About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Equality Court
SAFLII
>>
Databases
>>
South Africa: Equality Court
>>
2005
>>
[2005] ZAEQC 3
|
|
Cacadu v Van Zyl (1/2005) [2005] ZAEQC 3 (21 October 2005)
IN
THE EQUALITY COURT FOR THE DISTRICT OF VICTORIA WEST
HELD
AT VICTORIA WEST
CASE
NUMBER; 1/2005
DATE:21/10/2005
In
the matter between;
CACADU,
ANDILE
............................................................................................
COMPLAINANT
and
VAN
ZYL, PAUL H
S
..........................................................................................
RESPONDENT
PRESIDING
OFFICER: Additional Magistrate, BOTHA M FT
JUDGMENT
Delivered:
21 OCTOBER 2005
BOTHA
Add, Magistrate.
1.
This matter serves before the equality court because the 'complainant
feels aggrieved by words allegedly uttered by the respondent
and
addressed to him that he must ' (f) ok uit my lek uit kaffer.'
These
words were allegedly uttered at the respondents' place of business on
Monday 13 December 2004, in the presence of employees
of the
respondent as well as a client of the respondent who was In the
office of the respondent at the time of-the incident
2.
A directions hearing was held and the parties agreed that the court
must decide the matter and not send it to an alternative
forum. I
agreed thereto and the matter went on trial. The complainant was not
legally or otherwise represented during the proceedings
and
conducted
his own case after he could not secure the attendance!of
his legal representative. He decided not to make use of legal aid or
any
other representation despite been informed by the court of his
fights In this regard. During the trial the respondent was
represented
by Mr. Viljoen,
an attorney at M D Visser Attorneys,
3.
The complainant testified in his own case and did not call any
witnesses to strengthen his case. The respondent also testified
and
called a number of witnesses to corroborate his version of the
events.
4.
What follows now, Is common cause between the parties;
The
complainant paid a visit to the respondent on : Monday 13 December
2004 after making an appointment to see the! tatter at his
office in
order to discuss the alleged unfair dismissal of an 'employee of the
respondent,
The
complainant was late for his appointment. The respondent was with a
client of his in his office when the complainant' entered
the but he
did not hear it for the reason stated.
Martin
Bosh testified that he did not hear the words been uttered as the
respondent could not have said it, because if it was said
he would
have heard it.
The
reason John Bauman advanced for not hearing the words, is the same as
that of Martin Bosh. He testified that he was quite dose
and would
have heard the words if it were uttered.
14.
In order to keep this judgment a reasonable length, 1 shall not set
out the detailed evidence of these witnesses. Suffice it
to say that
their evidence is also not free from criticism for the reasons that
follow. John Mamane was most certainly a reluctant
witness as Mr,
Vlijoen correctly pointed out, He at first denied knowing much of the
incident, and justified this by saying that
he was not listening to
the conversation as his attention was somewhere else. Later, when
questioned in detail, he, not realising
the effect of his answers,
came up with information that he could not have known had his denial
been true or had he not gained
the information so given, from someone
else. When questioned he testified that he Inter alia heard the
respondent saying that the
complainant was late for his appointment
and that he must make another appointment He also heard the
complainant saying that he
was not late because he was there earlier.
In addition he heard the respondent saying that he should have been
there 09H00. Clearly
this witness was not prepared to, and in fact
did not, play open cards with the court,
15.
The criticism against the evidence of Martin Bosh is that at first he
testified that he heard the whole conversation that took
place
between the complainant and respondent. He- furthermore testified,
quite adamant, that the complainant said nothing before
the
respondent spoke. Later on, after been questioned, he went back on
this and said that he In fact did not hear the whole conversation
but
only heard the complainant from the time the complainant walked
closer to the office.
He
said he did not hear the complainant when complainant walked into the
workshop and therefore complainant could, for example,
have
introduced himself at first, but he cant recall it.
16.
John Baumann was clearly a better witness than the two I just
mentioned. His evidence, if looked at In isolation/ is not open
to
real criticism because he did not contradict himself, He did change
his evidence in one or two ways, but I never got the Impression
that
it was a material deviation from what he first said, His evidence
does however contradict some aspects of the evidence of
the other
witnesses.
17.
This brings me to a discussion of the contradictions in the evidence
of the witnesses that testified on behalf of the respondent.
There
were several contradictions as Mr. Viljoen correctly conceded in
argument, In his heads of argument, he puts it as follows
in
paragraph 9.2;
'It
is admitted that there were various instances that the witnesses for
the respondent differed in their accounts of what transpired
on 13
December 2004, e.g. where Complainant was standing, whether
Respondent stayed in his office or walked out, whether Complainant
said something or waved to attract the attention of the respondent,
etc. These differences in account are however to be expected.'
