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[2006] ZAEQC 6
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Dube v Weston (04/2006) [2006] ZAEQC 6 (20 November 2006)
IN
THE EQUALITY COURT FOR THE DISTRICT OF DURBAN
HELD
AT DURBAN
CASE
NO.04/2006
DATE:20/11/2006
In
the matter between:
SIPHO
DUBE
................................................................................................................
Applicant
And
STUART
WESTON
...................................................................................................
Respondent
JUDGMENT
To
:Savera Maharaj & Dunn
Applicants
Attorneys Suite 2000 2nd Floor
200
Mansion House 12 Field Street Durban
(Ref:
LSD/1/DD305)
And
to: GarMcke & Bousfield Inc.
7
Torsvale Crescent
La
Lucia Ridge Office Estate
Umhlanga
Tel:
031 570 5300
(Ref:
S Ndlovu/N56)
INTRODUCTION
The
complaint centres around complainant's allegation that on 15 December
2005 the respondent was referred to as a "Kaffir
monkey".
He attributes his words to the respondent who was in the company of
three uniformed policemen in the course of a
police raid on the room
he occupied.
He
bases his complaint on the prohibition of hate speech as set out in
section 10 of the Promotion of Equality and Prevention of
Unfair
Discrimination Act, 4 of 2000 (Hereafter referred to as the Equality
Act)
He
seeks an order for damages in the amount of R10 000, 00 as
compensation from the respondent.
ISSUES
OF COMMON CAUSE
1.
The Respondent was in the company of police inspectors Buchanan,
Pillay and Naidoo who were at the time stationed at the Durban
North
Police Station.
2.
The raid took place at approximately 20h00 on the evening of 15
December 2005 in the room that complainant occupied on the Natal
Sharks Board premises.
3.
The respondent was present in his capacity as the head of security
for the Natal Parks Board.
4.
The purpose of the raid was to search complainants' room for
dagga.
THE ISSUES IN DISPUTE
The
court was informed that the following would be the issues in dispute
1.
The events that preceded the raid and subsequent to the complainant's
arrest
2.
The conduct and words attributed to the respondent and whether these
contravened the provisions of Section 10 of the Act.
3.
The conduct that the court also had to decide related to whether the
respondent entered the compfainant's room, whether he communicated
with the complainant in any manner and whether he assaulted the
complainant en route to the police station.
These
were issues that were raised in the opening addresses on behalf of
the litigants.
COMPLAINANT'S
EVIDENCE
Sipho
Christopher Dube testified that on the day he had returned from his
duties with the Sharks Board and whilst he was in the
ablution block
he was distracted by a knock. He went out and met a white policeman
who asked him his name. He identified himself
and he was told to go
to his room. His room was situated on the floor above the ablution
block.
They
encountered more policemen at his room one of whom was holding his
wallet who enquired from him whether it belonged to him
to which he
admitted. He also saw his personal belongings scattered around the
room.
He
described his room as being as large as the courtroom and it had four
beds and four cupboards. These were occupied by his workmates,
one of
whom was Vusi Shandu who was present in the room at the time of the
incident.
Respondent
then asked him to identify himself again which he did and it was then
that he was referred to as a "Kaffir monkey".
He noticed at
this particular time that the respondent had a packet of dagga in his
hand.
The
respondent then phoned a Mr. Krog, who he knew to be a manager at the
Sharks Board. In the course of respondent's discussion
with Krog, he
overheard him to say that he (the complainant) had been found and
that they had still been looking for Emmanuel Makhathini.
An
amount of R390 was in his wallet. He was the handcuffed and taken
down to Makhathini's room on the floor below. Makhathini was
not
there.
He
was then led to the police van where he was told to admit that the
dagga belonged to Makhathini and that he sold it on his behalf.
He
testified that at this point, the respondent assaulted him.
He
was then placed in the police vehicle that he described as a "Condor"
and en route to the Durban North Police Station,
the Condor stopped
in La Lucia Ridge where he was further forced to admit that he sold
the dagga on Makhathini's behalf. He stated
that he was once again
referred to as a monkey and Makhathini was referred to as the 'tall
monkey".
He
was duly charged at the police station where he spent four days in
the police cells. He was dismissed from his employment as
a result of
this incident.
He
was asked under cross examination as to why he did not open a charge
of crimen injuria and assault against the police and he
stated that
he mentioned this to his attorney. He was further asked as to how he
was certain that the respondent was indeed the
person who insulted
him and his response was that it was the respondent who asked all the
questions and who spoke to him at his
room and in the police vehicle.
EVIDENCE
OF ZWELABANTU SHANDU
Complainant's
first witness was Shandu who he also referred to as Vusi.
On
the 15th of December 2005 three policemen and a white male in
civilian dress entered the room he occupied with complainant and
began a search of the complainant's cupboard. He could not recall the
time as he did not have a watch.
A
white policeman entered with Sipho (the complainant) and respondent
informed Sipho that dagga had been found amongst his possessions
and
it was then that he referred to complainant as a "Kaffir monkey"
it was in the process of doing so that the respondent
also approached
complainant and grabbed him by the two ends of his shirt collar with
both hands. He witnessed this whilst he was
seated on his bed.
