Summary of Judgment

1. Introduction

This was an Equality Court matter in the District of Durban concerning the appropriate relief to be granted after a finding of hate speech and harassment under the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (PEPUDA).

The complainant was H I Donaldo and the respondent was R Haripersa(d). The judgment provided concerns quantum, namely the assessment of damages and related remedial orders, rather than liability.

Procedurally, the court had previously (on 20 October 2006) found that the complainant had established her complaint of hate speech and harassment on a prima facie basis, as contemplated in section 13 of PEPUDA. The court then heard argument and evidence directed at quantum on 29 November 2006, reserved its decision on that aspect, and delivered this ruling on 5 January 2007.

The dispute at this stage concerned the extent to which the complainant had proved financial loss and/or non-patrimonial harm (including impairment of dignity and emotional and psychological suffering) attributable to the respondent’s conduct, and what remedial orders would be appropriate in the circumstances under section 21 of PEPUDA.

2. Material Facts

The court approached the facts through two broad categories drawn from the complainant’s evidence: alleged patrimonial loss (proven financial loss) and alleged non-patrimonial harm (impairment of dignity and emotional/psychological suffering).

As to alleged patrimonial loss, the complainant testified that in 2005 she was preparing for an extended study visit to the United Kingdom. She produced documentation (admitted by agreement) reflecting that amounts of 2 500 pounds sterling and USD 930 were expended in anticipation of that trip. She further testified that, due to delays in the processing of the matter and advice received from an investigating officer concerning the consequences of withdrawing related criminal charges or absenting herself, she did not proceed with the trip and lost the amounts paid.

The complainant also testified that her legal expenses were approximately R15 500, and that she incurred further costs in obtaining sick-leave certificates from medical practitioners in order to attend court hearings, though these medical-related expenses were not fully quantified.

As to non-patrimonial harm, the complainant testified that she was 38 years old and the respondent 20 years old at the time. She was a married educator. She described the incident as occurring in a shop in the presence of customers, where the respondent swore and shouted at her in a manner she experienced as degrading. The respondent’s words included the expression “Kaffir Bitch”. She stated she felt shocked and violated, and further indicated that the incident continued to affect her because others who witnessed it, or heard about it, repeatedly reminded her of it, which she experienced as a continuing reminder of the trauma.

The court recorded that cross-examination did not dislodge the complainant’s testimony on patrimonial loss, and that she was not cross-examined on the portion of her evidence dealing with impairment of dignity and emotional/psychological suffering.

The respondent did not rely on a substantive factual defence on the merits at this stage. The court recorded that the respondent’s sole defence had been that he was not present, and that the substance of the complaint was therefore not put in dispute. The respondent also gave evidence about his personal circumstances relevant to the relief, stating that he was unemployed, did casual electrical repair work, lived with his mother and stepfather, contributed to a household with accounts in arrears, and had been unable to take up an employment opportunity due to needing to attend court proceedings.

3. Legal Issues

The central legal questions concerned the proper application of section 21(2)(d) of PEPUDA to the facts established in the quantum enquiry. In particular, the court was required to determine whether the complainant had proved:

Whether there was proven financial loss causally attributable to the respondent’s conduct for which damages could be awarded under section 21(2)(d).

Whether, and in what amount, damages should be awarded for impairment of dignity, pain and suffering, emotional and psychological suffering as a result of the hate speech and harassment.

Whether additional remedial orders (not limited to monetary relief) were appropriate in the circumstances, given the Equality Court’s remedial framework and the respondent’s personal circumstances.

The dispute at this stage largely concerned the application of law to fact, particularly issues of causation and the sufficiency of proof for claimed financial loss, as well as an evaluative assessment of appropriate non-patrimonial damages and remedial measures.

4. Court’s Reasoning

The court began by analysing section 21(2)(d) of PEPUDA, which empowers an Equality Court, after an inquiry, to make an appropriate order including damages for proven financial loss (including future loss) and damages for impairment of dignity, pain and suffering, or emotional and psychological suffering resulting from unfair discrimination, hate speech, or harassment.

In approaching damages, the court noted that the concept of damages is rooted in civil court practice, and that although the Equality Court has a “quasi-constitutional” character, it applies a civil standard of adjudication. The court referred to academic writing for this proposition and aligned its understanding of “damages” with civil-law conceptions, while locating the Equality Court’s function within the broader constitutional context of the right to equality (section 9 of the Constitution) that PEPUDA was enacted to advance. The court also indicated that practitioners should appreciate the Equality Court’s distinctive ethos, described as a continuum from constitutional rights to courtroom adjudication.

