replying affidavit, that a separate campaign
to the
End Rape Culture campaign, namely the EFF student’s command,
had obtained permission from the University and the Stellenbosch
municipality to march on 3 March 2016 to protest the
victimisation of students by the University, after seven students
had
been summonsed to disciplinary hearings. A reactive gathering
was then organised by Afriforum via text message.
[28.]
Mr
Pienaar annexed a pamphlet headed “Afriforum Jeug” which
stated the following:
“
Kuier
saam met Afriforum Jeug by JANNIE MARAIS – standbeeld en
verhoed dat die EFF hom afbrand.
”
The
date referred to was 3 March 2016 at noon. The place was
Rooiplein. Readers were urged to “
versprei die
boodskap.
” On the morning of 3 March 2016 Afriforum
reached an agreement with the university whereby they were permitted
to gather
peacefully on the grass near the statue. From the
content of their pamphlet it was apparent that a confrontation
between
members of the EFF and Afriforum was reasonably foreseeable
although the grass area to which Afriforum were limited was
approximately
40 meters from the statue.
[29.]
According
to Mr Pienaar (again without contradiction) the university gave a
press release on the same day, stating the following:
“
No
evidence of planned arson.
An
invitation is doing the rounds on social media for people to protect
the JH Marais statue on the Rooiplein against arson today.
This
invitation may be linked to the protest march planned for 12:00 until
14:00. At this time there is no evidence to substantiate
such
serious allegations. The organisers of the protest march
followed the application process and permission was granted
by the
Stellenbosch Municipality.
The
campus community is reminded that the University acknowledges the
right of staff and students to peaceful protest, provided
that the
administrative and academic activities are not disrupted; that
actions do not lead to any risks to the safety of
staff and students,
or university property; and that the rights of students to
study or attend classes are not infringed
upon. Arson, violence
and intimidation are criminal acts, and such activities are viewed in
a very serious light. An
appeal is made to please avoid
spreading rumours or fuelling animosity on social media.
”
[30.]
Mr
Pienaar alleges that he called on observers to be present in order
that, should violence erupt, there would be independent observers
present who had a record of what in fact transpired.
He
attended the protest on behalf of the POA. He noted EFF marchers,
singing struggle songs and carrying placards, marching past
the JH
MaraMelissa S.is statue, towards the Rooiplein stairs. A
movement of young Afrikaans students was on Rooiplein.
They
bore placards reading “
Afriforum
doesn’t speak for me.
”
[31.]
By
that time Afriforum members had already left the grass area and were
moving towards the statue. As the marchers went past
the statue
one of them took a “
Vote
EFF
”
poster and attached it to the statue with Prestik. Afriforum
members moved closer towards the statue, apparently in
order to
remove the poster. One of the OS students, M. S., moved to
stand in front of the chalk sign on the statue calling
to “
end
rape culture
.”
She stood in front of the statue with her hands in the air crossed
over her head.
[32.]
Afriforum
supporters started to grope her and touch her, with calls to rape
her, which were audible to nearby observers. She
cried out “
Why
are you touching me? Don’t touch me!
”
Mr Pienaar moved to assist her. He stood in front of her,
between her and the Afriforum members and used his
body to shield
her. Certain persons pointed out to Afriforum supporters that
Melissa was a rape survivor. One of the
supporters called out
“
Don’t
rape her, she’s already been done.
”
Mr Pienaar alleges that he heard Mr Pawson calling out
“
He’s
raping her, he’s raping her
.”
When Mr Pawson saw the cameras he changed his chants to “
He’s
hurting her, he’s hurting her
.”;
[33.]
Mr
Pienaar alleges that the video footage provided by the applicants
does not show all that happened that day. He refers to
the
content of affidavits by the following eye witnesses which support
his own version.
[34.]
