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[2006] ZAEQC 5
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Magubane v Smith (01/2006) [2006] ZAEQC 5 (3 March 2006)
IN
THE EQUALITY COURT FOR THE DISTRICT OF DURBAN
HELD
AT DURBAN
CASE
NO: 01/2006
DATE:03/03/2006
In
the matter between
T
P
MAGUBANE
...............................................................................................
COMPLAINANT
And
S
SMITH
.............................................................................................................
RESPONDENT
JUDGMENT
TO:MS
T P MAGUBANE
(FOR
COLLECTION)
AND
TO:MR S SMITH
(FOR
COLLECTION)
INTRODUCTION
Ms
Magubane lodged a complaint wherein she stated that on 1 December
2005 at approximately 19:45 whilst she was outside flat 71
Respondent
addressed her in the following way: "Kaffir what are you looking
at"
The
court then proceeded with a complaint wherein the Respondent was
called to court to answer to a complaint of Hate Speech.
THE
EVIDENCE FOR COMPLAINANT.
Apart
from her own evidence complainant called two witnesses, Ruth Miller
and Daniel D'Abbadie.
Complainant
testified that it was on 30 November 2005 that the incident took
place. Whilst she was in her flat she heard what sounded
like people
shouting and a crashing noise. This caused her to go out of her flat
to investigate this noise.
She
realised that the noise came from flat number 71, a flat immediately
below her flat, and as she walked down the stairs she saw
the door
was open and that is when she saw the Respondent who shouted the
offensive words to her.
She
testified that she was shocked as they had never spoken to each other
before. She continued down the stairs to confront him
but he then
closed the door.
Her
witness Mrs Miller, who was standing on the balcony asked her why she
was being insulted and she replied that she did not know.
The
following day she went to the police to report the incident.
Her
evidence was that the words directed at her shocked her as she is
twice Respondent's age, she said nothing to him that merited
this
response and she felt humiliated and threatened by these words.
Her
further evidence was that a few days later he approached her at her
flat and threatened to shoot her, hence her approach to
the court for
protection.
Ruth
Miller testified that on the date and time whilst she was on her
balcony, before retiring to bed she too heard Respondent shouting
inside his flat and she heard him addressing Complainant as a
"Fucking Kaffir"
She
then approached Complainant who she described as being "grey in
the face" and spoke to her. They lived next to each
other. She
too made a statement to the police.
Daniel
D'Abbadie testified that he supplies bread to the residents in the
flat. On the evening on which the complaint arose he was
outside flat
number 73 when he heard a commotion and he heard the Respondent use
the words, "fucking Kaffir-He was not certain
to whom these
words were addressed at the time and it was only on the following
morning when he approached Complainant to take
her bread order that
he mentioned what he had heard and Complainant then told him that
these words were directed at her.
RESPONDENT'S
EVIDENCE
Respondent
testified and called two other witnesses. He testified that on 30
November 2005, whilst he was in his mother's flat,
that he and his
fiancee share with her, whilst the front door was open he and his
fiancee were arguing about a personal issue that
arose. In the course
of this argument he had occasion to say to her "Which black man
said this to you?"
He
did not see the Complainant at his door at any stage. He also
testified that Complainant did not get on well with white people.
He
denied using the words attributed to him and stated that he would
never use these words. He respected black people and his regimental
sergeant-major was a black man.
It
was put to him under cross-examination that he was troublesome and
frequently argued with his family and on occasion assaulted
his
mother. He stated that he was stressed and was indeed so on the night
complained of.
His
fiancee Ms Jodie Duma and his mother Rita Smith aiso testified on his
behalf.
Their
evidence materially supported his version of events. Both testified
that Respondents was indeed a person who often raised
his voice and
was given to bouts of bad temper.
HOW
THE COURT LOOKS AT THE EVIDENCE.
The
court accepts the evidence of complainant and witnesses Miller and
D'Abbadie and the court rejects the evidence of the Respondent
and
his witnesses.
Respondent,
Ms Duma and his mother were all poor witnesses and his explanation as
to the events, as supported by his witnesses is
highly implausible,
it appears to be a version that was tailored to contradict
Complainant's version, point for point.
Respondent
highlighted Complainant's confusion as whether the complaint arose:
on 30 November 2005 or on 1 December 2005 and suggested
that this
impacted negatively on her credibility and the reliability of her
version of events. The court is satisfied that, but
for this
inconsistency, the event did take place and the Complainant's version
is accepted over that put forward by Respondent.
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 stepsto ensure that Hate Speech is not used and to take serious
action when this does happen.
I
have considered the Respondent's personal and financial position as
outlined by him and the court will not impose an award of
damages
against him, as indeed it may.
SENTENCE
The
court's sentence is that the respondent makes a written apology to
the complainant, to the satisfaction of the court within
seven days
of this order.
The
apology must be an unconditional apology for the hurtful and harmful
words that were used and he must withdraw 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.
Should
these conditions not be complied with, within the stipulated time,
then the court will direct the Clerk of the court to refer
the file
to the Director of Public Prosecutions to institute criminal
proceedings. This is the court's order.
DATED
AT DURBAN ON 3 MARCH 2006
G
L ABRAHAMS: PRESIDING OFFICER