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[2021] ZAWCHC 63
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Labia Theatre CC v South African Human Rights Commission and Others; Palestinian Solidarity Campaign v Labia Theatre CC and Other (8589/2015; EC11/2015) [2021] ZAWCHC 63 (26 March 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
[WESTERN
CAPE DIVISION, CAPE TOWN]
Case
No. 8589 /2015
In
the matter between:
The
Labia Theatre
CC
Applicant
And
South
African Human Rights
Commission
First Respondent
Right2Know
Campaign.
Second Respondent
Palestinian
Solidarity
Campaign.
Third Respondent
AND
IN THE EQUALITY COURT OF SOUTH
AFRICA
(WESTERN CAPE DIVISION, CAPE
TOWN)
Case No:
EC11/2015
In the matter between:
Palestinian Solidarity
Campaign
Applicant
And
The Labia
Theatre
CC
First Respondent
South
African Human Rights Commission
Second Respondent
Right2Know
Campaign
Third Respondent
JUDGMENT: DELIVERED 26 MARCH
2021
LE
GRANGE, J
Introduction:
[1]
These are two different matters with the same parties. I have written
one judgment as the factual matrix
underpinning both are largely the
same. In the first matter, (“the Review Application”) the
Applicant, (“Labia”),
seeks the review and setting aside
of the First Respondent’s (“SAHRC”) decision taken
on 14 November 2014, upholding
the Second and Third Respondents’
(“R2K” and “PSC”) complaint, and ordering
Labia to screen the film
‘the Roadmap to Apartheid’ (“the
film”). In the second matter, PSC has lodged a complaint in the
Equality
Court against Labia for refusing to screen the film.
Background:
[2]
The salient facts underpinning both matters can be summarised as
follows: Labia is a small, privately
funded, independent cinema. It
receives no state funding. Its main source of income is generated by
showing films on a weekly basis.
It also offers private screening
whereby companies, individuals or organisations can contract with it
to lease the cinema to screen
a production. Labia, describes itself
as a cinema on the alternative circuit that mainly appeals to the
more discerning viewer
who enjoys its quality product and the charm
of its old - world ambience.
[3]
On 30 January 2012, Ludi Kraus (“Kraus”) of Labia,
received an email from Lynn Taylor “Taylor”
on behalf of
Workers’ World Media Productions, expressing interest in
booking the Labia for a special screening of a film,
on 4 March
2012. Kraus is the person who would carefully select films that
would appeal to Labia’s patrons to ensure
the commercial
sustainability of the business.
[4]
Taylor emailed Kraus to confirm a 2:30pm
start time and requested that he invoiced the amount of R3 520
to the Palestinian
Solidarity Campaign for payment.
The
film that the PSC wished to screen is a documentary that compares the
circumstances of Palestinians to those of black South
Africans during
apartheid.
[5]
The email by Taylor caused
Kraus
to research the film. According to Kraus, he then discovered
that ‘
it is
regarded as a highly controversial film ‘
’
and an anti-Zionist production that was not
focused on South Africa as he had initially expected. He also
learned that the
proposed screening would serve as a high-profile
launch of the “
Israel Apartheid
Week”
.
[6]
Fearing that the film would ‘
alienate and offend’
the Labia’s patrons and harm the business, the Labia
decided not to lease the cinema to the PSC.
[7]
According to Labia, although it screens a wide array of independent
films, it does not engage in political
activity, as it refrains from
screening films that may alienate or offend patrons, to keep its
business alive. Labia also
gave a statement
to a newspaper, stating ‘
We were
asked to release the film – which was pure propaganda –
at the start of a week of Israel bashing and we do not
get involved
in politics
.’
[8]
Kraus then decided not to send the invoice to the PSC and to inform
Taylor of his decision not to lease
the Labia theatre for the purpose
of showing the film. On 13 February 2012, he
telephoned Taylor, and ultimately
spoke to Mr Martin Jansen
(“Jansen”), a representative of the PSC, to whom he
explained his decision. At
that stage, Kraus was unaware that
Jansen represented the PSC.
[9]
Kraus’s decision was not well received. PSC immediately called
for a boycott of the Labia which
included an organised demonstration
on 13 April 2012 where Labia was accused of censorship.