Ms
S. stated that she is studying for a Master of Arts degree at the
University of Stellenbosch. She is a gender rights activist,
secretary for LeBiGay Stellenbosch, and a member of the Womxns
Empowerment SRC General Committee at Stellenbosch. She is also
involved in the OS movement and the End Rape Culture Campaign in
Stellenboch. The latter was started to draw attention to
the
pervasive culture of misogyny and rape which its members believe
pervade the University. Examples of rape culture on
campus are
set out in Mr Pienaar’s affidavit.
[35.]
Ms
S. is also a rape survivor. She has been diagnosed with
post-traumatic stress disorder as a result of that ordeal.
She
is easily triggered by sexually aggressive actions directed at her by
men.
[36.]
Ms
S. alleges that the different movements at Stellenbosch are part of a
larger, national movement which goes under two banners,
namely: Fees
Must Fall and Rhodes Must Fall. As a result, students from
different universities are in contact with each other
and stand in
solidarity with each other.
[37.]
She
is also a supporter of the campaign known as “
Die
Volksveraaiers
”,
which was started by white students at Stellenbosch who distance
themselves from what is seen as Afriforum’s attempts
to speak
on behalf of all white students. Part of this campaign includes
students putting up photographs of themselves on
social media and
holding placards which read “
Afriforum
does not speak for me.
”
This campaign is a reaction to Afriforum’s opposition to
attempts by certain students to “decolonise the
university (a
movement which is generally called “
decolonisation
of the mind
”).
This entails calling upon the university to change its language
policy by eradicating Afrikaans as a medium of instruction,
as well
as removal of statues and paintings of people that the movement
believes are part of the colonial and apartheid past.
Afriforum
strongly opposes any such attempts. They see the movement as a
“
war
on Afrikaans
”.
Tensions therefore run high between the students and the two camps.
[38.]
Ms
S. goes on to state that, on 3 March 2016, the Student Command of the
EFF held a march for the 7 students who had been suspended
by the
university. The march was organised with permission of the
university. Ms S. joined the march at approximately
13h00, on
Merriman Street. They marched across Victoria to the
Administration A building. The EFFSC coalition diverted
towards
the Rooiplein when they heard that Afriforum was surrounding the Jan
Marais statue.
[39.]
As
the marchers passed the statue one of the EFFSC members placed a
poster with Prestik on the statue and continued the march.
Other students placed a poster, stating “Afriforum does not
speak for me,” above the first poster. Afriforum
supporters expressed outrage. A group of students then stayed
at the statue, according to Ms S. in order to deescalate the
situation. Ms S. felt that she wanted Afriforum to know that
they did not speak in the name of all white people. Be
that as
it may the second poster was pulled off. Ms S. found a new one
and replaced it. A man then grabbed her by her
bag and tried to
pull her off the statue forcibly. She was bumped into several
times by men who shoved her aside. She
had asked them to step
back as she felt unsafe. She alleges that the men were all part
of the Afriforum group.
[40.]
One
of these men pushed his leg into her buttocks. She told him
that he was touching her buttocks and that she felt severely
uncomfortable. He replied that he really did not care about her
comfort as the statue meant more. He persisted in his
conduct
despite her protestation. This made her feel sexually
vulnerable and violated. Ms S. then stood up against
the statue
with her arms around it to prevent Afriforum’s supporters from
pulling off the poster.
[41.]
At
that stage two other protesters, Nosi Nicole Matiwane and Nicola
Bruns were also pressed up against the statue. Ms S.
and
Ms Matiwane repeatedly put up posters. They were repeatedly
abused by the men around them. At one stage a certain
Pieter de
Villiers from Helshoogte Koshuis, one of the Stellenbosch residences,
came over to Ms S. and Ms Matiwane and said, “
End
rape culture, don’t rape her
.”
Ms S. feels that he spoke in a threatening manner, “
in
her face and aggressively”.
He
was laughing when he made his comment. In context she believes
this was clearly meant to terrify the two women involved.
[42.]
At
some stage some of the crowd wrote on the statue “
end
rape
culture
”.
The posters were ripped down by a crowd of angry Afriforum
supporters. A large group of Afriforum supporters
attempted to
scrub the statue clean. Ms S. threw herself in front of the end
rape culture poster and refused to move.
