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[2016] ZANCHC 43
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Lucas v Peterson (EC02/2013) [2016] ZANCHC 43 (13 December 2016)
IN
THE H IGH COU RT OF SOUTH AFRICA
NORTH
E
R
N
CAPE
DIVISION,
KIM
BERLEY
Case
No:
EC
02/
2013
Heard
on:
1
2/
1
0/
20
1
6
Delivered
on:
1
3/
1
2/
2016
I
n
the matter between:
SYLVIA
LUCAS
Applicant
And
WILLIAM
PETERSON
Respondent
Coram:
Kgomo JP et Mamosebo J
JUDGMENT
MAMOSEBO
J
[1]
This is an appeal against the judgment and order of the Equality
Court Magistrate, Mr JA Van Zyl, delivered on 30 June 2015
in
Upington, district of Gordonia. The appellant is Ms Sylvia Lucas, the
current Premier in the Northern Cape Province, who
was
then MEC of Environmental Affairs and Nature
Conservation. The respondent, Mr William Peterson,
is described as a
member of the Khoisan Ethnic Community and also a member of the
National Khoisan Council. The appeal is brought
out of time and is
accompanied by an application for the condonation for the late
prosecution thereof.
[2]
I
n
its translated form
the
Magistr
a
t
e
'
s
order
[1]
was to the following effect
:
"For
her utterances in her speech delivered on 18 September 2010 during
which she termed people to be 'hotnots' [hottentots]
and further that
'we hotnots think of food and clothes', the respondent [Ms Sylvia
Lucas] is ordered to apologise unconditionally:
(a)
Over
Radio Riverside,
Upington; Radio
Kabusna,
Calvinia;
and Namakwa
FM;
(b)
As
well
as
in the
Volksblad; the
Diamond Field Advertiser
(D
F
A);
and the Gemsbok [regional
newspapers].
(c)
As far
as
the
costs
are
concerned it
is
ordered
that
costs
be
awarded
in
favour
of
the
applicant
[Mr William
Peterson],
which
costs
are
to
be
taxed."
The
condonation application
[3]
Section 23(1) of the Promotion of Equality and Prevention of Unfair
Discrimination Act, 4 of 2000 (PEPUDA), stipulates :
"Any
person
aggrieved
by
an
order
made
by
an
Equality Court
in
terms
of
or under
this
Act may,
within
such
period and
in
such manner as
may be
prescribed,
appeal
against
such
order
to
the
High
Court
having jurisdiction or
the
Supreme
Court
of
Appeal,
as
the
case may be.
"
(Own emphasis).
[4]
The Magistrate delivered the
ex
tempore
judgment
in court on 30 June 2015. The transcribed judgment was made available
to the parties on 20 July 2015. Rule 50 (1) of the
Uniform Rules of
Court stipulates:
"An
appeal
to
the
court
against
the
decision of
a
magistrate
in
a
civil
matter
shall
be
prosecuted
within
60
days
after
the
noting
of
such
appeal
,
and
unless
so
prosecuted
it
shall be deemed to have lapsed.
"
Ms
Lucas had 14 days to file her Notice of Appeal and 60 days to
prosecute the appeal itself. Although the Notice was filed timeously,
this is by 31 July 2015, the same cannot be said for the inordinate
delay in prosecuting the appeal. Adv Moroka SC, for the Premier,
maintained in her submission that nine months' delay was not
unreasonable or wanton. Adv Calitz, for the respondent, contended
that the delay was about 11 months and
not 9 months as argued by Ms Moroka.
The two
months that separates the parties in their computation is of no
moment in the larger scheme or purport of this dispute.
