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[2019] ZAGPJHC 324
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Nelson Mandela Foundation Trust v Afriforum NPC and Another (EQ2/2018) [2019] ZAGPJHC 324 (17 September 2019)
REPUBLIC OF SOUTH
AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: EQ2/2018
Not
reportable
Not
of interest to other judges
Revised.
13.9.2019
In the matter between:
NELSON
MANDELA FOUNDATION
TRUST
APPLICANT
And
AFRIFORUM
NPC
FIRST
RESPONDENT
ERNEST
ALEX
ROETS
SECOND
RESPONDENT
JUDGMENT
LAMONT.
J
:
[1]
This is an application brought by the applicant as a matter of
urgency (on one day's. notice to the respondents) seeking a
rule
nisi
requiring the two respondents to show cause why an order
should not be made declaring them to be in contempt of this court's
order.
[2]
The relief sought is in the following terms:-
‘
2.1 declaring that
the first respondent and the second respondent are in contempt of
paragraph (2) of this court's order dated 21
August 2019 and under
Case No 120 2/2018;
2.2 imposing a fine, such
as is deemed appropriate by this court on the first and second
respondents, jointly and severally;
2.3 imposing a period of
imprisonment, such as is deemed appropriate by this court, on the
second respondent suspended on conditions
deemed appropriate by this
Court;
2.4 directing the first
and second respondents to bear the costs of this application jointly
and severally, on the attorney and
client scale'.
[3]
The Court order referred to in paragraph 2.1 of the Notice of
Motion is in the following terms:-
'(1) In terms of section
21 (1) of the Promotion of Equality and Prevention of Unfair
Discrimination Act for of 2000 ("the
Equality Act"), it is
determined that the display of the old national flag of South Africa
introduced from 31 May 1928, and
used throughout apartheid until it
was abolished on 27 April 1994 ("the Old Flag"), at the
"Black Monday'' demonstrations
on 30 October 2017 constituted:
a. hate speech, in terms
of section 10 (1) of the Equality Act;
b. unfair discrimination
on the basis of race, in terms of section 7 of the Equality Act;
c. harassment in terms of
section 11 of the Equality Act.
(2) In terms of section
21 (2) of the Equality Act, it is declared that subject to the
proviso in section 12 of the Equality Act
any display of the Old Flag
constitutes:
a. hate speech, in term
of section 10 (1) of the Equality Act;
b. unfair discrimination
on the basis of race, in terms of section 7 of the Equality Act;
c. harassment in terms of
section 11 of the Equality Act.'
[4]
The law on contempt of court was discussed in
Mafjhabeng
Local v EskQm Holdings Ltd and Others
2018 (1) SA 1
(CC)
particularly at para 50 and following; also in
Fakie NO v CCII
Systems Pty Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA) at para e and following.
There must be a court order in existence requiring the alleged
contemnor to do or not do something
(ad factum praestandum).
[5]
The nature of the order in the present matter is that it is a
declarator, which on the face of it does not require the alleged
contemnor
to do or not do something but rather states what certain
conduct constitutes.
[6]
The first respondent is a litigant in the application in which
the order was made. The second respondent representing the first
respondent was present at the time the judgment was delivered and the
order made. On this basis, the applicant alleges that both
the first
and second respondents had knowledge of the terms of the order from
the time it was made.
[7]
Some hours after the order was made the second respondent
published a tweet on his personal Twitter account. Contained within
the
tweet was the image of the Old Flag and the words
'Did I just
commit hate speech?'
[8]
The next day the second respondent published a tweet on his
Twitter account containing the first tweet in full underneath the
words:
'The reaction to the
tweet is as expected. The judgment said the flag may be used for
academic purposes. l am a scholar of Constitutional
Law, currently
doing my doctorate. This is an academic question. It seems to the
NMF's quest for apartheid style censorship and
banning continues'.
[9]
Later the same day, the second respondent was interviewed on
radio. He inter alia made the following statements:-
'1. In response to a
question about whether he was trying to disrespect the ruling of the
court "Well that's a very legal positivistic
argument - to say,
because the law says so it has to be right - we must remember that
Nelson Mandela was illegal according to the
laws of the time, that
the apartheid system was illegal according to the laws of the time
and according to the courts of the time.
So we shouldn't simply say,
because the court says so therefore it's the right thing to do."
2 "You seem to
suggest that courts are always right. Courts are not always right.
Courts are judged by humans, judges are also
human, judges can also
be wrong. And yes, we do respect the rule of law, we believe the rule
of law should be respected, but some
of the greatest - not some of
the greatest - the greatest -atrocities of the last century were all
committed with government consent
and with the consent of the
courts."'
