About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Cape Town Labour Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Cape Town Labour Court, Cape Town
>>
2017
>>
[2017] ZALCCT 17
|
|
National Commissioner of the South African Police and Another v Nienaber NO and Another (C790/2015) [2017] ZALCCT 17; (2017) 38 ILJ 1859 (LC); [2017] 8 BLLR 840 (LC) (21 April 2017)
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
REPORTABLE
Case
no: C790/2015
In the
matter between:
THE
NATIONAL COMMISSIONER OF THE
SOUTH
AFRICAN POLICE
First Applicant
THE
SOUTH AFRICAN POLICE SERVICE
Second Applicant
and
PW
NIENABER N.O.
First Respondent
SOLIDARITY
obo NICHOLAAS ADRIAAN ALBERTS
Second
Respondent
H
eard
:
23 November 2016
Delivered
: 21 April 2017
Summary:
Review of a decision by an appeal authority in terms of section 158
(1) (h) of the LRA; The impugned decision overturned
the dismissal of
SAPS Station Commander who was found guilty of stating the following
to his colleagues at a staff meeting “
Ek is nie god van
kafferland nie.”
Decision reviewed, set aside and
substituted.
JUDGMENT
RABKIN-NAICKER
J
[1] This
is a review application in terms of section 158(1)(h) of the Labour
Relations Act
[1]
(LRA). The applicants seek to review the decision of the first
respondent, who sat as their own appeal authority. The third
respondent
launched an application to dismiss the review given the
delay in prosecuting the review, and also opposed an application for
condonation
for the unreasonable delay in launching the review
application.
[2] The
second respondent (Alberts) was initially dismissed from his position
as Station Commander of the Suurbrak South African
Police Service
(SAPS). The incident leading to his dismissal was a statement he made
at a station meeting. He uttered the following
words in Afrikaans:
‘
Ek is nie god van kafferland nie’
in the presence
of members of the SAPS.
[3]
Alberts was charged with misconduct: in that he had breached
regulation 20(q) of the disciplinary regulations and contravened
the
prescribed code of conduct of the police service and public service;
in that he did not acknowledge the needs of the service
as employer,
and acted in a manner that is disrespectful and not accountable when
he used discriminatory and racist words. He was
found guilty on 23
March 2015. Alberts appealed against the sanction of dismissal that
was handed down.
[4] It is
the decision of the first respondent in respect of the appeal by
Alberts that is the subject of review in this case. He
upheld the
appeal and reduced the sanction to a dismissal suspended for a period
not exceeding six months in terms of disciplinary
regulation 17(7).
The first respondent stated in his finding on appeal inter alia the
following:
“
After
studying the testimony of the witnesses (see the testimony of Yanga
Ngqawuza, the Appellant himself, Wendly Albertus, Monique
Phangwa and
Charlotte Apples), the most plausible version of events would be that
the Appellant used the words “Ek is nie
die god van Kafferland
nie” at a station meeting in the presence of subordinates.
The Appellant refused
to retract the words immediately after it was
spoken. Although the meaning is later equated to him “not being
a tin god”
(not being in control of the situation), it was
perceived as racist by the persons present at the station meeting.
It
was argued that it was not aimed at any person at the meeting and the
intention was not to be racist. Why then use these words?
The
Appellant was aware that members will perceive it as racist and
continued to use the words and refused to retract it.
Reference to the judgement in Ryan v Petrus
2010 (1) SA 169
(ECG)
relates to whether the abuse (words) was directed at a person and
whether “her dignity had been impaired” and
whether she
is entitled to damages for the hurt and humiliation.
In the case cited the court
had to determine whether the requirements
of the delict injuria were met or not. In
casu
,
these elements need not be proven, nor whether it is directed at a
particular person or not.
The
Appellant in my opinion had a malicious intent for using the words
and thereby clearly contravened the Code of Conduct of the
South
African Police Service. The fact that the words were not intended to
insult any person in particular has no relevance.
