IN THE EQUALITY COURT FOR THE DISTRICT OF DURBAN
HELD AT DURBAN CASE NO: 59/2005
In the matter between
C B GUMEDE
And
P F MKHWANAZI
COMPLAINANT
RESPONDENT
JUDGMENT
TO: MR CB GUMEDE
2588 MTHIYANE AVENUE
LAMONTVILLE
AND TO: MS P F MKHWANAZI
2586 MTHIYANE AVENUE
LAMONTVILLE
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INTRODUCTORY REMARKS
The complaint was first considered as a compiaint to the Clerk of the Court
dealing with applications to bind members of the public over to keep the
peace, under section 384 of the Criminal Procedure Act 56 of 1955.
The presiding magistrate recommended that no further action be taken at that
stage and the compiaint was then lodged with the Clerk of the Equality Court.
The complaint was that on 8 July 2005 the Respondent Pearl Fikile
Mkhwanazi, in the presence of the Area Councillor said that the complainant,
Christopher Bongani Gumede was a homosexual. The complaint was that this
was not the first time that this unwanted remark was directed at Complainant
and was made before and repeated on other occasions after 8 July 2005, by
others.
Complainant asked the court to make an order against the Respondent and to
order her to make an unconditional apoiogy.
COMPLAINANT'S EVIDENCE
The formal hearing commenced on 20 September 2005.
Mr Gumede testified and the complaint centred largely around the incident
that led to the presence of the councillor. The background was that the
councillor was asked to intervene in a dispute arising from the erection of
shacks that the Gumede family had supposedly erected on land belonging to
the Mkhwanazi family.
Mr Gumede testified that he was drinking beer when the councillor arrived and
felt obliged to intervene in the discussion that took place because it involved
the Gumede family, of which he was a part.
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It was then that Respondent told him not to involve himself. He asserted that
he had a right to intervene in a matter that concerned his family and it was
then, he testified, that she uttered the words "keep quiet, you homosexual"
He testified further that:
© This reference had been made of him by others, including
Respondent's boyfriend, who later apologised;
o He wanted Respondent to produce whatever evidence she had to
substantiate this allegation;
© He was a married family man with children and felt hurt and
embarrassed by these statements;
« These remarks circulated in the community and he wanted to put a
stop to this.
Complainant also raised a number of other issues that the court merely
mentions and were not relevant to this decision, inter alia,
That Respondent supposedly mentioned that he did not know to which family
his mother belonged;
That she was happy that that a number of his family members had died
recently, as this allowed them to abolish the shacks the deceased had
occupied.
As I have stated, these are irrelevant matters.
Complainant called a witness Miss Nonhlanhla Gumede, who corroborated
his version of events, particularly on the following aspects:
That the councillor was present when the offending words were uttered; that
the councillor did not want to involve himself in the dispute and the ensuing
argument between the two families and left the scene; and in addition she
stated that the Respondent also said that the Gumede family was starving.
At this stage the hearing was adjourned to 27 September 2005 to hear the
Respondent's case.
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RESPONDENT'S EVIDENCE
On 27 September 2005 Respondent denied that she uttered the offensive
words. She admitted that there were unpleasant verbal exchanges between
her and the Complainant, but that he had initiated the exchanges. She
confirmed that when she first saw him on the day, at about 12h00, he had a
glass of beer in his hand and that he was very argumentative.
Her version was that she did not insult him, rather, she pointed out to him that
the cause of his irritation was that the Mkhwanazi family had sought the
assistance of the area councillor to mediate in the portion of the land they laid
claim to.
She stated that after the councillor had left and everyone had dispersed, she
was surprised when the police arrived and accused her of using the offending
words
Her next witness was Sicelo Phillip Mkhwanazi. He introduced further remarks
Complainant is alleged to have made. Again, these are irrelevant to this
enquiry. He stated that the Complainant became uncontrollable, to the extent
that one of the elder Gumede mothers had to warn him to restrain himself.
He denied that Respondent had uttered the words complained of and stated
that, if she had, the councillor would have heard them.
THE COURT'S DECISION
In the light of the various references that were made to the presence of
councillor Shezi, the court court adjourned the further hearing indefinitely to
enable Mr Ntombela to secure his attendance, as the court's witness.
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FURTHER PROCEEDINGS ON 25 OCTOBER 2005.
Councillor Khuzimpi Raphael Shezi testified that his attendance at the scene
on 8 July 2005 was merely to do acquaint himself with the complaint between
the families and that he planned thereafter to call the parties to his office to
discuss the matter there.
He testified that the Complainant initiated the quarrel between the two families
"both families uttered bad words. Mr Gumede uttered stronger insults to the
Mkhwanazi family who responded"
He testified that although he found the exchanges between the two families to
be very distressing, at no stage did he hear Respondent utter the words the
Complainant alleged.
He testified that Ma Gumede tried to calm the Gumede family and the
Complainant in particular, who did not show any respect. He was
embarrassed by all of this to the extent that he decided to leave, as he did not
want to be seen to have caused the quarrelling.
THE COURT'S REASONING
Since ali the parties to the complaint and their witnesses made particular
reference to councillor Shezi, the court found it prudent to call him as a
witness.
Up to that point the court did not have sufficient reliable evidence before it to
make a fair decision,
Witness Shezi was the oniy independent witness to this incident who had no
aiiegiance to either party and who testified without any favour to either side.
The court accepts his evidence as being the truth.
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The court must also mention that of all the other witnesses Miss Mkhwanazi
aiso impressed the court as an honest witness, and it was only that the
evidence of her witness Sicelo Mkhwanazi was at times contradictory and
exaggerated that affected the reliability of her version of events.
THE COURT'S FINDING
The court finds that the words on which the complaint is based were never
used on the day. The complaint is therefore dismissed.
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 apfpeal 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 ofaappeal 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)
G L ABRAHAMS: PRESIDING OFFICER
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