A group of men
continued to scrub and press through and over Ms S.’s body,
even though she was screaming and crying.
People were urging
them to stop. A certain Mr Tiaan Esterhuizen of Afriforum
shouted “
I
will not leave her alone
”.
Mr Esterhuizen appears to be one of the deponents of a confirmatory
affidavit filed on behalf of applicants and an
employee of
Afriforum. He does not elaborate on events in his affidavit.
Nor did he file an affidavit in reply.
[43.]
Ms
S. states that the Afriforum supporters poured soap over her face and
body and left bruises and scratches on her skin.
They touched
her in places which she felt were sexually inappropriate such as on
her breast and torso. She was shouting that
Afriforum condones
rape culture. Mr Pienaar then moved between Ms S. and the
Afriforum supporters. Ms S. alleges that
Mr Pawson then started
yelling “
Look
at him. He’s raping her. He’s raping her!
”
All of this triggered traumatic memories in her mind. She
started to scream and her friends pulled her away.
Nevertheless
she returned. A man in a green cap started laughing loudly and
telling his friends “
Don’t
rape her, she has already been done.
”
The Afriforum Youth leaders ignored her protest and continued
cleaning the statue.
[44.]
On
the same afternoon Ms S. laid charges of sexual assault against Mr
Pawson and other Afriforum supporters, whose identities were
unknown
to her. She also advised the police that other women had been
assaulted in a similar fashion and provided their names.
All of
the cases were being investigated.
[45.]
Nicola
Jo Bruns also deposed to a supporting affidavit. She stated
that she was studying for an MA degree. She was a
journalist at
FM92.6 and Cape Talk. She was involved in advocacy journalism,
the OS movement, and the End Rape Culture campaign
in Stellenbosch.
She was also a supporter of the campaign known as “Die
Volksveraaiers”. She was present
at the Jan Marais statue
on the day in question. Afriforum supporters attacked female
students verbally and physically in
a sexual manner. She heard
members of Afriforum shout the words “
just
don’t rape her
”
and “
be
careful not to rape her
”
at Ms S. and Ms Matiwane. The gestures and mannerisms of the
men were threatening and abusive. When Ms S. and
Ms Matiwane
refused to move away from the statue, members of Afriforum, who had
fetched buckets of soapy waters and sponges to
clean the statue,
started dousing the womens’ bodies with the sponges, touching
them in an inappropriate manner, and laughing
at them.
[46.]
Mr
Pienaar attempted to shield Ms S. from the Afriforum men who were
inappropriately touching her. When Ms Bruns attempted
to do the
same one of the Afriforum members groped her rear and told her that
she was a worthless woman. She repeatedly shouted
that they
should stop touching her. The man hit her on her shoulder and
in the area of her breasts. She suffered a
panic attack and had
to be carried away by fellow students. Ms Bruns was one of the
person’s named by Ms S. when she
laid charges.
[47.]
Ms
Liana Maheso also deposed to a supporting affidavit. She stated
that she was studying for a BA degree. She was involved
with
the OS Movement. She was part of the EFF march. She saw a
commotion at the JS Marais statue. When she arrived
there Ms S.
was pinned against the statue. Ms Maheso video’d the
incident. From where she was standing it looked
as if Afriforum
male supporters were trying to remove Ms S. from the statue; as
well as the words “
end
rape culture
”
which were written on it.
[48.]
One
Afriforum supporter was washing Ms S. as well as the statue. Mr
Pienaar stepped in to protect Ms S. from the Afriforum
men.
They in turn became angry and started to yell and push Mr Pienaar.
The man who had been doing the washing, referred
to above, climbed
over Ms S. onto the statue and started to wash. In the
process he threw water over Ms S. and Mr Pienaar.
An Afriforum
member wearing an army green cap pushed her away. In doing so
he touched her breast. A confrontation between
them ensued.
Brandon Como dragged the man away from her. When she looked
back she saw Mr Pawson pushing and manhandling
Mr Pienaar.
