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[2018] ZAWCHC 108
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Inzinga Ranch CC v Mashiyi (A265/17) [2018] ZAWCHC 108 (23 August 2018)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
CASE
NUMBER A265/17
In
the matter between
INZINGA
RANCH
CC APPELLANT
AND
BUSISIWE
MASHIYI RESPONDENT
CORAM: SAMELA J; THULARE
AJ
JUDGMENT
THULARE
AJ
[1]
This is an appeal against the judgment of the Equality Court for the
district of Wynberg. The gist of the respondent’s
complaint was
that she was unfairly discriminated against on the basis of her race
and gender, as a black woman as well as that
she was harrassed. The
core of the appellant’s answer to the complaint against it was
a denial that the alleged discrimination
or harassment took place and
it was alleged that the appellant’s conduct is not prohibited
conduct.
[2]
The appellant is the owner of [...] A. Estate, a freestanding
upmarket residential dwelling in Hout Bay in the City of Cape
Town
(the property). The appellant, represented by Keith Watkins
(Watkins), its sole member who was represented by Seeff Properties
(the agents) concluded a lease agreement with the respondent in
respect of the property for the period 1 October 2012 to 30 September
2013. The respondent left the property before the agreed period in
terms of the lease agreement. It is the relationship and
developments,
in particular the conduct of Watkins towards the
respondent which led to the complaint.
[3]
The respondent is an African woman and a mother of two children aged
10 and 1 year old. Upon her appointment at Shell (SA) with
a
condition to relocate from Johannesburg to Cape Town, she engaged the
services of the agents who introduced her to the respondent
for the
lease of the property. She was a highly regarded executive at Shell
(SA) and as a result the Migration Station, a unit
at the company,
got involved in assisting her to secure the property. The background
checks by the agents indicated that she was
well paid, highly thought
of and had no credit difficulties.
[4]
The agents used separate lease agreements for their corporate clients
and ordinary residential properties. When the agents introduced
the
complainant to Watkins, he requested the agents to incorporate some
of the terms found in a corporate lease agreement into
the
residential lease instrument with the complainant. The complainant
found some of the terms objectionable but after further
engagement
the parties agreed on the terms to regulate their agreement, which
the respondent signed on 27 September 2012.
[5]
The appellant had conveyed, through the agents, three issues with the
property which needed the attention of the respondent.
Firstly,
because of the high water pressure in the area, the respondent was
requested, when using the kitchen mixer-tap, to hold
the tap at the
bottom before it was swung and opened. This was to ensure that the
water does not jump up and splash onto the person
using the tap which
may result in injury or damage. Secondly, the respondent was
requested to ensure sufficient ventilation in
the shower to prevent
green algae forming. This included opening the windows for some time
when taking the shower or thereafter.
The third was that there was
strip laminated flooring in the bedrooms which was put in at the
request of the previous tenants because
of their asthmatic child.
Water was anathema to the flooring and the respondent had to be
alerted thereto.
[6]
The respondent went on a business trip outside the country two days
after taking occupation and returned on or around 4 November
2012.
On the morning that she left the country she took a shower at about 4
am as she was on the 6 am flight. It was too
early and too cold and
if she had not been requested she would not have opened the windows.
In opening the windows, she only made
a small gap and she had
intended to let the shower steam off and close them before she left.
She forgot to close the windows, went
out of the country and left the
windows open.
[7]
On 16 October 2012 Watkins received a call at about 2am from the
security at the gate to the estate, who informed him that there
was a
storm and that the curtains were blowing outside of the house through
the main bathroom and the en-suite bathroom. He attended
to the
property the next morning and found the windows open and it was
during high winds. Watkins did not only attend to the curtains.
Without notice to the respondent, he carried out an inspection of the
property. Amongst others, he concluded that the suction,
which is the
difference between the external and the internal wind pressure caused
the trapdoor to vibrate.
[8]
Watkins then wrote an e-mail on the 17
th
October 2012 in which he
reported back and also made the suggestion, in line with standard
practice at the estate, that the
Estate Manager be informed when the
respondent would be away for longer periods, and perhaps even leave a
remote control key with
that Manager. This would ensure that guards
provided extra patrol and looked after the property with greater
detail. The remote
control key would facilitate access in case the
alarm went off when the respondent was away. Watkins also suggested
that he also
be informed of her being away.
[9]
The respondent returned on the 4th of November 2012. On the morning
of the 5
th
November
2012, the gate to the property would not open by remote control. She
then sent a text message to Watkins to report. Watkins
attended to
the gate. However, he went further. He inspected and attended to the
fountain, the pool, the geyser and the garden.
