South African Human Rights Commission v Khumalo (EQ6-2016; EQ1-2018) [2018] ZAGPJHC 528; 2019 (1) SA 289 (GJ); [2019] 1 All SA 254 (GJ) (5 October 2018)

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[2018] ZAGPJHC 528
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South African Human Rights Commission v Khumalo (EQ6-2016; EQ1-2018) [2018] ZAGPJHC 528; 2019 (1) SA 289 (GJ); [2019] 1 All SA 254 (GJ) (5 October 2018)

Links to summary

REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT AND
EQUALITY COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: EQ6/2016 & EQ1/2018
In
the matter between
THE
SOUTH AFRICAN HUMAN RIGHTS COMMISSION

COMPLAINANT
and
VELAPHI
KHUMALO

RESPONDENT
and
THE
LEGAL RESOURCES
CENTRE

AMICUS CURIAE
J U D G M E N T
SUTHERLAND
J:
Introduction
[1]
On 4 January 2016, the Respondent, Velaphi Khumalo (Khumalo) saw fit
to publish on the internet the following two utterances:
“
I
want to cleans this country of all white people. we must act as
Hitler did to the Jews. I don’t believe any more that the
is a
large number of not so racist white people. I’m starting to be
sceptical even of those within out Movement of the ANC.
I will from
today unfriend all white people I have as friends from today u must
be put under the same blanket as any other racist
white because
secretly u all are a bunch of racist fuck heads. as we have already
seen.”  [sic]
"Noo
seriously though u oppressed us when u were a minority and then
manje
[1]
u call us monkeys and
we suppose to let it slide. white people in south Africa deserve to
be hacked and killed like Jews. U have
the same venom moss. look at
Palestine. noo u must be bushed
[2]
alive and skinned and your off springs used as garden fertiliser."
[Sic]
[2]
Whether or not these utterances constitute hate speech as
contemplated by section 10 of the Promotion of Equality and
Prevention
of Unfair Discrimination Act 4 of 2000 (The Equality Act)
is the central controversy to be decided in this case.
[3]
However, in addition to that issue, several other complicating
aspects also are controversial and must be decided. The principal

issues, shorn of their nuances, are:
3.1
Owing to
these proceedings, in which the South African Human rights Commission
(SAHRC) is the complainant being the second such
proceedings, the
first such proceedings having taken place at the instance of the
African National Congress (ANC), as complainant,
in the Roodepoort
(Magistrate’s) Equality Court, it is lawful and proper that
Khumalo is subjected to a second set of proceedings?
[3]
This controversy embraces a consideration of the doctrine of
Autrefoit acquit, Res Judicata and Issue Estoppel and whether the

second set of proceedings constitutes an abuse of the court process.
3.2
Owing to the fact that the two
sets of proceedings were initiated by the complainants in ignorance
of the other complaint, in separate
courts, each having jurisdiction
over Khumalo, how might that problem be avoided in future?
The
procedural evolution of the matter before this Court
[4]
The SAHRC lodged a complaint about the first utterance on 22 November
2016. Its founding affidavit states that it approaches
the Equality
Court in its own right and also in the public interest. The SAHRC has
locus standi to initiate proceedings in terms
of section 20(f). The
provisions of section 25(2) and (3) enjoins the SAHRC to assist in
the bringing of complaints on behalf of
other persons.  The
SAHRC received complaints about the utterances, inter alia from the
Jewish Board of Deputies. In the complaint
lodged by the SAHRC, it is
alleged that the first utterance incites genocide against Whites in
South Africa, and propagated hatred.
The HRC seeks a declarator that
the first utterance constitutes hate speech as contemplated in
section 10 of the Equality Act.
Relief of various types are sought,
including the paying of damages in the sum of R150,000 and a referral
of the matter for possible
prosecution. Evidence of the dissemination
of the utterance and the publicity generated about it were attached
as annexures.
[5]
An preliminary order was made on 13 February 2017, upon receipt of
the complaint by the Registrar of this Court, directing a
court
hearing. At that hearing, the SAHRC was represented by counsel and
Khumalo appeared in person. I was informed that a settlement

agreement had been concluded on 14 August 2017. The material;
portions of that document state as follows:
“
1. In November
2016 the Complainant instituted proceedings in terms of section 20 of
the Promotion of Equality and Prevention of
Unfair Discrimination Act
4 of 2000 (‘PEPUDA’) against the Respondent.
2. The basis of the
complaint was that the Respondent had committed hate speech as
defined in section 10(1) of PEPUDA, by publishing
the following
statement on the social media platform, Facebook, on 4 January 2016
at 05h39:
[ the first utterance is
quoted]
3. The Respondent did not
oppose the proceedings instituted by the Complainant, but availed
himself for a meeting at the offices
of the complainant on 2 August
2017, on which date the parties agreed to the terms and conditions
set out herein.
PRINCIPAL TERMS OF
AGREEMENT
4. The respondent agrees
that the statement he published on Facebook on 4 January 2016 (as
quoted above) constitutes hate speech
as defined in section 10(1) of
PEPUDA.
5. The Respondent shall
issue an unconditional public apology to all South Africans within 2
weeks of the date of the court order,
which apology shall be –
5.1
published in full on the Complainant’s website and social media
platforms;
5.2
published in full on all of the Respondent’s social media
platforms for a period of at least 30 days; and
5.3
communicated by the Complainant to South African Media houses.
6. The Respondent shall
provide the Complainant with a draft of the apology for pre-approval
before the apology is published.
7. The Respondent shall
be interdicted and restrained from publishing, propagating,
advocating or communicating hate speech as defined
in section 10(1)
of PEPUDA.
8. The Respondent shall
make regular progress reports to the Complainant, for a period of 6
months, regarding the implementation
of the attached draft order.
9. The Respondent agrees
that he is liable for damages in the amount of R150 000.00 (one
hundred and fifty thousand rand), the payment
of which is wholly
suspended, subject to the following terms –
9.1
The full amount of damages will become due and payable should the
Complainant conclude that the Respondent has committed further
hate
speech as defined in section 10(1) of PEPUDA, following an
investigation into any complaint of hate speech made against the

Respondent within 12 months from the date of the court order.
9.2
Payment of the amount of damages will be made to an organisation that
promotes social cohesion, non-racialism, tolerance and
reconciliation
in South Africa, which organisation shall be elected by the
Complainant.
10. The above Honourable
Court shall exercise its discretion in terms of sections 10(2) and
21(2(n) op PEPUDA regarding whether
to submit this matter to the
Director of Public Prosecutions having jurisdiction for the possible
institution of criminal proceedings
in terms of the common law or
relevant legislation.
GENERAL
11. This agreement shall
be made an order of the above Honourable Court.
12. Accordingly the
Respondent accepts, and agrees to be bound by the terms of this
agreement, as made an order of court in terms
of the draft order
attached hereto as annexure “X”.
13…..16.”
(Signed by SAHRC and
Khumalo)
[6]
During the exchanges which took place in the directions hearing, I
was told that this was the second time that Khumalo had appeared
to
answer a complaint about the first utterance, the first complaint
having been lodged by the ANC in the Roodepoort Equality Court.
The
SAHRC was ignorant of the Roodepoort proceedings when it initiated
these proceedings. It was argued on behalf of the SAHRC
that the
Roodepoort proceedings were not an impediment to these proceedings.
Khumalo declined to give evidence or depose to an
affidavit. I
postponed the proceedings
sine
die
to obtain a copy of the
Roodepoort Court File. I received a largely illegible set of
documents.
[7]
On 9 November 2017 I made this order, of which the material portions
state:
“…
.
The matter shall be set
down for a formal hearing in court, upon dates that shall be
determined by the Registrar of the Gauteng
Local division.
1.
At such hearing, the following
issues shall be addressed by or on behalf of the complainant, the
respondent, and by the
amicus
curiae
, to be appointed in
terms of paragraph 3.3 of this order.
1.1.
Taking into account the
referral of a complaint by the African National Congress, in respect
of the controversial utterance made
by the respondent, in the
Equality Court for the District of Roodepoort, in respect of which a
settlement agreement, acknowledging
contraventions of sections 7 and
10 of PEPUDA by the respondent, was made an order of that court on 10
February 2017; whether it
is permissible in law, for the present
complaint, lodged by the complainant,  before this Equality
Court, in respect of the
same controversial utterance, allegedly
contravening section 10 of PEPUDA;
1.1.1.
to be lodged,
1.1.2.
or be heard,
having regard to the
norms in our law relating to:
(1)
double jeopardy,
(2)
or res judicata,
(3)
or issue estoppel,
(4)
or upon a proper interpretation of, and related policy considerations
relating to the aims and objectives of, PEPUDA,
(5)
or the norms stipulated in the Constitution.
1.2.
What might be the appropriate
measures to address and manage the prospect of multiple complaints
being lodged by several complainants
in various Equality Courts:
1.2.1.
That might be laid down by the
Equality Courts, or,
1.2.2.
That might be addressed by
amending legislation.
1.3.
In the event that it is not
permissible to entertain the matter at all, for any one or more
reasons, what appropriate order should
follow?
1.4.
In the event that it is
permissible to entertain the matter, in whole or in part, what order
should follow to determine the appropriate
further procedure to deal
with the matter?
1.5.
What are the minimum
requirements for the enquiry stipulated in section 21 of PEPUDA and
regulation 10?
1.6.
What are the appropriate
requirements for an enquiry into this particular matter; more
particularly concerning:
1.6.1.
The identification of relevant
factors or information pertinent to the assessment of an exercise of
the powers of the Equality Court,
including,
1.6.2.
whether the matter warrants
referral for prosecution, or the imposition of any form of sanction
by the Equality Court,
1.6.3.
whether the proposed settlement
agreement between the complainant and the respondent and ancillary
draft order presented on 14 August
2017 are appropriate in the
circumstances, more particularly, whether such settlement terms:
1.6.3.1.
serve the public interest.
1.6.3.2.
serve the aims and objectives
of PEPUDA.
1.7.
The presentation of relevant
evidence, if at all, concerning the circumstances under which the
utterance was made, including:
1.7.1.
the personal circumstances of
the respondent,
1.7.2.
the motivation of the
respondent in making the utterance,
1.7.3.
the relevance, if at all, of
the respondent’s status as a public official in the employ of
an organ of state,
1.7.4.
the relevance, if at all, of
the functional role played by the respondent in his occupation as a
youth sports officer.
1.7.5.
The effect of such utterance on
those to whom it was communicated or came to know of it, directly or
indirectly, and evidence of
the degree of dissemination of the
utterance.
1.7.6.
The significance of such an
utterance at the time it was made, having regard to racial
sensitivities in South African society at
that time.
2.
To facilitate the ventilation
of these issues:
2.1.
The registrars of both the
Roodepoort Equality Court and of this Equality court shall depose to
affidavits:
2.1.1.
to describe the actual
referral procedures applied in each court;
2.1.2.
to report whether the current
procedures are capable of alerting registrars of Equality courts to
referrals being made on the same
subject matter  to several
Equality Courts
2.1.3.
and if not, to recommend what
might be appropriate measures to alert Registrars of Equality Courts
to the fact of a referral has
been made to two or more different
Equality courts of a complaint based on the same subject matter.
2.1.4.
Such affidavits are to be filed
within 20 days of service of this order upon them.
2.2.
The complainant shall compose a
single bundle of the documents filed in this case and in the
Roodepoort case, which shall contain
legible copies of every
document, arranged chronologically. Such bundle is to be filed within
5 days after compliance with paragraph
3.1
2.3.
In light of the respondent not
being legally represented:
2.3.1.
Lawyers for Human Rights (LHR)
are requested to accept an appointment as amicus curiae; and failing
acceptance, the chair of the
Johannesburg Bar Council is requested to
appoint an appropriately experienced counsel, and the Chair of the
Johannesburg attorneys’
association is requested to appoint a
suitably experienced attorney.
2.3.2.
To this end, the complainant
shall communicate this request within 5 days of the date of this
order, and monitor the further developments
to give effect to the
intent of paragraph 3.3.
3.
The complainant shall upon
receipt of this order:
3.1.
Cause it to be served on the
two registrars as soon as possible.
3.2.
Cause it to be served on the
respondent as soon as possible.
3.3.
Notify the Minister of Justice
and Constitutional Development of this matter and specifically
mention the issues described above,
with an invitation to present
argument, if any, on the issue of multiple referrals to Equality
Courts, and such intention, if any,
shall be communicated by not
later than the next Directions meeting, as referred to in paragraph
4.4
3.4.
…
.4.4”
[8]
When the parties again appeared, I was informed that Lawyers For
Human rights was unable to accept an amicus role and that the
Legal
Resources Centre (LRC) had volunteered to fulfil it. This
substitution was self-evidently wholly appropriate. Khumalo indicated