[5]
Ms Lucas attributes the delay to several causes:
5.1
First, the presumed but mistaken unavailability of the presiding
officer's Regulation 19(5) statement. As
shown in para 4 (above) the
judgment was already available on 20 July 2015;
5.2
Secondly, the termination of the mandate of her erstwhile attorneys
of record, Lange Carr & Wessels
Inc
on 20 November 2015. See para 6 (below);
5.3
Thirdly, that the
dies
non
between 15
December 2015 and 15 January 2016 cannot be reckoned in as part of
the delay;
5.4
Fourthly, that the article by Professor De Vos dated 24 July 2015
titled:
"
Why
the hate speech
provisions may be unconstitutional
"
lulled her into a false sense of security. The appellant
ga
v
e
the date of the article as 24 July 2015 whereas the correct date
is 31 March 2010. The professor's article therefore predates Ms
Lucas' speech by six months. Prof. De Vos exhorted Mr Julius Malema
in it to challenge the constitutionality of s 10 of PEPUDA
because,
he opined, it infringes on his right of freedom of expression. This
exhortation has however been overtaken by events regard
being had to
the recent Constitutional Court judgment in which the section alluded
to by Prof De Vos was not challenged.
See
South
African
Revenue
Service
v
Commission
for
Conciliation,
Mediation
and Arbitration
and
Others
[2016]
ZACC 38
dealt with below at para 33.
5.5
Finally, changing counsel and the fact that it was the second
counsel's legal opinion that the Equality Court
Magistrate
misdirected himself which triggered a rethink on the prospects of
success, hence this appeal.
It
should be borne in mind that one of the principles guiding the
implementation of PEPUDA is the expeditious and informal processing
of cases.
[6]
Mr Calitz submitted that the delay was caused by mere tardiness. Ms
Lucas conceded in her reply that she has always been represented
by
the State Attorney and that the reference to changing attorneys meant
the substitution of counsel and not attorneys.
[7]
It is trite that condonation is not to be had merely for the asking.
Since the applicant is seeking an indulgence, which is
within the
discretion of the Court to grant or refuse, our view is that the
merits of the case will determine whether condonation
should be
extended to the petitioner. A slight delay and a good explanation may
help compensate for prospects of success which
are not strong. Of
importance is whether the explanation by Ms Lucas covers the entire
period of the delay and is reasonable to
purge the default. See
Van
Wyk
v
Unitas
Hospital
and Another
(Open
Democratic
Advice
Centre
as Amicus Curiae)
[2007] ZACC 24
;
2008 (2) SA 472
(CC); (2008(4) BCLR 442) para 20;
S
v
Mercer
[2003] ZACC 22
;
2004 (2) SA 598
(CC);
Brummer
v Gorfil
Brothers
Investments
(Pty)
Ltd
and Others
[2000] ZACC 3
;
2000
(2) SA 837
(CC);
M
elane
v Santam Insurance Co
Ltd
1962 (4) SA 531
(A) at 532B-F. Hence the
examination of the merits.
The
issue before the Magistrate
[8]
The issue before the Equality Court Magistrate was to determine
whether or not the impugned words used by Ms Lucas justified
the
Magistrate's determination. She is quoted as having said:
"Are
we
going to
talk
the
entire
day
on
environmental
matters. Nevertheless,
what
is
pleasing is
that
the Chairperson [
of the
African National Congress (ANC)], this
refers
to
the MEC [
Member
of
the Executive]
for
Finance [
Mr
John Block] has
supported me
because he thinks
differently from
us
Hotnots
[
Hottentots].
You
know,
we only
think of food and clothing. His
vision
goes a bit further. He,
at
the
time,
made
them
understand
why
it was
important
to
discuss
issues
like
the
environment
and environmental
governance.
"
Could
this statement reasonably be construed to demonstrate a clear
intention to be hurtful or harmful or to promote
hatred towards the complainant and or the Khoisan Community as
contemplated in s 10 of PEPUDA?
[9]
By agreement between the parties the Magistrate decided the matter
essentially in the mode of a stated case, based on the papers,
the
templated Form 2, the appellant's speech and her answering affidavit
to make his determination. The proceedings were launched
in terms of
s 20 of PEPUDA. The nature of the complaint was outlined in the said
Form 2 dated August 2013. The starting point by
the Magistrate was to
look at the nature of the complaint and the relief sought and noted :
9.1
"The applicant
[Mr
Peterson]
intimated
that
he
is
affected [
by
the
remarks]
by
virtue
of being
of
the khoi bloodline, as well
as being leader and
a member of
the National
Khoisan
Council.