[10]
The statements referred to were all made by the second respondent;
the tweets were published on the second respondent's Twitter
account.
The submission was made that notwithstanding that he acted alone
using his own Twitter account that the first respondent
was party to
his actions. The second respondent denied that he had been authorized
to act on behalf of the first respondent in
making the statements and
publishing the tweets refers to. He also denied he had been acting on
the first respondent's behalf.
It was submitted that I should draw
the inference that he was acting on behalf of the first respondent,
notwithstanding his denial,
on the basis that the first respondent
never distanced itself from the tweets.
[11]
In my view there is insufficient evidence to establish that
the first respondent authorized the second respondent to act on its
behalf. There is no evidence that he in fact acted on its behalf. At
best for the applicant, the evidence of the second respondent
has
been disputed. The submission that I should simply reject the second
respondent's evidence as it is patently improbable, is
also rejected.
See:
Soffiantini v Mould
1956 (4) SA 150
(E) at 154G..H where
Price JP held:
'It is necessary to make
a robust, common-sense approach to a dispute on motions as otherwise
the effective functioning of the Court
can be hamstrung and
circumvented by the most simple and blatant stratagem. The Court must
not hesitate to decide an issue of fact
on affidavit merely because
it may be difficult to do so. Justice can be defeated or seriously
impeded and delayed by an over-fastidious
approach to a dispute
raised in affidavits.'
[12]
In my view for this reason alone, no case has been made out
against the first respondent.
[13]
The submission was made on behalf of the applicant that I
should interpret the order made as containing an order directing that
no person display the Old Flag i.e. as containing a prohibition,
which would be punishable by contempt proceedings if it was not
complied with.
[14]
The submission was that if I applied a proper approach to the
order and its interpretation it would be apparent that that was what
the order meant. The question of interpretation of orders of court
has frequently been considered in our courts. For the sake of
convenience, it is necessary to set out some of the authority on the
matter. It is
Firestone South Africa (Pty) Ltd v Gentiruco AG
1977
(4) SA 298
(A) at 304 where it was held:-
'First, some general
observations about the relevant rules of interpreting a court's
judgment or order. The basic principles applicable
to construing
documents also apply to the construction of a court's judgment or
order: The court's intention is to be ascertained
primarily from the
language of the judgment or order as construed according to the
usual, well-known rules. See
Garlick v Smatt and Another
1928
AD 82
at p. 87;
Rand Estates Ltd. v New Zealand Insurance
Co.
Ltd.,
1926 AD 173
at p.188. Thus, as in the case of a
document, the judgment or order and the court's reasons for giving it
must be read as a whole
in order to ascertain its intention. If, on
such a reading, the meaning of the judgment or order is clear and
unambiguous, no extrinsic
fact or evidence is admissible to
contradict, vary, qualify, or supplement it. Indeed, it was common
cause that in such a case
not even the court that gave the judgment
or order can be asked to state what is subjective intention was in
giving it (cf.
Postmasburg Motors (Edms.) Bpk. v Peens en Andere,
1970 (2) SA 35
(NC) at p. 39F - H). Of course, different
considerations apply when, not the construction, but the correction
of a judgment or
order is sought by way of an appeal against it or
otherwise - see infra. But if any uncertainty in meaning does emerge,
the extrinsic
circumstances surrounding or leading up to the court's
granting the judgment or order may be investigated and regarded in
order
to clarify it; for example, if the meaning of a judgment or
order granted on an appeal is uncertain, the judgment or order of the
court a quo and its reasons therefor, can be used to elucidate it.
If, despite that, the uncertainty persists, other relevant extrinsic
facts or evidence are admissible to resolve it. See Garlick's case,
supra, 1928 AD at p. 87, read with
Delmas Milling
Co.
Ltd.
v Du Plessis,
1955 (3) SA 447
{AD) at pp. 454F - 455A;
Thomson
v Belco (Pty) Ltd. and Another,
1960 (3) SA 809
(D).'
See
also:
Eke v Parsons
2016 (3) SA 37
(CC) where it was held:
'[29] Once a settlement
agreement has been made an order of court, it is an order like any
other. It will be interpreted like all
court orders. Here is the
well-established test on the interpretation of court orders:
"The starting point
is to determine the manifest purpose of the order. In interpreting a
judgment or order, the court's intention
is to be ascertained
primarily from the language of the judgment or order in accordance
with the usual well-known rules relating
to the interpretation of
documents. As in the case of a document, the judgment or order and
the court's reasons for giving it must
be read as a whole in order to
ascertain its intention."