Watkins never sought
her permission to go into the property in her absence, opened the
house and went into it, which he did regularly
thereafter including
inspections. She found the conduct of Watkins as invasive.
[10]
Around the 19
th
of November 2012, after the bath of the baby in a free stand-alone
bath in one of the bathrooms, when the bath was opened for the
water
to run out, the respondent noticed that the water drained onto the
floor of the bathroom, and did not run down the normal
pipes. She
requested Watkins to have a look at it. Watkins went into her bedroom
to the en-suite bathroom, which had no problems,
in her absence. This
she saw from the report from Watkins in an e-mail dated 19 November,
in which Watkins made reference to the
hand-shower in her main
bedroom. Watkins attended instead to the mixer in one of the basins.
He did not attend to the drainage
and the bathtub about which the
respondent complained of and she had to get a plumber doing
maintenance at her work place to attend
thereto. In the e-mail, it
was clear that Watkins checked the garden, pool, irrigation system
and the fountain which she did not
ask him to check, and raised his
concerns thereon.
[11]
Watkins’ correspondence after the free-standing bath complaint
was that if she continued to bath the baby in the tub
then she had to
make sure that she did not push the bathtub backwards, that is, push
it towards the wall with her body weight.
On Watkins’ version,
the bath in question is not light, although it is not overly heavy.
It would require a reasonable amount
of weight to move it. It moved
for between 30 to 40 mm, and it would have taken a reasonable amount
of weight to move it.
Watkins checked the
wrong bath, and not the bath to which the respondent referred him for
attention. He did not attend to the bath
complained of. There was no
relationship between the bath that he checked and the bathing of the
respondent’s child. The
respondent found Watkins’
response obnoxious.
[12]
The respondent spent a lot of time travelling and according to
Watkins she could therefore not maintain the property, especially
the
garden and the pool. His feeling was that the property was well
beyond the complainant’s ability to handle reasonably,
and to
ensure that she maintained his standards. The gardener that the
respondent appointed came on a bicycle and was not admitted
to the
estate. The respondent communicated with the agent to arrange for a
gardener, and this was of no consequence to him. In
his view, the
gardener that was appointed and attended to the property needed
lessons from him.
[13]
The respondent did not pay her rental on time on 1 December 2012 as
provided for in the lease agreement because she had been
out of the
country and could not make contact. She paid the December rental on
the 12
th.
.
Watkins’ view was that there could be no good reason for lack
of payment of rental. The agents transferred the respondent’s
deposit to the appellant in lieu of her rental payment at his demand
on 5 December 2012. When she was in a position to do so, the
respondent had communicated the reasons for her late payment to the
agents, acknowledged that the payment was late and offered
to make
payment including interest worked out thereon as the lease agreement
provided. The respondent upon her return made the
payments, and the
amount she paid was repaid into the deposit. Watkins was aware of and
also party to the arrangement that the
amount paid to him from the
deposit would be paid back into the deposit when the respondent paid
the December rental upon her return
from arranging the expatriation
of a body of a relative back into the country.
[14]
Against this background and knowlegde, on the 13
th
December 2012 Watkins threatened the respondent with cancellation of
the lease agreement and eviction proceedings unless the respondent
agreed to his unilateral addition of a new term into the lease
agreement. The term sought to be confirmed in writing to Watkins
Attorneys by the respondent was that in the event of any future or
late payment of the monthly rental appellant would be entitled
to
forthwith cancel the lease agreement and proceed to take legal steps
to have the respondent evicted from the property. The respondent
did
not agree to this term. Furthermore, the appellant had demanded that
as part of that new term, the respondent put in place
a debit order
for the rental payments and also to make further commitments with
regard to the upkeep of the property.
[15]
The respondent negotiated and entered into the lease in her personal
capacity. When the respondent did not timeously pay rental
in
December 2012, on the 7
th
of December 2012 Watkins wrote an e-mail to the agent and threatened
the agent with being joined as a party to legal action as
they had
assured him that she was a quality tenant. Watkins also communicated
with the respondent’s employer on the 13
th
December 2012, drawing their attention to their image should he
proceed with legal action to recover rental. He demanded from Shell
(SA) that they guarantee the respondent’s rental payments. He
further demanded, through Shell (SA) that the respondent should
put a
debit order in place to secure timeous rental payment and also attend
to the garden and pool to his liking.