During the same period hostile
public exchanges occurred between the
PSC and pro-Israeli groups.
[10]
A pro-Israel group also approached Krause during the same period to
hire the Labia to show a different film
which claims to explore the
proliferation of anti-Israel and anti-Semitic incidents in American
universities. According to Kraus
he refused to screen the film,
‘
Crossing the Line: The Intifada Comes to Campus’,
for the same reasons as he rejected the ‘
Roadmap to
Apartheid’
.
[11]
The Second Respondent’s (“R2K”) representatives
approached the Labia, in April 2012,
and offered to mediate
between the parties. The proposal advanced by R2K was that Labia show
the ‘
Road to Apartheid’
film and then it (R2K) would
arrange a balanced debate immediately afterwards between
representatives of the PSC and a Jewish organisation.
[12]
Following the negotiations between the PSC, the Labia and R2K, an
agreement was reached to screen the film
on 7 June 2012. This
agreement was recorded in writing in May 2012 in an email from R2K to
the PSC and the Labia. The May
agreement between the PSC, R2K,
and the Labia had the following conditions recorded:
12.1
There would be no charge for the venue and no charge at
the door;
12.2
A public invitation would be designed saying ‘[
R2K]
in collaboration with the PSC and the Labia, invite you to a
screening of Roadmap to Apartheid
.’;
12.3
The invitation would be circulated by all parties;
12.4
R2K would write to the Zionist Federation to invite their
constituency to the screening and participate in a panel discussion
after the screening;
12.5
No posters or banners would be displayed at the screening;
12.6
All parties would conduct themselves with dignity and show respect to
and for others’ right to express their
views. Anyone who did
not respect the authority of the Chairperson would be asked to leave
the event.
12.7
The agreement also included the program for the screening, making
arrangements for the panel discussion, and affording
the Zionist
Federation, the PSC and the audience an opportunity to comment.
[13]
On 4 June 2012, the Zionist Federation sent a letter to R2K,
declining the invitation to participate in the
screening of the film.
[14]
According to Krause, the participation of the Zionist Federation to
participate in the debate was a precondition
to the screening of the
film.
[15]
There is some dispute as to whether the screening of the film was
dependent upon such condition. PSC
and R2K have disputed the
existence of such precedent condition. This particular factual
dispute is however immaterial to
the review proceedings. In the
Equality Court proceedings, however, Labia holds the view that this
factual dispute must be
resolved in its favour, in accordance with
ordinary principles regulating material disputes of fact in motion
proceedings as the
Labia is the Respondent
[1]
.
The PSC took the view that the precedent condition amounts to an
absurdity. According to the PSC, it did not agree to such
a condition
as it would grant unilateral power to those who are hostile to the
film and to censorship.
[16]
Kraus holds the firm view that in the absence of the Zionist
Federation participation, the agreement between
the parties had
lapsed. Labia contacted R2K to confirm that as the agreement
had lapsed, the screening of the film would
not proceed. As a
gesture of goodwill, Kraus offered that Labia would pay the
reasonable costs of an alternative venue to
screen the film.
[17]
R2K however demanded that the Labia still screen the film in the
absence of the proposed debate. Labia refused.
Labia’s stance
was not well received and led to further public criticism, debate,
and media attention.
[18]
The PSC meanwhile managed to arrange to show the film at a different
venue on 7 June 2012, as well
as on multiple other
occasions at different venues in Cape Town and ten further urban
centres throughout South Africa as part of
a “
National Film
Tour
” of the film.
[19]
According to Labia, the fact that the PSC managed to screen the film
at multiple different venues in Cape
Town illustrates that its
refusal to screen the film had little impact on the PSC’s
freedom of expression, belief, conscience
and opinion. Labia
has also expressed the view that the media storm triggered by its
refusal drew more public attention to
it than the mere screening
thereof would have.
South
African Human Rights Commission (“SAHRC”) proceedings:
[20] Turning to
the SAHRC proceedings. In June 2012, the R2K and PSC laid
separate complaints with
SAHRC against Labia. They both asserted that
Labia’s unwillingness to screen the film violated sections 9,
15, 17, 18
and 19 of the Constitution.