”
(emphasis mine)
[5] The
first respondent went on to consider as to whether Alberts had had a
fair hearing and found that he did, and that the finding
of guilty by
the Chairperson of the disciplinary hearing was correct. Under the
heading of
‘Sanction’
, the following parts of the
appeal decision bear recording:
“
When
deciding whether or not to impose the penalty of dismissal, the
employer should in addition to the gravity of the misconduct
consider
circumstances raised in mitigation by the employee and in aggravation
by the employer. In order to prove that a sanction
of dismissal was
appropriate under the circumstances, the employer will have to be
able to convince the chairperson that the seriousness
of the offence
outweighed the employee’s circumstances (32 years of service)
in mitigation and the circumstances in this
case are such that the
Appellant deserves to be dismissed.
When
deciding to dismiss the Appellant, the chairperson focused on the
aggravating factors that weighed heavily on the person accused
of
misconduct and that the sanction should send a ‘signal to
others in the workplace that discriminatory and racist words
are not
allowed”. The aim of a sanction is not to be a deterrent. It
must be fair to the employer and the employee.
(emphasis mine)
Looking
at the circumstances in which the misconduct was committed,
it
appears from the testimony of Phangwa, Kaerise and Appies that it is
a practice by some at Suurbrak SAPS to use derogatory terms
(especially by Mbane) in relation to themselves. (emphasis mine)
Major
Irvin Matiyhilo testified (on behalf of Maj Gen Makhize) that there
is a sound relationship between him and the appellant,
but that the
misconduct is of a serious nature and that the trust is broken
because of the seriousness and dishonesty. He also
testified that
there is no alternative placement for the employee. Most of which
appears to be a contradiction in terms, how can
there be a breach in
trust and at the same time consideration for alternative placement.
Nor did this misconduct contain an element
of dishonesty. It is not
clear if the witness believes that there is a breach in trust between
the employer and the Appellant or
whether Maj General Makhize (sic)
believes this or whether the witness testified it in the spirit of
what he believes Maj Gen Makhize
believes. It is also clear that the
witness does not know what a breach of trust entails. The fact that
the Appellant continued
his duties until July that year (incident
took place in January) also indicates that the trust relationship was
not irreparably
damaged. Major Matyhilo testified that to his
knowledge it is the first incident of this nature where the Appellant
was involved.
The
Appellant showed remorse during the hearing and begged for a second
chance. The statement from Constable Ngqawuza (one of the
“aggrieved”
during the incident) also indicates that he does not want the
Appellant to be dismissed, but rather that
the appellant should be
punished for the words uttered. The Appellant also provided various
character witnesses to show he is not
racist.
My
first impression was that
“if
a person is stupid enough to utter such words, he deserves to be
dismissed”
, but
that is before all the surrounding circumstances and factors were
considered. (emphasis mine)
Dismissal
was, under the circumstances, not the appropriate sanction for the
misconduct committed by the Appellant.”
Evaluation
[6] The
applicants submit that the first respondent’s finding was
arbitrary, unreasonable and/or irrational. In terms of section
158(1)(h) they argued in reliance on inter alia the matter of
Hendricks v Overstrand
Municipality and Another
[2]
that the impugned decision could be reviewed on the grounds set out
in the Promotion of Administrative Justice Act
[3]
(PAJA), the constitutional grounds of legality and rationality and
the common law grounds of reasonableness and procedural fairness.
[8] In
the
Hendricks
matter
[4]
,
the LAC stated that:
“
[29]
In sum therefore, the Labour Court has the power under s 158(1)(h) to
review the decision taken by a presiding officer of a
disciplinary
hearing on (i) the grounds listed in PAJA, provided the decision
constitutes administrative action; (ii) in terms
of the common law in
relation to domestic or contractual disciplinary proceedings; or
(iii) in accordance with the requirements
of the constitutional
principle of legality, such being grounds 'permissible in law'. The
findings of the LAC and the SCA in that
regard in
Ntshangase
are not inconsistent with the findings of the Constitutional Court in
Gcaba
or
Chirwa
,
which are restricted to conclusions that unfair dismissals and unfair
labour practices will normally not constitute administrative
action
on account of adequate alternative remedies existing under the LRA.
Neither
Gcaba
nor
Chirwa
made any reference to
Ntshangase
,
or, as I have said, s 158(1)(h) of the LRA.