He
states
in
his
statement
that he
feels
worthless and
his
human rights have been
infringed
.
Now
the
compensation
or
vindication
that
the applicant
requires
is
an
unconditional apology
,
as
agreed
to
in
all
regional newspapers
circulating in the Northern
C
ape
and
,
all
community
radio
stations
."
(o
w
n
emphasis)
9.2
The exact terms of the said agreement alluded to in para 9.1 have not
been set out nor is there any
document that contains
such agreement. What was
negotiated
emerges from various statements contained in the
papers of the parties. However, the upshot of what was proposed,
maybe not in
exact terms, seems to me to have been achievable because
they seem to relate to the retraction of the impugned statements and
the
publication of an apology in the media.
The
background
[10]
On 18 September 2010 and at Eiland Holiday Resort in Upington Ms
Sylvia Lucas, in her capacity as MEC for Environmental Affairs
and
Nature Conservation, delivered a speech on tourism and biodiversity.
Among the guests was the MEC for Finance, Mr John Block.
Mr Peterson,
the complainant, was not in attendance but heard what appeared to be
edited snippets of the speech over the radio.
[11]
Mr Peterson lodged a complaint with the Human Rights Commission (HRC)
around 09 November 2010. Mediation and conciliation efforts
were
attempted by the HRC about a year later, on 08 November 2011. While
on the one hand Ms Lucas states that she tendered
an
apology to Mr Peterson which he accepted, he on the other maintains
that the relief he sought was a written apology in
"Die Gemsbok"
and "Die Volksblad" newspapers as well as an unconditional
apology on all the five local
community radio
stations through which the live
broadcasts of Ms Lucas' speech
were made. The
dispute remained unresolved. Mr Peterson wrote a letter to the HRC
and informed them that he was seeking relief
from
the Equality Court because, he claims, Ms Lucas defaulted on
her undertaking to retract her offending words and
statements and in
particular to tender her apology at an appropriate forum and the
media.
[12]
Ms Lucas did not see her way clear to acceding to the demand for a
public apology. Her explanation for resisting is couched
like this:
"I
do not believe that it is in the public interest that I publish and
broadcast an apology, as it would not be in the interests
of justice
and those of the public as publication may have unintended
consequences. [T]he public never had any problem with my
speech."
What
the "public interest" which is protected is and what the
"unintended consequences " foreseen are, are not
elaborated
upon by Ms Lucas. The Magistrate found that Ms Lucas had contravened
s 10 of PEPUDA and made the order set out in para
2 above.
[13]
Ms Moroka further argued that the Court a quo was unmindful or did
not even acknowledge that Ms Lucas is a member of the Khoisan
bloodline or their descendant. This submission is evidently mistaken
because the Magistrate stated:
"And
it is common cause that the respondent [ Ms Lucas]is a woman of
colour. See para 10 of her affidavit. The said paragraph
10
reads:
I
found the remark by Mr Block as an accolade to be shared by the
Hottentots (of which I am a descendant) in order to encourage
them to
rise up and take their rightful place in society, in that, if I can
do it so can they."
The
repetition of the word "Hottentot" in this passage, when it
was already objected to, boggles the mind.
[14]
Was there any material misdirection by the Magistrate in the
assessment of the evidence? Magistrate Van Zyl in the case before
us
dealt with three defences raised by Ms Lucas: First, that the
application was out of time; Secondly, whether essentially the
same
issues between the same parties were already adjudicated upon, in
other words whether the matter forms res
judicata;
and
Thirdly, whether the provisions of the Constitution and PEPUDA were
contravened by Ms Lucas. Having dismissed the first two
grounds the
Magistrate dealt with the third extensively and, relying on the
provisions of s 9 (4) and 5 of the Constitution, stated
the
following:
"Unfair
discrimination is when you are treated differently as compared to
other categories of people and that your dignity
as a human being is
impaired by such treatment. It is important to note that the Act does
not prohibit [ fair] discrimination but
unfair discrimination."