[21]
Labia was only informed in early December 2012 by the SAHRC of the
PSC’s complaint. Labia requested
further information from
the SAHRC on 11 December. According to Labia, there was no
response to their request and submitted
its answer to the complaint
on 18 January 2013. The PSC submitted a reply on
29 January 2013.
[22]
In June 2013, the SAHRC informed the parties that it was still
finalising its finding. A draft report was
prepared by the SAHRC’s
Western Cape provincial office on the complaints, for internal
discussion only. It is common cause
that the SAHRC sought a legal
opinion on how the complaint ought to be decided and whether the
SAHRC had jurisdiction to decide
it. The opinion was given in
December 2013 and advised that “
the
appropriate forum in which this dispute ought to be adjudicated is in
a court of law”
because “
it concerns the
proper interpretation of a contract, rather than a violation of
rights”
.
[23]
The SAHRC published its finding on 20 December 2013. It
concluded that the SAHRC “
is not able to further investigate
the matter which essentially centres around the interpretation of
terms of the contract which
is best adjudicated upon by a court of
law”
.
[24]
On 14 November 2014, and almost a year later, the SAHRC
informed Labia of the outcome of an appeal
decision. According to
Labia, the outcome of an internal appeal process caught them off
guard as the SAHRC never notified it that
an appeal had been lodged
nor granted it an opportunity to make representations on the merits
to the appeal tribunal.
[25]
According to Labia it subsequently discovered that the PSC had lodged
an internal appeal against the SAHRC’s
initial decision and
that the said decision had been overturned on appeal.
[26]
The appeal tribunal found that Labia had breached the right to
equality and recommended that Labia be ordered
to screen the film,
within three months.
The
review:
[27]
The application by Labia to review the SAHRC’s appeal decision
is unopposed and can be dealt with swiftly.
It needs to be mentioned
that the SAHRC and PSC initially opposed the review application but
later withdrew their opposition. The
basis for the opposition was
apparently premised on the view that the SAHRC’s appeal
decision is not “
administrative
action
”
which falls within the definition of the term in section 1 of
PAJA,
[2]
because it has no “
direct
external legal effect”
.
[28]
A cursory look at the SAHRC’s constitutional powers
and obligations, and common-sense dictates that the SAHRC’s
decisions must have external legal effect and be subject to judicial
review under PAJA and or under the principles of natural justice
and
legality.
[29]
Labia is now seeking a costs order against the PSC only. According to
Labia, an agreement had been entered
into whereby it will not seek a
costs order against the SAHRC. The reason why Labia persists with
it’s claim for a costs
order against the PSC is based in main
on the fact that their initial opposition was ill-conceived and
unreasonable.
[30]
On a conspectus of all the evidence, I am not convinced that justice
and fairness demand that the PSC should
be mulch with a costs order.
Ultimately, it is the SAHRC’s decision that is under review.
The fact that Labia entered into
an agreement with the SAHRC on costs
does not necessarily absolve their initial approach to this matter. I
am therefore of the
view that in these particular circumstances an
order that each party should pay its own costs, would be just and
equitable.
[31]
I am satisfied that the review application must succeed and
that each party should pay its own costs.
[32]
In the result the following order is made:
1.
In terms of section 8(1)(c) of PAJA,
the SAHRC’s internal appeal decision is reviewed and set aside.
2.
Each party to pay its own costs.
Labia’
refusal to screen ‘Roadmap to Apartheid:
[33]
I now move to deal with Labia’s refusal to screen the film and
whether it constitutes unfair discrimination
on the prohibited
grounds as envisaged in the Promotion of Equality and Prevention of
Unfair Discrimination Act 4 of 2000 (‘the
Equality Act’).
[34]
On the facts of this case, there can be no doubt that Labia occupies
a unique place in the cultural and political
life of Cape Town, and
has done so from the late 1960’s. It is common cause that Labia
had in the past often screened critically
acclaimed foreign-language
films for their importance to the art of cinema, which were
commercially unattractive to the main-stream
cinema chains as it may
have been too controversial or banned by the censors. Moreover, the
Labia is known to have shown films
which have addressed themes and
subjects on which strong differing opinions are being held in
society. Labia has thus through
its custom of showing
alternative films established a distinctive audience profile.