[16]
Watkins used the threat of cancellation of the lease agreement and
eviction of the respondent as a weapon to extract satisfaction
of his
demands from the respondent through Shell (SA). Already on 13
December 2012, Watkins suggested to Shell (SA) that the respondent
should cancel the lease and find alternative accommodation and that
he would facilitate such a move on the understanding that he
was in
no way financially prejudiced. Watkins proceeded with this trajectory
throughout. At a meeting he caused to be called on
the 18
th
December 2012 with the respondent and the agents, he persisted on the
terms made to Shell (SA) and further repeated his concerns
with the
garden and pool. Following the meeting, Watkins caused perplexes to
be drilled, for the legs of the bath to be placed
within to prevent
the self-standing bath from moving.
[17]
By 22 December 2012, Watkins asked the respondent to look for
something more manageable for her as he would not continue to
be
accommodative. He had concluded that the property did not fit the
respondent’s lifestyle and was beyond her ability to
manage. He
suggested that she work towards vacating the property by the end of
February. According to him the property was deteriorating
before his
eyes and he could not be accommodating any further. He was irritated
at what he viewed as a lack of interest by the
complainant on litany
of issues he raised. For example, he was not happy that the
respondent did not use a pool maintenance business,
Mainstream Pools
in Hout Bay, to attend to his pool.
[18]
There were differences of opinion between Watkins and the respondent
on the maintenance of the property. For instance, she
raised concern
that the sprinkler irrigation did not cover the whole garden and had
blind spots to which Watkins should attend,
whereas Watkins expected
her to get an additional sprinkler and that she was to move it around
to water all the plants. This difference
of opinion resulted in the
mulberry tree not sprouting leaves on time. Watkins ascribes this to
the respondent alone. Furthermore,
when the sprinkler irrigation
malfunctioned and ran throughout, which caused the respondent a
R6000-00 waterbill, she turned it
off, and Watkins had to attend to
it, which caused him displeasure. There is no explicable reason on
the facts as to why the malfunction
of the sprinkler is attributed to
the respondent alone.
[19]
The complainant left her niece in charge of the property and the
children when she left on a business trip. The niece had allowed
some
visits by her acquaintance and had fetched that person from the gate
of the estate without any communication with the estate
manager or
the security at the gate. The security personnel had raised this with
the estate manager as a security risk, who elevated
it to Watkins who
in turn took it up with the complainant.
[20]
The respondent was upset, during January 2013, when she was advised
by Watkins through an e-mail that the house had a bad smell
which
smelt like fish. Her bins were taken out every day and there was no
such smell at the property. She felt discriminated against,
and the
statement was condescending. This e-mail to her arose out of a report
which Watkins had received after he had asked the
Estate Manager to
go to the property and to attend to the sprinkler and the pool. The
respondent acknowledged that the adverse
allegations were made by the
estate manager and not Watkins.
[21] The respondent
advised Watkins on or about 23 April 2013 when he visited the
property that evening that she would be moving
out of the property at
the end of that month. The e-mail from Watkins to her on 24 April
2013 records some of the differences.
In that e-mail, Watkins’
views of the respondent on their relationship and its problems is
telling. The material part of
this view is expressed as follows:
“
I
yet again offered to discuss your perceived grievances, oblique
problems, with the view to finding an amicable solution.”
[22] Some terms of the
lease agreement require specific mention. Clause 3.1 provides as
follows:
“
3.
DEPOSITS
3.1
When the TENANT signs the LEASE the TENANT will pay a deposit of R39
000-00 (Thirty nine thousand rand only) to the LANDLORD.
This is
equal to 1 ½ months rental, (the Damages Deposit). The
LANDLORD will put the Damages Deposit and any other deposit
in a bank
account and all interest that is earned on the Damages Deposit will
be for the TENANT.”
[23] Clauses 8.1, 8.8,
8.9 and 8.10 provides as follows:
“
8.
TENANT’S OBLIGATIONS
8.1 Be responsible to
look after the PREMISES and return the PREMISES at the end of this
LEASE in the same good order and condition
as received when the LEASE
began, except for fair wear and tear. For the purposes of the LEASE,
fair wear and tear will mean damage
to the PREMISES caused by
ordinary use by the TENANT and exposure over time. …
8.8 Keep the grounds
of the PREMISES in a clean and tidy condition, free from all litter,
and keep hedges and lawns trimmed, and
the flowerbeds neat, tidy and
free from weeds and the entire garden watered regularly.
8.9 Maintain the
swimming pool, its motor and filtration plant, and keep all pool
cleaning equipment in good working order and free
from all
obstruction and contamination. The TENANT shall pay for and
administer such chemicals as are necessary for the proper
maintenance
of the pool, including the proper and frequent filtration of the
water.
8.10 The LANDLORD
and/or SEEFF shall be entitled to:
8.10.1 Check the
PREMISES at all reasonable times after giving 24 (twenty four) hours’
oral or written notice to the TENANT.