Chirwa
was decided before Ntshangase, while
Gcaba
was handed down shortly after it. More recently, in
Khumalo
and another v Member of the Executive Council for Education:
KwaZulu-Natal, the
Constitutional
Court cited
Ntshangase
with approval, indicating implicitly that it saw no inconsistency in
the approach followed in that case with its own earlier
pronouncements.”
[9] In my
view the impugned decision in this matter is indeed unreasonable and
irrational
on its face
. It also contains a gross irregularity
of the latent type i.e. that a disciplinary sanction is not a
deterrent. The record of the
decision further supports my view.
[10] The
applicants point to the irrationality of the first respondent’s
decision given his own finding that the words were
uttered by Alberts
with ‘malicious intent’. In order to reach his decision
upholding the appeal, first respondent’s
reasoning is strained
to say the least. His treatment of the evidence of Major Irvin
Matyhilo, i.e. the finding that his testimony
was contradictory as
the misconduct did not contain an element of dishonesty, is not
supported by the record. During Matyilo’s
evidence in chief, he
was asked the question as to whether he can: “…comment
regarding the trust and honesty regarding
his serious misconduct’.
In answer to this question, Matyhilo simply answered that:
“trust and honesty has been
broken”. This testimony was
relied on by the first respondent to find that there was no breach of
trust, and that Matyilo
misunderstood the nature of the offence. His
reasoning on the issue of whether a breach of trust existed between
SAPS qua employer
and Alberts was simply not based on an object
appraisal of the facts and circumstances of the case as reflected in
the extensive
record of the disciplinary proceedings before him.
[11] In
addition, the first respondent refers to the ‘context in which
the offence was committed’ without applying his
mind to the
fact that the phrase, in his words issued with malicious intent, were
used by Alberts in a meeting with his subordinate
staff. In my view
the key to the irrationality and unreasonableness of the impugned
decision is to be found in the following statement
by the first
respondent:
“
My
first impression was that ‘If a person is stupid enough to
utter such words, he deserves to be dismissed’, but that
is
before all the surrounding circumstances and factors were
considered.”
[12] The
statement betrays a total lack of insight into the impact and meaning
of the words uttered by Alberts in our constitutional
democracy. A
state functionary taking a decision of this nature must do so guided
by the foundational values of the Constitution.
To opine that using
the phrase that Alberts did is merely ‘stupid’, suggests
to me that first respondent himself has
not understood the prescripts
of the legislation and regulations that placed him in the position of
an appeal authority in this
matter.
[13]
Alberts did not express remorse at the disciplinary hearing, relying
on a defence that he had merely used an ‘idiom’.
This is
apparent from the record before the first respondent and belies the
finding that Alberts showed genuine remorse. In fact
a look at
Albert’s papers in the application before me shows that he
continues to refuse to express remorse. This underlines
that his
apparent remorse expressed for the purposes of the appeal should not,
on the basis of the record of the disciplinary hearing,
have been
countenanced by a reasonable decision-maker. He justifies his use of
an “idiom” as he did at the disciplinary
before this
Court. It is necessary to record two paragraphs of his answering
papers:
“
2.7
On the 16
th
of January 2014, I convened and chaired a station meeting. During
this meeting the cost curbing measures were one again raised
as an
issue by the Suurbraak staff. During this debate the staff blamed me
personally for the curbing meansures. At this point
in time I was
frustrated by the issue and specifically the facts that my hands were
proverbially tied. I then uttered the phrase,
whilst (pointing at
myself) tapping on my chest: “Dit gaan nie oor my nie ek is nie
god van kafferland nie end it is slegs
‘n spreekwoord.”
2.8
At this point I pause to explain the meaning of saying: “Ek is
nie god van kafferland nie”. This is an archaic saying
used to
explain one’s helplessness in a situation. It means that one is
not a tin god. It is crucial to note the following:
2.8.1
I did not refer to any person as a “kaffer” (hereinafter
referred to as the “k-word”);
2.8.2
the k-word is not used in isolation, but rather in front of the word
“land” and together they form one word and
effectively a
term wholly different that the k-word on its own.
2.8.3
as with many words in the Afrikaans language, the k-word can be used
in a variety of ways, not all of which is insulting.