18.
The several contradictions that he points out in the paragraph are
but some of the less serious ones that can be found. There
were other
more serious contradictions. The most important of all was that the
respondent for example in effect denied that he
chased
the
complainant out of his workshop or that he even waived him
out.
According
to him he only told the complainant that he was late for his
appointment and that he should make another appointment.
This was
contradicted by John Bauman who testified that the respondent indeed
told the complainant to get out of his place and
he also testified
and
demonstrated in court how the respondent waived at the
complainant to chase htm out of the place, The respondent also
testified
that Bauman was outside the workshop working on a truck
when the conversation took place whereas Bauman himself testified
that
he was inside the workshop around the pit.
The
other less material contradiction relates to the making of the
appointment by the complainant This testimony of the complainant
as
to the appointment was in essence corroborated by John Mamane who in
addition testified that the Respondent in fact told him
the previous
day that the complainant had an appointment with him, John Mamane
also contradicted a statement that Mr. Viljoen made
in
cross-examination to the effect that the complainant said to John
Mamane 'why are you testifying for a white man/ John Mamane
testified
that the complainant did not say that, but only told him that he
should not testify about a case that he knows nothing
of.
19,
There are also a few other contradictions in the statements that was
made by the attorney to the complainant and the evidence
of the
different witnesses on whose behalf those statements were made. The
most important of these are the fact that Mr. Viljoen
made a
statement that Mamane and Bauman will testify that they both heard
the whole conversation whereas both of these witnesses
testified just
the opposite of that.
I
do not intend to deal with all the contradictions that were apparent
in the evidence of these witnesses for the respondent, I
am pointing
it out because it necessarily affects the weight to be attached to
the evidence as a whole. I know very well that not
every
contradiction or unsatisfactory aspect in the evidence of a witness
or several witnesses on the same side necessarily justifies
a
negative response and I keep that principle in mind when judging this
matter.
20.
It is indeed so that the complainant is the only witness who
testified that the alleged words were uttered. He is therefore
a
single witness in this regard, I keep in mind what section 16 of the
Civil Proceedings Evidence Act 25 of 1965 provides with
regard to a
single witness, but also what has been said in
Daniels v General
Accident Insurance CO LTD
1992 (1) SA 757
(CPO)
. King J said;
'(A)lthough
there is apparently no 'cautionary rule' in civil cases as in
criminal matters where proof beyond reasonable doubt is
required, the
single witness, more particularly where he is one of the parties,
must be credible to the extent that his uncorroborated
evidence must
satisfy the Court that on a balance of probabilities it is the
truth.' -760 A-B.
21.
The numerical superiority of witnesses on one side to witnesses on
the other should not of itself be a ground for accepting
the evidence
of the former. The proper way to decide between the two opposing
versions should still be by reference to probabilities
and demeanour
and credibility. Keeping In mind the fact that the complainant is a
single witness, one should therefore not be swayed
by the number of
witnesses who testified on either side. See Bis v Herbert 1952(2)
PHL16(N) in this regard.
22.
The criticism against the evidence of the complainant relates, in my
opinion, to matters that are not very material. He satisfactorily
cleared up the difference between his evidence and his statement to
the police, The other criticism Is also not fair as the complainant
never testified that he visited the respondents' place the previous
day. He testified that he made an appointment by phone the
previous
day, Bauman and Namane testified that he visited the place the
previous day. But even if they are alf wrong as to the
day the
appointment was made, it is clear that they are all making an honest
mistake in this
regard.
Such a mistake should not affect their credibility on this point. Be
that as it may, I am in any event of the opinion that
this is
immaterial to the question whether the complainant was treated the
way he says he was treated on the Monday.
23.The
same cannot be said for the shortcomings in the evidence of the
respondent and his witnesses that testified on his behalf.
The
Shortcomings in the whole-of their case are very material, It relates
to the actions of the respondent when he refused to see
the
complainant
and also to the whereabouts and observations of the
witnesses when they supposedly did not hear the words complained of
been uttered.
As I went through the evidence with a fine comb, I
could not help but come to the conclusion that the respondent would
have been
better of
.
without his witnesses. They actually sank his ship. I got the
impression that they never thought they will be questioned in such
detail; which explains the contradictions.
24.
When Bauman was finished, the complainant suddenly found
corroboration for his averments that the respondent chased him out
and even went so far as to wave him out of the premises. This
corroboration comes from the evidence of Bauman, who was a
witness
for the respondent. This is very important as the
respondent vehemently denied this allegation. In considering this
aspect of the
case, I keep in mind the following principle enunciated
in the judgment of the Appellate Division in Goodrich v Goodrich
1946
AD 390.