[15]
PEPUDA was enacted to give effect to s 9 of the Constitution, which
prohibits unfair discrimination and harassment, it promotes
equality,
it prohibits hate speech and provides for matters connected or
related therewith.
[16]
On appeal, Ms Moroka urged us to consider the interpretation of s 10
and how it should be read with s 16 of the Constitution
of the
Republic of South Africa which grants everyone freedom of expression.
Counsel criticized the Magistrate for his alleged
failure to evaluate
the evidence correctly. Section 10(1) of PEPUDA stipulates:
11
(1)
Subject
to
the
proviso
in
section
1
2
,
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 incite harm;
(c)
Promote or propagate hatred.
"
[17]
The Magistrate reviewed extensively the meaning of subsections 9(3)
and (4) of the Constitution to enable himto understand
what hate
speech as contemplated in s 10 of PEPUDA really is. He found that the
words 'kaffer' and 'hotnot fell within the same
class or category.
He then remarked that
"
'
n
persoon
van kleur
wat
'n ander 'kaffer' of
'hotnot'
noem,
is
nie
in
'n klas
van
sy eie
wat
vrywaring
betref
in
terme
van
die
Wet nie."
What
the Magistrate sought to convey is that a person of colour who calls
another "kaffer" or "hotnot" is not
in a
sui
generis
category which would clothe him/her with immunity. He
went on to strike the similarity between the use of those words and
the chant or slogan
"kill
the
boer,
kill
the
farmer."
The
Magistrate found both sets of words to be hurtful. Some words are
derogatory and hurtful irrespective of whether they
are
uttered by a person of the same ethnic
group or nationality.
[18]
From the aforementioned evaluation, one need
only refer to the report by the Human Rights Commission
(HRC)
analysing the effect of the use of the word "Hottentot"
when it remarked :
“
This
word is
currently
a
forbidden
word and
is
only
used
herein
to explain
and
expose
the apparent
cause, nature, and
magnitude
of
this
complaint.
It
is
important to explore the
exact
meaning of
the word "Hottentot
s
"
or
11Hotnots"
as
the
word
could
engender
the
level
of
anger
and
contempt and indeed
an infringement
of
the dignity
of the Communities as demonstrated by the
complainant and his followers."
[19]
The HRC referred to the definition of
"Hottentots". In
www.Urbandictionary.com.define
.php
it is defined as "A
person
of colour from
C
ape area in
South
Africa. Not white and not black.
Brown skin colou
r
."
w
ww.scienceinafrica .co.za/ 2002/ august/ khoi.htm
define
"the
name •Hottentots'
or in Afrikaans
shortening 1Hotno
t
'
became
a
disparaging
term
for
people of
colour at
the Cape. Today
we
refer
to
the
aboriginal
herders.
" And (en.wikipedia.org/
wik
i
/
khoikhoi) had this to say:
"The European immigrants labelled them
Hottentots, in
imitation of the sound
khoekhoe language but today considered derogatory.
"
[20]
The following information was sourced from
https ://e
n.wi
kipedia.org/wiki/Saartjie B
aartman:
I
"Dutch
colonizers also bestowed
the term
11Hottentot
'
which is derived from "ho
t
"
and 11tot"· Dutch
approximations of
common
sounds
in
the
Khoi
language.
The
Dutch
used
this
word
when
referencing
Khoikhoi
people
because
of the clicking
sounds and staccato pronunciations that
characterize
the
Khoikhoi
language; these
components of
the
Khoikhoi language
were considered
strange
and
·
bestial'
to
Dutch
colonizers.
The
term was
used
until the
20th
c
entu
r
y
,
at which
point most people
understood its
effect
as
a
derogatory
term
.