8.10.2 Make such
repairs and alterations as he may deem necessary for the safety,
preservation or improvement of the PREMISES, both
externally and
internally.
8.10.3
Should the TENANT fail to maintain the PREMISES and/or goods, the
LANDLORD or SEEFF shall be entitled to carry out the necessary
repairs and maintenance work and to recover the full costs from the
TENANT.”
[24] Clause 12 provides
as follows:
“
12.
BREACHING THE LEASE
12.1 If either the
TENANT or the LANDLORD breaches a material term of the LEASE in any
way whatsoever, the LANDLORD or the TENANT
is allowed to give the
other 20 (twenty) business days’ written notice.
12.2
The party who breaches the LEASE will be liable for all legal costs
incurred by the other party, including collection commission,
as well
as legal costs on the scale as between attorney and own client.”
[25] Some of the terms
contained in the annexure to the lease agreement, which are further
conditions of the lease agreement, are
also worth reference. Clause 2
thereof reads as follows:
“
2.
See Clause 2 Any rental payment received after the 3
rd
day of the month for which the rental is due, shall be subject to a
penalty of 10% (ten percent) of the Monthly Rental. The TENANT
hereby
acknowledges this penalty to be fair and reasonable and undertakes to
pay such penalty on demand. Should such penalty not
be paid on
demand, the TENANT agrees to the deduction of same from the deposit.
If
rental is received late, as specified in Clause 2.3 of the lease
agreement, more than three times during the Lease Agreement
period,
the Tenant shall be liable to pay further 50% (fifty percent) of the
existing Monthly Rental as an additional deposit.”
[26] Clause 4 of the
annexure provides as follows:
“
4.
See Clause 3 In the event of the LANDLORD or his AGENT using the
deposits as provided for in Clause 3.2 during the fixed period
of the
Lease Agreement, the TENANT shall be liable to re-instate the deposit
in accordance with Clause 3.1 of the lease agreement.
Clause 8 of the annexure
provides as follows:
“
8.
See Clause 12 of the lease agreement: BREACH
12.1 Should the TENANT
breach this Lease Agreement by failing to make any rental payment
within the stipulated period, the LANDLORD
will be entitled, but not
obliged, to cancel this Lease Agreement forthwith by written notice
to the TENANT’s chosen domicilium
and will be entitled on such
cancellation, to repossess(ion) of the PREMISES and apply the
deposit.
12.2
Should the TENANT breach any term or condition of this Lease
Agreement other than by way of non-payment of rent and fail to
remedy
such breach after having been given 3 (three) days and written notice
of such breach, then the LANDLORD will be entitled,
but not obliged,
to cancel this Lease Agreement and repossess the PREMISES.”
[27]
The magistrate found that looking at the facts as a whole, the
respondent had proved that the appellant had unfairly, indirectly
discriminated against the respondent based on her race and that there
was no justification for the appellant’s conduct. The
magistrate further found that the barrage of e-mails that Watkins
sent to the respondent were unwarranted and sent for the purpose
of
harassing the respondent, also based on her race. The magistrate
ordered payment of damages in the sum of R30 000-00. The magistrate
further ordered the appellant to make a written apology to the
complainant to be forwarded to the clerk of the court within 3 days
of the order.
[28] The respondent
conceded that the adverse comments about the smell at the property
were made by the estate manager and not by
Watkins. In my view it is
correct that the statements cannot be attributed to Watkins. The
statements made cannot be imputed to
Watkins. It is simply a stretch
too far to seek to hold the appellant responsible for an observation
and report by the estate manager,
however false and hurting it may
be. Furthermore, in my view, the respondent’s niece bringing in
individuals after hours
into the estate without any engagement and
control with the security establishment at the estate, is a security
risk which the
security guards had an obligation to raise with the
estate manager. It is simply far- fetched to attribute that to the
appellant
and to seek the protection of the court from such reckless
behavior by the respondent’s niece.
[29]
Section 6 of the Promotion of Equality and Prevention of Unfair
Discrimination Act, 2000 (Act No. 4 of 2000) (the Act) provides
as
follows:
“
Prevention
and general prohibition of unfair discrimination
6. Neither the State
nor any person may unfairly discriminate against any person.”
Section 7 of the Act
provides as follows:
“
Prohibition
of unfair discrimination on ground of race
7. Subject to section
6, no person may unfairly discriminate against any person on the
ground of race, including-
…
(b) the engagement in
any activity which is intended to promote, or has the effect of
promoting exclusivity based on race.”
Section 11 of the Act
provides as follows:
“
Prohibition
of harassment
11.
No person may subject any person to harassment.”