that he now wished to have representation. Later, through the good
offices of the LRC, representation
pro
bono
was obtained and duly
appointed by me to fulfil that role.
[9]
Counsel for the SAHRC informed the court that it intended to amend
the complaint to incorporate the second utterance, alternatively,

lodge a fresh complaint about the second utterance and seek to have
both complaints addressed in a single consolidated hearing.

Subsequently, a second complaint was lodged on 16 December 2017,
which referred to both utterances, supported by an affidavit which

replicated the allegations made in the first complaint. No objection
was raised to the filing by the SAHRC of second complaint
in respect
of the second utterance,
per
se,
and both utterances
were indeed subsequently addressed together.
[10]
These arrangements, and timetables for additional affidavits, were
provided for in the order granted on 15 December 2017, as
follows:
“
1)
The Legal Resources Centre is appointed as amicus curiae.
2)
The
Human Rights Commission, the complainant, shall uplift the affidavits
of the registrars of this court and of the Roodepoort
Magistrate’s
Court, and circulate them to the parties.
3)
The
list of issues of law and of fact which are set out in my initial
order of the 9
th
November is not a closed list, and it is open to the parties to
address any question of law or fact as they deem appropriate.
4)
The
following timeframes shall be adhered to………………….
…
.Any
question of costs will be deferred until the conclusion of the
proceedings.”
[11]
The hearing took place on 2 and 3 July 2018 in open court. No oral
evidence was tendered.
The
Roodepoort proceedings
[12]
It is necessary to recount the events that occurred in the Roodepoort
proceedings.
[13]
The information available to me about the Roodepoort proceedings is
limited to the contents of the court file from that court.
Khumalo
made no contribution to explaining the events which occurred in those
proceedings. A number of unexplained procedural anomalies
are
evidenced, which bear mention for the sake of coherence of the
narrative. Because of the approach I have adopted, these anomalies,

some which seem to be irregularities, shall not effect the outcome of
these proceedings.
[14]
It is apparent that the ANC responded to the utterances made by
Khumalo on 4 January 2016 by instructing attorneys Buthelezi
Vilakazi
to process a complaint. The procedure requires several prescribed
forms to be filled in and processed by the Clerk or
Registrar of the
relevant Equality Court. The Form 2 was attested to on 18 January,
accompanied by a notice of motion dated 19
January and an undated
founding affidavit by the ANC’s Secretary - General.  The
complaint lodged was that Khumalo had
contravened section 7(a) of the
Equality Act. That section provides that:
“ …
.no
person may unfairly discriminate against any person on the ground of
race, including –
(a) the dissemination of
any propaganda or idea, which propounds the racial superiority or
inferiority of any person, including
incitement to, or participation
in, any form of racial violence;”
[15]
The relevant portions of the founding affidavit on behalf of the ANC
states the following:
“
6. The ANC was
formed in 1912 to defend and advance the rights of the African people
after the creation of white supremacy Union
of South Africa.
7. In the Course of
fulfilling its mandate the ANC was joined in the struggle by coloured
and indian communities, who were also
oppressed by the colonial rule
at the time, and by the white community who supported the struggle of
these politically, socially
and economically disadvantaged black
groups.
8. Currently the ANC has
a paid-up membership of approximately 1 (one) million members from
all race groups and many more millions
of supporters throughout South
Africa.
9. In terms of section 20
of promotion of equality and prevention of unfair discrimination act
the ANC has locus standi to institute
these proceedings as an
association acting in the interests of its members more specifically
our white members.
THE COMPLAINT
10. On the 7
th
of January 2016 the Respondent posted through his twitter account the
following words “cleanse South Africa of all whites.
We
must act as Hitler did to the Jews.  I don’t believe any
more that the is a large number of not so racist whit people.

I’m starting to be sceptical even of those within our Movement
ANC. I will from today unfriend all white people I have as
friends
from today u must be put under the same blanket as any other racist
white because secretly u all are a bunch of racist
fuck heads. as we
already seen.”, A copy of the said utterances is attached
herein as annexure “B”.
11. The social media post
by the Respondent are directly in contravention of section 7(a) of
the promotion to equality and prevention
of unfair discrimination
act, which provides as follows:
“
subject to section
6 no person may unfairly discriminate against any person on the
grounds of race including the dissemination of
any propaganda or
idea, which propounds the racial superiority or inferiority of any
person, including incitement to or in any
form of racial violence.
SUBMISSION
12. It is common cause as
seen above that some of our members are white people and hereby duly
represented by the ANC in bringing
this Application, it is further
common cause that Hitler subjected Jews to concentration camps,
tortured them and subjected them
to painful and most gruesome form of
human rights violation.  The Respondent is therefore suggesting
in his social media post
that white people, some who are our members
be subjected to the same treatment, that their human rights be
violated as Hitler did
to the Jews.
These utterances have an
element of inciting violence against a specific race in our country
(white people) it is therefore my submission
that the Respondent has
discriminated unfairly on the grounds of race against our members who
are white people.”
[16]
From this affidavit it is apparent that the ANC moved from the
premise that it was an appropriate representative of Whites
who were
its members. It goes on to draw attention to Khumalo’s
utterance including his express reference to White ANC members
who
deserved to be subjected to a Hitlerite holocaust. On that further
premise, the deponent contends that there was an element
of inciting
violence towards the White race which constitutes unfair
discrimination “ …against our members who are
White
people”.
[17]
Self-evidently, a complaint framed in terms of section 7 is not about
hate speech, as defined in section 10, although it is
evident that
the thrust of the affidavit by the Secretary-General addressed the
substance of hate speech.
[18]
A Notice of withdrawal of the matter, dated 13 July exists. It is
unexplained. On that same date, a prescribed Form 3 notice
to Khumalo
to appear was issued. In this Form it is alleged that Khumalo
committed ‘hate speech’. No details are given.
No
accompanying affidavit is attached. The same case number is assigned.
It is not apparent that a fresh complaint was laid by
submitting
another prescribed Form 2. The impression is that the founding
affidavit from the section 7 complaint remained, and
the cause of
action was re-labelled to allege hate speech. No evidence of a formal
amendment exists.
[19]
An affidavit by Khumalo, ostensibly attested to on 5 October 2016,
but also bearing a further court stamp dated 27 July 2016,
stated the
following:
“
I, Velaphi Khumalo
understand the charges brought before yourselves by the ANC. I also
understand the court proceedings by the court.
I would like to indicate
to the court that I am willing to cooperate with the process due and
will avail myself on dates that the
court chooses.  I would
further would like to let the court that I intend to plead guilty on
these charges as brought before
you, I have come to understand the
seriousness of my comments on social media, I believe that as a young
person I should be at
the forefront of fighting racism.  I also
understand the importance of the process taken against me. I believe
it seeks to
correct my actions while at the same time raising
awareness of the scourge of racism black or white.
Though I am willing to
participate in the process, I will not be able to satisfy the
sanction of R100,000 asked by the organisation
I am not in a
financial standing to afford this amount asked from this court.
I do however am prepared
to serve community service in any program that works towards the
eradication of racism as the Court and
the African National Congress,
and an unconditional apology to South Africa.
My intentions are not to
instruct the Court on how it must carry out this case, nor is it to
undermine your wisdom.  I am pleading
for leniency, from the
Court and the complainant.  I hope this submission will be
considered.”
[20]
The parties were given notice in terms of prescribed Form 4 to appear
on 19 December 2016. A manuscript record was kept of
the proceedings
by the presiding officer. Remarkable is the fact that the proceedings
were held in camera. No indication appears
which explains that
decision. The provisions of section 19(2) of the Equality Court
expressly requires proceedings to conducted
in open court unless the
interests of the administration of justice so require. It is
difficult to think what might have justified
the departure. In my
view, an irregularity seems to have been committed. This among other
factors fuelled a suspicion that these
proceedings were “friendly”,
a topic addressed elsewhere in this judgment.
[4]
[21]
Several questions of a formal procedural nature were posed at that
hearing. Khumalo appeared in person and declined legal
representation. The statement by Khumalo, quoted above, was
presented. The question of a settlement was raised. It was recorded

that there had been no settlement negotiations. The matter was then
postponed for “ …hearing and a possible settlement.”
[22]
On 10 February 2017, the hearing resumed. It is stated that the
proceedings were recorded but no such transcript has been made