When used in
front of another word, it is not meant as insulting, but rather
descriptive.
2.8.4
there are many names and terms that contain the k-word that has no
baring on race or intended offence, such as:
2.8.4.1
kafferbessiebos;
2.8.4.2
kafferboom
2.8.4.3
kafferbroodboom;
2.8.4.4
kafferpruim;
2.8.4.5
kaffersering, etc.”
[14] It
appears that the applicant does not comprehend what the implication
of the words he uttered are in this land, and under
our Constitution.
I can do no better to explain this than by quoting portions of the
unanimous judgment by the Constitutional Court
in
South
African Revenue Services V CCMA and Others
[5]
including the references to that judgment in which Moegeng CJ
stated inter alia:
“
In
order to give some context and shed light on the correct attitude to
adopt in dealing with the term kaffir, it is necessary to
flesh out
its history, meaning and implications. Dr Gabeba Baderoon says
“kaffir” is “the most notorious
word in
South African history, known most pointedly for its license of
violence towards Blacks during apartheid, but first
used and
elaborated during the colonial period.”
[6]
She goes on to observe that it is offensive in all senses and
combinations to the extent of being unspeakable today, its
use now
constitutes a hate crime in our country and is unpardonably painful
and violent.
[7]
This is in
line with the observation made about 33 years ago by Van
Rensburg J and Jennett AJ that:
“
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.”
[8]
It
follows that the word kaffir was meant to visit the worst kind of
verbal abuse ever, on another person. Although the term
originated in Asia,
[9]
in
colonial and apartheid South Africa it acquired a particularly
excruciating bite and a deliberately dehumanising or delegitimising
effect when employed by a white person against his or her African
compatriot. It has always been calculated to and almost
always
achieved its set objective of delivering the harshest and most
hurtful blow of projecting African people as the lowest beings
of
superlatively moronic proportions.
[10]
Professor Pierre De Vos has this to say about the term kaffir:
“
This
term has an ugly history in South Africa and was almost exclusively
used by white racists as a gross generalisation to denigrate
black
South Africans. To be called a ‘kaffir’ is to be
called a lazy and stupid person. But the assumption
behind the
word is that by being lazy and stupid one is merely behaving as all
black people always behave – as white people
expect black
people and know all black people to behave. So even when a
white person is called a ‘kaffir’, the
recipient of the
insult is being told that he or she is just as lazy and stupid as all
black people are known to be by all racist
white people.”
[11]
It
could only have been with this disrespect in mind and the need to
make a decisive break from the ills of the past,
[12]
that non-racialism, human dignity and freedoms (which include freedom
of expression without any trace of hate speech) are values
foundational to our constitutional democracy.
[13]
The healing of the divisions of the past, the national unity and
reconciliation that need to be built and fostered respectively,
[14]
are likewise intended to entrench peaceful co-existence,
respect and the right to dignity of all our people. It was
in
recognition of this constitutional vision that Brooks J recently
endorsed the remarks in
Puluza
in the following terms:
“
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
.
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 section
10 of PEPUDA.
”
[15]
The
italicised portion of the quotation captures the best rendition of
the use of the word kaffir as being undoubtedly disparaging,
hurtful
and intentionally hateful. According to Brooks J that use
clearly falls within the meaning of hate speech in section
10 of the
PEPUDA.
[16]
The
Supreme Court of Appeal per Mathopo AJA said of the word kaffir:
“
In
our racist past it was used to hurt, humiliate, denigrate and
dehumanise Africans. This obnoxious word caused untold sorrow
and pain to the feelings and dignity of the African people of this
country. . . . [S]uch conduct seeks to negate the valiant
efforts made to break from the past and has no place in a country
like ours which is founded upon the democratic values of human
dignity, and the advancement of human rights and freedoms.”
[17]
”
[15] As
Mr Coetzee for the Applicants put it, the Constitutional Court has
endorsed the notion that the use of the word “kaffir”
or
“kaffer” on its own and/or in combination with other
words and terms is so offensive that it is ‘unspeakable’.