[35]
It is common cause that in 2011, and before the current events under
discussion occurred, Labia was part
of a film festival namely ‘Daring
Doccies Documentary Film Festival’ which was advertised as
‘Featuring a host
of thought-provoking, hard-hitting and moving
documentaries, most making their South African theatrical premiere’.
[36]
In the complaint, the relief sought by PSC, was an order that Labia
be ordered to screen the film in accordance
the agreement negotiated
with R2K, and that the screening take place whether or not the
Zionist Federation or any other invited
Zionist organisation or
individuals accept the invitation to participate.
Submissions:
[37]
In argument, counsel for the PSC, Mr M Bishop assisted by his Pupil,
Mr P Wainwright, submitted that in determining
whether there had been
unfair discrimination as envisaged in the Equality Act, the primary
focus should not be on the contractual
nature of the complaint but on
the conduct of Labia in relation to the intended screening of the
film in March (the first intended
screening ) and June 2012 (the
second intended screening).
[38]
The further principal submissions made by Mr Bishop, can be
summarised as follows: Labia
cannot be
permitted to hide behind an agreement to conceal an act of unfair
discrimination on prohibited grounds as Labia’s
conduct
displayed its true motive which is a difference in conscience and
belief with the PSC. According to Mr. Bishop the latter
had been
demonstrated by Kraus’ statement that the film is ‘
pure
propaganda’
and ‘
Israel
bashing
’; furthermore, Labia’s
conduct, amounted to withholding a benefit on conscience and belief
which negatively impacted
on the PSC’s rights and freedoms as
guaranteed under the Constitution; accordingly, it was submitted that
in agreeing to
rent out its space for private screenings Labia is not
permitted to unlawfully discriminate on prohibited grounds, to cancel
an
agreement, pick and choose who it wants to rent out its space and
what should be shown in that privately rented space.
[39]
Mr. J De Waal, SC assisted by Mr. L Kelly and Mr Alistair Price (a
Pupil), appeared on behalf of Labia. The
main submissions
that were made on behalf of Labia can be summarised as follows:
First, that Labia made two different decisions
and that the PSC’s
relief sought in its notice of motion is solely directed at the
second decision. In the first decision
Labia refused to lease a
cinema for a private screening of the film against payment of the
applicable fee. In the second decision
Labia refused to lease a
cinema for a public screening as no valid contract came into
existence between Labia and the PSC to screen
the film; and even if
it is found that such contract came into existence, there was a
material mistake as to the identity of the
party contracting with
Labia. The contract entered into with R2K with regard to the second
intended screening in June 2012 was
subject to a precedent condition
which needed to be fulfilled; and that R2K failed to fulfil the said
condition and the contract
lapsed. Secondly, PSC had failed to
establish a prima facie case that Labia discriminated on the
prohibited grounds or a comparable
ground; Labia did not
differentiate between the PSC and a relevant comparator but that it
treats all of them in the same manner.
For the latter proposition,
reliance was placed on the fact that Labia refused to screen a
pro-Zionist film when it was approached
by the pro-Zionist Group 18
to do so. Thirdly, if it is found that discrimination did take place,
then it was not based on the
PSC’s belief or conscience but by
Labia’s aversion to screen highly politicised and divisive
films promoting any political
beliefs as it refused to screen Group
18’s pro-Zionist film. Fourthly, if it is found that
discrimination did take place
on a prohibited ground then such
discrimination was fair based on the following: the refusal had a
minimal impact on the PSC’s
beliefs and opinion as the film was
screened at multiple alternative venues in Cape Town and its
surroundings; Labia did not show
naked prejudice but refused to
screen a highly divisive one-sided political film based in its own
fundamental rights and interests
to show films of its choice; Labia’s
refusal served a legitimate purpose as it refused to be subjugated
against its will
as an instrument for the PSC’s political
campaign; Labia took reasonable steps to address any disadvantages
that may have
arisen from its refusal and to accommodate diversity by
agreeing to screen the film subject to R2K arranging a balanced
debate
afterwards; lastly, a finding that Labia owed a duty to make a
contractual offer to show the film will have grave broader societal
implications as it will obliterate a private cinema’s freedom
of expression, trade, conscience, thought, belief, opinion
and
freedom of contract.
The
Issues:
[40]
The substantive question in this case is whether Labia’s
conduct by not screening the film on two occasions,
amounted to
unlawful discrimination on the prohibited grounds of ‘conscience
and belief’ or on a ‘comparable
ground’, and if so
whether such unlawful discrimination was fair or not.