"
(own
emphasis)
[21]
Furthermore, the appellant is a
member of the ruling party, the
ANC,
and not a youngster. She
must be assumed to have been
aware of the State of the Nation Address
delivered by the former President Nelson Mandela on 24 May 1994 when
he said :
“
We
must
end
racism
in
the
workplace
as
part of
our
common offensive
against racism in
general.
No
more should
words
like
kaffirs,
Hottentots,
Coolies,
Boy,
Girl and Baas be part of our vocabulary."
(own emphasis)
[22]
The Magistrate referred to Ms Lucas' explanation in paras 12 and 16
of her answering affidavit where she intimate that
her remarks
were not intended to devalue or demean the "Hotnots"
but to change the mindset
that a "Hotnot"
is inferior to other races. Ms Lucas also said she had no intention
to cause harm and/or spew hate speech.
The applicant, she maintains,
was the only member of the public who felt hurt by her utterances
even though they were broadcast
across the entire province that, she
says, proves the point. To this the Magistrate remarked:
"There
is
no
demonstrable
evidence
in
favour
of
the
respondent
[
Ms Lucas]
to
back
up her
claim. It is strange and
improbable
that only
the applicant
'was
the only
member
of
the public
who
felt
hurt
by
my
utterances
'
.
It may
be
that
he
was
the
only
member
of
the public
who laid
the
complaint.
Even
if
he
may
have
been
the
only member
of
the public
who
felt
'hurtful he
is
also
entitled to the protection
of
the law.
"
[23]
The Magistrate further made the following finding:
"The
respondent informs the Court that she is a person of colour. In that
event it is totally improbable that the respondent
would be unaware
of the connotation which is attached to the term 'hotnot'. On the
contrary the reference to a person as 'hotnot'
has a degrading or
demeaning effect or meaning. To attach a different meaning to the
phrase which also specifically implicate the
mindset, does not have
an uplifting effect. The Court is of the view that the utterances, at
least, struck the complainant as defined
in s 10(1), in a 'hurtful'
and 'harmful' manner. The Court is of the view that the utterances
constitute hate speech, which the
law forbids. In terms of s 10 the
test is an objective one. The intention of the speaker is actually
irrelevant. Section 12 does
not come to the rescue of [Ms Lucas] in
her search for a defence."
The
Magistrate has indeed followed the correct approach and applied the
correct test in the assessment of the evidence before him.
I
find
no
misdirection
in
the
Magistrate's
analysis
on
this
aspect.
[24]
Inasmuch as Ms Lucas was addressing the community on biodiversity,
her utterances, in my view, stretched beyond her scope of
engagement
on that front on a twofold basis: When she referred to the Khoisan as
"Hotnots" and by stating that they are
only good for food
and clothes whereas Mr Block is more visionary. The Magistrate
cannot be faulted for making such a finding.
Utterances of a
respondent should not be hurtful, harmful or propagate hatred. As the
Magistrate correctly remarks, it cannot be
construed as uplifting the
Khoi Community when they are painted with the same brush as being
only good at food and clothes.
[25]
Ms Lucas' further contention is that because she used the Afrikaans
word "ons", meaning "we", in the impugned
phrase
to include herself, her intentions were to
encourage the Khoisan people, of whom she is a member, to think
beyond the perception of inferiority or being stereotyped as lesser
people.
[26]
The Magistrate considered the aforementioned submission and
observed:
"Ms
Lucas does not specify who she is referring to in her use of the
generic word "ans" [" we'], except that
she uses the
a/I-embracing phrase "ans hotnots " [" we hotnots "].
She contrasts the thinking capacity of the
then MEC for Finance with
the people she refers to as 1hotnots ' in a demeaning sense, in that
they can only think of food and
clothing and that the MEC thinks
further. This in the Court's view falls within the ambit of secs 9(1)
and 10 of Act 108 of 1996.
The Court is of the view that the passage
constitutes discrimination and that Ms Lucas in her best endeavours
has failed to discharge
the onus that rested upon her. She states in
para 5 that she spoke with pride of the people of the Northern Cape.
