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[2004] ZAEQC 1
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M v Ferreira and Others (01/03) [2004] ZAEQC 1 (7 April 2004)
SAFLII Note:
Certain personal/private details of parties or witnesses have been
redacted from this document in compliance
with the law and
SAFLII
Policy
IN
THE EQUALITY COURT OF SOUTH AFRICA
(HELD
AT THE MAGISTRATE'S COURT IN
BLUE
DOWNS, KUILS RIVER AT CAPE TOWN)
CASE
NO.: 01/03
DATE:07/04/2004
Before
Magistrate MM Dimbaza,
and
two assessors
Wednesday,
April 07, 2004
In
the matter between;
N
M
.....................................................................................
Applicant (Assisted by her Parents)
and
SHANNON
FERREIRA
…................................................................................
First
Respondent
NAMEER
FERREIRA
.................................................................................
Second-Respondent
BYRON
SHAW
................................................................................................
Third
Respondent
EDGEMEAD
HIGH
SCHOOL
.......................................................................
Fourth
Respondent
PROVINCIAL
MINISTER FOR EDUCATION IN THE WESTERN CAPE
(c/o
The State
Attorney)
..................................................................................
Fifth Respondent
ORDER
By
agreement between the parties, IT IS ORDERED AS FOLLOWS:
1.
The Provincial Minister for Education in the Western Cape is joined
as the fifth respondent in this matter.
2.
Applicant is given leave to amend her Notice of Motion by replacing
the Notice of Motion dated 3 December 2003 with the amended
Notice of
Motion dated 19 March 2004.
3.
It is recorded,that first, second and third respondents have tendered
an unconditional apology to the applicant and her parents
for the
incident that occurred at the Edgemead High School on 6 November
2003, in the following terms: "We, Shannon Ferreira,
Nameer
Ferreira and Byron Shaw, have tendered an unconditional apology to N
M and her parents for the incident, during the course
of which words
were uttered that had racial overtones, which was in contravention of
the promotion of Equality and Prevention of
Unfair Discrimination
Act. We understand that this incident was deeply hurtful to N and her
family. It affronted her basic human
dignity and sent out a signal
that she was less worthy of respect than other pupils at Edgemead
High School. We sincerely regret
this Incident and apologise
unreservedly to N and her family."
4.
It is further recorded that applicant and her parents have, accepted
such apology.
5.
Further, first respondent will make payment of R10 000-00 to the
Imizamo Yethu Creche in Khayelitsha. The aforesaid amount will
be
paid at the rate of R 300.00 per month commencing on 1 May 2004,
6.
First, second and third respondents are directed to attend a
diversity and racial sensitisation programme under the auspices
of
the Human Rights Commission. The Human Rights Commission will furnish
the details of such programme to the first, second and
third
respondents within fourteen (14) days of the date of this Order and
shall further certify that each of the first, second
and third
respondents have duly completed such programme.
7.
Fourth respondent, without admission of liability, consents to an
order in terms of prayer 9 of the amended Notice of Motion.
8.
Depending on the outcome of the audit referred to in the
aforementioned prayer 9, applicant and the Human Rights Commission
reserve the right at any- further hearing of the matter, on
reasonable notice to the fourth respondent, to seek an order as set
forth in prayer 4 of the amended Notice of Motion.
9.
In respect of the relief sought In prayer 10 of the amended Notice of
Motion, the application of the applicant is postponed sine
die and
the applicant is given leave to re-enroll the application on one
week's notice to the fifth respondent, for the purpose
of obtaining
an order as sought in prayer 10 of the amended Notice of Motion.
10.
Each party shall bear his or her own costs in relation to these
proceedings.
11.
Save as aforesaid, there shall be no order as against any of the
respondents.
BY
ORDER
CLERK
OF THE EQUALITY COURT, BLUE DOWNS
PLEASE
NOTE: Any person who is dissatisfied by an order made by the Equality
Court may appeal against such order in the required
manner and time
to either the High Court or the Supreme Court of Appeal, as the case
may be. An appeal can also be made directly
to the Constitutional
Court. In terms of Regulation 19( 1) any person wishing to appeal
against any order made by the court as
contemplated in section 23( 1}
of the Act, must within 14 days of such order being made, deliver a
notice of appeal to the clerk
and to the complainant or the
respondent as the case may be. (See Regulation 19 relating to the
Promotion of Equality and Prevention of Unfair Discrimination Act
2000
)
IN
THE EQUALITY COURT OF SOUTH AFRICA
(HELD
AT THE MAGISTRATE'S COURT
IN
BLUE DOWNS, KUILS RIVER AT CAPE TOWN)
CASE
NO.:
In
the matter between:
N
M
.....................................................................................