[30] This is equally true
of court orders following on settlement agreements, of course with a
slant that is specific to orders
of this nature:
"The·court
order in this case records an agreement of settlement and the basic
principles of the interpretation of contracts
need therefore be
applied to ascertain the meaning of the agreement. The intention of
the parties is ascertained from the language
used read in its
contextual setting and in the light of admissible evidence. There are
three classes of admissible evidence. Evidence
of background facts is
always admissible. These facts, matters probably present in the mind
of the parties when they contracted,
are part of the context and
explain the genesis of the transaction or its factual matrix. Its aim
is to put the court in the armchair
of the author(s) of the document.
Evidence of surrounding circumstances is admissible only if a
contextual interpretation fails
to clear up an ambiguity or
uncertainty. Evidence of what passed between the parties during the
negotiations that preceded the
conclusion of the agreement is
admissible only in the case where evidence of the surrounding
circumstances does not provide sufficient
certainty.'"
See
also:
Finishing Touch 163 (Pty) Ltd v BHP Billiton Energy Coal
South Africa Ltd and Others
2013 (2) SA 204
(SCA) where it was
held that:
'[13] As indicated
earlier in the judgment, the determination of this appeal depends on
the proper interpretation of the Preller
J order. The starting point
is to determine the manifest purpose of the order. In interpreting a
judgment or order, the court's
intention is to be ascertained
primarily from the language of the judgment or order in accordance
with the usual, well known rules
relating to the interpretation of
documents. As in the case of a document, the judgment or order and
the court's reasons for giving
it must be read as a whole in order to
ascertain its intention. See
Firestone South Africa (Pty) Ltd v
Genticuro AG
1977 (4) SA 298
(A).
[14]
It is necessary to place the Preller J order in proper
perspective and to examine its terms and purpose in order to
determine the
intention of the learned judge when he used the word
'initiate'. In so doing one has to consider the context in which the
order
was made. It is not in dispute that there were two competing
rights that required to be settled without delay, viz BHP's
entitlement
to a prospecting permit on the one hand, and Finishing
Touch's prospecting rights granted on 19 and 22 September 2006 on the
other.
It was imperative that the dispute be resolved. The question
to be answered therefore is: What did Preller J mean when he ordered
BHP to initiate the review proceedings by 25 January 2006?'
[15]
I have to have regard to the order of court as well as the
judgment when I interpret the order of court. I must determine the
manifest
purpose of the order and the language of the order. It is
apparent from the language of the order as well as the content of
judgment
that the judge's intention was to issue a declarator. In
paragraph 2.1, a declarator was issued in regard to the historic
conduct
of displaying the Old Flag. In paragraph 2.2, a declarator
was issued in regard to future conduct.
[16]
The prohibitions are contained within the relevant sections of
the Equality Act (s 7, 10, and 11), not within the court's order.
The
order containing the declarator deals with issues, which will arise
if an Equality Court enquires into whether or not those
sections have
been breached.
[17]
It appears to me that the judge who made the order intended to
do no more than issue the declarator relating to those issues. The
order sets the standard of morality expected to be adhered to by
society.
[18]
The judgment at paragraph 162 gives insight into the purpose of the
declaratory order which was made. The declaratory order
firstly
resolves the issue of whether displaying a symbol falls within the
purview of section 10 of the Equality Act by holding
that it does.
See paragraph 162:-
'[162] In interpreting
and applying section 1Q of the Equality Act, a court having regard to
this context should not limit the scope
of the prohibition of hate
speech in section 10(1) to literally only "words", thereby
allowing expressions of hatred
in non-verbal forms to escape
prohibition.'
[19]
The court was fully aware of the fact that the prohibition against
hate speech is to be found in section 10 of the Equality
Act and
dealt with the issue concerning by giving direction to the Equality
Court in paragraph 163 as follows:-
'[163] To sum up and
conclude: Section 10 of the Equality Act should be interpreted in a
manner that prohibits all expressions of
ideas, verbal and otherwise
(including the displaying of a flag), that amount to hate speech.
Accordingly, "words" in
section 10(1) must not be read
literally. It must be interpreted to be wide enough to include
expression of ideas such as the waving
of a flag. Such an
interpretation is not unreasonable. Instead, it ascribes a meaning to
section 10(1) and "words" which
is reasonably capable of
being borne. It accords with the objects of the Equality Act. It is
consistent with international law.
It is not out of kilter with
comparative foreign law. It takes into account the context of the
dispute. And, most importantly,
it gives effect to the spirit,
purport and objects of the Bill of Rights and ensures that section
10(1) is generally consonant
with the Constitution. Accordingly, the
prohibition against hate speech in section 10 (1) applies to and
regulates the. waving
of the Old Flag.'
