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[2004] ZAEQC 2
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M v R (09/2004) [2004] ZAEQC 2 (1 June 2004)
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IN
THE EQUALITY COURT FOR THE DISTRICT OF DURBAN
HELD AT DURBAN
CASE NUMBER
09/2004
DATE:01/06/2004
In the matter between
E. N. M.
..................................................................
COMPLAINANT
And
K.
R.
........................................................................
RESPONDENT
JUDGEMENT
TO; Mr E N M.
11979
St Wendolins
AND TO Mr K R.
c/o Attorney E van der Merwe
EMBARGO
Publication of this Judgment is
permitted subject to the absolute restriction that neither of the
litigants are to identified by
name, neither are their present or
erstwhile employers to be identified by name,
THE COMPLAINT
The complaint was the result of
certain words which were uttered by the respondent to a group of
fellow workers, of which the complainant
was one.
The words allegedly uttered were to
the following effect;
"Look at your government now.
That government is a real monkey government and does not provide
anything for you. Thabo Mbeki
is the biggest baboon that is
controlling the other monkeys like Jacob Zuma who is stealing his
money"
The complaint was lodged under
section 10 of The Promotion of Equality and Prohibition of Unfair
Discrimination Act, Act 4 of 2000,
as amended (The Act)
Section 10 is captioned
"Prohibition of Hate Speech"
THE DIRECTIONS HEARING
The parties attended the directions
hearing on 29 April 2004. Mr M. did not require an interpreter.
In addition to the parties, the
respondent's employer, L. M. (Pty) Ltd was represented by Glenn
Hutchinson, an employee,
L. M. (Pty) Ltd was cited as a
co-respondent and the court dealt with the necessity for its presence
as a matter in limine, and
Mr Hutchinson was excused from further
attendance.
Both Mr M. and Mr R. chose not to
subpoena witnesses and did not require legal aid assistance: were
satisfied that they were ready
to proceed with the hearing and it was
agreed that the inquiry would proceed at 8h00 on 14 May 2004.
THE INQUIRY
The inquiry proceeded as agreed, Mr
R. on this occasion was represented by Mr E van der Merwe (Attorney).
Mr M. confirmed his statement
under oath and supplemented it to the
extent that he sketched what he
perceived to be a hostile approach that Mr R. adopted to himself and
his fellow workers over a period
of time that culminated in the
complaint.
He explained that after the
statement was made he cautioned Mr R. who was dismissive and
persisted that what he stated was true.
He expressed his own feelings of
hurt and denigration at these remarks, as he was one of a number of
co-workers being addressed
by Mr R., in his defence Mr R. denied that
he directed the remark at Mr M. and stated that it was said in jest
and he did not intend
it to be taken seriously. He denied that he
made the remark as set out. Instead he only made the statement up to
and including,
"does not provide anything for you"
In any event, Mr R. admits at least
to part of the statement, and that segment on its own, convicts him
of the complaint against
him.
Furthermore, Mr Van der Merwe's
analysis of what is meant by the clause: "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,"
does not find the court's favour.
The respondent's subjective
intention is unimportant. What is pivotal is the subjective impact
and effect of the words on the complainant,
and whether these elicit
the responses set out in sub-paragraphs a, b and c.
I cannot agree that a b and c
(above) are to be read conjunctively but rather that these provisions
should be read disjunctively.
The intention referred to is to be
objectively assessed by the court.
I am further of the mind that in
making this assessment this court should not only concern itself with
the ipse dixit of the respondent,
but also the intended innuendo.
Clearly, the complainant is of the
same group of persons against whom the remark was directed, and a
racial slur was intended against
that group. This much was said by Mr
M., in addition to the hurtful effect these words had.
When this is read in the context of
the preamble to the Constitution, the seriousness thereof becomes
obvious. This court should
not countenance the mischief that the
Constitution aims to outlaw.
The court was not addressed as to
Mr R.'s conflicting evidence of his state of mind when he made the
statement. He equivocated as
to whether he was angry or joking at the
time.
When one juxtaposes the purported
apology against this backdrop, it is dismally inadequate.
In Ward Jackson v Cape Times Ltd
1910 WLD 257
, Curlewis J remarked at 263:
"An apology should not only
contain an unreserved withdrawal of all imputations made, but should
also contain an expression
of regret that they were ever made. A mere
retraction cannot be called a full and free apology"
JUDGMENT
Trie respondent is found to have
failed to discharge the onus of disproving the offence set out in
section 10.
The respondent is ordered to
furnish an unconditional written apology as envisaged in section 21
(i)(i) of the Act addressed to
the complainant. It is to be handed to
the clerk of this court within seven days of receipt of this order.
The clerk of the court is to
transmit the original thereof further to complainant.
The content of the apology is to
conform substantially with the requirements as set out in the dictum
of Curlewis J, above.
Each party is to bear its own
costs.
DATED AT DURBAN ON 1 JUNE
2004,
G L ABARAHAMS: PRESIDING OFFICER