[30]
In my view, race as envisaged in section 7(b) refers to a concept
which is built on a set of ideas working together as part
of a
mechanism which have an interconnecting network resulting in a
composite and complex whole. The constituent parts of this
concept of
race include being built on structures, systems, knowledge, skills
and attitudes. In its attitudes, it includes the
state of mind,
heart, meaning, appreciation, judgment and purpose. It refers amongst
others to the intellect in the head, the emotional
intelligence in
the heart, the humanity in conduct, the sensibility in conclusions,
recognition of the good qualities of others
and the reasons for which
something is done. It is this constituent part, to wit, attitudes,
which the facts of this case place
under the judicial microscope on
this concept of race.
[31]
In order to determine whether the respondent was unfairly
discriminated against on the ground of race, the attitude of the
appellant should be looked at in the context in which the appellant
thought of and felt about the respondent. The appellant’s
vantage point, frame of mind and its way of looking at things are
helpful indicators in that enquiry. The context in which the
attitude
was displayed dictate whether race was used to unfairly discriminate
against the respondent. The test is an objective
one and is simply
whether a reasonable, objective and informed person, on hearing what
happened, would perceive that to be unfair
discrimination based on
race – [
Rustenburg Platinum Mine v
SAEWA obo Bester and Others
[2018] ZACC
13
at para 38].
[32] The court in
Rustenburg supra
continued as follows in that paragraph 38:
“
[38]
This is in accordance with the test for whether a statement is
defamatory, as enunciated in Sindani:
“
The
test to be applied is an objective one, namely what meaning the
reasonable reader of ordinary intelligence would attribute to
the
words read in the context of the article as a whole. In applying this
test it must be accepted that the reasonable reader will
not take
account only of what the words expressly say but also what they
imply,”
[
Sindani v van der
Merwe
[2001] ZASCA 130
;
[2002] 1 All SA 311
(A) at para 11].
The
test is whether, objectively, the attitude displayed by the appellant
towards the respondent was capable of conveying to the
reasonable
observer that the conduct of the appellant had a racist meaning –
[
Rustenburg supra; Mohammed v Jassiem
[1995] ZASCA 115
;
1996 (1) SA 673
(SCA) at 711.
[33]
At para 52, the
court in
Rustenburg supra
continued as follows:
“
[52]
The past may have institutionalized and legitimized racism but our
Constitution constitutes a “radical and decisive break
from
that part of the past which is unacceptable.” Our Constitution
rightly acknowledges that our past is one of deep societal
divisions
characterized by “strife, conflict, untold suffering and
injustice”. Racism and racial prejudices have not
disappeared
overnight, and they stem, as demonstrated in our history, from a
misconceived view that some are superior to others.
These prejudices
do not only manifest themselves with regards to race but it can also
be seen with reference to gender discrimination.
…”
[34]
Trepidation is a feeling of fear or anxiety about something that may
happen. Even before the lease agreement was signed, on
Watkins’
own version, he had misgivings about the respondent which were not
based on facts that would ordinarily give a reasonable
prospective
landlord reason to hold. His self-confessed trepidation about the
respondent even before the lease was concluded remained
unexplained.
There are no facts that sustain a conclusion to which Watkins arrived
at later and expressed in writing that the respondent
had been
unsatisfactory from the first day. Watkins had an adverse attitude
towards the respondent even before the lease agreement
was concluded,
which could not be explained by the facts that prevailed. It is this
adverse attitude that informed and drove the
conduct of Watkins
towards the respondent.
[35]
Watkins portrayed himself as an engineer by training and thus aware
of, and attendant to detail, which extended to the management
of his
properties. His approach to his business and properties made it
highly improbable that he would have given a mandate to
the agents,
which did not include the terms to which he was prepared to agree, in
the provision of the lease. The agents, a reputable
and well-known
player in that industry, would not have provided the terms of their
residential lease agreement to the respondent
if they did not have
the mandate from the appellant, at that time, to do so. On the
balance of probabilities, Watkins sought to
add the new terms to the
residential lease agreement he had mandated the agents to act on, in
order to satisfy his trepidation,
after the identity of the
prospective lessee, an African woman, was known to him. It was only
after the respondent’s identity
was known to him that the new
terms became necessary, to put his trepidation at ease.
[36]
A tenant who comes from out of town, and may not be aware of the
challenges that may arise as a result of the water pressure
in the
neighbourhood, such that opening the tap may result in her being
splashed with water, should be informed of such eventualities.
It is
reasonable for the landlord to alert the new tenant to everything
unusual about the property, its surrounds and the neighbourhood.