He
testified under cross examination that when the policeman entered the
room it was in darkness when he was asked where Sipho was.
He replied
that he did not know and it was whilst they were conducting the
search that he asked them to switch on the light from
the passage. He
then could clearly see what the policemen were doing and it was only
after the light was switched on that he noticed
one of the policemen
holding a dark blue plastic bag that appeared to contain packets of
cigarettes.
He
testified further that the respondent alone confronted the
complainant when he was escorted into the room by the white policeman
and respondent was the only person who conversed with the complainant
and in the course of the respondent grabbing the complainant
the
other policemen did not restrain him.
EVIDENCE
OF RUFUS NKOSINATHI MABIKA
Witness
Mabtka testified on complainant's behalf that he occupied the room
adjoining that of the complainant.
At
approximately 23h00 on the evening of 15 December 2005 he was awoken
by policemen who entered the room and who enquired about
Sipho's
whereabouts. The policemen were accompanied by respondent who he
referred to as Mr. Stuart. He replied he did not know.
The police and
respondent left and he went back to sleep.
He
was unable to testify as to respondent's alleged conduct or to any
words addressed to complainant by respondent.
This
concluded the evidence on behalf of complainant.
RESPONDENT'S
EVIDENCE
Stuart
Anthony Weston testified that he was the security portfolio manager
for the Natal Sharks Board.
He
was at the time engaged in an investigation into drug dealing at the
Board's premises. The investigation culminated in a raid
in
conjunction with the police services on the 15Eh of December 2005.
He
accompanied the police in the course of the evening as he had carried
out the initial investigations. He did not know the exact
location of
the suspect's quarters and it was inspector Buchanan who located the
suspect and he identified him as being the complainant.
He
denied that he entered the room of complainant's witness Mabika.
He
testified that the only role he played in the presence of the
policeman was to point out and identify the complainant. He denied
the suggestion that he was at the time wearing a balaclava and he
could not advance any reason as to why the complainant would
have
made the allegations of hate speech against him.
He
specifically denied that he assaulted or insulted the complainant as
set out in his complaint. What he did confirm was that a
quantity of
dagga had been found amongst his possessions.
The
raid would have lasted for approximately ten minutes from 22h20 to
about 22h30 as he recalled that he returned to ihe Durban
North
Police Station in the company of the policemen at 22h30.
He
further testified that he was called as a witness at a disciplinary
hearing where the complainant was charged with misconduct
that
related to this incident. At no stage in the course of that hearing
was it put to him that he assaulted complainant or referred
to him as
complained.
THE
EVIDENCE OF DOROTHY THUSI
Ms
Thusi testified that she was the Head of the Human Resources
Department at the Natal Sharks Board. She was familiar with the
facts
relating to this incident as she was the interpreter at the
disciplinary hearing and she subsequently represented her employer
at
the CCMA hearing that resulted from this incident.
She
testified that the complainant made no mention of either an assault
or hate speech at either of these hearings.
THE
REQUIREMENTS FOR HATE SPEECH
Section
10 of the Act sets out that 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 clear intention to-
a)
Be hurtful;
b)
Be harmful or to incite harm;
c)
Promote or propagate hatred
In
addition, in terms of Section 13 of the Act the complainant must make
out a prime facie case of hate speech and if he/she does
so, the
respondent must prove that the incident did not take place.
In
coming to its assessment the court must use the civil standard of
proof, namely proof on a balance of probability.
THE
COURT'S REASONING
The
relevant witnesses who testified for complainant were the complainant
himself and his witness Shandu.
Shandu's
evidence corroborated complainant's evidence only in respect of the
words attributed by them to respondent. Shandu made
no mention of the
money that was supposed to have been found in complainant's wallet
and the quantity of dagga that was in the
dark blue plastic bag. The
court's view is that he chose only to testify to the aspects that
were favourable to complainant. He
did not impress the court as being
a reliable witness.
Witness
Mabika's evidence was of no assistance to the complainant's case as
he could not testify to the alleged conduct and insults
attributed to
respondent.
The
court then also had to compare the version of respondent and his
witness Thusi. Thusi, although she was not an eyewitness to
the
incident, was familiar with the circumstances surrounding the
complainant's arrest and the subsequent disciplinary enquiry.
She
was adamant that the complainant's allegations of assault and hate
speech were not made at either of these tribunals. This casts
doubt
as to whether these allegations did in fact occur as averred.
The
court therefore finds that the complaint brought under section 10 of
the Act has not been established on a prima facie level.
The
respondent therefore has no case to answer. There was therefore no
onus that the respondent was obliged to discharge.
The
court makes this finding despite the fact that the respondent did not
lead the evidence of any of the witnesses that it attempted
to
secure.
The
complaint is dismissed and each party is ordered to pay its own
costs.
DATED
AT DURBAN ON 20 NOVEMBER 2006.
G
L ABRAHAMS: PRESIDING OFFICER