Turning to the complainant’s claimed patrimonial losses, the court rejected the claim based on the aborted study trip. The court’s reason was one of causation: it held that this loss was not occasioned by any action of the respondent and therefore could not ground an award of damages against him under section 21(2)(d). On the same footing, the court disallowed the claim for legal expenses, reasoning that the respondent could not be held responsible where the complainant chose to engage an attorney. It also disallowed the medical-related costs because they were unsubstantiated.

The court then addressed the complainant’s claim for non-patrimonial harm. It upheld the claim for impairment of dignity and emotional and psychological suffering, noting in substance that the respondent had not meaningfully contested the complaint’s substance. The court emphasised that an award of damages is an intricate assessment and that, in this context, the court had to pay particular attention to the impact of hate speech and harassment on the complainant. It stated that the impact must, of necessity, be viewed from a subjective perspective, and it treated the complainant’s evidence in that regard as significant, particularly given the absence of cross-examination on that portion of her testimony.

In determining an appropriate remedy, the court indicated that it also had to be cognisant of the effect of financial orders (including costs) on the respondent. The respondent’s personal circumstances were therefore relevant to structuring relief. This was reflected in the instalment structure of the monetary award and in the inclusion of apology-based remedies, which the court considered necessary to meaningfully address the complaint and provide appropriate redress.

5. Outcome and Relief

The court made an order designed to address both the complainant’s non-patrimonial harm and the broader remedial objectives of the Equality Court.

The claim for damages arising from the complainant’s aborted trip was dismissed because the court found the loss was not caused by the respondent’s conduct. The complainant’s claimed legal expenses were also disallowed, as were the unsubstantiated medical costs.

The court granted relief for impairment of dignity and emotional and psychological suffering. It ordered the respondent to provide a written apology admitting use of the words “Kaffir Bitch”, retracting them, acknowledging that they were harmful and hurtful, and apologising unconditionally. This apology was required to be signed and delivered to the Clerk of the Equality Court within 21 days, failing which the Clerk was directed to lodge a complaint of contempt with the Director of Public Prosecutions.

The court further ordered the respondent to pay damages of R10 000 to the complainant, payable in ten monthly instalments of R1 000 each, with specified payment mechanics through the Clerk of the Equality Court. The order stipulated that failure to comply would result in a civil judgment being noted against the respondent without notice.

In addition, the respondent was ordered to address a separate letter of apology to the Presiding Officer of the Equality Court, apologising unconditionally for stating (to a witness, Timothy Tshabalala) that he did not care about the law, and affirming respect for the constitutional principle that everyone is equal before the law and entitled to equal protection. This apology was also due within 21 days and subject to the same contempt-related enforcement mechanism.

The judgment did not make a separate costs order.

Cases Cited

No reported cases were cited in the judgment.

Legislation Cited

Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (sections 13, 21(2)(d), and 23(1)).

Constitution of the Republic of South Africa, 1996 (section 9).

Rules of Court Cited

Regulation 19(1) relating to the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000.

Held

The court held that damages under section 21(2)(d) require proof of loss that is attributable to the respondent’s conduct, and it rejected the complainant’s claimed financial losses for the aborted trip, legal expenses, and unsubstantiated medical costs on that basis.

The court held that the complainant had established compensable non-patrimonial harm, specifically impairment of dignity and emotional and psychological suffering, arising from hate speech and harassment, and that appropriate redress included both monetary damages and apology-based remedies. The respondent was ordered to pay R10 000 in damages in instalments and to deliver two written apologies, with enforcement consequences stipulated for non-compliance.

LEGAL PRINCIPLES

Damages under section 21(2)(d) of PEPUDA may be awarded for proven financial loss (including future loss) and for impairment of dignity, pain and suffering, emotional and psychological suffering resulting from unfair discrimination, hate speech, or harassment; however, claimed financial loss must be shown to have been occasioned by the respondent’s conduct to justify an award.

Although the Equality Court has a quasi-constitutional character and operates within a constitutional continuum linked to the right to equality, it applies a civil standard of adjudication when determining damages, drawing on civil-law conceptions of damages while pursuing the Act’s remedial objectives.

In assessing damages for hate speech and harassment affecting dignity and psychological well-being, the enquiry requires an evaluative assessment attentive to the impact on the complainant, which the court stated must be viewed from a subjective perspective, and the court may craft non-monetary remedies (such as apologies) as part of an appropriate order.

In determining the structure and effect of financial relief, the court may take into account the respondent’s personal circumstances in shaping orders (for example, permitting instalment payments), while still providing meaningful redress for proven non-patrimonial harm.