Water splashing out when one opened the tap is an outstanding,
unusual and remarkable occurrence and if it is hot water it carries
with it the risk of injury. With the high water pressure in Hout Bay,
it was necessary for the appellant to formally introduce
the probable
danger to the respondent in order for the respondent to align her
approach to the tap relative to the danger. This
induction and
orientation was necessary and in the best interests of the
respondent. It does not offend the respondent’s
right to
equality.
[37]
The inspection of the property beyond attending to the curtains, when
Watkins attended to the property after being called during
the
respondent’s absence, was contrary to the spirit which
characterized the written lease agreement. In terms of the lease
agreement, Watkins was not at liberty to do an inspection as and when
it pleased him. The lease agreement, in all its provisions
in clause
9 which deals with inspections, does not provide for the respondent
to inspect the property during the subsistence of
the agreement. The
five sub-clauses refer to the inspection before the tenant moves into
the property (clause 9.1), seven days
after the tenant moved in
(clause 9.2), when the lease comes to an end within 3 days of the
last day (clause 9.3), within seven
days of the last day of the lease
agreement if the tenant did not attend the inspection referred to in
clause 9.3 (clause 9.4)
and the last inspection once the tenant had
vacated the property. The thrust of the agreement between the parties
was a joint inspection
at a time which suited both parties. Even if
the appellant were to inspect the property during the subsistence of
the lease, reasonably,
it could not do so without reasonable prior
notice to the respondent.
[38]
The superiority complex of a racist mindset is the basis for its
self- elevation to the status of holding the monopoly of wisdom.
It
judges without understanding. It seeks in its expression to insult
the intelligence of others. It feeds itself on the assumption
that it
knows more than others and that others do not have faculties
sufficient to receive, process and digest information to enable
them
to gain understanding and have knowledge, for it alone has the
excellence of mind. The mindset of the other is inherently
ignorant
and there can be no power in their thinking and doing. The other
cannot be critical, creative or contemplative. It pretends
that only
it can be profound in thinking, keeping and doing. In my view, the
conduct of Watkins against the respondent had been
driven and
characterised by this mindset and thinking.
[39]
Watkins had an inflated sense of being more equal than the respondent
as parties to the agreement. His feelings of self-importance
caused
him to believe that he could see, think and do better than the
respondent. His excessive arrogance was displayed by his
disregard of
the agreed terms of the lease. In his outlook and frame of mind, the
respondent was not worthy of any privacy which
the lease agreement
envisaged in its inspection provisions, and did not deserve his
consideration and respect as her humanity commanded.
She did not
deserve private and undisturbed use of the property.
[40]
Watkins was asked to attend to the malfunctioning gate, which is
outside the house. There was no reason for him to enter the
house and
carry out an unscheduled inspection again contrary to the terms of
the lease agreement on that day. There was no reason,
when the
respondent had switched off the geyser to save on electricity
consumption whilst she was at work, for him to put the geyser
on.
Watkins was unable to provide any explanation as to why he switched
on the geyser. He intruded because of his sense of entitlement,
and
could do as he pleased because he was superior to the respondent in
his view.
[41]
A mindset which works on racist attitudes seeks to simplify and
justify itself through distortion of the reality. It seeks
to make
the complex interplay between attitudes and human rights simplistic,
and undermines the pain it causes to those on the
receiving end of
its extremes. The presence, authority and humanity of others are
footnotes which should not exist where it excels,
for others are
sub-human and are bestowed an undeserved favour when recognized in
fairly limited instances. Its narration is that
the humanity of
others is questionable. It holds that others are not worthy of
respect unless they are validated and their industry
is acknowledged
by its ilk. Its veins have no capacity to carry empathy for the
other.
[42]
On his own version, the answer that Watkins provided to the
respondent on the bath that drained the water onto the floor and
not
through the waste plug was based on assumptions. He assumed that the
person who bathed the respondent’s baby would get
onto their
hands and knees whilst outside the bathtub, and that it is then easy
to move the bath away from its connection with
one’s body
weight. His comment that whoever bathed the baby should make sure
that they do not push the bathtub towards the
wall with their body
weight, is founded by this speculation.
[43]
The assumption is clearly based on speculative opinions. It derives
from the respondent being a mother who had to bath a baby.
Except
that the bath that he had checked had moved, there is no basis for
this speculative opinion of Watkins. The leak is linked
to the
movement of the bath. The dot between the movement of the bath and
the weight on the bath by the person who bathed the respondent’s
child had no factual basis. No basis existed for Watkins to link the
movement of the bath with the bath of the respondent’s
baby,
which is on a different floor. The bath he checked was not the one
used to bath the respondent’s child. In Watkins’
mindset,
the couple who had moved out who also had children, the youngest
being about 4 or 5 years old could not have moved the
bath. They were
a French couple.