In all the circumstances, the decision of the first respondent falls
to be considered as both irrational and unreasonable in terms
of
sections 158(1)(h) of the LRA.
[16] In
the application to dismiss, Solidarity submitted on behalf of
Alberts, that given the lengthy delay between the date of
the handing
down of the impugned decision, the 24 March 2015, and the launching
of this application, the 29 September 2015, the
application for
condonation by the applicants should not be granted by this Court and
that instead the review application should
be dismissed. I disagree.
The importance of this case to employment relations within the SAPS,
and to the public interest, leads
me to grant condonation in the
interests of justice. Alberts also submitted that the SAPS had
reconciled itself to the first respondent’s
decision and this
review would amount to double jeopardy, and in addition that the
record is not complete. Both of these arguments
are spurious. This
review is not a re-hearing of the disciplinary appeal.
[17] The
appeal record is extensive comprising as it does: the charge sheet;
transcript of the disciplinary proceedings; the decision
of the
disciplinary committee; and the decision of the first respondent.
Alberts submitted that the full record of the appeal process
should
have been included. However, all the issues that he averred would
then be before Court were in fact recorded in the appeal
decision by
the first respondent. In addition and in any event, the decision is
reviewable on its face. The applicants qua employer
seek the
substitution of their appeal authority’s decision. There is no
reason for the Court to remit it given the record
before me. Both
parties sought costs in their respective applications. The applicants
were tardy in launching their review application.
In my view the
parties should pay their own costs in respect of both applications.
[18] In
view of the above, I make the following order:
Order
1.
Condonation is granted for the late launching of the review
application.
2.
The application to dismiss the review is dismissed.
3.
The decision of the Appeal Chairperson (first respondent) dated the
24 March
2015 is reviewed and set aside, and substituted as follows:
“
The
appeal against the sanction of dismissal by Niklaas Adriaan Alberts
is dismissed.”
__________________
H.
Rabkin-Naicker
Judge
of the Labour Court
Appearances:
Applicants:
Andre Coetzee instructed by the State Attorney
Third
Respondent: Solidarity official
[1]
Act 66 of 1995.
[2]
(2015) 36 ILJ 163 (LAC)
[3]
Act 3 of 2000
[4]
Supra
[5]
[2016] ZACC 38
at paragraphs 3-6
[6]
Baderoon
“The Provenance of the term ‘Kafir’ in South
Africa and the notion of Beginning” at 1, 6-7,
http://www.cilt.uct.ac.za/usr/cci/publications/aria/download_issues/2004/2004_MS4.pdf
accessed on 27 July 2016 (Dr Baderoon). She sets out part of
the word kaffir’s historical context that reveals its
more
obnoxious and delegitimising effect and observes that:
“
Settlers
appear to name as kaffir what must remain separate from them,
clearing a space for a selfhood that is defined against
the other .
.[T]he creation of Otherness is a formula for the creation of the
self. The alternative appears to be that
indigeneity threatens
to consume them, suggested by an insidious sense of time, such as
‘kaffir appointment’, for
which one need not be
punctual, or becoming a ‘kafferboetie’ [little brother]
by feeling a contaminating sympathy
for the despised group or ‘to
go to the kaffirs’, which means to deteriorate.
‘
[K]affir’
also functions to remake the landscape. In colonial South
Africa this denigratory modifier metastasises
into a vast naming
that forces newness on a world that was not new. The landscape
was named in a way that enabled it to
be claimed. ‘Kaffir’
labelled as unnatural the relationship between indigenous people and
their rightful claim
to the land. Instead, this was portrayed
as a distorted, corrupt and unfitting connection. Such a
vision enabled
the settlers to proclaim their own more fitting
relationship with the land. . . . Symbolically ‘kaffir’
thus
announces not only a claim to the land, but to a beginning of
history signalled by settler arrival.
The
massive land dispossession that the African people have been victims
of, is thus traceable to the thinking behind the recalibrated
and
more-encompassing South African version of kaffir — a version
that is compatible only with the notion that Africans
are a despised
group that would contaminate or lower the dignity of others when
associated with.”
[7]
Id at page 2.
[8]
S v Puluza
1983 (2) PH H150 (E) (
Puluza
)
quoted with approval in
Ryan
v Petrus
2010 (1) SACR 274
(
ECG).