[41]
It is evident that the PSC, in its founding papers, largely
formulated its complaint on the basis that Labia’s
conduct
amounts to a breach of an agreement and that such conduct
discriminates against those that holds a different belief. During
argument however, Mr. Bishop mainly concentrated on the conduct of
Labia and whether such conduct amounts to discrimination on
a
prohibited ground. According to Mr. Bishop, in the context of a
complaint in terms of the Equality Act, the primary focus to
determine whether there had been unfair discrimination must be the
conduct of the parties and not so much the contractual terms
that
binds the parties, and that Labia cannot hide behind an agreement to
conceal an act of unfair discrimination.
[42]
Labia had a different view and contended that the matter must be
decided on the second decision where a contractual
relationship
existed between Labia and R2K and where a precedent condition was not
fulfil.
[43]
There is substance in the argument advanced by Mr. Bishop. The
Equality Act set out guiding principles that govern
its application
under section 4(2), and enjoins this Court in the adjudication
of any proceedings which are instituted in
terms of or under the Act,
to recognise and consider:
‘
(a)
The existence of systemic discrimination and inequalities,
particularly in respect of race, gender and disability in all spheres
of life as a result of past and present unfair discrimination,
brought about by colonialism, the apartheid system and patriarchy;
and
(b)
the need to take measures at all levels to eliminate such
discrimination and inequalities.
[44]
In the present instance, the primary focus must therefore be the
conduct of Labia in relation to the first
and second intended
screenings and not so much on the contractual perspective, in order
to determine whether there had been a withholding
of benefits based
on conscience and belief or a ‘comparable ground’
amounting to unfair discrimination. To view this
case in a
contractual context alone would amount to a superficial and
mechanical approach. This in turn would undermine the foundational
values and principles underlying the Equality Act. The contractual
nature between the parties must as a result be contextualized
as a
marginal issue.
[43]
To determine whether there had been discrimination, the starting
point is section 1 of the Equality Act,
which defines
‘discrimination’ as—
‘
any
act or omission, including a policy, law, rule, practice, condition
or situation which directly or indirectly-
(a)
imposes burdens, obligations or disadvantage on; or
(b)
withholds benefits, opportunities or advantages from,
any
person on one or more of the prohibited grounds;’
[44] The
‘prohibited grounds’ are defined in section 1 as:
‘
(a)
race, gender, sex, pregnancy, marital status, ethnic or social
origin, colour, sexual orientation, age, disability, religion,
conscience, belief, culture, language, birth and HIV/AIDS status; or
(b)
any other ground where discrimination based on that other ground-
(i) causes or perpetuates
systemic disadvantage;
(ii) undermines human dignity; or
(iii)
adversely affects the equal enjoyment of a person's rights and
freedoms in a serious manner that is comparable to discrimination
on
a ground in paragraph (a);’
[45]
In terms of section 13(1) of the Equality Act, if the PSC makes out a
prima facie case, then the Labia, as
the respondent, ‘must
prove’
that:
1.1.
the discrimination did not take place; or
1.2.
the conduct is not based on a prohibited ground.
[46]
The importance of the ‘prohibited grounds’ is located in
section 13(2): If it is found that the
discrimination took place on a
prohibited ground, then it is presumed to be unfair, unless, Labia as
the respondent ‘
proves that the discrimination is fair
’.
Fairness is determined with regard to the factors listed in section
14(2) of the Equality Act which include ‘(
a) [t]he context;
(b) the factors referred to in subsection (3); and (c) whether the
discrimination reasonably and justifiably differentiates
between
persons according to objectively determinable criteria, intrinsic to
the activity concerned
.
[47]
The terms ‘conscience’ and ‘belief’ as
prohibited grounds of discrimination are listed
in Section 9(3) of
the Constitution
[3]
and section 1 of the Equality Act. These terms are however not
defined in the Equality Act. The Academic writers
[4]
have suggested that these terms are necessarily distinct from
but also overlap with religion. Further, it has been
suggested
that ‘Discrimination on the grounds of conscience or belief
would involve acts or practices that violate a person's
deeply held
values.
