Brief Summary

Equality — Hate speech — Complainant alleging harassment and hate speech by respondents — Complainant's evidence detailing derogatory remarks made by respondents regarding her race and property development — Respondents denying any offensive remarks — Court evaluating credibility of witnesses and considering the context of the statements made — Holding that the words directed at the complainant constituted hate speech as defined in the Promotion of Equality and Prevention of Discrimination Act 4 of 2000 — Complaint against Mrs Mgoqi upheld.

Comprehensive Summary

Summary of Judgment

1. Introduction

This matter was heard in the Equality Court for the District of Durban and concerned a complaint of harassment and hate speech arising from a neighbourhood dispute. The proceedings were instituted under the framework of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (the Equality Act), with the complainant seeking relief primarily in the form of an apology and protection against further harm.

The complainant was Mrs A J Smith, and the respondents were her neighbours, Mr T Mgoqi (first respondent) and Mrs N Mgoqi (second respondent). The complaint related to statements allegedly made (or associated with the respondents) on 16 and 17 July 2007, including racialised remarks and threats connected to the complainant’s intention to build on her property.

The procedural history reflected that the complaint was initially considered through the mechanism of an application to bind persons to keep the peace under section 384 of the Criminal Procedure Act 56 of 1955, but the presiding magistrate recommended that no further action be taken at that stage and advised that the matter be pursued in the Equality Court. A formal hearing commenced on 10 October 2007, was adjourned at the respondents’ request, and continued on 26 October 2007, with judgment delivered on 23 November 2007.

The general subject-matter of the dispute was whether the complainant had been subjected to racially charged hate speech and harassment, in the context of a deteriorating relationship between neighbours after the respondents refused to consent to proposed building plans.

2. Material Facts

The court treated as common cause that the complainant lived at 29 Amoora Road, Wentworth, and that she and her fiancé planned to build a double-storey structure with a double garage, which required neighbouring consent. It was also not in dispute that four neighbours consented and that the respondents refused to sign. The evidence further established, without material dispute, that the day before the incident the complainant and her builder approached the respondents about their refusal, and the respondents indicated concern about obstruction of their view and a desire to consult a lawyer; the builder indicated that the construction would proceed regardless.

The complainant’s version was that on 16 July 2007, while at home and hearing commotion outside, she opened her bedroom window and observed Mrs Mgoqi and a woman named Mary (and, according to the complainant, also Mr Mgoqi) near the respondents’ gate, where hurtful and racially framed statements were directed at her. The alleged statements included that it was “a black man’s country” and that “no white man” would rule, that the complainant should build elsewhere, and that the respondents would destroy the building if it proceeded. The complainant also testified to further derogatory name-calling and that she was called a “Satan” later that day. On 17 July 2007, the complainant alleged that Mary visited again and that she again heard statements to the effect that they would not leave the complainant alone and would not allow the building.

Material to the outcome was the complainant’s concession under cross-examination that she could not hear what Mr Mgoqi was saying, and that the utterances she relied upon were attributed principally to Mrs Mgoqi and Mary. The complainant did not cite Mary as a party, explaining that she did not know where Mary lived.

The respondents’ material version was a denial that any hate speech or derogatory remarks were directed at the complainant. Mrs Mgoqi stated that Mary came to their home on the morning of 16 July 2007 and that they spoke at the gate, characterising it as ordinary conversation; she maintained she did not address the complainant and did not see her that morning, while conceding that the complainant would have been able to see them from her bedroom window. Mr Mgoqi confirmed that he was not outside at the gate with them and did not hear anyone make derogatory statements. Both respondents acknowledged that the builder’s statement that construction would proceed without their consent left Mr Mgoqi feeling hurt and angry, and Mrs Mgoqi ultimately conceded she was not happy about the intention to proceed without consent.

A further factual feature relied upon by the court was the complainant’s conduct after the incident, namely that she went to the South African Police Service to lay a complaint, attempted to obtain the intervention of the ward councillor, and had earlier sought a peace order—conduct the court regarded as consistent with her assertion that something untoward had occurred.

The court also heard from Mr Welsch Birch, subpoenaed as a witness referenced by the complainant. His evidence did not establish what was said, nor did he identify the participants, but he described observing people with raised voices and hand signals in what appeared to him to be an argument and thought it was uncivil conduct. The court treated this as limited corroboration in relation to the existence of a confrontation rather than the content of any speech.

3. Legal Issues

The central questions for determination were whether, on the evidence, the complainant had proved that she was harassed and whether the offending words constituting hate speech were directed at her, particularly by Mrs Mgoqi, on the dates in question. A related factual issue was whether Mr Mgoqi could be held responsible for any utterances, given the complainant’s evidence that she could not hear what he said.

The dispute primarily concerned questions of fact (what was said, by whom, and in what circumstances), assessed against the statutory standard for hate speech under section 10 of the Equality Act. It also involved the application of the statutory test to the facts found proved on a balance of probabilities, including the evaluative question whether a reasonable person could construe the words as demonstrating a “clear intention” to be hurtful, harmful or incite harm, or to promote or propagate hatred.