Ms S. was pinned against the statue by men who were pushing each
other. She was screaming.
[49.]
Mr
Pawson started to shout “
he
is raping her, he is raping her, help her, he is raping her!
”
Ms S. was visibly upset. She moved from the spot where she was
standing. She was soaking wet and in tears.
The man with
a green cap and blue shirt then said “
She
is already done, don’t rape her.
”
When Ms Maheso informed him that Ms S. was a rape survivor he walked
away laughing.
[50.]
Brandon
Como stated that he is employed by the university as Manager of
Student Governance and Societies. He saw the content
of a
letter from the university confirming that Afriforum only had
permission to gather on the grass. In his official capacity
he
was at the JS Marais statue on 3 March. He heard Mr Pawson
shouting “
He’s
raping her, he’s raping her
”.
The comment appeared to be directed at Mr Pienaar who was standing in
front of Ms S. in order to protect her from
a group of people who
were forcefully attempting to clean the statue. Mr Pawson’s
statement was blatantly untrue.
When Mr Como asked Mr Mr Pawson
why he was screaming those words, he replied that it because “
they
are also doing it to them
.”
Mr Como also confirmed that Ms S. became extremely emotional.
[51.]
George
Xander Von Berg stated that he is studying for a BCom degree.
He is a social justice activist and supports the OS Movement
as well
as the End Rape Culture Movement
.
He is also a supporter of the group which calls itself “
Die
Volksveraaiers.
”
On 3 March 2016 he was present at the JS Marais statue during
protest action by various groups. He witnessed
the Afriforum
supporters shouting slogans at Ms Matiwane such as “
Stop
rape
.
Don’t
rape her.
”
and “
Mens
sou dink hulle wil verkrag word
.”
(You
would think they want to be raped.
[52.]
Devereux
Damon Moses stated in his affidavit that he is studying for a
Master’s degree in education at the University of
Stellenbosch. He was present at the protests by various groups
at the Marais statue. He witnessed Afriforum supporters
shouting various slogans at Ms Matiwane including “
Mens
sou dink hulle wil verkrag word
.”
[53.]
The
ventilation by Afriforum supporters of their support for whatever the
JC Marais statue stood for – on respondent’s
version –
went beyond the boundaries of lawful conduct. Applying the rule
in
Plascon-Evans
to
determine an application for a final interdict the case falls to be
determined on respondent’s version. This shows
that
Afriforum supporters sexually assaulted Ms S., Ms Matiwane and
Ms Bruns and sexually intimidated them. Respondent’s
affidavits also show that Mr Pawson and one Pieter de Villiers
sexually intimidated Ms S. and Ms Matiwane by shouting rape related
comments. This behaviour of Mr Pawson and the supporters of
Afriforum, as described in respondent’s affidavits, embody
the
phenomenon which the “
End
Rape Culture
”
campaign justifiably seeks to eliminate. Whether or not
Afriforum supporters threatened to rape Ms S. in the
literal
sense of the word, they nevertheless did inflict their rape culture
on her and other women present.
[54.]
In
order to obtain their temporary interdict the right to be set up by
the applicants need not be shown by a balance of probabilities.
It is sufficient if it is
prima
facie
established though open to some doubt. The facts as set out by
the applicants, together with any facts set out by the respondent
which the applicants cannot dispute must be taken and consideration
given to the inherent probabilities whether the applicants
could on
those facts obtain final relief at the trial. The facts set up
in contradiction by the respondent should then be
considered.
Serious doubt is thrown upon the case of the applicants by
respondents affidavits described above. Applicants
therefore
cannot succeed in obtaining temporary relief. [See
Webster
v Mitchell
1948 (1) SA 1186
(W) at 1189
.
[55.]