available to me. The Record consists only of writing down the terms
of an agreement, marking it “A” and making it an
order.
The written agreement provides as follows:
“
1.
THE
COMPLAINT
That the Respondent has
contravened section 7 and 10 of Act 4 of 2000 by posting on his
twitter/social media profile the following
“we should do to
white people what Hitler did to the Jews”. That the above
comments constitute an unfair discrimination
on the ground of race
and they constituted hate speech.
2.
REMEDIAL ACTION
2.1
That the Respondent will pay an amount of R30 000.00 (thirty thousand
rand only) towards a charity organisation identified by
the
Applicant.
2.2
That the amount will be paid in monthly instalments of R1000.00 (one
thousand rand only) into the Applicant’s attorneys
of record
trust account from the 28 February 2017 until the debt is
extinguished (30 months).
2.3
That the Respondent will provide 1 hour grooming sessions/talks
against racism in 3 (three) schools identified by the Applicant.
3. FULL AND FINAL
SETTLEMENT
This agreement is binding
on the parties upon signing thereof and supersedes all prior
arrangements entered into between the parties
and save for the above,
neither party shall have any claims against the other arising
contractually or otherwise and this agreement
is in full and final
settlement of all obligations owed or owing by the parties to each
other.
4. NON-VARIATION OR
AMENDMENT
The provisions of this
agreement shall not be capable of being varied, save by a court of
competent jurisdiction, amended, added
to, supplemented, novated or
cancelled unless this is contained in writing and signed by both
parties.
5. INDULGENCE, WAIVER
AND/OR ABONDONMENT
No indulgence, waiver,
relaxation by either party shall constitute a waiver or abandonment
of any right the other may have consequent
to each party’s
breach.”
[23]
What is described is the entirety of the material events in the
Roodepoort proceedings.
[24]
The question arises whether an “enquiry” was conducted as
required by the Equality Act. Section 21 of the Equality
Act provides
that:
“
The Equality Court
…..must hold an enquiry in the prescribed manner and determine
whether ….hate speech… has
taken place as alleged.”
24.1 This provision
requires a
determination
after holding an
enquiry.
The clear implication is that the issue is not a private matter
between the parties but requires judicial intervention. Indeed,
given
the public interest rationale for the Equality Act, a complaint is
always a matter of public importance. Moreover, given
the wide powers
conferred on the Equality Court in terms of section 21(2) and the
clear implication that one or more such orders
have to made
after
considering
whether one or
another is “appropriate”, that leg of the court’s
function cannot be performed without a substantive
enquiry. This is
particularly so in respect of section 21(2)(n) which requires the
exercise of a discretion to refer a matter for
possible prosecution.
In
Manong & associates
(Pty) Ltd  v  Department of Roads and Transport, Eastern
Cape & others (No 2)
2009 (6) SA 589
( SCA),
a
case which addressed the procedures in terms of the Equality Act,
held that the failure of an Equality Court to apply its mind
to
various peremptory procedures constituted irregularities.
24.2  Ostensibly the
settlement agreement was rubber-stamped by the presiding officer.
There is no indication the presiding
officer applied his mind to the
propriety of the settlement order, nor indeed, to an assessment of
the utterances. Given that judicial
officers, both magistrates and
judges are required in terms of section 16(2)(a) to be certified to
sit in the Equality Court after
having been trained in the provisions
of the Equality Act, this lapse is especially regrettable.
24.3  In my view,
what is evidenced in the Roodepoort Court exhibits several
irregularities. No enquiry took place. Contrary
to the provisions of
the Equality Act, the so—called proceedings were held in
private. No evidence was adduced whether oral
or on affidavit. The
fate of the affidavit of the ANC’s secretary-general is unknown
but does not seem to have played any
role, still less how the
complaints metamorphized from a section 7 to a section 10 complaint.
[25]
However, notwithstanding all of these criticisms, the order of the
Roodepoort Court, even if irregular for want of adherence
to the
provisions of the Equality Act, remains standing until formally set
aside. No steps to achieve that have been set in motion.
The
amplifying affidavits in the proceedings in this Court
[26]
Khumalo, assisted by counsel
pro bono
, filed an answering
affidavit to the founding affidavits of the SAHRC. The SAHRC filed a
replying affidavit. The amicus filed an
affidavit and report by
Professor Malose Langa, a Psychologist. The Minister of Justice filed
no affidavit, but set out the views
of the Department in heads of
argument. Counsel for the SAHRC, Khumalo and the Amicus each filed
comprehensive heads of argument.
Khumalo’s
affidavit
[27]
The significance of the affidavit is that Khumalo retracts his
several admissions that the utterances were hate speech, and
in any
event asserts that the two utterances ought to be seen as part and
parcel of one single act, and therefore alleges that
it is improper
for these proceedings to continue owing to the fact of the Roodepoort
case, and were they to do so, it would be
an abuse of process.
Khumalo also seeks exoneration for any moral culpability for the
utterances, despite offering, what in this
context must, inescapably,
be a hollow apology.
Explaining
why
[28]
Khumalo explains that he published the utterances in a state of
extreme agitation, without reflection. He is sorry he did so
and
promises not to do so again. He says the utterances were issued:
‘…
in a state
of anger created by an instance of racism which I was in the process
of dealing with myself. I was reacting to Penny
Sparrow’s well
– known facebook publication in which she referred to Black
people as ‘monkeys’…..I
was deeply hurt and
extremely upset. My facebook posts were a knee-jerk reaction to that
anger. They were not intended to hurt
anyone. No reasonable person
would have thought that I intended to incite or carry out any of the
conduct described in them. The
fact that they were so over the top
demonstrates that they were not the sort of speech to which section
10 addresses itself….”
[29]
Khumalo claims that the same morning he published the utterances he
was sent a copy of sparrows ‘monkeys’ insult,
describing
as he understood it, to say that the crowd of Blacks on the beach
made it dirty.
[30]
The first utterance was posted at about 05h39. He remained online and
participated in a political debate. He was affronted
by other posts
which either agreed with Sparrow or “…sought to justify
her views on the basis that she was expressing
herself and entitled
to exercise her right to freedom of speech.” He came across
another monkey insult. At 11h00 he posted
the second utterance.
[31]
Khumalo sets out an account of growing up under apartheid, in
poverty, and experiencing acts of racism. The account is an all
too
familiar one experienced by Black South Africans. He describes his
political awakening, the optimism engendered by the 1990-1994

democratic revolution and the burden of disillusion in the years
thereafter. In 2008 he founded a civil society organisation called

‘ichange’ whose function was to empower with information.
In 2013 he was employed as a sports officer by the Gauteng
Provincial
Government.
[32]
He says that his life experience is pertinent to comprehending his
reaction to Sparrow’s infamous ‘monkeys’
insult. He
says:
“…
. it was a
slap in the face to the efforts of Black people, who, like me had
forgiven the atrocities committed during apartheid
and who had chosen
to work at reconciliation. I particularly found her use of the word
‘monkey’ hurtful. It was offensive
to me and was akin to
being called a ‘kaffir’….” When he saw her
getting support of ‘a significant
amount of white people’
he became infuriated. He says: “ I was also upset with ANC
members who are White, as some of
them on the Political Debate SA [ie
the online platform] supported her. It was disguised support to the
effect that she had the
right to freedom of expression, but it was
support never the less.”
[33]
He states further as to the first utterance:
“
I want to state
categorically that I do not hate White people and I have no intention
to harm, be hurtful or incite harm towards
White people. I have
apologised, been sanctioned at work and I have performed in terms of
my settlement agreement with the ANC.
Looking back on the
incident, I see that my comments were triggered by instantaneous rage
and fury….”
[34]
As to the second utterance he states that he extends these sentiments
to it too:
“
I submit that the
second statement was similarly precipitated by rage. I drew parallels
between Jews and Palestinians to White people
in South Africa to the
extent that comparisons have historically been made about a
privileged minority oppressing a majority. My
point was in no way
that Jews deserved to be killed. I deny that it was a call to
genocide and I deny that it was anti-Semitic.”
[35]
After these utterances were disseminated in the public domain, his
employer, the Gauteng Provincial Government, made a public
statement
condemning Khumalo’s conduct and announcing that disciplinary
steps would be taken. Khumalo’s job was that
of a Sports
Officer, taking care of youth. This is a point of some importance in
the matter. Subsequently, his employer suspended
him and eventually
issued him with a final written warning because:
“ …
. You
conducted yourself in an improper, disgraceful; and unacceptable
manner in that….you made the following derogatory,
demeaning
and or racist remark posted on your facebook in your capacity as an
employee of the department of sport arts culture
and recreation.”
[36]
Khumalo acknowledges the events in the Roodepoort proceedings and his
admission there that the utterances were indeed hate
speech. However,
he says:
“…
I was
unrepresented. I was not aware what the legal requirements of ‘hate
speech’ are, and simply wanted to put the
complaint behind me
and move on with my life. Had I been properly advised at the time, I
would have not conceded that my facebook
posts constituted ‘hate
speech’ because properly interpreted, in context. they do not.”
[37]
As regards the settlement agreement with the SAHRC, the same
recantation is made.
The
Tender of apologies by Khumalo
[38]
The apology offered, at various times is the subject of a discrete
controversy. It is dealt with accordingly.
[39]
In the founding papers by the SAHRC a reference was made to a Sowetan
live media report in which Khumalo is said to have apologised.
The
report was published on 8 January and was written by Jeanette
Chabalala. In the report the following appears:
“
Velaphi Khumalo,
the man who called for black South Africans to do to White people
what ‘Hitler did to the Jews’ has
apologised.
In an email addressed to
South Africans, the [ANC] and the Gauteng government, a man
identifying himself as Khumalo said it was
not his intention to stir
up tension in the country.
[The first utterance is
cited]
On Thursday, Khumalo said
he hoped the people of South Africa would find it in their hearts to
forgive him.
‘
I would like to
aplogiese (sic) to the Gauteng Government for my emotional comments
that I made on a public platform. I further
want to apologise to the
ANC for the comments I made that do not reflect the ideologies of a
Democratic society that are out ideals’
he wrote.
He admitted that his
comments were offensive and “uncomfortable”.
‘
I have seen first
hand what racism and oppression of any race can do to a country and
would not want my son to grow up in such a
society’ Khumalo
said.
…
.”
[40]
The SAHRC contends that the apology was only to the Gauteng
Government and the ANC and not to all South Africans.
[41]
Instead of presenting a copy of the email in question, Khumalo
drafted, allegedly from independent and unreferenced recollection,
a
text. He stated that he could not retrieve this email from his own
computer.  This reconstruction was only revealed during