But to refer
to people as 'hotnots' which is regarded as degrading,
and whatever goes with the term, does not engender pride at all. The
claim
is totally devoid of cogency."
[27]
The following statement in Ms Lucas' answering affidavit seem to
suggest that she is distinguishable from the Khoisan people
and is
therefore at a more elevated level. She says the following at para 7:
"Ialso
mentioned that Mr Block was confident that I would perform my duties
diligently, contrary to the perception that we
as "Hotnots"
think more in terms of material things ('klere en kos')."
[28]
Mindful of the fact that no formal definition of hate speech exists
in our country. The meaning has to be derived from
the
Constitution and s 10 of PEPUDA. Daniel E Hall 'e-Study Guide for:
Constitutional values: Government Power and Individual Freedoms'
(Facts 101 study guides) ISBN 9780131717695, Google e-Book
whereat hate speech is described as "any
speech,
gesture or conduct, writing, or display which is forbidden because it
may incite violence or prejudicial action against
or by a
protected individual or group, or because it disparages or
intimidates a protected individual or group."
[29]
In
Afriforum
and
Another
v
Malema
2010 (5) SA 235
(GNP)
Bertelsmann J stated :
"The
true yardstick of hate speech is neither the historical significance
thereof, nor the context in which the words are uttered,
but the
effect of the words, objectively considered upon those directly
affected and targeted thereby."
I
share the sentiment.
[30]
The impugned words must also be construed from the perspective of
freedom of expression as contemplated in s 16 of the Constitution
which stipulates:
"16
Freedom of expression
(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
(c)
Advocacy ethnicity, of hatred that is
based gender or religion, on and race, that
constitutes
incitement to cause harm."
[31]
From the aforementioned provisions, it is clear that Ms Lucas'
freedom of expression had to be exercised responsibly because
it was
limited by s 16(2)(c). Her failure to act in accordance with
this prescript or do so appropriately resulted in her
utterances
impacting negatively on the rights of Mr Peterson and
other members of the Khoisan community.
[32]
I am further of the view that Ms Lucas, being a public figure
whose role on that day was to enlighten the community on
biodiversity issues, cannot invoke protection
under freedom of speech. The impugned words were hurtful
and harmful.
She misused the platform to undermine and belittle the Khoisan
Community. It is disappointing that so many years into
our democratic
dispensation Ms Lucas still deemed it acceptable to use the term
"Hotnot" to people she regards as her
ethnic group. The
term carries with it a painful past. She should have exercised more
sensitivity and refrained from the
use of the word. She
exacerbated matters by labelling the Khoisan Community as lacking
initiative or ambition. Her speech had the
potential of fuelling
anger and resentment towards other races or groups or the Premier
herself.
[33]
In
South
African
Revenue
Service
v
C
ommission
for
Conciliation,
Mediation
and Arbitration
and
Others
[2016] ZACC 38
, Mogoeng CJ in a
unanimous judgment of the Constitutional Court enunciated at para 12:
"[12]
The Constitution is the conscience of the nation. And the courts are
its guardians or custodians. On their shoulders
rests the very
important responsibility of holding our constitutional
democracy together and giving hope to all our
people that their
constitutional aspirations will be realised. To this end, when there
is litigation about racial supremacy-related
issues, it behoves our
courts to embrace that judgment call as dispassionately as the
judicial affirmation or oath of office enjoins
them to and
unflinchingly bring an impartial mind to bear on those issues, as in
all other cases.
[13]
Judicial Officers must be very careful not to get sentimentally
connected to any of the issues being reviewed. No overt or
subtle
sympathetic or emotional alignments are so stealthily or
unconsciously find their way into their approach to the issues,
however much the parties might seek to appeal to their emotions. To
be caught up in that web, as a Judicial Officer, amounts to
a dismal
failure in the execution of one's constitutional duties and the worst
betrayal of the obligation to do the right thing,
in line with the
affirmation or oath of office.
