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Sonke Gender Justice Network v Malema (02/2009) [2010] ZAEQC 2; (2010 (7) BCLR 729 (EqC) (15 March 2010)

85 Reportability
Constitutional Law
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Brief Summary

Equality — Hate speech — Speech made by a political leader at a public rally — Respondent's comments regarding women's behavior in the context of a rape trial challenged as hate speech and harassment under the Promotion of Equality and Prevention of Unfair Discrimination Act — Court to determine if the statements were based on prohibited grounds and could be construed as hurtful or harmful — Holding that the comments constituted hate speech as they were based on gender and could reasonably be considered to incite harm, thus violating the Equality Act.

Comprehensive Summary

Summary of Judgment


1. Introduction


This was a complaint brought in the Equality Court for the District of Johannesburg under the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (the Equality Act). The proceedings concerned whether certain public remarks amounted to hate speech and/or harassment as contemplated in the Equality Act, and what remedial relief, if any, should follow.


The complainant was Sonke Gender Justice Network (Sonke). The respondent was Mr Julius Malema, a prominent political figure. Sonke sought declaratory relief, an unconditional public apology, and a monetary payment in the form contemplated by section 21(2)(e) of the Equality Act.


The complaint was instituted in the Equality Court on 29 January 2009, arising from a speech delivered by the respondent on 22 January 2009 at the Cape Peninsula Technikon in Cape Town. It was common cause that the respondent had made the statements complained of. The respondent resisted liability, contending that the statements were not hate speech or harassment but constituted fair comment in relation to the public controversy surrounding Mr Jacob Zuma’s rape trial, invoking the limitation/exclusion contemplated in section 12 of the Equality Act.


The general subject-matter of the dispute concerned the boundaries between freedom of expression and the statutory prohibitions on expression and conduct that undermine equality and dignity, particularly in the context of gender-based discourse about rape and consent.


2. Material Facts


It was common cause that on 22 January 2009, while addressing members of the public at a political gathering during an electioneering campaign, the respondent uttered the following words:


“When a woman didn't enjoy it, she leaves early in the morning. Those who had a nice time will wait until the sun comes out, requests breakfast and taxi money. In the morning that lady requested breakfast and taxi money. You don't ask for taxi money from somebody who raped you.”


It was also undisputed that the respondent was addressing an audience predominantly consisting of tertiary students, that he held significant public influence, and that the audience reacted with loud applause after the utterances. The remarks were made in response to a question from the audience about why they should support Mr Zuma as president, and the respondent asserted that he was interpreting what had been said in the Zuma rape trial judgment.


A central point of dispute concerned the meaning and reach of the remarks. The respondent denied that the first two sentences were intended as general statements about women, and maintained that his remarks referred specifically to the complainant in the Zuma rape trial, in the context of commenting on that case. The court, however, evaluated the language used and the surrounding context, including evidence that the remarks were framed in general terms about women’s post-intercourse behaviour and that they were received publicly in a charged political setting.


The complainant led evidence, including expert evidence, to show that the respondent’s remarks relied on and reinforced rape myths and stereotypes, and that they distorted the factual findings of the Zuma rape trial judgment. In particular, the expert evidence highlighted that the respondent’s claim that the complainant requested “breakfast and taxi money” was inconsistent with what the Zuma judgment recorded, namely that the accused offered taxi money which the complainant refused, and that she took food from the fridge while in the house.


The respondent did not lead evidence to contradict the expert evidence on the content and effect of the statements, and relied primarily on his own account that the audience did not perceive the remarks as harmful and that he was engaging in political commentary, made in English as his fourth language and based on memory rather than a reading of the judgment.


3. Legal Issues


The court was required to determine whether the respondent’s utterances constituted hate speech in terms of section 10 of the Equality Act and/or harassment as prohibited by section 11 read with the statutory definition of “harassment” in section 1.


The hate speech enquiry required the court to determine, as a matter of application of law to fact using an objective standard, whether the words were (i) based on one or more prohibited grounds and (ii) could reasonably be construed to demonstrate a clear intention to be hurtful, harmful or incite harm, or promote or propagate hatred, subject to any applicable exclusion under section 12.


If hate speech was established on the statutory definition, a further question arose as to whether the respondent could nevertheless avoid liability because the expression fell within a section 12 exclusion, framed by the respondent as a defence of fair comment.


The harassment enquiry required a determination, again involving the application of statutory standards to the facts, whether the conduct was serious or persistent, and whether it demeaned, humiliated, or created a hostile or intimidating environment, and whether it related to sex or gender (or related protected characteristics).


If liability was established, the court had to determine the appropriate remedial relief under section 21 of the Equality Act, and whether a costs order was appropriate in light of the complainant’s public interest posture.


