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[2006] ZAEQC 3
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Mdladla v Smith (40/05) [2006] ZAEQC 3 (3 January 2006)
IN
THE EQUALITY COURT FOR THE DISTRICT OF DURBAN
HELD AT DURBAN
CASE
NO: 40/05
DATE:03/01/2006
In
the matter between
MRS
F M
MDLADLA
..........................................................................................
COMPLAINANT
And
MR
ERIC
SMITH
................................................................................................
RESPONDENT
JUDGMENT
TO:
MRS F MDLADLA
(FOR
COLLECTION)
AND
TO: MR ERIC SMITH
(FOR
COLLECTION)
INTRODUCTION
Mrs
Mdladla lodged a complaint against Mr Smith relating to a certain
incident that took place on 2 May 2005 at her house. She alleged
that
Mr Smith came to her door to complain about the noise coming from her
section and in the process is alleged to have said:
"Fikile,
you are a Kaffir Bitch, You must go and stay in Umlazi with the
other
kaffirs like you"
THE
EVIDENCE FOR COMPLAINANT.
Apart
from her own evidence complainant called three witnesses, Rachel de
Fleurs, Rashida Canthitoo and Nokulunga Shezi.
Apart
from Rachel de Fleurs, the material aspects of the witnesses'
evidence was that they were seated in complainant's lounge at
approximately 8h30 in the morning, talking when the respondent came
to the front door and uttered the offending words. All three
lived in
the house and Rachel lived in a room behind the house.
Complainant
testified that they were merely talking and did not wilfully want to
disturb respondent. She also testified that respondent,
who is a
professional musician, frequently played music loudly, about which
she also protested. Witness de Fleur's evidence was
that she had just
returned from her night duty when she heard a man's voice shouting,
swearing and chasing children. She found
complainant who was very
overcome with emotion and who was not well. It was then that she was
told about what had occurred earlier
and at a later stage she said
she spoke to respondent about this incident. In her evidence she
explained about a number of other
incidents that took place between
respondent and themselves particularly that respondent looked for
every opportunity to summon
the police.
RESPONDENT'S
EVIDENCE
Respondent
gave his evidence and called no further witnesses. He testified that
he and the complainant's family lived separately
in a semi-detached
house. He explained the layout of the two sections and that the walls
were very thin and that this allowed the
sounds from complainant'
section to disturb him. He also mentioned various other incidents
that had taken place over the years
that had resulted in an
unfriendly atmosphere. This was apparent to the court.
He
testified that he did not use the offensive words on 2 May 2005,
rather he said "Lower your fucking pitch" and he said
this
from his room and at no stage did he approach complainant's section.
HOW
THE COURT LOOKS AT THE EVIDENCE.
The
court accepts the evidence of complainant and witnesses Rashida and
Nokulunga. The court rejects the evidence of the witness
Rachel, She
very clearly was not present when the incident took place and her
evidence related to issues that were not relevant
to the complaint.
Respondent
clearly admits to using the word, "fucking". He explained
that he was tired and had played at an engagement
until early that
morning and did not use the other words.
The
court finds that the offending words were used as alleged by
complainant and that her complaint succeeds and the respondent
is
guilty of using Hate Speech.
JUDGMENT
The
Equality court is not a criminal court, but it can refer matters to
the criminal court and it may impose harsh sentences. The
court must
take steps to ensure that Hate Speech is not used and to take serious
action when this does happen.
1
have considered that the respondent was found guilty in regard to the
same incident in the criminal court and that he was sentenced
to an
extremely heavy fine, it will therefore unfair for this court also to
impose a similar sentence.
SENTENCE
The
court's sentence is that the respondent makes a written apology to
the complainant, to the satisfaction of the court and that
no further
damages be paid to complainant, as she has claimed for. Had the
criminal court not imposed such a heavy fine, this court
would have
considered awarding damages.
The
apology must be an unconditional apology for the hurtful and harmful
words that were used and must wthdraw the words and undertake
not to
use these again. Respondent is to sign this document before the Clerk
of the Equality Court.
This
apology must be shown to the clerk of the Equality Court who must be
satisfied with it, before the respondent is allowed to
leave the
court building today.
This
is the court's order.
DATED
AT DURBAN ON 3 January 2006
G
L ABRAHAMS: PRESIDING OFFICER
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 a appeal to the clerk
and to the complainant or the
respondent as the case maybe. (See Regulation 19 relating to the
Promotion of Equality and Prevention of Unfair Discrimination Act
2000
)