argument, and the passage in his affidavit did not qualify the text
in this regard and appeared as if was the exact text sent by
email.
His reconstruction included this statement: ‘I would like to
apologise to the people of south Africa for the pain
caused…’
[42]
No suggestion is made that the email could not be obtained from Ms
Chabalala, whose byline offered a ready point of contact.
The passage
in the affidavit was criticised for lack of candour. In my view that
criticism is justified. Moreover, the failure
to secure a copy from
the source who published the report is unsatisfactory when such heavy
reliance was to be placed on the scope
of the apology. Therefore, the
only reliable evidence available is that as published in Sowetan
Live. Second hand though it may
be, Chabalala’s report is what
reached the South African People. She wrote that he hoped that the
people of South Africa’…would
find it in their hearts to
forgive him’. That statement albeit second hand can only be
reasonably read to mean he did tender
an apology to everyone. The
fact that the text formulated by him, and cited in the report, refers
expressly only to his employer
and the ANC does however point to his
subjective notions of who was really important.
[43]
In the various other documents to which he has put his name further
apologies have flowed. However, what is of significance
is his recent
recantation of the admission that the utterances constituted hate
speech. If the utterances were not hate speech
then they are
utterances within the bounds of freedom of expression for which no
apology is warranted. It is not logical to recant
that it was hate
speech and yet apologise.  Again, logically, a recantation that
he committed hate speech inescapably implies
a tacit withdrawal of
the substantive apology. The husk of an empty apology carries no
weight. No doubt he regrets the publicity
and the criticism visited
upon him and its attendant humiliation, but this is to be
distinguished from an apology for wrongdoing.
The
SAHRC replying affidavit
[44]
In large part, the reply is a critique of Khumalo’s affidavit.
No allegations of fact are rebutted.
[45]
It is stated that the Court’s enquiry is into the
effect
of the utterances and not into the intention of the author. This
point is correct and is taken up when addressing the arguments.
The
reliance placed on the Sparrow insults by Khumalo is said to be
misdirected, another point to be addressed directly in relation
to
the arguments.
[46]
Additional information about the vulnerability of Whites to violence
is offered. The example offered is the experience of a
White farming
family subjected to gratuitous violence during a robbery. A brief
exposition is given of anti-semitism, and the rigours
of the
holocaust. Mention is made of the fact that a sizeable proportion of
South African Jews are the descendants of Holocaust
victims and
survivors.
The
affidavit of the amicus Curiae
[47]
This affidavit, as behoves the role of an amicus curiae, addressed,
inter alia, the social context and was accompanied by the
report of a
psychologist, Professor Langa.
[48]
Professor Langa did not interview Khumalo. The report expresses his
professional opinion based on a reading of the papers filed
in the
matter. Axiomatically, in the absence of a clinical examination, it
is not an opinion about Khumalo personally, rather it
is a survey of
the social context of the lived experience of an African person
during Apartheid and during its aftermath. It is,
as I read it, more
sociological than psychological, but to quibble about where sociology
ends and socio-psychology begins is pointless.
My impression
from reading the report was that I learnt nothing that a reasonably
well informed South African with an interest
in the socio-economic
and socio-political condition of society would not be aware of. The
circumstances do not warrant an extensive
exposition, as they are the
all too frequent experience of deprivation and humiliation and echo,
self-evidently, Khumalo’s
own description of his life, which
has already been addressed and upon which account the report is
based.
Should
the HRC complaint not be heard because of the Roodepoort proceedings?
[49]
Criticism of the Roodepoort proceedings
per
se
have been addressed
elsewhere. Here the problem of two sets of proceedings ostensibly
about the same subject matter is addressed.
[50]
There are three defences which have been put up a possible reason why
the SAHRC complaint ought not to be heard: (1) Double
jeopardy or
autrefoit acquit
, (2) Res judicata or Issue Estoppel, and (3)
the notion that the HRC case is an abuse of the Court process.
Autrefoit
Acquit
[51]
Alone among the arguments that were advanced, was that on behalf of
the Minister of Justice that
autrefoit
acquit
applied. In argument
that contention was withdrawn, in my view, correctly so. The doctrine
of
autrefoit acquit
belongs exclusively to the realm of criminal procedure. The public
policy choice that a person be tried only once for an alleged
crime
is axiomatically correct.
[52]
The point about the proper realm within which the doctrine of
autrefoit aquit
should dwell was alluded to in
NDPP
v Swart
2005 (2) SACR 186
(SE.)
That case dealt with an application to seize assets under the
Prevention of Organised Crime Act 121 of 1998 (POCA).  In
criminal
proceedings before a magistrate, a prosecutor had not
invoked section 48 of POCA to seek a forfeiture order. The
application for
the forfeiture was launched afterwards.  Leach J
rejected the argument that Swart was being subjected to double
jeopardy.
In
State v
Parkins
2017 (1) SACR 235
(WCC)
the question was raised on appeal whether issue estoppel was part of
our criminal law. In an earlier criminal trial on an unrelated

charge, the Accused had successfully gotten a ruling excluding
certain evidence. That same evidence was tendered in the later
criminal trial. The Full Bench held that the earlier judicial
decision did not bind the court in the later case and the evidence

was admissible.
[53]
Proceedings in terms of the Equality Act are not akin to criminal
proceedings, and because, among the Court’s powers,
there is a
discretion to consider a referral of the matter to the National
Prosecuting authority for it to exercise its discretion
about any
prosecution, the statute is truly concerned only with the civil
dimension of the controversy.
[5]
No power exists to impose a sanction resembling a criminal sanction.
An order to pay damages to an ‘appropriate body’
is not
akin to a fine nor indeed even to an administrative fine.
[6]
Res
Judicata and issue Estoppel
[54]
The parties were in agreement that the application of the classic Res
Judicata formula of the same issue, the same relief sought,
and the
same parties, must fail because the complainants were different and
were wholly unrelated parties. What was controversial
was whether
Issue Estoppel, as understood in our law, could succeed. Issue
Estoppel, in its South African garb, is the exercise
of a judicial
discretion in the interests of justice to relax the strictures of the
classic Res judicata formula on a fact-specific
case by case basis.
[55]
The authoritative formulation of our doctrine of issue estoppel is
that by Brand JA in
Prinsloo   v Goldex 15 (Pty) Ltd and
another
2015 (5) SA 297
(SCA).  At [23] – [26]:
“
[23]
In our common law the requirements for res iudicata are
threefold:
(a)
same
parties,
(b)
same
cause of action,
(c)
same
relief. The recognition of what has become known as issue estoppel
did not dispense with this threefold requirement.
But our courts have
come to realise that rigid adherence to the requirements referred to
in
(b)
and
(c)
may
result in defeating the whole purpose of res iudicata. That purpose,
so it has been stated, is to prevent the repetition
of lawsuits
between the same parties, the harassment of a defendant by a
multiplicity of actions and the possibility of conflicting
decisions
by different courts on the same issue (see eg
Evins
v Shield Insurance Co Ltd
1980
(2) SA 814
(A) at 835G). Issue estoppel therefore allows a court
to dispense with the two requirements of same cause of action and
same
relief, where the same issue has been finally decided in
previous litigation between the same parties.
[24]
At the same time, however, our courts have realised that relaxation
of the strict requirements of res iudicata in issue estoppel

situations creates the potential of causing inequity and
unfairness that would not arise upon application of all three
requirements.
That potential is explained by Lord Reid in
Carl
Zeiss Stiftung v Rayner & Keeler Ltd
[1966] 2 All ER 536
(HL) at 554G – H when he said:
'The
difficulty which I see about issue estoppel is a practical
one. Suppose the first case is one of trifling importance but
it
involves for one party proof of facts which would be expensive and
troublesome; and that party can see the possibility that
the same
point may arise if his opponent later raises a much more important
claim. What is he to do? The second case may never
be brought. Must
he go to great trouble and expense to forestall a possible plea of
issue estoppel if the second case is brought?'
[25]
One can also imagine a situation where a purchaser seeks confirmation
of his or her purported cancellation of the sale in motion

proceedings. The seller may decide that the expensive and
time-consuming game is not worth the candle and thus decide not to
oppose.
But if the purchaser were then to sue for substantial damages
the application of issue estoppel in the second case may cause

clear inequity. The same situation will not arise in the case where
all the requirements of res iudicata are satisfied. In that
event the
relief sought in both cases will be the same. The seller will have to
decide whether to speak up in the first case or
hold his or her peace
in the second.
[26]
Hence, our courts have been at pains to point out the potential
inequity of the application of issue estoppel in particular

circumstances. But the circumstances in which issue estoppel may
conceivably arise are so varied that its application cannot be

governed by fixed principles or even by guidelines. All this court
could therefore do was to repeatedly sound the warning
that the
application of issue estoppel should be considered on a case-by-case
basis and that deviation from the threefold requirements
of res
iudicata should not be allowed when it is likely to give rise to
potentially unfair consequences in the subsequent proceedings
(see
eg
Kommissaris
van Binnelandse Inkomste v Absa Bank Bpk
supra
at 676B – E;
Smith
v Porritt
supra
para 10). That, I believe, is also consistent with the guarantee
of a fair hearing in s 34 of our Constitution.
”
[56]
This statement of the law was followed in
Hyprop
Investments Ltd and Others v NSC Carriers and Forwarding CC and
Others 2014 (5) 466 (SCA
).
In that matter Lewis JA upheld an appeal rejecting the issue estoppel
defence where the same parties were litigating in a trial
against one
another over a breached lease agreement about damages for fraudulent
misrepresentation by the lessor. The parties had
previously litigated
against each other over the same lease in motion proceedings for
cancellation of the lease and eviction.
The lessor had
succeeded in getting an eviction order and in the course of those
proceedings, a finding in the motion court had
been made that no
fraud by the lessor had occurred. It was held on appeal that the
circumstances were a proper case to reject issue
estoppel because a
different result might follow on a trial as distinct from motion
proceedings and because the finding of an absence
of fraud on
affidavit was not sustainable.
[57]
In this case, in support of the proposition that issue estoppel
should be applied in this case, the Amicus has relied heavily
on the
decision in
Royal Sechaba
Holdings (Pty) Ltd v Coote and Another
2014 (5) SA 562
(SCA).
The
facts in that matter were that two ex-employees of Sechaba, Coote and
Engelbrecht, were sued by their former employer for damages
arising
out of their alleged breach of fiduciary duties to Sechaba. Their
misconduct was allegedly the wrong payment of generous
sums to one
Jones, another ex-employee. Coote and Engelbrecht pleaded issue
estoppel. Earlier, Sechaba had sued Jones for wrongful
receipt of
payments. That dispute was adjudicated and the finding was that Jones
was entitled to what he was paid; ie what Coote
and Engelbrecht had
authorised to be paid to him. The contention in support of Issue
Estoppel was that the question of the validity
of Jones receipts was
the same issue that was central to the question of whether Coote and
Engelbrecht were in the wrong. Although
on appeal the plea failed on
the facts, the Court held at [19] – [21]:
“
[19]
It is, however, the view of this court that the 'same parties'
requirement is not immutable and may in appropriate cases, and
in
line with this court's duty to develop the common law, be
relaxed or adapted in order to address new factual situations
that a
court may face. There is no reason in principle why a court cannot
relax the same-person requirement for the very reasons
that the two
other requirements have, over time, been relaxed. In
Prinsloo
NO and Others v Goldex 15 (Pty) Ltd and Another
Brand
JA put the matter thus:
[the
passage cited above is quoted]
[20]
Most recently, in
Caesarstone Sdot-Yam Ltd v World of Marble
and Granite 2000 CC and Others
, Wallis JA stated that it was not
clear that Voet confined 'same person' narrowly to those who 'derived
their rights from
a party to the original litigation' and
continued:
'It
may be that the requirement of the same persons is not confined to
cases where there is an identity of persons, or where one
of the
litigants is a privy of a party to the other litigation, deriving
their rights from that other person. Subject to the person
concerned
having had a fair opportunity to participate in the initial
litigation, where the relevant issue was litigated and
decided,
there seems to me to be something odd in permitting that person to
demand that the issue be litigated all over again
with the same
witnesses and the same evidence in the hope of a different outcome,
merely because there is some difference in the
identity of the other
litigating party.'
17
[21]
In order to develop the common law, by either relaxing or
extending the 'same person' requirement, persuasive reasons
must
be placed before the court for doing so. If fairness and equity
dictate a development of the law, and to do otherwise would
defeat
the very purpose of the defence, consideration should be given to
allowing issue estoppel as a defence even where there
is not,
strictly speaking, identity of parties. The doctrine of res judicata
is founded on the policy considerations that there should
be
finality in litigation and an avoidance of a multiplicity of
litigation or conflicting judicial decisions on the same issue
or
issues. As Brand JA in
Prinsloo
said,
our courts have recognised that rigid adherence to the requirements
of same cause of action and same relief would defeat
the purpose of
res judicata. There is no reason why a similar approach should
not be adopted for the same-parties requirement.
But in this matter
it was not argued why the requirement should be relaxed or
extended, since counsel for the respondents
persisted with the
contention that the respondents were privies of the parties to the
arbitration. He also disavowed any suggestion
that the institution of
action against the respondents amounted to an abuse of the court's
processes.
”
[58]
In urging the application of the defence of issue estoppel, several
contentions are advanced by the Amicus. The arguments are
underpinned
by the strong dictum in
Royal
Sechaba
that identity of
parties should not be slavishly adhered to in an appropriate case and
by the submission that this case is ripe
to be used to develop the
common law. I deal with them in turn.
[59]
Section 21(5) of the Equality Court confers power on an Equality
Court to regulate its own procedure. It is contended that
the
utilisation of the common law defence of issue estoppel is therefore
competent. I agree, it is plainly so.
[60]
It is contended that the Equality Act is framed to allow standing to
many and varied parties, and therefore the risk of multiple
cases is
acute. This could occur not only as evidenced in this very case,
where two complaints were instituted in two courts with
concurrent
jurisdiction, but also the broad range of competent complainants
could flood a given court with case after case resulting
in
harassment. There is no time bar in the Equality Act by when a
complaint can be instituted, though it may be inferred that the

