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[2021] ZASCA 26
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Solidarity and Another v Black First Land First and Others (163/2020) [2021] ZASCA 26 (24 March 2021)
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA JUDGMENT
Not
Reportable
Case no:
163/2020
In
the matter between:
SOLIDARITY
FIRST
APPELLANT
BEREAVED FAMILIES AS PER ANNEXURE A
SECOND
APPELLANT
and
BLACK FIRST LAND FIRST
FIRST
RESPONDENT
LINDSAY MAASDORP
SECOND RESPONDENT
ZWELAKHE DUBASI
THIRD
RESPONDENT
Neutral citation:
Solidarity
and Another v Black First Land
First and
Others
(163/2020) [2021]
ZASCA 26 (24 March
2021)
Coram:
PONNAN, MOLEMELA and
NICHOLLS JJA and GOOSEN and UNTERHALTER AJJA
Heard
: 17 February 2021
Delivered
:
This judgment was handed down electronically by circulation to the
parties’ representatives via email, publication on the
Supreme
Court of Appeal website and release to SAFLII. The date and time for
hand-down is deemed to be 12h00 on 24 March 2021.
Summary:
Promotion of
Equality and Prevention of
Unfair
Discrimination Act 4 of
2000
– whether the order granted by the Equality Court
declaring the proceedings a nullity is competent.
ORDER
On
appeal from:
Equality Court, Gauteng Division of the High Court,
Johannesburg (Makgoathleng J sitting as court of first instance):
1
The appeal
is upheld.
2
The order of
the court a quo is set aside.
3
The matter is
remitted to the Equality Court to be finalised, either
by the presiding judge or in the event that the presiding judge is,
for
whatever reason, unable to finalise the matter, any other judge
as the Judge President may direct.
JUDGMENT
Nicholls JA (Ponnan and Molemela JJA and Goosen and Unterhalter
AJJA concurring):
[1]
On the morning of 1 February 2019 a walkway bridge collapsed
at
Hoërskool Driehoek, in Vanderbijlpark, tragically causing the
death of four learners, aged between 13 and 17 years old.
Twenty
other learners were injured. All were white.
[2]
On the same day, and once the incident became public,
a certain
Siyanda Gumede posted the following on his facebook page: ‘
Don’t
have heart to feel pain for white kids. Minus 3 future problems’.
Black
First Land First (BLF), a registered political party
[1]
at the time, and the first respondent, commented on this post.
Lindsay Maasdorp, the second respondent and the national spokesperson
of the BLF, immediately responded to Gumede’s statement on the
official BLF twitter account as follows: ‘
Siyanda Gumede is
correct! God is responding, why should we frown on the ancestors
petitions to punish the land thieves including
their offspring’
.
Zwelakhe Dubasi was the deputy secretary general of the BLF and is
the third respondent. He also commented on
Siyanda Gumede’s post on the official BLF twitter account
stating:
‘
Ancestors
are with BLF, as we fight they fight too. They shake the land and
white buildings built on stolen land collapse. Keep
fighting
Zinyanya, you are fighting a good fight. Camugu!’.
[3]
These comments caused widespread outrage on various media
platforms.
When approached for clarification by The Citizen newspaper, Mr
Maasdorp responded that he was ‘not certain’
whether the
victims were white and he would mourn them if they were black. He
added: ‘
If our God has finally intervened and our ancestors
have petitioned and seen that these white land thieves have now died
then I
definitely celebrate it. I celebrate the death of our enemies,
their children, their cats and dogs. That is our position
’
.
[4]
This led to Solidarity, a registered trade union of predominantly
white members, launching an application in terms of s 20 of the
Promotion of Equality and Prevention of Unfair Discrimination Act
4
of 2000 (the Equality Act). Solidarity claimed to act in its own
interests, on behalf of bereaved family members and in the public
interest. It sought an order declaring that the comments constituted
hate speech, as defined by ss 7, 10 and 11 of the Equality
Act and
were an affront to human dignity and white people in general. Further
ancillary relief was sought, including the payment
of damages to the
families of the children.
[5]
The application was opposed by BLF. The president of
the BLF, Mr
Andile Mngxitama, deposed to the answering affidavit and represented
the party in person when the matter was heard
on 22 August 2019.
[6]
After the hearing, the parties were informed that judgment
would be
handed down on 3 December 2019. The events that took place on that
day, though not confirmed on affidavit, were, as recounted
by counsel
for the appellants and confirmed by Mr Mngxitama, as follows.
Mokgoathleng J requested the parties to address him on the effect of
this
Court’s
judgment in
Qwelane v SAHRC
,
[2]
which had been delivered on 29 November 2019 and which held that s 10
of the Equality Act was unconstitutional. It should be noted
that
this matter was subsequently appealed to the Constitutional Court and
its judgment is awaited.
[7]
After hearing oral submissions, the judge adjourned the
matter to
consider the submissions. What occurred thereafter we simply do not
know. What we do know is that across the front page
of what appears
to have been the written ‘judgment’ prepared by the
judge, he had written by hand, ‘[t]he judgment
is a nullity in
view of the SCA judgment of
Jonathan Dubula Qwelane case No 686/2108’. The order that was
subsequently issued by the registrar recorded: ‘The proceedings
in case
EQ2/2019 are declared a nullity’.
[8]
Whether the court a quo considered the entire proceedings
or merely
the judgment to be a nullity is, on the papers before us, unclear.