[20]
There is a finding about what the effect of the display of the flag
is:-
'[187] Accordingly, any
gratuitous display of the Old Flag (that is, a display beyond the
protection of the proviso in section 12
of the Equality Act), besides
being racist and discriminatory, demonstrates a clear intention:
(a) to be hurtful;
(b) to be harmful
and incites harm; and
(c) it promotes and
propagates hatred
against black people
in
contravention of section 10 (1) of the Equality Act. It
constitutes hate speech. Such display is furthermore divisive,
retrogressive
and destructive of our nascent non-racial democracy,
the constitutional values of human dignity and equality and the
building of
a society united in its diversity. It is an affront to
the spirit and values of ubuntu/botho, which has become a mark of
civilised
interaction in post-apartheid South Africa.'
[21]
The judge then set out his express intention not to ban the
Old Flag. He said:-
'[201] Contrary to the
protestations of Afriforum, the relief sought by the applicants in
this matter is not a banning order against
the Old Flag. The Mandela
Foundation seeks only an order that will declare to all South
Africans (including potential offenders
and complainants) that the
display of the impugned flag must be confined to genuine artistic,
academic or journalistic expression
in the public interest (i.e., it
must qualify for the proviso in section 12 of the Equality Court
Act). Any display beyond that
may be brought before the Equality
Court for the displayer to prove that the display was defensible
(under the proviso) or to prevail
on the Court to make an appropriate
remedy'
[22]
It is apparent from the judgment that the court intended for
the issue of display to be dealt with in the court, which deals with
the enforcement of the prohibition, namely the Equality Court dealing
with the matter. That court would hear the matter and make
appropriate rulings. This in my view is precisely why the order does
not contain a directive prohibiting the display of the flag.
There is
no order
ad factum praestandum.
The process of enforcement of
the prohibition is contained in the Equality Act. The court hearing
the matter has all the advantages
the Equality Court provides. The
judge hearing the matter would have been trained in the Equality
Court. The court has the right
to structure the proceedings to allow
the parties the opportunity to ventilate the issues fully (orally or
otherwise). One of the
major objectives of the Equality Court is the
control of conduct in society by using the wide-ranging sanctions
available to it.
This enables the court to consider the wide-ranging
options available to it to control conduct. The range of controls and
punishments
an Equality Court can impose after an enquiry are not
available to a court punishing a contempt of its order.
[23]
I am accordingly of the view that while the second respondent
may in due course be held to have breached the provisions of the
Equality
Court Act he is not in contempt of the court order. The same
reasoning applies in respect of the first respondent if I am wrong
in
my finding
supra
regarding it.
[24]
This application was brought seeking a
rule nisi.
The
terms of the rule proposed that the second respondent shows cause as
to why he should not be committed for contempt. This may
be
understood by a lawyer to have a meaning allowing the decision made
on a
prima facie
basis to be decided afresh on the return
date. This is not how a lay person would read the order. it is
undesirable in my view for
an order to be made on a
prima facie
basis when the true onus is of a much higher standard (whether it
be a balance of probabilities or proof beyond reasonable doubt).
It
is also undesirable to make an order which may well be misunderstood
to mean that there has been a "conviction" of
the
respondents.
[25]
The upshot of these proceedings is that even if an order is
made nothing has moved forward in the current litigation, save that a
date has been determined in the form of a return date when the matter
will be heard. This questions the entire process initiated
by the
applicant. I need however not deal with this aspect of the matter on
account of my findings. I have deliberately avoided
dealing with
factual matters as my opinion is not relevant and may be perceived as
impacting on another court dealing with the
matter in due course.
[26]
I propose to make no order as to costs. This is a matter
concerning the Equality Court and the constitutionality of the
conduct
of members of society. I was not addressed on the costs issue
and grant the parties seven days from date of this order being handed
down to deliver written submissions on costs only.
[27]
Application dismissed with no order as to costs.
___________________
C
G LAMONT
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
COUNSEL
FOR THE APPLICANT:
ADV. T. NGCUKAITOBI
ADV.
B. WINKS
ADV.
K. RAGANYA
APPLICANT'S
ATTORNEYS
: RUPERT CANDY ATIORNEYS INC
COUNSEL
FOR THE RESPONDENTS
:
ADV. C.
PUCKRIN SC
ADV. M. OPPENHEIMER
RESPONDENTS
ATTORNEYS:
HUNTER SPIES INC
DATE
OF HEARING:
4 SEPTEMBER 2019
DATE
OF JUDGMENT:
17 SEPTEMBER 2019