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[2016] ZAECMHC 37
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Thembani v Swanepoel (217044) [2016] ZAECMHC 37; 2017 (3) SA 70 (ECM) (12 September 2016)
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION: MTHATHA)
REVIEW NO:
217044
DATE:
12 SEPTEMBER 2016
In
the matter between:
BULELANI
THEMBANI
APPLICANT
And
WAYNE
SWANEPOEL
RESPONDENT
REVIEW
JUDGMENT
BROOKS
J:
[1]
This matter has been referred to us on review in terms of the
provisions of s23(5)(a) of the Promotion of Equality and Prevention
of Unfair Discrimination Act 4 of 2000 (PEPUDA) by the additional
magistrate, Mthatha, who heard the matter in terms of PEPUDA
in the
Equality Court for the district of Mthatha.
[2]
The complainant instituted proceedings in terms of PEPUDA and claimed
an unconditional apology from the respondent and an award
of
R100 000, 00 as damages for having been referred to as a
“kaffir”. The respondent admitted that on 27
January 2015 he had been involved in an argument with the complainant
which culminated in a physical scuffle between the two, but
denied
uttering the word “kaffir”, or indeed any abusive term,
towards the complainant.
[3]
Accordingly, the issue before the magistrate was to decide whether or
not the respondent used the word “kaffir”
towards the
complainant and, if he did, whether its use could reasonably be
construed to demonstrate a clear intention to be hurtful
or harmful
or to promote hatred towards the complainant as envisaged in s10 of
PEPUDA.
[4]
The magistrate heard evidence from both parties. In its
evaluation he was obliged to consider the question of
onus.
The provisions of s13 of PEPUDA are devoted to the nature of the
burden of proof applicable to certain cases involving
discrimination.
The magistrate observed correctly that the
provisions of s13 do not deal with so-called “hate speech”
cases, of which
undoubtedly the matter under consideration was an
example. Accordingly, the magistrate had regard to the
provisions of s
21 of PEPUDA, which provide for civil law remedies,
and the provisions of regulation 10 (7) of the regulations
promulgated under
PEPUDA which provide that the law of evidence as
applicable in civil proceedings is of application to an enquiry in
terms of PEPUDA,
provided that in its application fairness, the right
to equality and the interests of justice should prevail over mere
technicalities.
[5]
In my view, the magistrate approached the question of the nature of
the applicable
onus
in the correct manner. Moreover his conclusion that the burden
of proof is on the complainant to be discharged on a balance
of
probabilities, leaving the respondent only an evidential burden to
rebut the complainant’s evidence (in accordance with
the law of
evidence applicable in civil proceedings) is not offensive to the
principles of fairness, the right to equality and
the interests of
justice.
[6]
Both the complainant and the respondent gave evidence and were
supported by the testimony of witnesses. To the extent
that
some contradictions emerged from the evidence of the complainant and
his witnesses as to the exact nature of the words uttered
by the
respondent in conjunction with the word “kaffir”, the
magistrate sought guidance from the judgments emanating
from the
Supreme Court of Appeal. Contradictions
per
se
do not lead to the rejection of a witness’s version. The
court has to look at their nature, number and bearing on the
rest of
the evidence. (
S
v Mkohle
1990 (1) SACR 95
(A) at 98f; S v Mafaladiso en ander
2003
(1) SACR 583
(SCA).
Furthermore, the courts regard it as irrational to expect witnesses
to remember and recall their evidence
verbatim.
(
S
v Prinsloo 2014 JDR 1444 (SCA)
par
[15]).
Experience has shown that two or more witnesses rarely give the same
account.
(S
v Bruinders en ander
1998 (2) SACR 432
(SE)).
[7]
Applying these legal principles to the minor contradictions occurring
in the complainant’s evidence and that of his witnesses,
it is
clear that the contradictions refer to the nature of the words
recalled by the witnesses to have been used in the association
with
the word “kaffir”. The evidence of the complainant
and his witnesses is in agreement as to the use of the
term itself.
This sort of inconsistency falls short of being seen as a material
contradiction when evaluated in accordance
with the rational and
practical approach approved by the Supreme Court of Appeal. In
my view, the magistrate’s approach
to these apparent
contradictions was correct.
[8]
In his consideration of the evidence given by the respondent and his
witnesses in rebuttal the magistrate correctly identified
that in his
answering affidavit, whilst denying that he ever uttered the word
“kaffir”, the respondent did not say
what words he had
used. It is clear from the admissions made therein that during
the argument between the complainant and
the respondent a heated
exchange of words had occurred, leading to a physical scuffle, but
the respondent did not specify what
the words were in his affidavit.