[44]
The attitude of Watkins was subtle and had a semblance of innocence
and a pretence of sensitivity for social expediency. It
was brutal to
the dignity of the respondent. It was an attack on the integrity and
humanity of the respondent. The insincerity
that was so trite and
obvious was hidden in the absurd pretence intended to create a
pleasant impression that all was above board
and all was well. The
sad reality and tragedy of humanity is that racists themselves
believe their own charade.
[45]
Watkins belittled the issues that caused the respondent distress in
their relationship. The suffering of the respondent was
never part of
his consideration. He was blind to the strain he caused in their
relationship through his conduct. Even at the time
that the
respondent indicated to him her intention to leave the property, he
referred to what the respondent saw as harmful matters
needing
attention of being dealt with and overcome as oblique. In scientific
terms, this means that the respondent’s issues
are neither
parallel nor at a right angle.
[46]
It follows that Watkins saw the respondent’s concerns as
irrational and without substance. In simple terms, in Watkins’
view, the respondent was mad to complain. Yet in the same breath he
invited the respondent to a discussion with a view to find
an
amicable solution. This is an insult to the respondent’s
intelligence, consistent with his conduct throughout their
relationship.
The characteristics that racism display are invasive
and painful.
[47]
Watkins spent time, travel and effort in pursuit of the respondent
from the first available opportunity. For all intents and
purposes,
he took over the day to day management of the property which was
supposed to be under the control of the respondent.
He steadily,
surely and consistently built up a case through a series of irregular
inspections, demands and correspondence. There
was a built-up which
led to his production of a testament of sins. Based on the testament,
he suggested to the respondent to find
alternative accommodation or
face being evicted.
[48]
It is not for this court to speculate on the reasons as to why the
appellant did not have the guts to refuse the respondent
a lease
agreement on the basis of race, in the face of the involvement of
Shell (SA) and the agents. Once the respondent had accepted
terms
which he had deliberately made onerous, he clearly began a path of
travel in pursuit of one objective, to wit, to deliberately
cause an
environment which would have the respondent, of own accord, to cancel
the lease and vacate the property.
[49]
Watkins frequented and manifested himself regularly at the property.
He haunted the respondent’s residence. He tracked
and chased
the respondent like a prey. He hounded her and refused to leave her.
Watkins clearly clothed his conduct with borrowed
robes, initially as
a concern for the welfare of the respondent and later as a concern
for the upkeep of the property. The true
colours of his mast
throughout were that the property was beyond the lifestyle and
management of the respondent. He had no conscience
capable of
appreciation for his shameful conduct as he haunted and hounded the
respondent out of his property.
[50]
If it truly was about the non-payment of the December rental, payment
thereof plus interest by the respondent should have been
sufficient,
even if late, moreso because it was in line with the lease agreement
and the respondent was willing to comply and indeed
complied. The
lease agreement envisaged the possibility of late payment and made
provision therefor. Moreover, appellant had agreed
to the arrangement
of being put in funds from the deposit whilst the respondent was
overseas until the respondent returned. There
was no prejudice to
appellant.
[51]
If it truly was about the concern on the state of the garden,
facilities and utilities, the respondent’s arrangement
of a
gardener ought to have been sufficient for the appellant. Watkins had
expressed a desire to provide lessons to the garden
services. There
would have been no issue where a gardener was appointed, working
under the training and guidance of Watkins as
he preferred. It was by
design that the standard to be met for the upkeep of the property,
which had no objective measurement tools,
only existed in the mind of
and was known only to Watkins.
[52]
The developments in the lease of the property had an element of a
lineage. The identity of the respondent as a propective lessee
begat
trepidation. Watkin’s trepidation begat unusual terms to a
residential lease agreement concluded through the agents.
The unusual
terms of a residential lease agreement through the agents begat
amongst others unusual attention, manipulation and
control of the
respondent by Watkins. The extremes of the general attitude including
the unusual attention, manipulation and control
by Watkins, begat
hostility by the respondent. Watkin’s extreme attitude also
begat his conclusion that the property was
beyond the lifestyle and
management of the respondent. The appellant found a reason which
appeared legitimate but which was actually
aimed at excluding the
respondent.
[53]
The underlying, murking and shrouded truth is that Watkins was
disquiet and dismayed, which means he had a feeling of worry
and
cause for concern and distress, extreme anxiety, sorrow and pain in
having a lease agreement with and have an African woman
in his
property. Watkins had a fear of having an African woman in his
property as a lessee. This is the true reason and direct
ancestor
from which the sequence of all the developments in the lineage
directly evolved from.