ordinary principle of prescription would apply. If so, an interesting
question is whether a delay, until the brink of prescription,
might
not trigger a secondary consideration about bringing a complaint
within a reasonable time. What constitutes a reasonable
time is
determined by an
ex post
facto
specific assessment
made on a conspectus of considerations, including the identity and
means of the complainant. This perspective
about the enhanced risk of
multiple complaints and different outcomes is therefore correct. The
risk is systemic and peculiar to
the process created by the Equality
Act. However, in my view, it is not a factor which satisfies the type
of enquiry contemplated
in
Prinsloo
v Goldex.
The shortcomings
of the Equality act procedures are addressed directly elsewhere in
this judgment.
[61]
Allowing multiple complaints could defeat the norm of expeditiousness
expressed in regulation 10 of the Equality Act. Regulation
10
provides that the enquiry must be conducted in an expeditious and
informal manner which facilitates participation by the parties.

This injunction is inconsistent with section 19(2) of the Equality
Act which requires proceedings to be in open court. Moreover,
Section
19(1) which incorporates certain of the rules of Court of the High
Court or the Magistrates Court, depending on which is
performing the
role of an Equality Court, is a contrary indication of informality.
The Regulation, if read to be peremptory, is
probably
ultra vires.
None of what is stated here should be understood to be dismissive of
expeditiousness. However, that aspiration is seldom achieved
in legal
proceedings because it is, in my view, not a goal that can be
attained because of an injunction but rather, because the
parties
will it. The laborious pre-hearing procedure of the Equality Act is
at odds with any realistic attainment of expeditiousness,
as are
considerations of the public interest, as illustrated, for example by
cases such as
Afriforum   v  Malema
2011 (6)
SA 240
(EqC)  and South African Human Rights Commission obo
South African Jewish Board of Deputies  v  Masuku
2018
(3) SA 291(GJ)
, both of which were protracted.
[62]
It is contended by the amicus that the risk is run of different
outcomes on the same issue, which is exactly the mischief that
the
principle of res judicata is designed to avoid. This case, it is
argued, is exactly such an example because the finding of
hate speech
in the Roodepoort Proceedings stands and if the denial by Khumalo,
who now contests such a finding of hate speech,
succeeds, there will
be a contradiction on the same facts by two courts. I agree. However,
it is in this very realm that issue
estoppel functions with regard to
the specific factual matrix. These peculiar facts must evaluated
ad
hoc
to determine if that
risk is not overridden by other more telling considerations.
[63]
The SAHRC,
qua
Complainant, it is argued, has ‘no skin the game’ and
Khumalo has already been sanctioned and apologised;
ergo
,
no useful purpose can be achieved in what must be a ‘re-hash’
of the matter. This is an inaccurate appreciation of
the role of the
SAHRC. The standing of the SAHRC, is in my view, is not that of a
typically disinterested party. The SAHRC’s
statutory mandate is
to promote certain values in society. The Equality Act is one of
mechanisms available to do so, and the statute
specifically enjoins
the SAHRC to play an active role.  SAHRC’s role, and the
role of the ANC in the Roodepoort Proceedings,
are quite distinct.
This case is not an example of two public interest organs both
seeking to achieve the identical purpose and
thus engaged in a
genuine duplication of effort.  The ANC’s interest as
evidenced in the secretary-general’s affidavit
(whether it ever
reached the presiding officer in the Roodepoort Court or not) is to
stick up for its White members. The ANC does
not purport to prosecute
the complaint on behalf of the general public. Moreover, it is not to
be assumed that only White South
Africans, in or out of the ANC,
might be scandalised by the utterances, and the probability exists
that South Africans of all hues
took umbrage at the utterances,
including Blacks in the ANC, as can be inferred by the views
expressed by the Secretary- General
in his affidavit.  The ANC
complaint does not address this dimension of the controversy.
[64]
Whether or not the SAHRC’s stance is merited is an issue
separate from the issue of whether it should be allowed to prosecute

a complaint. The merits of its stance are addressed elsewhere in this
judgment.
Is
a second enquiry is an Abuse of the Process?
[65]
The Respondent’s case does not rely on issue estoppel. The
argument is twofold. The first point is that the two statements
are
in reality one, the second being merely a continuation of the first.
The second point is that a full apology has been given,
the
Roodepoort court has sanctioned him and no more is either necessary
or appropriate. On that premise it is contended that the
Court should
either dismiss or stay the SAHRC complaint proceedings.
[66]
As to the two utterances being part and parcel of one continuing
‘act,’ I agree. Indeed, the second utterance is
fully
comprehensible only when read together with the first utterance. The
vitriol is in the same vein with the imagery ratcheted-up
to a
further degree. That consideration, though it means that both
utterances must be considered holistically, is not the end of
the
matter. The fact that in the Roodepoort proceedings that court did
not deal with the second utterance in a material fact. Moreover,
the
serious flaws in the Roodepoort proceedings also is relevant.
[67]
As regards the notion that there is no more relief that could
appropriately be granted I disagree that this idea belongs to
the
enquiry into whether or not to entertain the complaint. In respect of
the enquiry process, a
proper
enquiry
ought to consider
the full range of options. That plainly was not done in the
Roodepoort proceedings. It might well be that on
a proper
consideration, no further relief is indeed appropriate, but it cannot
be said that that assumption can be relied upon
to
prevent
a second enquiry.
[68]
In my view, there is no abuse of the process. The systemic problems
inherent in the procedures of the Equality Act which allow
two
complaints to be prosecuted in ignorance of one another are addressed
elsewhere in this judgment.
[69]
It was suggested on behalf of the SAHRC that the Roodepoort
proceedings should be cautiously looked at because they seem to
bear
the characteristics of a ‘friendly’ complaint. The
criticism is not undeserved. Mention has been made of the proceedings

taking place in camera, a plain irregularity that can only be
understood to be a device to evade publicity. The Locality of the

Magistrate’s court, Roodepoort, in which to bring the
proceedings also lent itself to diminished risk of publicity, albeit

obviously there was no impropriety
per se
in going to that
Court. Ostensibly, no press statement was made afterwards to draw
attention to the event. The inference that an
embarrassing episode
was being quietly tucked away is reasonably made. However, whatever
impression is created by these circumstances,
it cannot be suggested
that the ANC were not sincerely aggrieved and affronted by the
utterances, as is evidenced by the immediate
public repudiation.
Given the wide publicity to the utterances and the apparent silence
about the Roodepoort proceedings, the public
interest was not served.
Nonetheless, I am unpersuaded that the criticism of these events goes
beyond these observations.
Reasons
why the HRC complaint should be heard
[70]
The SAHRC riposte to the respondent and to the arguments advanced by
the amicus is directed at two themes. The first is the
fact that
there are two different complainants wholly unrelated, a self-evident
point and a weighty one. The second theme is Khumalo’s

repudiation of his admission that the utterances were hate speech.
[71]
As regards, issue estoppel, the approach in
Prinsloo
v Goldex
is plainly a
holistic one. In my view there are indeed several reasons which
warrant my discretion being exercised against upholding
that plea.
[72]
I have elsewhere alluded to the patent deficiencies of the Roodepoort
proceedings. I do not repeat those criticisms; rather,
I emphasis
simply that the issues were not properly ventilated in that Court.
This is a salient factor and resonates with
what was addressed in
Hyprop v NSC.
[73]
Perhaps the most significant reason to dismiss the defence of issue
estoppel is Khumalo’s repudiation that his utterances
are hate
speech. That question of whether the utterances are indeed hate
speech needs to answered.
[74]
The addition of the second utterance is a factor which militates
against upholding the defence of issue estoppel. As already
alluded
to, it is part of a continual series of expressions and cannot be
properly assessed in the absence of the first utterance.
No objection
is raised to the second complaint in respect of the second utterance
which is not remotely an issue addressed by the
Roodepoort
proceedings.
Conclusion
on this question
[75]
Accordingly, in my view the defence of issue estoppel must fail, as
must the contention that a second enquiry, in the specific

circumstances, constitutes an abuse of process.
ARE
THE UTTERANCES HATE SPEECH AS CONTEMPLATED IN SECTION 10 (1
)?
The
Text of the relevant statutes
[76]
The Objects of the Equality Act are set out in Section 2 and, inter
alia, it provides:
76.1  In section
2(b) (v): …the prohibition of advocacy of hatred, based on
race, ethnicity, gender or religion that
constitutes incitement to
cause harm as contemplated in section 16(2) (c) of the Constitution
and section 12 of this Act.
76.2  in Section
2(c):
“
to
provide for measures to facilitate the eradication of unfair
discrimination, hate speech and harassment, particularly on the

grounds of racer, gender and disability;”
76.3 And in section 2
(f):
“
to
provide remedies for victims of unfair discrimination, hate speech
and harassment and persons whose right to equality has been

infringed;”
[77]
The text of section 10 of the Equality Act reads:
“
Prohibition
of hate speech
(1) Subject
to the proviso in section 12, no person may publish, propagate,
advocate or communicate words based on one or more
of the prohibited
grounds, against any person, that could reasonably be construed to
demonstrate a clear intention to-
(a)
be hurtful;
(b)
be harmful or to incite harm;
(c)
promote or propagate hatred.
(2)
Without prejudice to any remedies of a civil nature under this Act,
the court may, in accordance with section 21 (2)
(n)
and
where appropriate, refer any case dealing with the publication,
advocacy, propagation or communication of hate speech
as contemplated
in subsection (1), to the Director of Public Prosecutions having
jurisdiction for the institution of criminal proceedings
in terms of
the common law or relevant legislation.”
[78]
The proviso in Section 12 of the Equality Act provides:
“…
.provided
that
bona
fide
engagement
in artistic creativity, academic and scientific inquiry, fair and
accurate reporting in the public interest or
publication of any
information, advertisement or notice in accordance with section 16 of
the Constitution, is not precluded by
this section.”
[79]
The prohibited grounds are defined in Section 1 of the Equality Act:
(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)
;
[7]
[80]
Section 16 of the Constitution provides:
(1)
Everyone
has the right to freedom of expression, which includes-
(a)
freedom of the press and other media;
(b)
freedom to receive or impart information or ideas;
(c)
freedom of artistic creativity; and
(d)
academic freedom and freedom of scientific research.
(2)
The
right in subsection (1) does not extend to-
(a)
propaganda for war;
(b)
incitement of imminent violence; or
(b)
advocacy
of hatred that is based on race, ethnicity, gender or religion, and
that constitutes incitement to cause harm.
The
Analysis of the statutes and the utterances
[81]
Plainly, complete freedom of speech is deliberately compromised, a
policy choice made to address our society’s social
conditions.
In
Islamic
Unity Convention v Independent Broadcasting Authority
the
function that section 16 serves is elaborated.
[8]
“
[31]
Section 16 is in two parts. Subsection (1) is concerned with
expression that is protected under the Constitution. It is
clear that
any limitation of this category of expression must satisfy the
requirements of the limitations clause to be constitutionally
valid.
Subsection (2) deals with expression that is specifically excluded
from the protection of the right.
[32]
How is s 16(2) to be interpreted? The words '
(t)
he
right in ss (1) does not extend to . . …imply that the
categories of expression enumerated in s 16(2) are not to be regarded

