About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Equality Court
SAFLII
>>
Databases
>>
South Africa: Equality Court
>>
2006
>>
[2006] ZAEQC 2
|
|
Khoza v Saeed and Another (07/05) [2006] ZAEQC 2 (24 February 2006)
IN
THE EQUALITY COURT FOR THE DISTRICT OF DURBAN
HELD AT DURBAN
CASE
NO: 07/05
DATE:24/02/2006
In
the matter between
MR
G S
KHOZA
................................................................................................
COMPLAINANT
And
MR
M
SAEED
.........................................................................................
FIRST RESPONDENT
MS
R
ESSAY
....................................................................................
SECOND RESPONDENT
JUDGMENT
TO:
MR G S KHOZA
AND
TO: ATTORNEY Y OMAR
INTRODUCTION
Complainant
lodged a complaint on 28 January 2005 wherein he alleged that on 3
November 2003 he was the victim of Hate Speech uttered
by the Second
respondent (Ms Essay) in that she variously referred to him as a pig,
dog and kaffir.
He
also alleged that on 1 September 2005 at approximately 15h52 he
received a telephone call from First Respondent (Mahomed) wherein
he
was asked (by Mahomed) whether he still denied that he was a kaffir,
or words to that effect. This was not specifically set
out Form 2 but
emerged in the course of evidence.
Both
complaints against respondents were denied.
THE
EVIDENCE FOR COMPLAINANT
Apart
from his own evidence complainant advised the court that he wished to
call other witnesses to testify but feared that as they
were still in
the employ or associated with the respondents, that they would be
unwilling to testify.
One
such witness was Mr Mbongiseni Shamase who the respondents and the
complainant both initially intended to call and who was subsequently
called as a witness by the court.
The
material aspects of the complainant's evidence was that he approached
Ms Essay on 3 November 2003 to request to speak to Mahomed
about an
advance on his wages to use as bus fare. She then replied that
Mahomed did not have any money to give to a dog and she
banged the
window through which he had spoken to her.
She
then called the security guard to "get this kaffir out" and
in the process referred to him as a pig and a dog.
He
waited for Mahomed and reported the incident to him, to which Mahomed
replied that there was nothing that he could as Ms Essay
was his
aunt. He decided to report the incident to the police the following
day.
A
charge was brought that was withdrawn by the state and he thereafter
brought his complaint to the Equality Court.
He
testified in closing that he and Mahomed enjoyed a father-son
relationship before this incident that deteriorated thereafter
to the
point that he left their employ and had to seek further relief from
the Labour Court.
He
referred to his relationship with Ms Essay as always being strained
because of her tendency to refer to him and his co-workers
as pigs
and dogs.
Complainant
was then allowed to examine witness Shamase after he completed his
testimony.
Witness
Sharnase's evidence did not corroborate complainant's evidence
against Ms Essay. He denied witnessing the incident and instead
testified that Complainant called him into the change room and
briefed him as to what to state about the alleged incident and
offered a money inducement in exchange. As a result he submitted the
untrue sworn statement to the investigation officer, however
when he
realised that there was no prospect of receiving the inducement he
decided to testify to the truth in court. He is found
to be an
unreliable witness and his evidence was of no value to the court.
MS
ESSAY'S EVIDENCE
Ms
Essay testified that on 3 November 2003 complainant asked her, as the
cashier, to advance him money that she declined and suggested
that he
ought to wait for Mahomed and to ask him instead.
It
was then that he became angry and called her a makhula and said that
she ate pig (meat). She felt insulted and retaliated by
calling him a
pig and denied calling him a kaffir. Whilst he said this he also
tried to enter her office and that was when Mahomed
arrived and told
him that he should not enter.
She
denied that witness Shamase was on the scene at all and testified
that the only reason why she referred to him as a pig was
because of
his provocation.
Importantly,
whilst she under cross-examination she added that she told him that
she could not advance him any more money as he
had already overdrawn
on his wages. This impacted negatively on the reliability of her
evidence and her credibility.
Mr
Saeed's evidence was that the commotion at the window drew his
attention, as both Ms Essay and complainant exchanged insults
with
each other, although he could not remember their precise words, he
did not hear the word kaffir being used.
He
too testified that as a result of this incident his cordial
relationship with complainant deteriorated.
THE
COMPLAINT AGAINST MR SAEED
Mr
Saeed was variously referred to as Mr Mahomed, Mahomed and even Mumsy
on the record. He seemed comfortable with Mahomed so I
will refer to
him by this name.
Insofar
as the complaint against him is concerned, as to what transpired
telephonically on 1 September 2005, he denied complainant's
version
in toto and in turn substantiated his claim in court that, on the
contrary, it was the complainant who had sent him electronic
messages
with a view of extorting money from him.
THE
ONUSOF PROOF AS SET OUT IN SECTION 13 OF THE ACT
The
court notes with concern that when Mr Omar was asked to address it as
to whether the respondents had discharged the onus of
disproving the
complaint he asked whether section 13 was relevant.
The
result is that he did not address the court in argument on this most
crucial aspect of law and it is the court's view that this
was a
disservice to the respondents.
I
summarise the legal standard prescribed by the provisions of section
13 as follows:
Firstly,
the complainant must establish a complaint on one of the established
causes as set in sections 6 to 12. Once this has been
done a prima
facie case has been made and the respondent must then prove that;
either the occurrence did not take place or if it
did, that it is not
based on one of the prohibited grounds.
THE
COURT'S FINDING
I
apply this test firstly to the complaint against Mr Saeed.
On
the balance of the evidence before the court, the complainant has not
made out a prima facie case of Hate Speech against him.
His evidence
weighed against that of Mr Saeed does not establish his complaint on
this basic level that the offensive telephone
call was made; rather
the contrary is true that complainant unduly communicated with Mr
Saeed.
This
complaint is dismissed.
As
regards the complaint against Ms Essay ! am satisfied that, by her
own admission and indirectly by Mr Saeed that an angry exchange
took
place, that she referred to complainant as a pig and that in all
probability the offensive word "kaffir" was used,
whether
Mr Shamase was present or not is not crucial.
Mr
Saeed was not forthcoming as to what words were used and gave no
reason as to why he could not recall these. The court's impression
was that he attempted to protect Ms Essay.
Complainant's
evidence is sufficient and satisfies the prima facie requirement of
section 13.
This
complaint is sustained. THE COURT'S REMEDY
Since
the complainant has severed all ties with Ms Essay the court does not
have to investigate her conduct any further and it considers
that an
appropriate remedy is to be found in section 21(2) (d) of the Act, in
accordance with which Ms Essay is ordered to pay
complainant the
amount of R3 000,00 in damages.
This
amount is to be paid to the Clerk of the Equality Court on or before
12h00 on 3 March 2006 and may be uplifted by Mr Khoza
at 12h00 on the
day.
Mr
Ntombela is to issue a receipt to the payer and Mr Khoza must in turn
sign his receipt of this amount.
DATED
AT DURBAN ON 24 FEBRUARY 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 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
Act2000)