[54]
Racists prefer the supreme test for exclusion to be a mystery. It is
driven by greed, self-gain and self- gratification. It
seeks to
render its victims vulnerable and helpless. One of its foundations is
manipulation which thrives on having its victims
under threat of
violence or adverse consequences as well as anxiety at economic
disenfranchisement and depression at its brutality.
It is not a
surprise that the respondent was constantly placed under the threat
of cancellation of the lease agreement and eviction.
Racism is
corrupt in its communication and outloook.
[55]
The appellant was simply dishonest in his denial that his conduct was
not influenced by the race of the respondent. As examples,
Watkins
could not explain the basis for his trepidation. There is objectively
no plausible explanation for his disregard for the
terms of the lease
agreement in his haunting and hounding of the respondent. The whole
of a series of Watkins’ attitudes
and conduct is evidence of
prejudice in the power relations where he had the ability to create
an environment where the respondent’s
right to dignity was
impaired. The appellant had no justification for such attitude and
conduct. In my view a reasonable, objective
and informed person, on
hearing what happened, would perceive that the attitude and conduct
of Watkins was unfair discrimination
based on the race of the
respondent.
[56]Racism of White on
Black has an urge for the oppression and dispossession of Blacks in
South Africa, and to make White South
Africans beneficiaries of its
attitudes. Every time that there is manifestation of racist
attitudes, White South Africans generally
and indirectly benefit.
This is because it is an attitude which breeds below the threshold of
a widespread reaction of interest
and excitement. It makes it
convenient to be easily discarded by practitioners as existing in its
victim’s mind only. This
blame on the victim sounds as a valid
excuse, to cubicle it as an attitude that is generally below the
surface of their conscious
mind, and it is difficult to notice that
it controls and influence race relations. It is attitudes of the kind
of the appellant
that maintains geographical factors like human
settlement areas influenced by race. The appellant used racial
prejudice to create
geopolitical power in a manner characteristic of
the apartheid era in South Africa.
[57]
The recognition of the human rights of all races in economic
contestation and human settlement is necessary to reform historically
racial prejudices in order to create a new South African identity in
which apartheid logic of separate racial development has no
room.
Racism remains the greatest barrier to our common humanity and must
be mercilessly dismantled. The greatest difficulty with
racists is
that they are like litigants who judge their own case and order
absolution from the instance even before pleadings close.
[58]
One can try to explain to someone who does not understand, however,
it is a futile exercise to seek moral equivalence with
someone who
refuses to listen, to understand and is in denial. It is impossible
to speak to the hearts and minds of those to whom
the humanity of the
other race is simply invisible if non-existent and their pain
trivialized. Watkins’ conduct towards the
respondent
demonstrated all the hallmarks of unjustified discrimination on the
basis of race. It is clear that there are traces
and elements of the
apartheid past and Watkins had not embraced the new democratic order.
There is nothing which stands as evidence
to the possibility of
rehabilitation at this stage.
[59] At para 53 of
Rustenburg supra,
it was said:
“…
We
need to strive towards the creation of a truly non-racial society.
The late former President of the Republic of South Africa,
Mr Nelson
Mandela, said that “de-racialising South African society is the
new moral and political challenge that our young
democracy should
grapple with decisibvely”. He went on to say that “we
need to marshall our resources in a visible
campaign to combat racism
– in the workplace, in our schools, in residential areas and in
all aspects of our public life”.
This Court has echoed such
sentiments when it recognized that “South Africans of all races
have the shared responsibility
to find ways to end racial hatred and
outstandingly bad outward manifestations”.
At para 57 it was said:
“
[57]
As a country in transition, South Africa faces the on-going challenge
of how to generate and maintain processes that restore
dignity,
create political and economic equality, and promote a culture of
human rights.”
[60]
In my view the attitude and conduct of the appellant found the
concurrent unfair discrimination on the ground of race and harassment
of the respondent. This is a run-of–the–mil claim for
equal worth. In as much as the issue of race may be an emotional
one,
it should not be up to individuals to define for themselves which
areas of their social and economic life would be “constitution
free zones”. For these reasons, I would make the
following order:
1.
The appeal is dismissed.
2.
The appellant to pay the costs
………………………………………………
.
DM
THULARE
ACTING
JUDGE OF THE HIGH COURT
I agree and it is so
ordered
………………………………………………
.
MI
SAMELA
JUDGE
OF THE HIGH COURT
Applicants’
Attorneys:
Butler Blankenberg
Nielsen Safodien Inc.
Applicants’
Counsel:
Adv AC Oosthuizen
Respondents’
Attorneys:
F Bicarri Attorneys
First
Respondent’s Counsel
: F
Bicarri