Applicant (Assisted by her Parents)
and
SHANNON
FERREIRA
...................................................................................
First Respondent
N
AMEER
FERREIRA
................................................................................
Second Respondent
BYRON
SHAW
...............................................................................................
Third Respondent
EDGEMEAD
HIGH
SCHOOL
......................................................................
Fourth Respondent
WESTERN
CAPE PROVINCIAL DEPARTMENT
OF
EDUCATION
..............................................................................................
Fifth Respondent
AMENDED
NOTICE OF MOTION
KINDLY
TAKE NOTICE that application will be made on behalf of the
above-named Applicant on 7 April 2004 at 09h00 or so soon thereafter
as Counsel may be heard for an order in the following terms:
1.
The Applicant's failure to comply with the time limits, forms and
procedures prescribed by the Rules of Court is condoned, and
the
application is heard as a matter of urgency in terms of the Rules of
Court.
2.
It is declared that the First, Second and Third Respondents' conduct
and behaviour, on 6 November 2003, constituted;
2.1.
unfair discrimination on the ground of race;
2.2.
unfair discrimination, hate speech and harassment that is expressly
prohibited in terms of Chapter 2 of the Promotion of Equality
and
Prevention of Unfair Discrimination Act 4 of 2000 ('the Acf), and
thereby constitutes a violation of sections 6 and 11 of Chapter
2 of
the Act and a violation of sections 9 (equality), 10 (human dignity),
12 (freedom and security of the person), and 16 (freedom
of
expression) of the Constitution in that:
2.2.1
the First Respondent unfairly discriminated against the Applicant and
indeed all black African people on the ground of race
by
disseminating an idea or ideas that propounds the racial inferiority
of the Applicant and all black Africans, including incitement
to, and
participation in, a form of racial violence against the Applicant;
2.2.2
the First Respondent unfairly discriminated against the Applicant on
the basis of her race by advocating or communicating
words based on
race that could reasonably be construed to demonstrate a clear
intention to:
2.2.2.1
be hurtful;
2.2.2.2
be harmful or to incite harm;
2.2.2.3
promote or propagate hatred;
2.2.3
First, Second and Third Respondents subjected the Applicant to
harassment and participated in racial (physical) violence against
the
Applicant;
2.2.4
First, Second and Third Respondents engaged in activities that are
intended to promote, or have the effect of promoting exclusivity
based on race;
3.
The payment of damages by First Respondent to Applicant in respect
of;
3.1
the financial loss, including future loss;
3.2
the impairment of dignity, pain and suffering;
3.3
the emotional and psychological suffering,
as
a result of the unfair discrimination, hate speech, harassment and
racial violence in question.
4.
it is declared that the conduct of the Fourth Respondent, through its
principal,
deputy-principal and senior management, in the
immediate aftermath of the
racially
motivated assault on the Applicant by the First, Second and Third
Respondents on 6 November 2003:
4.1
unfairly discriminated against the Applicant, her family and friends,
and indeed all black African people on the ground of race;
4.2
unfairly discriminated against the Applicant, her family and friends,
and indeed all black African people on the ground of cultural
affiliation;
4.3
accordingly infringed the right to equality of the Applicant, her
family friends, and indeed all black African people;
inasmuch
as such conduct was:
(a)
unempathetic, unsympathetic and inappropriate insofar as Applicant
was not given the support, comfort and assistance that was
to be
expected of persons in the position of principal, deputy-principal
and senior management of the Fourth Respondent in relation
to a
learner who had been the subject of a racially motivated assault at
school;
(b)
discriminatory, arbitrary and capricious insofar as no attempt was
made to provide post-traumatic counselling to either the
Applicant or
her family or friends;
(c)
discriminatory, arbitrary and capricious insofar as the Fourth
Respondent and its aforementioned officials consulted with the
First
and Second Respondents in the absence of the Applicant or her family
and in fact refused to entertain reasonable requests
from the
Applicant and her family to be present at such consultation;
(d)
hurtful and discriminatory insofar as the aforementioned officials
displayed arrogant and insensitive behaviour toward the Applicant,
her family and friends, the latter of whom attended at the school and
attempted to provide the necessary support to the Applicant;
(e)
discriminatory, arbitrary and capricious insofar as the Fourth
Respondent and the aforementioned officials treated the Applicant
as
an aggressor and not as a victim, inter alia, by subjecting her to
disciplinary proceedings;
(f)
discriminatory, arbitrary and capricious insofar as the Fourth
Respondent and the aforementioned officials, in general, by
conducting themselves in a manner which made it impossible for the
Applicant to continue as a learner at the school, thereby caused
her
to withdraw from the school.