as constitutionally protected speech. Section 16(2) therefore defines
the boundaries beyond which the right to freedom of expression
does
not extend. In that sense, the subsection is definitional. Implicit
in its provisions is an acknowledgment that certain expression

does not deserve constitutional protection because, among other
things, it has the potential to impinge adversely on the dignity
of
others and cause harm. Our Constitution is founded on the
principles of dignity, equal worth and freedom, and these objectives

should be given effect to.”
[82]
Plainly, section 10 of the Equality Act must be read consistently
with section 16 of the Constitution. In order to achieve
that result,
all parties are agreed, that all three subsections of section 10(1)
must be read conjunctively rather than disjunctively
to achieve the
alignment that produces that consistency. As a result the factor of
“incitement’ must be present in
the prohibited
utterances.
[83]
There are, however, decisions to the contrary. In
Herselman
v  Geleba [2011] ZAQC 1
,
an appeal from a Magistrate’s  Equality court  to the
Eastern Cape High Court held that section 10(1) should read

disjunctively.
[9]
However that decision did not consider the impact of section 16(2)(c)
of the Constitution. For that reason, in my view, having
omitted an
important factor that had to considered, the decision is unsafe, and
for further reasons, is with respect, clearly wrong.
Furthermore. In
SAHRC v
Qwelane 2018(2) SA 149 (GJ) at [53] p176E
]
it was held incitement need not be proven for all of the Section
10(1) subsections because, ostensibly, section 10(1) is wider
than
section 16 of the Constitution. In my view this conclusion cannot be
correct as the effect of Section 16 is to establish the
perimeter of
what may be proscribed in section 10(1).  Absent consistency
with section 16 of the Constitution, the section
10(1) provisions
would be unconstitutional.  Section 2(b)(v) of the Equality Act
expressly subordinates the Equality Act to
section 16(2)(c). The view
that section 10(1) be disjunctively read is also espoused by authors
of Constitutional Law of South
Africa: (Juta) (CLOSA) OS 06-08 ch 42
p87, but they too, assume a disjunctive reading without explaining
why it is consistent with
section 16. As a result, in my view, the
contentions on behalf of the parties in this matter are therefore
well made and I endorse
them and do not follow these decisions.
[84]
The critical controversy for decision is whether
Mr
Wilson,
who appears for
Khumalo, is correct in submitting that the utterances of Khumalo were
mere hyperbole and did not constitute incitement
to cause harm and,
thus, no one could reasonably construe the utterances to demonstrate
a clear intention to incite harm. To test
this proposition, it is
necessary to properly interpret section 10 and relate that
interpretation to the proper meaning of the
utterances.
[85]
The Equality Act, like all legislation, uncontroversially, must be
interpreted purposively.
[10]
The value choices and policy options evidenced by the statute govern
and dictate the proper meaning to be attributed to its provisions.

Why is the Equality act thought to be necessary?
[86]
South African society is, manifestly, a community that exhibits
significant social strains in which, amongst other social
distinctions, we are marked off and categorised by race and personal
appearance. A significant inter-racial tension exists, derived
from
several circumstances, not least from inequality and the persistence
of some degree of inter-racial hostility. This unhappy
and
regrettable condition is our historical legacy. The Constitution has
proclaimed that we recognise the fractured character of
our community
and set about transforming our society towards a goal that
unequivocally repudiates inter-racial hostility so that
we may build
a nation upon a consensus that every South African deserves dignity
and that our whole community, through sharing
resources and through
respect for one another, can experience social cohesion. The preamble
to the Equality Act states that among
its objectives is an endeavour
“ …
.to
facilitate the transition to a democratic society, united in its
diversity, marked by human relations that are caring and
compassionate,
and guided by the principles of equality, fairness,
equity, social progress, justice, human dignity and freedom.”
[11]
[87]
An important factor to weigh in the interpretation of the Equality
Act, and more especially section 10, is that it is not a
criminal
statute. The articulation of hate speech as contemplated by section
10 is not, in terms of section 10, a crime.
[12]
The provisions of section 10(2) which empower a court to refer a
matter to the NPA to consider whether a crime has also been committed

is, plainly, an indication that criminal sanctions have no role in
the application of section 10 or its remedies whatsoever. The

implication of this fact is that the statute must be interpreted as
the civil statute that it is, and considerations pertinent
to
criminal sanctions do not become relevant. In short, in interpreting
what the scope of the provisions are and the possible remedies,
the
danger of interference with personal liberty is absent.
[88]
The test for hate speech is whether Khumalo’s utterances
“….could be reasonably construed to demonstrate
a clear
intention to ‘incite harm’. This is a tortuous phrase. It
postulates a reasonable reader. It asks what a reasonable
reader
could
think about the speech. If a reasonable person reading the text could
understand it to mean an incitement to cause harm, the test
is met.
What is assessed by the reasonable reader is the
effect
of the utterances on readers in general. The word “could”
in section 10(1) must be emphasised too because the perspectives
of
‘reasonableness’ inevitably are located within a band of
reasonableness, and the test corresponds to that reality.
The
test is plainly objective, despite the tortuous phraseology. The
subjective intention of the author is irrelevant.
[13]
The Constitutional Court in
Sidumo
&
other v Rustenburg Platinum Mines Ltd and Others
2008 (2) SA 24
(CC)
construed
the test for a review of the award of an arbitrator as being whether
no reasonable arbitrator
could
reach the given conclusion. The standard of the reasonable person,
applied to section 10(1), means, therefore, whether a reasonable

person could conclude (not inevitably should conclude) that the words
mean the author had a clear intention to bring about the
prohibited
consequences. Words obviously mean what they imply.
[89]
What is the scope of the term “incite” in its various
usages in both Section 16 of the Constitution and section
10(1) of
the Equality Act? In the
OED,
for example, its meaning is given as, “spur on, rouse, to stir
up, to urge, instigate, stimulate others to action”.
[14]
Purposive interpretation makes it inappropriate to airlift a word out
of a passage, then,
in
vaccuo
,
attribute a meaning to it, and then parachute that meaning back into
the text. Moreover, a single word cannot have an
applied
meaning
outside the context in which it is used in a phrase and a sentence
within a statute. Moreover, it is a false interpretation that

emasculates a statute and inhibits the achievement of its value and
policy objectives. The objective test in section 10(1) implies
in the
terminology used to articulate it, that an intention shall be deemed
if a reasonable reader would so construe the words.
Because the
objective test of the reasonable reader is to be applied, it is the
effect of the text not the intention of the author
that is assessed.
In other words, does the
text
incite? On this understanding, it must be asked if harm can be
incited by the effect of the utterances on readers.
[90]
The reasonable reader, ie the person online at the computer desk in
the Parkhurst Library, does not parse the text to divine
meaning for
that person is not an analytic philosopher. The reasonable reader is
struck by what is the dominant impression derived
from the words.
What does the reasonable reader see?
[91]
What Khumalo does is invoke the 20th century’s most iconic
human tragedy to colour his rage at Whites.  He exhorts
“we”
(presumably fellow Blacks) to “….act as Hitler did to
the Jews”. I agree with
Mr
Wilson
that the diatribe cannot be understood to mean literally a call for a
copycat pogrom of whites, though it certainly purports to
legitimise
violence towards Whites. The outrageous and extravagant imagery
cannot disguise the reality of the message.  Khumalo
proclaims
his opinions: ie, all Whites are untrustworthy because they, so he
believes, all harbour pejorative views about Blacks.
He wants them
all to be gone from the Land. Even Whites within the Liberation
Movement are, in truth, racist which is evidenced
by their audacious
defence of the right of freedom of expression and in so doing
toleration of the expression of views which disparage
Blacks. Khumalo
will cut himself off from all whites. Whites are so despicable that
they deserve the same fate as the Jews who
were butchered during the
holocaust. Whites in general, and Jews in particular, as evidenced by
the Israelis’ treatment of
the Palestinians, share the same
deep-seated racist attributes. What they all deserve is to be
incinerated and the remains of their
incinerated children used as
ground fertiliser. The thrust of this message is that Whites should
be ostracised, marginalised, excluded,
indeed, totally ‘othered’,
de-humanised, and legitimately be subjected to violence
[15]
[92]
Could this message have the effect of inciting harm or constitute
incitement to cause harm in the eyes of the reasonable reader?
Of
course, the ‘reasonable’ reader would, by definition, not
share the views of Khumalo, but it is the reasonable reader’s

understanding of
the
effect of the utterances
that forms the substance of the test. Moreover, the category of the
reasonable reader in not confined to being a member of the
group
being vilified; reasonable people anywhere and everywhere are
envisaged, regardless of racial identity.
[16]
[93]
What kind of ‘harm’ does the statute envisage? Is it
limited to physical harm, self-evidently in the form of some
degree
of violence?  In my view, the statute is not limited to physical
harm to the category of persons against whom the hatred
is directed.
The
Intimidation
Act 72 of 1982
,
in any event, creates a criminal offence in
Section 1(1)(b)
which
caters for that sort of harm, although the harm contemplated in that
statute can also be wider.
[17]
A superfluous duplication of function in legislation ought not to be
lightly inferred in the exercise of interpretation.
[94]
‘Harm’ must be construed in the context of the statute’s
aims. The harm envisaged that derives from inter
-racial hostility
cannot be limited to violence alone. Our society’s demands
contemplate the prohibition of non-physical
harm too. Moreover, the
rehabilitative objectives of the Equality Act suggest a broader
ambit. The risk of harm exists in several
forms, but all forms that
may eventuate, are, necessarily, a
reaction
to the utterances.
[95]
First, is the reaction of persons who read the utterances and who are
inclined to share those views and be encouraged by them
to also shun,
denigrate and abuse the target group, ie Whites as being unworthy,
hypocritical, racist pariahs. It cannot be gainsaid
that Black South
Africans have a great deal to be justifiably resentful about
regarding some of the collective past and present
behaviour of their
White compatriots. Many people, who share Khumalo’s
frustrations are likely to be susceptible to being
stirred up by such
inflammatory talk.
[96]
Second, harm can arise in form of reactions by persons from the
target group. There are two forms of harm in this regard. First,
to
experience demoralisation and physiological hurt.
[18]
Damaging as that kind of harm may be, it not harm that is triggered
by incitement. The second kind of harm, which what is relevant
in
this context, is the harm caused from responding in kind, thereby
creating a spiral of invective back and forth. Indeed, proof
of that
proposition is the very trigger for this case: Khumalo says his
utterances were a response to Penny Sparrow’s notorious,
vile
utterances about Blacks littering beaches and behaving like ‘monkeys’
which she proclaimed that henceforth would
be her name for
Blacks.
[19]
This is a classic illustration of a spiral of invective as a result
of an incitement by a text sprouting hatred and contempt.
[97]
Third, there is harm to social cohesion in South African society
caused by either or both of the former two forms of reaction,
which
on a large enough scale, undermines the nation building project.
[20]
.
[98]
A significant aspect about the conduct prohibited by section 10 is
that there can be no defence or escape from accountability.
[21]
If one has uttered words that are prohibited, the utterer is liable.
The Equality Act imposes civil liability on an individual
in respect
of that individual’s conduct. In other words, if you utter
words which have the effect of inciting the causation
of harm, even
if that was not your intention, the liability under section 10 shall
have been established. The proviso in section
12, which must be
applied
mutatis
mutandis
to the articulation of the utterances provides for obvious
exceptions.
[22]
[99]
I have had the valuable assistance from the amicus of being referred
to various examples of literature, including learned articles
from
abroad addressing hate speech in other jurisdictions and in
international instruments. Predictably, different laws in other