[14]
Bekker
C
J
[2]
,
Mohamed
C
J
[3]
and
Zonda
JP
[4]
observed
in
essence
that
racist
conduct
requires
a
very
firm
and
unapologetic response from the
courts,
particularly
the
highest
courts.
Courts cannot therefore afford to
shirk
their
constitutional
obligation
or
spurn
the
opportunities
they
have
to
contribute
meaningfully
towards
the
eradication
of
racism
and
its
tendencies.
To
achieve
that
goal
would
depend on whether they view the use of words like
kaffir
[I
would
add
baboon,
coolie,
Hotnot,
etc]
as
an
extremely
hurtful
expression
of
hatred and
the
lowest
form
of
contempt
for
African
people
[and
in
this
instance, the Khoisan communit
y
]
or
whether
the
outrage it triggers
is
trivialised
as
an
exaggeration
of
an
otherwise
less
vicious or
vitriolic
verbal attack.
"
[34]
It is my view that the term 'Hotnot' is not just a colloquial term as
submitted by Ms Moroka. If it is used in the context
of the impugned
phrase coupled with the assertive insinuation of elevating the MEC
for Finance, who is an African male, to a higher
intellectual and
better person than the Khoisan people, the Magistrate's finding has
to be correct that it was not just discriminatory
but could be
construed as hate speech. In my view, the approach adopted by the
Magistrate in this matter is beyond reproach. This
view also extends
to his evaluation of the complaint and the relief sought by Mr
Peterson for the violation of his basic right
to human dignity and
that of the Khoisan Community perpetrated by the appellant.
[35]
In the circumstances, the judgment and the order made by the
Magistrate on 30 June 2015 and the judgment made available on
20 July
2015 are hereby confirmed . Ms Lucas should have done the honourable
thing and complied with the Magistrate's order which
is fair and had
as its purpose redeeming the dignity of Mr Peterson and the Khoisan
Community and ameliorate their hurt.
[36]
In the event the following order is made:
1.
The application to condone the late prosecution of the appeal is
dismissed.
2.
The appeal is dismissed with costs.
3.
The Magistrate's translated order which the appellant (Ms Sylvia
Lucas) must comply with is the following:
"For
her utterances in her speech delivered on 18 September 2010 during
which she termed people to be 'hotnots' [hottentots]
and further that
'we hotnots think of food and clothes', [Ms Sylvia Lucas] is ordered
to apologise unconditionally:
(a)
Over Radio Riverside, Upington; Radio Kabusna, Calvinia; and Namakwa
FM;
(b)
As well as in the Volksblad; the Diamond Field Advertiser (DFA); and
the
Gemsbok [regional newspapers].
(c)
As far as the costs are concerned it is ordered that costs be awarded
in favour of the applicant [Mr William Peterson],which costs are to
be taxed."
4.
The above order must be fully complied with not later than 04 March
2017 failing which the respondent (Mr William
Peterson)
is granted
leave
to approach this Court for the appropriate relief on the same
papers suitably supplemented.
___________________________
MPHO
C MAMOSEBO
JUDGE
NORTHERN
CAPE DIVISION
I
concur
_______________________
F
D ALE KGOMO
JUDGE
PRESIDENT
NORTHERN
CAPE DIVISION
For
the appellant:
Adv K Moroka SC
M Lekoane
Instructed
by:
Office of the State Attorney
For
the respondent:
Adv M Calitz
Instructed
by:
Legal Aid South Africa
[1]
The Magistrate's judgment and order
are
i
n
Afrikaans and have
been
translated into English throughout.
[2]
S v Van Wyk
1992
( I ) SACR
147
(NmS) at
1
720 of concurrence
[3]
S v Salzwedel [1999] ZASCA
93;
2000 (
I
) SA 786 (SCA) at para
18
[4]
Crown
Chickens
(Pty) Ltd
t/a
Rocklands
Poultry
v Kapp (2002) 23 I LJ
863
(LAC);
(2002) 6 BLLR
493
(LAC)
(Crown
Chickens) at para
38