Respondent’s
affidavits establish conclusively that, by attending upon the campus
of the University of Stellenbosch, Afriforum
deliberately entered a
public and very politicised domain. Their object was to engage
in ventilating their political differences
with student groups on the
campus. The courts have held that certain legal consequences
arise in these circumstances;
when regard is had both to the
right of freedom of speech as it existed in the common law, and the
right to freedom of expression
which is entrenched by section 16 of
the Constitution. Section 16(1) thereof expressly entrenches
freedom of the press and
other media. I would include social
media such as Facebook and Twitter in the latter category.
[56.]
In
the matter of
The
Citizen 1978 (Pty) Ltd & Others v McBride
2011 (4) SA 191
(CC) at
paragraphs 99 and 100
the
Constitutional Court stated that:
“
More
than 50 years ago, within the then-constrained perimeter of
racially-defined public life, a court noted that in this country’s
political discussion, ‘(s)trong epithets are used and
accusations come readily to the tongue. The court also found
that allowance must be made ‘ because the subject is a
political one, which had aroused strong emotions and bitterness’
of which readers were aware, and that they ‘would not be
carried away by the violence of the language alone.
These
words are still apt today. Public discussion of political
issues has if anything become more heated and intense since
the
advent of democracy. A constitutional boundary is the express
provision in the Bill of Rights that freedom of expression
does not
extend to hate speech. Another is the legitimate protection
afforded to every person’s dignity, including
their
reputation. But, so bounded, it is good for democracy, good for
social life and good for individuals to permit maximally
open and
vigorous discussion of public affairs.
”
[57.]
In
the political dynamics on the campus of Stellenbosch University it is
almost inevitable that any response to Afriforum by the
Open
Stellenbosch Movement, the Protest Observers Alliance and the End
Rape Culture Campaign would be emotional, bitter and would
employ
violent language.
[58.]
In
Democratic
Alliance v African National Congress and Another
2015 (2) SA 232
(CC)
the
Constitutional Court stated at paragraph 133 that
:
“
Political
life in democratic South Africa has seldom been polite, orderly and
restrained. It has always been loud, rowdy and
fractious.
That is no bad thing. Within the boundaries the Constitution
sets, it is good for democracy, good for social
life and good for
individuals to permit as much open and vigorous discussion of public
affairs as possible.
”
[59.]
In
accordance with these judgments Mr Pienaar is entitled to a certain
amount of latitude in describing the confrontation that took
place
between Afriforum and students on the campus. It was political,
emotional, bitter and liable to be described in violent
language.
[60.]
A
statement is defamatory if it would “
tend
to lower the plaintiff in the estimation of right thinking members of
society generally.
”
(Per Lord Atkin in
Simm
v Stretch
[1936] 2 All ER 1237
(HL) at
1240).
It must be accepted, however, that all right thinking or reasonable
members of society subscribe to the norms and values
of the
Constitution. (See
Sokhulu
v New African Publications Ltd t/a ‘The Sowetan Sunday World
’
2001
(4) SA 1357
(W) at para 7
.
[61.]
A
reasonable reader would read Mr Pienaar’s statements in the
context of the events in relation to which they were made.
He
or she would accommodate the
patois
employed in the assertion of the End Rape Culture Campaign. The
meaning of the words used must be determined not in isolation
but
against the established factual maxtrix of this particular case.
(See
De
Villiers v Schutte
2001 (3) SA 834
(C) at 839 D-E
).
[62.]
In
Islamic
Unity Convention v Independent Broadcasting Authority & Others
[2002] ZACC 3
;
2002 (4) SA 294
CC at para 28
the
Constitutional Court made the point that it is not just that which is
already tolerable that must be tolerated, “…
but
also … those that offend, shock or disturb … such are
the demands of that pluralism, tolerance and broadmindedness
without
which there is no ‘democratic society’.
[63.]
By
thrusting themselves into the public eye, and by entering the
premises of Stellenbosch University in order to confront student
groups with opposing political views, Afriforum opened themselves to
public scrutiny. They must consequently display a greater
degree of tolerance to criticism then ordinary individuals.
(Compare
Cele
v Avusa Media Limited
[2013] 2 All SA 412
(GSJ).