5.
Restraining the aforesaid unfair discriminatory practices of the
Fourth Respondent and directing that specific steps be taken
by the
Fourth Respondent to stop the aforesaid practices.
6.
An order declaring that the Fifth Respondent's failure to adopt a
policy framework to effectively address race discrimination
and to
effect race integration at schools in the Western Cape itself amounts
to unfair discrimination against learners and their
families who are
the subject of such discrimination, and accordingly amounts to an
infringement of their right to equality.
7.
An ordor for the implementation of special measures by the First,
Second, Third, Fourth and Fifth Respondents (including counselling)
to address the unfair discrimination, hate speech, harassment and
racial violence in question,
8.
An order that the First, Second, Third and Fourth Respondents make an
unconditional apology to the Applicant.
9.
An order directing that the Fourth Respondent undergo an audit of
all its policies
or practices relating to race in accordance with
the following steps:
9.1
a report compiled by a court-appointed independent third party and
handed to the South African Human Rights Commission within
two months
of the date of the order;
9.2
the South African Human Rights Commission to respond to the Report
within one month after receiving the report;
9.3
the Fourth Respondent to reply within one month after receiving the
South African Human Rights Commission's response;
9.4
the matter may be set down for further hearing before the above
Honourable Court by the South African Human Rights Commission
within
one month after receiving the reply.
10.
An order that the Fifth Respondent adopt a policy framework to
effectively address race discrimination and to effect race
integration
at schools in the Western Cape, more particularly by;
10.1
drawing up such a framework within two months of the date of this
order and submitting same to the South African Human Rights
Commission;
10.2
the South African Human Rights Commission shall respond to the
framework within one month after receiving same;
10.3
the Fifth Respondent shall be entitled to reply to such response
within one month after receiving same;
10.4
the matter may be set down for further hearing before the Honourable
Court by the South African Human Rights Commission within
one month
after receiving the aforementioned reply.
11.
The Respondents shall make regular progress reports to the above
Honourable Court regarding the implementation of the Court's
order.
12.
Further and/or relief,
13.
The Respondents, jointly and severally, are ordered to pay the costs
of the application,
TAKE
NOTICE FURTHER that the accompanying affidavit of N M will be used in
support hereof.
TAKE
NOTICE FURTHER that the Applicant has appointed the South African
Human Rights Commission, 7th Floor ABSA Building, 132 Adderley
Street, Cape Town as the address at which all notices and process
will be accepted in these proceedings.
TAKE
NOTICE FURTHER that if you intend opposing this application you are
required to;
1.
Notify Applicant's attorney in writing on or before 24 March 2004;
2.
Appoint in such notification an address at which you wilt accept
notice and service of all documents in these proceedings;
3.
File an answering affidavit to the supporting affidavit annexed
hereto, within seven days after you have given notice of your
intention to oppose the
application, if any;
If
no such notice of opposition is received, this application will be
made on 7 April 2004.
DATED
AT CAPE TOWN THIS____________ DAY OF_____________________ .
SOUTH
AFRICAN HUMAN RIGHTS COMMISSION
Per;
ASH
RAF MAHOMED
On
behalf of the Applicant 7th Floor, ABSA Building 132 Adderley Street
Cape Town
To:
THE CLERK OF THE EQUALITY COURT
Blue
Downs, Kuils River CAPE TOWN
And
to:THE WESTERN CAPE PROVINCIAL DEPARTMENT OF EDUCATION
,
C/o The State Attorney Liberty Life Building 22 Long Street Cape Town
And
to: DE ABREU & COHEN INC.
Attorneys
for First, Second and Third Respondents Unit No. 20, Roeland Square
Roeland Street Cape Town
And
to: HEUNIS & HEUNIS INC
Attorneys
for Fourth Respondent Fax NO: (021)