[5]
[48]
Black's Legal Dictionary defines conscience in the following terms:
1. A moral sense of right or wrong especially a moral sense
apply to one's own judgement and actions. 2. In law, the moral rule
that requires justice and honest dealings between persons.
[49]
The Shorter Oxford English Dictionary identifies one meaning of
conscience as:
a moral sense of right or wrong; a sense of
responsibility felt for private or public actions, motives, et
cetera; the faculty
of principle that leads to the approval of right
thought or action and condemnation of wrong. It also describes belief
in the following
terms: 1. Trust, confidence; faith . . . 2. Mental
acceptance of a statement, fact, doctrine, thing, etc., as true or
existing
. . . 3. The thing believed; a proposition or set of
propositions held to be true; a religion; an opinion or persuasion.
[50]
The Zimbabwean Supreme Court had the opportunity to examine the
meaning of ‘conscience’ as it
appears in section 19 of
the Zimbabwean Constitution and held that freedom of conscience was
‘intended to encompass and protect
systems of belief which were
not centred on a deity or were not religiously motivated, but were
founded on personal morality
’
.
[6]
[51]
According to the PSC it approached Labia with its rich history of
screening alternative films, with a documentary
that compares the
circumstances of Palestinians to those of black South Africans during
apartheid.
[52]
On the facts before me, it is evident that the
PSC
holds the genuine and reasonable belief that Palestinian people are
‘being subject to illegal Israeli occupation’
and
it aims ‘
to educate the public about the nature of the
state of Israel as an apartheid state’.
In
my view, the PSC’s genuine beliefs must therefore fall within
the prohibited grounds of the terms ‘conscience’
or
‘belief’ as envisaged by the Equality Act.
[54]
Labia gave many reasons for not following through with the first
screening but among the many reasons given,
Labia contended that it
does not
‘screen overtly political or controversial
films’
. Labia also cited
‘business considerations’ as a reason for not screening
the film.
[53]
At the second intended screening,
Labia did not follow its general policy and agreed to screen the
film. Labia conceded that its
general policy and its business
considerations were not relevant, as this film was in a
‘different
category’
and that it was
‘the
subject of an agreement’
.
However Krause who at all time represented Labia stated that
the film is ‘
pure propaganda’
and
‘
Israel bashing’
.
[54]
In the present instance, the argument by Labia that it does not
screen overtly political or controversial
films that may alienate or
cause offence to its patrons is seriously at odds with the objective
facts.
In fact, on the contrary,
Labia describes itself as a cinema on the alternative circuit that
mainly appeals to the more discerning
viewer. Moreover, it is a
well-known fact that Labia often screen controversial critically
acclaimed foreign- language films for
their importance to the art of
cinema. Some of these films may also have been banned or censored in
the counties of origin. Furthermore,
before the current events
occurred, Labia was part of a film festival in 2011 namely; ‘Daring
Doccies Documentary Film Festival’
which was advertised as
‘Featuring a host of thought-provoking, hard-hitting and moving
documentaries’. Most of these
documentary films made their
theatrical premiere in South Africa.
[56]
From, the abovementioned it is clear that Labia, at the time, was in
the business of offering its services
by hiring out its cinema to
screen films that are thought-provoking, hard-hitting and
controversial to the general public. The
screening of the film could
therefore not have been any different as
the
PSC was willing to pay the agreed amount for the rental of the venue
at the first attended screening.
[57]
Despite the later agreement in respect of the second screening, Labia
made it very clear by way of Krause
that the film is ‘pure
propaganda’ and ‘Israel Bashing”. From the latter
is evident that Labia’s
true motive for not screening the film
has to do with its difference with the PSC’s conscience and
belief. Here, in my view,
the fact that Labia did not want to screen
the
film of the pro-Zionist Group 18, does
not detract from its true motive or their business model of hiring
out its cinemas.
[58]
It need to be mentioned that Labia’s rights to freedom of
thought, conscience and religion and freedom
of expression as
guaranteed in terms of s 15 of the Constitution
[7]
are also engaged by this case. However,
it
is now well established in our law that private persons can attract a
duty to make contractual offers where a refusal to do so
would be
unfairly discriminatory. For example, an employer cannot refuse to
employ someone because they are HIV positive.
[8]
A hairdresser cannot refuse to cut a black person’s hair.