countries frame the debate about values and policy differently
because, not only are their statutory provisions different to ours,

but their value choices are often different too. In Germany and
France it is a crime to question the occurrence of the holocaust,
yet
in the USA neo-nazis may freely parade their swastikas deliberately
through predominantly Jewish neighbourhoods or threaten
revenge if
the state does not stop the so-called oppression of Whites.
[23]
Those societies frame laws to address their social circumstances as
do we. Thus, we differ.
[100]
The main thrust of the argument advanced on behalf of the amicus is
that the final value judgment about whether a given set
of remarks
can constitute hate speech is properly to be determined by the social
context in which it is uttered. The literature
is heavily weighted in
favour of this approach. However, in drawing upon the literature two
caveats are important. First, the phrase
“hate speech” is
not a legal concept and moreover, it is a phrase which can have a
very broad meaning. Secondly, the
formulations in other jurisdictions
of what is prohibited and whether or not what is prohibited
constitutes a crime renders the
utility of comparisons very
difficult. Many “hate Speech” prohibitions are directed
at shutting down expressions of
hatred whether they incite harm or
not. Many jurisdictions require
mens
rea
by the speaker to cause
harm, unlike the Equality Act. In such a broad range of options the
relevant notions of and thresholds
of tolerance are likewise varied.
[101]
Among the more complex and controversial value choices is the
differential treatment of hateful speech by different segments
of a
society; ie if a person from a marginalised community speaks roughly
it is thought that the exuberance and venom ought to
be overlooked,
but the same conduct by a person who is understood to be a member of
a dominant community in a given society is
intolerable. Following on
that paradigm, if a person uses terminology which is insulting of
others in the course of a ‘serious’
debate on a given
issue, it has been held not to be hate speech.
[24]
[102]
In South Africa, however, our policy choice is that utterances that
have the effect of inciting people to cause harm is intolerable

because of the social damage it wreaks and the effect it has on
impeding a drive towards non-racialism. The idea that in a given

society, members of a ‘subaltern’ group who disparage
members of the ‘ascendant’ group should be treated

differently from the circumstances were it the other way around has
no place in the application of the Equality Act and would indeed

subvert its very purpose. Our nation building project recognises a
multitude of justifiable grievances derived from past oppression
and
racial domination. The value choice in the Constitution is that we
must overcome the fissures among us. That cannot happen
if, in
debate, however robust, among ourselves, one section of the
population is licensed to be condemnatory because its members
were
the victims of oppression, and the other section, understood to be,
collectively, the former oppressors are disciplined to
remain silent.
The reality is that, given our history, White South Africans
collectively have a lot to answer for. However, being
relaxed about
vituperative outbursts against Whites, on those grounds, contributes
nothing of value towards promoting social cohesion.
Reference has
already been made to the risk of spiralling invective with uncertain
but frightening possibilities. There can never
be an excuse that
absolves any one of us from accountability in terms of section 10(1).
There may be surrounding circumstances
which aggravate the
utterances or mitigate the likelihood of incitement to cause harm;
these are matters fall to dealt with when
remedies are considered.
[103]
To sum up, section 10 must be understood as an instrument to advance
social cohesion.  The “othering” of
whites or any
other racial identity, is inconsistent with our Constitutional
values. These utterances, in as much as they, with
dramatic allusions
to the holocaust, set out a rationale to repudiate whites as unworthy
and that they ought deservedly to be hounded
out, marginalised,
repudiated, and subjected to violence in the eyes of a reasonable
reader, could indeed, be construed to incite
the causation of harm in
the form of reactions by Blacks to endorse those attitudes, reactions
by Whites to demoralisation and
rachet up the invective by responding
in like manner, and thus by such developments, on a large enough
scale, derail the transformation
of South African Society.
[104]
Accordingly, Khumalo’s utterances are statements prohibited by
section 10(1) of the Equality Act.
Considerations
pertinent to an appropriate order
[105]
Section 21 of the equality Act prescribes the possible orders that an
Equality court may make to deal with an instance of
hate speech.
[25]
These arec all
civil remedies and are wide in nature. The philosophical point of
departure is a blend of remedial action for the
victims and in
respect of the perpetrator, atonement for proscribed behaviour and
rehabilitation.
[106]
Khumalo is a State Official employed by the Gauteng Provincial
Government whose role as Sports Officer is to engage with the
Youth.
He is otherwise an anonymous member of Society. He published the
utterances while participating in an online political chat
platform.
He thus published these remarks widely. His actions were re-active,
as distinct from initiating a controversy by the
utterances.
[107]
The obvious orders that appropriately follow on these findings
include a declarator that the utterances do constitute prohibited

speech and an interdict against repetition.
[108]
An apology should also be compelled, though what true value an
apology under compulsion has is difficult to pin down. In this
case,
an apology was given soon after the publication, a further apology
was given in the Roodepoort case and yet another in the
aborted
settlement discussions with the SAHRC. In these proceedings, owing to
the contention advanced that no hate speech was perpetrated,
of
course, no apology is logically possible.
[109]
Khumalo undoubtedly regrets making the utterances because of the
consequences that have followed. His employer has sanctioned
him,
albeit it perfunctorily.  His political organisation has
repudiated his behaviour and at its insistence he must pay a

compensatory sum of R30,000. On top of that there is also these
proceedings which have been a burden to him.  The apologies
made
and the sincerity with which they were made, if any, are subject to
doubt now that he has denied any wrongdoing at all. However,
it would
be wrong for a court not to appreciate that that his stance adopted
in these proceedings, as contrasted with his stance
previously, were
actuated by legal advice that a legal argument could be mounted that
might serve to exonerate him. That prospect
has not borne fruit, and
it must be appreciated that he cannot be condemned for accepting the
advice and acting accordingly. However,
the result remains that he
repudiatd the apologies given and he must be held to account on that
footing, the outcome of his own
choice.
[110]
The notion that an order in terms of section 21(2)(n) that
compensation be paid requires close scrutiny. The SAHRC contends
a
sum of R150,000 be paid, and unlike the now aborted settlement in
terms of which that payment was to be suspended, it is now
argued
that it should be paid. There are two aspects to reflect upon.
[111]
First, it seems to me that the sum of “R150,000” has
gained some sort of notorious default status. This was the
sum
imposed on Penny Sparrow and received much publicity. Why that sum
was thought appropriate does not emerge from the Magistrate’s

judgment. Indeed, as the judgment was given by default in the absence
of Sparrow, and no information about her wealth or income
was
adduced, it seems not be bear any relationship to the circumstances
of her capacity to pay and what impact that diminution
in her estate
would mean to her.  It seems that the sum was a thumb-suck
intended to serve as a measure of Society’s
indignation. Such
an approach is crude and underserving of endorsement. In this matter,
Khumalo has given no information about
his financial position and the
SAHRC has not sought to compel such information to be revealed. I am
in no position to determine
the effect of any sum that might be
imposed on Khumalo. Imposing the payment of sums of money which may
be ruinous to a respondent
does not achieve an outcome the Equality
Act encapsulates. In as much as rehabilitation of persons who fall
foul of its provisions
are concerned, huge money payments are
counter-productive. As regards the costs of these proceedings
per
se
, in my view, justice
will be done if Khumalo is ordered to bear the costs of the SAHRC.
The SAHRC is funded by the taxpayers to
whom, among others, the
apology is owed.
[112]
The second aspect is the utilisation of section 21(2)(e) in
principle. There seems to be no reason why that section should
be
invoked as a matter of routine. For example, in neither
Masuku
nor
Qwelane
did Moshidi J make such an order.
[26]
As matters stand, the order of the Roodepoort Equality Court stands,
and Khumalo is already paying off a R30,000 compensation award.
Were
it appropriate to use a compensation award as the central device of
rebuking Khumalo, it must be weighed that he has already
had such an
order made against him.  In my view, an additional order to pay
money is inappropriate for that reason.
[113]
Whether or not it is appropriate to refer the matter to the NPA as
envisaged in section 21(2) (n) is the next matter to be
considered.
The power to do is discretionary. How that discretion is to be
exercised must be considered. It seems to me that
it is unnecessary
for the Equality court to come to the conclusion that a crime has
indeed been committed; rather, if a crime
might
have been committed, that
is a sufficient threshold, whereas if it is plain that no crime has
been committed it would be an improper
exercise of discretion to
cause the matter to be referred. Naturally, the fact that an Equality
Court does not refer as matter
does not inhibit other persons,
including the SAHRC from doing so, if they deem it appropriate.
[114]
The serious hatred patent in the utterances and the insulting nature
thereof does justifiably provoke the thought that a crime
may have
been committed. For example, do the insulting remarks satisfy the
test for Crimen Injuria? I cannot conclude that it is
obvious no
crime has been committed, and moreover it is within the discretion of
the Director of Public Prosecutions to assess
that matter, rather
than this Court. Moreover, any possible prosecution is not limited to
the information available to me in this
Court. It seems appropriate
that a referral indeed be made for a consideration of whether or not
to allege a crime and prosecute
it.
The
management of the risk of multiple referrals to different Equality
courts having concurrent jurisdiction
[115]
The fact that different aggrieved persons can refer complaints to
different courts is well illustrated by the facts of this
matter.
Axiomatically, it would have been preferable to have all complaints
adjudicated in a single consolidated proceeding. The
SAHRC was
ignorant of the ANC’s referral. How might this undesirable risk
be eliminated.
[116]
It was to address this problem, in the future, that I invited the
Minister of Justice to make submissions. Counsel for the
Minister
filed heads of argument. In that argument the problem was recognised.
The response was that the Equality Review Committee,
a statutory
authority, is at present undertaking a comprehensive assessment of
the Equality Act and the ramifications of its functionality.
The
process in which it engaged is to take about five years to complete.
No earlier response by the Department of Justice can be
expected. I
express my disappointment that an organ of state can be so
indifferent to a practical problem, and indeed one which
could be
addressed by the promulgation of regulations.
[117]
The SAHRC, in addressing this question, points out that there seems
to be no legal foundation for a matter filed in a Magistrate’s