However,
what is apparent is that the judge had prepared a written ‘judgment’
in the matter before the
Qwelane
judgment was delivered by
this court. In it the judge found in favour of the applicants. The
offending comments were declared to
amount to hate speech in terms of
s 10(1) of the Equality Act. The second and third respondents were
interdicted from repeating
the comments and were ordered to publish
an apology within 30 days, directed to all South Africans, and to be
disseminated by the
South African Human Rights Commission, in which
they acknowledged that their comments were hate speech and that they
were wrong
to publish them. In addition, the second and third
respondents were ordered, jointly and severally, to pay R50 000
damages, arising
out of emotional and psychological pain, and
humiliation to each of the families of the deceased within 30 days.
[9]
The
Qwelane
judgment dealt with a newspaper article written by
the late journalist Jonathan Dubula Qwelane in which he criticised
homosexual
relationships and gay marriages. After a detailed
exposition of the interplay between hate speech and s 16 of the
Constitution,
which guarantees freedom of speech, this Court held
that s 10 of the Equality Act unnecessarily limited freedom of speech
and was
therefore unconstitutional.
[10]
One of the primary functions of a court is to bring to finality the
dispute
with which it is seized. It does so by making an order that
is clear, exacts compliance, and is capable of being enforced in the
event of noncompliance.
[3]
The court order in this matter did not achieve finality nor was it
capable of being enforced. As it was put by Nugent JA in
Makhanya
v University of Zululand
:
‘
The
power of a court to entertain a claim derives from the power that all
organised states assume to themselves to bring to an end
disputes
amongst their inhabitants that are capable of being resolved by
resort to law. Disputes of that kind are brought to an
end either by
upholding a claim that is brought before it by a claimant or by
dismissing the claim. By so doing the order either
permits or denies
to the claimant the right to call into play the apparatus of the
state to enforce the claim.’
[4]
[11]
The high court simply failed to discharge its primary function. The
order that
it issued declared the proceedings a nullity, and hence
declined to determine the dispute before the court. To like effect,
the
court, by rendering its own ‘judgment’ a nullity,
left the parties without a binding decision. A court does not enjoy
the power not to decide a case that is properly brought before it.
Nor may a court declare its own proceedings to be a nullity.
[12]
A court may lack jurisdiction or suffer from some other limitation of
its powers.
But a court, pronouncing on these matters nevertheless
renders a decision that is dispositive of the case before it. But
that is
not what happened before the high court in this matter. The
decision of this Court in
Qwelane
plainly had relevance for
the decision that the high court was required to make. The high court
should have taken time to consider
Qwelane
, and the parties’
submissions, and then rendered its judgment so as to decide the case.
More incautiously, the high court
might have handed down the written
judgment that it had prepared, without regard to
Qwelane
. In
either event, an order would have been issued that determined the
dispute before the court.
[13]
The high court took neither course of action. Instead, it pronounced
its own
‘judgment’ to be a nullity or indeed the
proceedings to be a nullity. It simply declined to resolve a dispute
that
was properly before it and left the parties with no decision.
That state of affairs cannot be left undisturbed by this Court.
[14]
Once that is so, the matter must be remitted to the court a quo to
enable the
dispute that was properly before it, to be finally
resolved. The proceedings had reached an advanced stage. The judge
had been
addressed in argument by both parties, whereafter judgment
had been reserved. All that remained was for the judge to deliver his
judgment. That is where the proceedings must recommence. On that
there seemed to be agreement before us. There was some concern
that
the presiding judge may have since retired. In that event, the
parties appeared to accept that the matter could recommence
before
another judge, as directed by the Judge President of the division.
Should another judge come into the matter, he or she
would obviously
be free to issue such directives as to the further conduct of the
matter as appears meet, including but not limited
to requiring
further argument in the matter.
[15] As regards
costs, it is not the fault of either party that they had to appear
before this Court. The attorney representing the respondents withdrew
shortly before the hearing of the matter. In those circumstances,
Mr
Mngxitama appeared before us, for the purposes, so he indicated, of
applying for the appeal to be adjourned. Given that counsel
for the
appellants accepted in debate with him that: (a) the order could not
stand; (b) there was no substantive order on the merits
and that we
therefore could not enter into the merits of the appeal; and (c) the
matter consequently had to be remitted to the
court below, Mr
Mngxitama did not persist in that application. It was thus not
necessary to consider whether he could indeed represent
the
appellants in the appeal.
[5]
[16]
The appeal is with the leave of the court below. No reasons were
given for
the order. What prompted the grant of leave and in respect
of what order, since there did not appear to be a judgment on the
substantive
merits, we simply do not know. However, both parties were
compelled to appear to correct an obviously incompetent order. It
thus
seems unfair to mulct either party with costs. Consequently,
there shall be no order as to costs.
[17] In the result
the following order is made:
1
The appeal
is upheld.
2
The order of
the court a quo is set aside.
3
The matter is
remitted to the Equality Court to be finalised, either
by the presiding judge or in the event that the presiding judge is,
for
whatever reason, unable to finalise the matter, any other judge
as the Judge President may direct.
C NICHOLLS
JUDGE OF
APPEAL
APPEARANCES
For Appellants:
D J Groenwald
Instructed by:
Hunter Spies Inc., Centurion.
Rossouw
& Conradie Inc., Bloemfontein.
For
First Respondent:
A
Mngxitama
Instructed
by:
Black
First Land First, Johannesburg.
[1]
BLF was deregistered as a political party in November 2019 and
re-registered a year later on 16 November 2020.
[2]
Qwelane v South African Human Rights Commission and Another
[2019] ZASCA 167; 2020 (2) SA 124 (SCA).
[3]
Eke v Parsons
[2015] ZACC 30
;
2016 (3) SA 37
(CC) paras
73-74.
[4]
Makhanya v University of Zululand
[2009] ZASCA 69
;
2010 (1)
SA 62
(SCA) para 22.
[5]
Manong and Associates (Pty) Ltd v Minister of Public Works and
Another
[2009] ZASCA 110
;
2010 (2) SA 167
(SCA).