[9]
And a baker cannot refuse to sell a cake to someone because he is
gay.
[10]
Since a service is offered to the general public in all these
instances, that service cannot be withheld on grounds that amount
to
unfair discrimination.
[59]
Having considered all the evidence, and despite Labia’s
protestation that they did not discriminate
against the PSC, the
conduct of Labia clearly amounts to discrimination on a prohibited
ground and is presumed to be unfair as
envisaged in
s 13 (2) of the Equality Act.
[60]
Labia has contended that that if unfair discrimination had been
established based on the PSC’s beliefs
or conscience, that same
was fair having regard to the factors as set out in s 14(2) and (3)
of the Equality Act. Labia has raised
a number of factors wherein it
expressed the view that its discrimination was fair. Without dealing
with each of the factors raised
by Labia, I remain unconvinced that
the sum total of factors raised by Labia supports a conclusion
that its discrimination
towards the PSC was fair.
[61]
The conflict between
Palestine and Israel is infamous and
notoriously
controversial. It is not uncommon that people easily find themselves
on one side or on the other. This creates antagonism.
The PSC is
legitimacy acting on behalf of the people of Palestine, and to
advance a view that hopes, one day, to reduce their oppression.
The PSC, firmly believes that historically, the Palestinians have
suffered patterns of disadvantage. The conduct of the Labia in
this
matter does not ease that burden but actually perpetuates this
pattern
.
[62]
In fact, Labia did not only refuse to show the film twice, but also
gave statements to the media attacking
the documentary. The comments
made by the Labia to the press demonstrate the underlying nature of
the discrimination. It is clear
that the nature and extent of the
discrimination against the belief and conscience held by the PSC and
as presented in the film
cannot be underestimated
.
[63]
For all these stated reasons I am satisfied that the Applicant’s
application must succeed.
[64]
In the result the following order is made:
1. The Labia
Theatre is hereby ordered to screen the Film, ‘Roadmap to
Apartheid’ in accordance with
the conditions as recorded in
paragraphs [12.2] to [12.7] above, and that such screening shall take
place whether or not the Zionist
Federation or any other invited
Zionist organisation or individuals accept the invitation to
participate.
2. The
Palestine Solidarity Campaign, shall pay Labia Theatre the necessary
rental fees associated with the leasing
of a cinema for the screening
of the film.
3. Labia must
screen the film within 60 days of this order.
4. Labia is to
pay the costs of this application such costs to include the costs
occasioned by the employment
of two counsel.
LE GRANGE J
[1]
In this regard see
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
1984 (3) SA 623 (A).
[2]
Promotion of Administrative Justice Act 3 of 2000
.
[3]
Under
the heading "Equality", the section states:
9.
(1) Everyone is equal before the law and has the right to equal
protection and benefit of the law.
(2)
Equality includes the full and equal enjoyment of all rights and
freedoms. To promote the achievement of equality, legislative
and
other measures designed to protect or advance persons, or categories
of persons, disadvantaged by unfair discrimination may
be taken.
(3)
The state may not unfairly discriminate directly or indirectly
against anyone on one or more grounds, including race, gender,
sex,
pregnancy, marital status, ethnic or social origin, colour, sexual
orientation, age, disability, religion, conscience, belief,
culture,
language and birth.
(4)
No person may unfairly discriminate directly or indirectly against
anyone on one or more grounds in terms of subsection (3).
National
legislation must be enacted to prevent or prohibit unfair
discrimination.
(5)
Discrimination on one or more of the grounds listed in subsection
(3) is unfair unless it is established that the discrimination
is
fair.
[4]
South
African Constitutional Law: Bill of Rights, Cheadle
et
al
2019.
[5]
Ibid.
[6]
In re Chikweche
1995 (4) SA 284
(ZS) at 290H-I.
[7]
S
15
.
Freedom
of religion, belief and opinion
.-(1)
Everyone has the right to freedom of conscience, religion, thought,
belief and opinion.
[8]
Hoffmann v South African Airways
2001 (1) SA 1
(CC).
[9]
Kollapen v Du Preez [2005] ZAEQC 1 (29 March 2005).
[10]
Lee v Ashers Baking Company Ltd & Others
[2018] UKSC 49
(10
October 2018) para 55.