Afriforum’s
promotion of a political confrontation by pamphlet, and by the
follow-up action of its members, resulted in violence
erupting on the
campus: which on the basis of the application of the rule in
Plascon-Evans
,
involved Afriforum’s supporters commiting assault, sexual
violence, sexual aggression and intimidation, and expressing of
rape
culture in an egregious form. The consequence was the
employment of the language of the End Rape Culture Campaign by
its
protagonist against apparent perpetrators of rape culture.
According to the cases cited above Mr Pienaar’s robust
political riposte constitutes an exercise of freedom of expression
which, in my view, does not involve defamatory statements concerning
the applicants.
[64.]
The
protection of the dignity of the women violated by Afriforum
supporters is of paramount importance under the Constitution.
The comment on these unlawful acts in the present publications cannot
give rise to a remedy for the applicants based on a violation
of
their own dignity.
[65.]
The
comment made by Mr Pienaar were fair within the context of the acts
described by the witnesses who deposed to affidavits in
support of
Mr Pienaar.
[66.]
The
applicants have failed to establish that the publications in issue
will be unlawful in that the respondent has no valid defence
in the
defamation proceedings; or that the applicants will be
irreparably injured if the interdict is not granted.
Mr
Pienaar’s assertions, claims, statements and comments could be
countered most effectively and just as quickly as this
urgent
application, by refuting them in public meetings, on the internet, on
radio and television and in the newspapers.
[67.]
Applicants
can meet political criticism in the political arena by responding to
respondent’s political comments on social
media with their own
rebuttal, as the Constitutional Court suggested in the
DA
case is appropriate in a free and open democracy. Afriforum can
and has in some case issued public statements, responded
on social
media, addressed questions regarding the apparent conduct of its
supporters.
[68.]
In
all the circumstances the applicants have not established a
prima
facie
right
to have Mr Pienaar’s publication taken down from social media;
less so have they established a clear right.
Nor have they
established a well-founded apprehension of irreparable harm.
The harm of which they complain has been done.
The post has
been posted, shared and viewed. The internet world has moved
on. They can avail themselves of other remedies
such as those
referred to above, and damages via a defamation action.
[69.]
The
first post made by Mr Pienaar, on 3 March 2016, neither refers to the
applicants nor to their members. The second post,
on 7 March
2016, describes how Mr Pawson uses rape to intimidate a rape
survivor, Ms S.; but with reference to a video
as the source of
Mr Pienaar’s authority; and he encourages readers to view
it. Through the applicants may disagree
with him, it is
political comment and therefore protected speech. Mr Pienaar is
not saying that Mr Pawson incited people
to rape. This same
comment applies to the posting on 6 March 2016. The content of
the posting on 8 March 2016, to the
effect that rape was shouted as a
word that threatened female students, was borne out by respondent’s
affidavits.
[70.]
In
the
HiX
Networking Technologies
case
the Appellate Division stated that attempts to restrain publication
must be approached with caution. The appropriate
stage for this
consideration, insofar as applications for interim interdicts are
concerned, would be the point at which the balance
of convenience is
determined. At that stage consideration should be given to the
fact that the person allegedly defamed will,
if the interdict is
refused, nonetheless have a cause of action which will result in the
award of damages. This should be
weighed against the
possibility that the denial of the right to publish is likely to be
the end of the matter as far as the media
is concerned. In the
exercise of its discretion in granting or refusing an interim
interdict, regard should be had,
inter
alia
,
to the strength of the applicants’ case; the seriousness of the
defamation; the difficulty the respondent has in proving,
in
the limited time afforded to it in cases of urgency, the defence
which it wishes to raise and the fact that the order made,
in
substance though not in form, amounts to a permanent interdict.
These remarks are apposite in the present matter.
In the
circumstances the balance of convenience favours the respondent.
[71.]
The
orders sought by the applicants have a chilling effect on political
free speech. The limitations sought are oppressive
and
unjustified. There is no merit in the application for either
the mandatory interdict or the interim interdict.
[72.]
In
all the circumstances the application is dismissed with costs.
____________________
DONEN
AJ