[9]
Dr Baderoon above n 1 at 3 states that:
“
The
word ‘kaffir’ is derived from the Arabic word for
non-believer or infidel, often rendered in English as ‘kafir’
(all transliterated words of Arabic origin in English are
approximations, due to the non-congruence of English and Arabic
script).
In Islam, the root word of kafir means closed,
denoting someone who has closed his or her heart from the truth
constituted by
Islam. Derived from this root, the general
meaning of ‘kafir’ is ‘non-Muslim’, those
who are seen
to deny the truth of Islam. With a Muslim
presence dating from 1658 when the Dutch brought Muslims to the Cape
as slaves
and servants, it is reasonable to assume that Islam in
South Africa delivered the word to the colonial lexicon.
However,
the use of the word to describe people in South Africa
predates the arrival of Muslims in the colonial territories.
According
to the DSAE, the first recorded use of ‘kafir’
applied to southern Africa (in the form ‘caffre’)
appeared
in Richard Hakluyt’s The Principal Navigations,
Voyages, Traffiques and Discoveries of the English Nation, the first
volume
of which was published in 1589. G. Theal indicates that
European settlers in South Africa adopted the word from its use by
East
African Muslims for ‘infidels’ in the southern part
of Africa. Henry Lichtenstein writes in his Travels in
Southern Africa, ‘[b]eing Mahommedans, they gave the general
name of Cafer (Liar, Infidel) to all the inhabitants of the
coasts
of Southern Africa’ (1812:241).”
[10]
It is even worse compared to another weapon of gross insult
regularly resorted to pulverise whatever racists thought was left
of
the dignity and self-worth of the African people. That insult
is either “monkey” or “baboon”.
See
Strydom v Chiloane
[2007] ZAGPHC 234
;
2008
(2) SA 247
(T) (
Chiloane
)
where Hartzenberg J was seized with a matter involving the use of
the word baboon in
Chiloane
,
and relying on
Mangope v
Asmal
1997 (4) SA 277
(T)
at 286J-287A he said:
“
[I]f
a person is called a baboon, when severely criticized, the purpose
is to indicate that he is base and of extremely low intelligence.
It was also stated that it can be inferred from the use of the word,
in the circumstances, that the person mentioned is of subhuman
intelligence and not worthy of being described as a human being.
It follows that the person described as a baboon in those
circumstances may rightfully perceive them to be hurtful. The
magistrate was accordingly not wrong to find that the words
complained of fall within the definition of ‘hate speech’
as defined in section 10 of PEPUDA.”
[11]
Pierre De
Vos “on
‘kaffirs’, ‘queers’, ‘moffies’
and other ‘hurtful terms’”
Constitutionally
speaking
at
http://constituionallyspeaking.co.za/on-kaffirs-queers-moffies-and-other-hurtful-terms
accessed on 26 July 2016
(Professor De Vos).
[12]
In
S v Makwanyane
[1995]
ZACC 3
;
1995 (3) SA 391
(CC);
1995 (6) BCLR 665
(CC) at para 262,
Mahomed J said:
“
The
South African Constitution is different: it retains from the past
only what is defensible and represents a decisive break
from, and a
ringing rejection of, that part of the past which is disgracefully
racist, authoritarian, insular, and repressive,
and a vigorous
identification of and commitment to a democratic, universalistic,
caring and aspirationally egalitarian ethos
expressly articulated in
the Constitution. The contrast between the past which it
repudiates and the future to which it
seeks to commit the nation is
stark and dramatic.”
[13]
See sections 1 and 16(2)(c) of the Constitution.
[14]
See the Preamble of the Constitution.
[15]
Thembani v Swanepoel
[2016] ZAECMHC 37 (
Swanepoel
)
at para 13.
[16]
See section 10(1) of the Promotion of Equality and Prevention of
Unfair Discrimination Act 4 of 2000 (PEPUDA) which reads as
follows:
“
Subject
to the provision 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.”
[17]
Prinsloo v The State
[2014] ZASCA 96
(SCA) (
Prinsloo
)
at para 20 (unreported judgment).