This lack of detail also characterised the respondent’s oral
evidence. It was
in sharp contrast to the detailed and specific
evidence given by the complainant and his witnesses. The
magistrate correctly
observed in his judgment that “the
respondent’s version is scanty and characterized more of
arguments than facts.”
(sic
)
[9]
In my view the magistrate was correct in the approach he adopted
towards the evidence as a whole. He had regard to the
demeanor
of the witnesses as an integral part of his evaluation of the quality
of their evidence and the general probabilities
inherent therein.
He concluded that the probabilities on balance lay in the version of
the complainant and his witnesses,
which was accordingly probably
true and must be accepted, whereas the poverty of the respondent’s
version demonstrated improbabilities,
leading to the conclusion that
it was false and fell to be rejected. This approach is
reflected in the applicable principles
of the law of evidence in
civil proceedings pertaining to the discharge of the burden of
proof. (See for example
National
Employers’ General Insurance v Jagers
1984 (4) SA 437
(E) 440D;
Stellenbosch Farmers’ Winery Group Ltd v Martell & another
2003 (1) SA (11) SCA
par
[5]
and Dreyer v AXZS Industries (Pty) Ltd
2006 (5) SA 548
(SCA) 558
E-G.
)
[10]
It follows that in my view the magistrate was correct in his
conclusion that the complainant had discharged the
onus
placed upon
him and had demonstrated on the balance of probabilities that in the
heated verbal exchange between them the respondent
had used the term
“kaffir” towards him.
[11]
What remains is the evaluation of the magistrate’s approach to
the issue of whether the use of the term “kaffir”
could
reasonable be construed to be hurtful or harmful or to promote hatred
towards the complainant. The magistrate first
identified that
the determination of a clear intention required the adoption of an
objective approach. This was the conclusion
of the court upon
consideration of the use of the phrase “could reasonably be
construed’ in s10 of PEPUDA in
Herselman
v Geleba case no 231/2009 (ECG)
.
In my view, in adopting an objective approach the magistrate was
correct.
[12]
Thereafter the magistrate stated the following:
“
In
this case the kaffir word was used by the respondent, a white man in
the course of chasing the complainant, a black man, out
of his
store. It is inconceivable that a reasonable African person
would not consider the use of this word under the circumstances
as
derogatory and constituting hate speech. I therefore find that
the word kaffir was used within the ambit of section 10
of this Act.”
In
adopting his objective approach towards the consideration of the
issue the magistrate armed himself with the following
dicta
from
S v Puluza 1983 (2) PH H150 (E)
quoted with approval in
Ryan
v Petrus
2010 (1) SA 169
(ECG):
“
When
a black man is called a kaffir by somebody of another race, as a rule
the term is one which is disparaging, derogatory and
contemptuous and
causes humiliation.”
[13]
The appropriateness of this observation has not been adversely
affected by the passage of more than thirty years since it was
first
expressed in S v PULUZA (supra). If anything, the truth which
finds expression therein is even more accessible today
than it was
before the dawn of a constitutional democracy in South Africa and the
concomitant dramatic increase in the awareness
of her citizens of the
need to recognize, respect and exercise the demands now made by
society for the demonstration of respect
for human dignity and
equality. The term “kaffir”, historically bandied
about with impunity, is a term which
today cannot be heard without
flinching at the obvious derogatory and abusive connotations
associated with the term. It is
rightly to be classified as an
inescapably racial slur which is disparaging, derogatory and
contemptuous of the person of whom
it is used or to whom it is
directed. Considered objectively, its use can only be as an
expression of racism with a clear
intention to be hurtful and to
promote hatred towards the person of whom it is used or to whom it is
directed. This brings
its use clearly within the ambit of s10
of PEPUDA.
[14]
In my view, the approach adopted by the magistrate in this matter is
beyond reproach. This view extends to his evaluation
of the
appropriateness of the relief sought by the complainant as
compensation for the violation of his basic right to human dignity
perpetrated by the respondent and the order made at the end of his
judgment.
[15]
In the circumstances, the judgment and the order made by the
magistrate on 19 October 2015 are hereby confirmed.
RWN
BROOKS
JUDGE
OF THE HIGH COURT.
MAJIKI
J:
I
agree.
B
MAJIKI
JUDGE
OF THE HIGH COURT