4. Court’s Reasoning

The court approached the matter as turning on a narrow factual determination: whether the complainant was harassed and whether the offensive words were directed at her by Mrs Mgoqi. It emphasised that the complainant’s own evidence did not support a finding that Mr Mgoqi uttered offensive words, because she conceded she could not hear him. The denial by both respondents created a direct conflict of versions on the core issue relating to Mrs Mgoqi.

In evaluating credibility and probabilities, the court stated that it could find no fault with the complainant’s evidence and regarded her as a reliable and credible witness, notwithstanding some inconsistencies that the court considered not material. The court reasoned that the complainant’s conduct after the incident—reporting to the police, seeking councillor intervention, and approaching the court—made it less probable that the incident was fabricated, and supported the conclusion that something “untoward” occurred.

Although Mr Birch could not testify to the content of the statements, the court treated his evidence as offering partial corroboration to the extent that it supported the presence of a heated interaction. The court reasoned that if Mrs Mgoqi and Mary were merely having a normal conversation, it would have been less likely for an observer to perceive it as an argument characterised by raised voices and hand signals.

The court then referred expressly to the statutory prohibition of hate speech in section 10 of the Promotion of Equality and Prevention of Discrimination Act 4 of 2000, emphasising that the test is whether a reasonable person would construe the words as demonstrating a clear intention to be hurtful, harmful or incite harm, or to promote or propagate hatred, and stating that intention is not required. The court accepted that the complainant was upset and hurt by the words she attributed to Mrs Mgoqi and Mary, treating this as consistent with the nature of the utterances alleged.

In contextual terms, the court related the purpose of the Equality Act to the constitutional vision of a society united in diversity, and noted the previously cordial relationship between neighbours which had deteriorated due to the building dispute. While these observations were not framed as independent legal requirements, they formed part of the court’s evaluative perspective on the need to restore civil relations consistent with the Equality Act’s objectives.

On the totality of the evidence, the court concluded that, on a balance of probabilities, the offending words were directed at the complainant, with the result that the complaint succeeded only against Mrs Mgoqi and failed against Mr Mgoqi.

5. Outcome and Relief

The Equality Court upheld the complaint against Mrs N Mgoqi and dismissed the complaint against Mr T Mgoqi.

As relief, the court ordered Mrs Mgoqi to provide a written apology to the complainant, to the satisfaction of the court, within seven days. The apology was required to be unconditional, to withdraw the hurtful and harmful words, and to include an undertaking not to use them again. The apology had to be shown to the Clerk of the Equality Court, who had to be satisfied with it, and it was to be signed by Mrs Mgoqi before the Clerk.

The judgment did not record any order as to costs.

Cases Cited

No reported cases were cited in the judgment.

Legislation Cited

The judgment referenced section 384 of the Criminal Procedure Act 56 of 1955 in relation to the complaint’s initial consideration as an application to bind persons to keep the peace.

The judgment applied section 10 of the Promotion of Equality and Prevention of Discrimination Act 4 of 2000, setting out the statutory definition and threshold for prohibited hate speech. The judgment also referred to section 23(1) of the Act in the context of appealability of Equality Court orders.

The judgment referred to the Preamble to the Constitution of South Africa, particularly the statement that South Africa belongs to all who live in it, united in diversity, as part of the contextual purpose informing the Equality Act.

Rules of Court Cited

The judgment referred to Regulation 19(1) relating to the Promotion of Equality and Prevention of Unfair Discrimination Act 2000, concerning the delivery of a notice of appeal within 14 days.

Held

The court held that, on the evidence as a whole and applying the civil standard of proof, the complainant established on a balance of probabilities that the offending words were directed at her and that the complaint therefore succeeded against Mrs N Mgoqi.

The court held that the complaint could not succeed against Mr T Mgoqi, because the complainant’s evidence did not establish that he uttered the offensive words, and she conceded she could not hear what he said.

The court held that an appropriate remedy in the circumstances was a mandatory written apology, supervised through the Clerk of the Equality Court, requiring withdrawal of the hurtful words and an undertaking not to repeat them.

LEGAL PRINCIPLES

The judgment applied the statutory principle that hate speech as prohibited by section 10 of the Promotion of Equality and Prevention of Discrimination Act 4 of 2000 is assessed by asking whether the words, based on a prohibited ground, could reasonably be construed to demonstrate a clear intention to be hurtful, harmful or incite harm, or to promote or propagate hatred, and that subjective intention is not required as a precondition for contravention.

The judgment applied ordinary civil evidentiary principles relevant to Equality Court proceedings, including that disputed factual issues are determined on a balance of probabilities, with credibility and reliability findings made by evaluating the totality of the evidence and the probabilities arising from surrounding conduct.

The judgment illustrates the remedial principle that Equality Court relief may be restorative and corrective, and may include an order compelling a respondent to provide an unconditional written apology, withdraw harmful words, and undertake not to repeat them, where such relief is considered appropriate to address proven hate speech or harassment within the statutory framework.

Smith v Mgoqi and Another (60/2007) [2007] ZAEQC 2 (23 November 2007)