'The
question as to its weight is not a question of law; in each case one
has to ask oneself whether the fact that a party has sought
to
strengthen his case by perjured evidence proves or tends to prove his
belief that his case is Ill-founded, and one should be
careful to
guard against the intrusion of any idea that a party should lose his
case as a penalty for his perjury. As a general
rule, I think It can
be said that a careful prepared raise statement, and a fortiori, a
conspiracy with others that they should
give false evidence,Is more
.likely to be an indication Of a consciousness of the badness of the
case than a lie told on the
spur of the moment But the
circumstances of each case must be investigated.'
So
too, do I keep in mind Smit vArthur
1976 (3) SA 378
AD where it was
said that a court should try to understand why Innocent parties
sometimes prefer to conceal facts from which they
think an inference
against them might be drawn,
25.
In judging this matter, I also keep in mind what the Supreme Court
of Appeal said as to how evidence should be evaluated, It
said that;
'The
breaking down of a body of evidence into Its component parts Is
obviously a useful aid to a proper understanding and evaluation
of
it. But, In doings so, one must guard against a tendency to focus too
Intently upon the separate and individual part of what
Is after all,
a mosaic of proof. Doubts about one aspect of the evidence led in a
trial may arise when that aspect Is viewed in
isolation. Those doubts
may be set at rest when it is evaluated again together with all the
other available evidence. That is not
to say that a broad and
indulgent approach is appropriate when evaluating evidence. Far from
It There is no substitute for a detailed
and critical examination of
each and every component In a body of evidence. But, once that is
done, it is necessary to step back
a pace and consider the mosaic as
a whole. If that is not done, one may fall to see the wood for the
trees.' - S y Hadebe and Others
1998(1) SACR 422(SCA) at 426.
26.
Applying these principles, if I look at the merits and demerits of
the case for both parties, as well as the evidence as a whole
as
presented before the court, I have no doubt that the probabilities
favour the version of the complainant The respondent had
no choice
but to deny
the uttering of the words complained of, because there
would have been no way to justify such utterance.
It
is to be expected that his employees would side with mm, jonn
Mamane's evidence Is a clear indication that he was put In an
unenviable position where he, as Mr. Viljoen has so eloquently put it
In his heads of arguments, had to 'choose between his employer
and
his community and decided, perhaps wisely, to stay neutral 'I am also
not so sure that Martin Bosh was such an independent
witness, as Mr.
Viljoen tried to convince me.
27.
All in all, I am satisfied that the version of the complainant is
most probably the truth. The probabilities can never favour
the
respondent in this case. No, way, not in this case, on these facts.
28.
Coming to the taw, Mr. Viljoen, in his heads of arguments, argued the
matter on the basis of unfair discrimination. I do not
think he Is
correct in doing so. He missed the target by far. This case has
nothing to do with unfair discrimination. It is a matter
of racial
vilification or hate
speech as it is commonly known,
29,The
prohibition against hate speech Is contained in section 10(1) of
the
Promotion of Equality and Prevention of Unfair Discrimination
Act, 4 of
2000 (hereinafter referred to as the Act). It reads as
follows:
'Subject
to the proviso 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 dear intention to -
(a)
be hurtful;
(b
be harmful or to Incite harm;
(c)
promote or propagate hatred.'
30.
The respondent can only justify his words by raising a defence in
terms
of section 12 of the Act. This proviso reads as follows;
'(B)ona
fide engagement in artistic creativity, academic and scientific
inquiry, fair and accurate reporting in the public interest
or
publication of any information, advertisement or notice in accordance
with section 16 of the Constitution, is not precluded
by this
section.'
Section
16 of the Constitution is the right to freedom of speech, Section
16(2) provides that 'the right in subsection (1) does
not extent to
advocacy of hatred that is based on race, ethnicity, gender or
religion, and that constitutes incitement to cause
harm.'
Clearly
section 12 is not of any help to the respondent In this matter.
Section 13 that deals with the burden of proof in unfair
discrimination matters and section 14 that deals with the
determination of unfairness in unfair discrimination matters also are
not applicable to hate speech.
31.
In the light of section 16(2) of the Constitution, the limitation
clause In The Constitution is also not of any help to the
respondent,
31.
Accordingly there is no justification to be found for the uttering of
the words used by the respondent and therefore I come
to the
conclusion that the respondent violated section 10(1) of the Act when
he uttered the words complained of.
31.
The issue as to costs and the remedies for the complainant will be
dealt with separate from this judgment
SIGNED
AT VICTORIA WEST ON 21 OCTOBER 2005.
...........................
M
FT BOTHA
ADDITIONAL
MAGISTRATE