Equality Court and one filed in the High Court Equality court to be
consolidated. In part, this because the High Court Equality
Court is
a creature of statute and does not, as a High Court has, enjoy
inherent jurisdiction to address the process. In my view
these
submissions are well made. The suggestion made by the SAHRC is that a
central registry be established of all referrals throughout
the
Country, so that multiple complaints can be identified. However, who
is keep such a registry? At present no central control
is exercised
over the Equality Courts.
[118]
Some basic problems must be recognised. First, there is no prescribed
time limit for a referral of a complaint to an Equality
Court (save
possibly prescription or the elapse of a reasonable time) and second,
the lack of capacity of the several clerks or
registrars of the
Equality Courts (all part time appointees who have other duties), to
operate an administrative system that would
reliably transmit
information and reliably ensure it gets attention when received.
[119]
Having considered the problems and the possibilities to alleviate the
risk, it had occurred to me to make a practice directive
that the
SAHRC be served with a copy of every complaint. This however, would
be burdensome, and the SAHRC has not expressed a view
that such a
procedure is appropriate, given its resources.
[120]
The upshot is that, in my view, it is inappropriate to try to resolve
the problem through judicial intervention. The matter
might usefully
be addressed in deliberations between the SAHRC and the Minister of
Justice. Perhaps if the Minister of Justice
is himself approached the
appropriate degree of insight can be applied to the question, rather
than be fobbed off with bureaucratic
insensibility.
Conclusions
[121]
In summary;
121.1 The Roodepoort
proceedings are not a bar to these proceedings and an application of
issue estoppel is not appropriate.
121.2
The utterances are declared to
be hate speech.
121.3
Khumalo shall be interdicted
from a repetition
121.4
Khumalo should be ordered to
apologise to all South Africans.
121.5
The matter shall be referred to
the NPA by the Registrar of the Court.
121.6
No further order requiring
payment of compensation shall be made.
[122]
I express my gratitude to all Counsel for their helpful and
constructive arguments, and in particular, I thank counsel who
have
appeared
pro amico
and on behalf of the
amicus curiae
,
whose efforts to assist the Court are likewise appreciated.
THE
ORDER
(1)
The utterances of the
respondent are declared to be speech prohibited in terms of section
10(1) of the Equality Act.
(2)
The respondent is interdicted
from repeating the utterances.
(3)
If not already done, the
respondent shall remove all references to the utterances
from
any social media or other form of public communication.
(4)
The respondent shall within 30
days of the date of this order publish a written apology directed at
all South Africans in which
he acknowledges that the utterances were
hate speech, that he was wrong to utter them, and undertakes never
again to utter any
remarks prohibited by section 10(1) of the
Equality Act.
(5)
The apology shall be
communicated to the South African Human rights Commission for further
dissemination.
(6)
The respondent is interdicted
from uttering any repetition of the remarks or similar remarks
declared hate speech in this matter.
(7)
The Registrar of this Court
shall within 30 days of the date of this order prepare a dossier of
the papers filed in this matter
together with a copy of this judgment
and submit a copy of the dossier to the Director of Public
Prosecutions, Johannesburg and
another copy to the South African
Human Rights Commission; and furthermore, submit a report to
Sutherland J that this has been
done.
(8)
The respondent shall pay the
costs of the Complainant in these proceedings.
________________________________
ROLAND
SUTHERLAND
Judge
of the Equality Court
Gauteng
Local Division, Johannesburg
Date
of Hearing: 2-3 July 2018
Date
of Judgment: 5 October 2018
For
the Complainant (South African Human Rights Commission):
Adv
M Oppenheimer and Adv SA Nakhjavani,
instructed
by Werksmans Attorneys
For
the Respondent (Pro amico):
Adv
Stuart Wilson and Adv Ofentse Motlhasedi
For
the Minister of Justice:
Adv
TR Ntoane,
Instructed
by the State Attorney
For
the Amicus Curiae:
Adv
I De Vos,
Instructed
by the Legal Resources Centre (Amicus)
[1]
“
Now”
in Zulu.
[2]
“
burned”
[3]
The Magistrates’
Courts and the High court have both been designated as Equality
Courts and have concurrent jurisdiction.
A person who is alleged to
have committed hate speech could therefore be summonsed to appear in
either the High Court Equality
court where that person is domiciled
or to the Magistrate’s Equality Court where that person is
domiciled.
[4]
See infra
paragraph 69 of this judgment.
[5]
See: Section
10(2) and Section 21(2)(n). of the Equality Act.
[6]
See:
Section
21(2)(e) of the Equality Act.
[7]
Paragraph
(a)
was
amended by Section 30 of Act 8 of 2007 wef 2 August 2017 to add
HIV/AIDS Status.
[8]
See Islamic Unity
Convention Independent Broadcasting authority
[2002] ZACC 3
;
2002 (4) SA 294
(CC)
at
[32]
–[33] and [45].
[9]
Curiously,
reviews and appeals from Magistrate’s Equality courts do not
lie to the High court sitting as an Equality court,
rather it is the
High Court,
per
se
,
that hears them. See Section 23(5) of the Equality Act.
[10]
Natal Joint
Municipal Pension Fund v Endumeni Municipality
2012 (4) SA 593
(SCA)
at [18]
[11]
See CLOSA 05
06-08 ch 42, pp78-79, where these issues are discussed. At present a
Draft Bill has been circulated, but its fate
is wholly uncertain.
[12]
The current
debate about whether “hate speech’ however defined,
ought to made a crime is of no assistance in dealing
with the
Equality Act in its present form.
[13]
SAHRC
v Masuku
2018 (3) SA 291
(GJ, Eqc) at [47] where it is held that the
intention of the speaker of the prohibited words is irrelevant..
[14]
Shorter Oxford
English Dictionary.
[15]
Compare, in
Afriforum
v  Malema
(Supra) at [108], where the Court addresses the expression of hatred
against Afrikaners by the singing of the song “ kill
the
Boer”; hotz & Others   v  University Of
Cape town 2017(2) Sa 485 (SCA), where the Court addressed
the case
of a person wearing a T-shirt with the inscription “ Kill all
whites”.
[16]
It
was argued on behalf the amicus that the reasonable reader is a
person from the group being vilified. In my view this is not

correct; the reasonable reader is not only a person who may feel
wounded by the hate speech. The reasonable reader would,
inter
alia
,
contemplate the effect of the speech on a member of the vilified
group in forming a view and also on others who may be stirred
up by
such speech.
[17]
In Moyo &
Others  v  Sonti & Others
[2018] ZASCA 100
(26
June 2018) the SCA dealt with these provisions in the
Intimidation
Act.
>
[18]
In R  v
Keegstra
(1990) 3 CRR 227-
228, The Canadian High Court articulated
the position thus:
“
A
person's sense of human dignity and belonging to the community at
large is closely linked to the concern and respect accorded
the
groups to which he or she belongs. . . . The derision, hostility and
abuse encouraged by hate propaganda therefore have a
severe impact
on the individual's sense of self-worth and acceptance. This impact
may cause target group members to take drastic
measures in reaction,
perhaps avoiding activities which bring them into contact with
non-group members or adopting attitudes
and postures directed
towards blending in with the majority. Such consequences bear
heavily in a nation that prides itself on
tolerance and the
fostering of human dignity through, amongst other things, respect
for the many racial, religious and cultural
groups in our
society.[18]
[19]
The proceedings
of the Equality Court into Penny Sparrow’s utterances are
available on SAFLII at [2016] ZAEQC 1 (10/06/2016)
[20]
See CLOSA 05
06-08 ch 42 pp75-76; also
Islamic
Unity
(Supra) at [33] – [34]
[21]
Afriforum v
Malema
(supra)
at [9] – [10] – “justification is not a defence;
SAHRC
v
Masuku
at [47] - ‘Fair Comment’ is no defence.
[22]
Discourse that is
directed at discussing hate speech cannot obviously be a
perpetration of hate speech even though the speech
per
se
is
made known, even widely.
[23]
National
Socialist Party of America Village of Stokie
432 US 43
(1977);
Brandenburg v  Ohio
395 US 444
(1969). See too: W B Fisch “Hate
speech in the Constitutional Law of the United States” 50 Am.
J.comp law 463 (2002)
As to European jurisdictions See: “
comparative Hate speech Law: annexure, (2002) accessible at: Oxford
Pro Bono Publico
http://www.law.ox.ac.uk/opbp, p14ff.
[24]
See,
Gundez
v  Turkey
app no 3507/1997 [EFtHR, 4/12/2003] where the European court of
Human rights took the view it was not hate speech when a speaker
in
a televised debate used derogatory terminology about the offspring
of non-Islamic marriages. The rationale is that ‘robust’

debate of this sort was acceptable.
[25]
Section 21:
Powers
and functions of equality court
(1)
The
equality court before which proceedings are instituted in terms of
or under this Act must hold an inquiry in the prescribed
manner and
determine whether unfair discrimination, hate speech or harassment,
as the case may be, has taken place, as alleged.
(2)
After
holding an inquiry, the court may make an appropriate order in the
circumstances, including-
(a)
an interim order;
(b)
a declaratory order;
(c)
an order making a settlement between the parties to the proceedings
an order of court;
(d)
an order for the payment of any damages in respect of any proven
financial loss, including future loss, or in respect of impairment

of dignity, pain and suffering or emotional and psychological
suffering, as a result of the unfair discrimination, hate speech
or
harassment in question;
(e)
after
hearing the views of the parties or, in the absence of the
respondent, the views of the complainant in the matter, an order
for
the payment of damages in the form of an award to an appropriate
body or organisation;
(f)
an
order restraining unfair discriminatory practices or directing that
specific steps be taken to stop the unfair discrimination,
hate
speech or harassment;
(g)
an
order to make specific opportunities and privileges unfairly denied
in the circumstances, available to the complainant in question;
(h)
an
order for the implementation of special measures to address the
unfair discrimination, hate speech or harassment in question;
(i)
an
order directing the reasonable accommodation of a group or class of
persons by the respondent;
(j)
an order that an unconditional apology be made;
(k)
an order requiring the respondent to undergo an audit of specific
policies or practices as determined by the court;
(l)
an
appropriate order of a deterrent nature, including the
recommendation to the appropriate authority, to suspend or revoke

the licence of a person;
(m)
a
directive requiring the respondent to make regular progress reports
to the court or to the relevant constitutional institution
regarding
the implementation of the court's order;
(n)
an
order directing the clerk of the equality court to submit the matter
to the Director of Public Prosecutions having jurisdiction
for the
possible institution of criminal proceedings in terms of the common
law or relevant legislation;
(o)
an appropriate order of costs against any party to the proceedings;
(p)
an order to comply with any provision of the Act.
(3)
An order made by an equality court in terms of or under this Act has
the effect of an order of the said court made in a civil
action,
where appropriate.
(4)
The court may, during or after an inquiry, refer-
(a)
its
concerns in any proceedings before it, particularly in the case of
persistent contravention or failure to comply with a provision
of
this Act or in the case of systemic unfair discrimination, hate
speech or harassment to any relevant constitutional institution
for
further investigation;
(b)
any
proceedings before it to any relevant constitutional institution or
appropriate body for mediation, conciliation or negotiation.
(5)….
[26]
Masuku
supra
at [65]; Qwelane
supra
at [191]