4. Court’s Reasoning


The court identified the constitutional and statutory framework as including sections 9, 10 and 16 of the Constitution of the Republic of South Africa, 1996, together with sections 3, 10, 11 and 12 of the Equality Act. It treated the Equality Act as legislation enacted to give effect to constitutional commitments to equality and dignity, and emphasised that the Act must be interpreted in a manner consistent with its purpose and context as directed by section 3.


Hate speech: statutory elements and objective test


In interpreting section 10 of the Equality Act, the court emphasised that the definition is broad, extending beyond speech that promotes hatred to include words that are hurtful or harmful. Harm was not treated as limited to physical harm and was understood to include an attack on dignity, with reference to constitutional jurisprudence on expression and harm.


The court applied a structured enquiry: whether the utterances were based on prohibited grounds, whether a reasonable person could construe them as demonstrating a clear intention to be hurtful or harmful (or to incite harm or propagate hatred), and whether any statutory exclusion in section 12 applied. In this enquiry, the court stressed that liability under section 10 does not depend on proving the respondent’s subjective intention, but on whether the words could reasonably be construed as demonstrating a “clear intention” in an objective sense.


On the first requirement, the court found that the words were based on two listed prohibited grounds, namely sex and gender. This finding was supported by the respondent’s own concession that the remarks concerned sexual intercourse and were directed at the conduct of a female complainant, and by the court’s assessment that the statements were framed in gendered terms about women.


On the second requirement, the court treated context as central. The remarks were delivered at a political rally during an election campaign, by a prominent political leader addressing young people, in circumstances where the respondent sought to persuade and mobilise the audience. The court considered the respondent’s influence and the public character of the speech as relevant to how the words would reasonably be received beyond the immediate audience.


The court accepted the complainant’s evidence that the remarks reinforced rape myths and stereotypes, including myths about how “real” rape survivors behave and the implication that consent can be inferred after the fact. The court further noted that the respondent did not call witnesses to rebut the complainant’s evidence and that even if an immediate audience reaction suggested approval, the respondent was required to be mindful that the words were communicated to the broader public.


The court rejected the respondent’s contention that the remarks were not generalisations about women, sex, and rape. It found that, on their wording and impact, the first two sentences were in general terms and were then applied to the complainant in the Zuma trial. On the totality of the evidence, the court concluded that the words could reasonably be construed as hurtful, harmful, and demeaning to women, and therefore fell within the statutory definition of hate speech.


Section 12 exclusion / fair comment defence


Having found that the utterances amounted to hate speech on the statutory definition, the court then considered whether the respondent was shielded from liability by the section 12 exclusion, which the respondent framed as a defence of fair comment.


The court adopted the requirements for fair comment as set out in the authority it cited: the impugned statement must be comment rather than fact; it must be fair; the facts commented upon must be truly stated; and the matter must be of public interest. Applying these requirements, the court concluded that the defence was not established.


The court found that the first two sentences were couched as statements of fact rather than opinion. It further found, on the strength of the evidence (including the expert’s reading of the Zuma judgment), that the factual premise advanced by the respondent was not truly stated and did not reflect the judgment. The court also questioned the necessity of commenting on the Zuma complainant in relation to the political question posed, noting that the trial had been finalised some years earlier and describing the comment as superfluous in that setting. Finally, the court held that the comment exceeded permissible limits because it violated express statutory prohibitions in the Equality Act. On this basis, the section 12 defence failed and the respondent was held liable.


Harassment


Turning to harassment, the court applied the statutory definition requiring unwanted conduct that is persistent or serious, which demeans, humiliates, or creates a hostile or intimidating environment, and which relates to sex or gender. The court accepted that the utterances related to sex and gender, and, relying on the expert evidence about their effect on women and alleged rape survivors, held that the conduct demeaned and humiliated women. The court characterised the conduct as serious, even if not persistent, and concluded that the complainant had also proved harassment under the Equality Act.


Constitutional considerations, remedy, and costs


The court returned to constitutional rights, recognising that the Constitution protects freedom of expression but does not extend protection to expression that advocates hatred based on gender and constitutes incitement to cause harm. The court concluded that the respondent’s utterances infringed women’s rights to have their dignity respected and protected.


In relation to remedy, the court approached relief through the remedial powers in section 21 of the Equality Act. It took into account that the complainant sought an unconditional public apology and an order directing payment to an organisation providing shelter for abused women. The court noted the respondent’s testimony that he would comply with such orders if made.


On costs, the court considered that the complainant had acted in the public interest and had been assisted on a pro bono basis. With reference to constitutional costs principles in public interest litigation, it held that no costs order was appropriate.


5. Outcome and Relief


The court found that the respondent’s utterances amounted to hate speech and harassment under the Equality Act. It ordered the respondent to issue a public apology within two weeks of the judgment by way of a press release, and further ordered the respondent to pay R50 000 to People Opposed to Women Abuse (POWA) within one month of the judgment. The court made no order as to costs.


Cases Cited


S v Zuma 2006 (2) SACR 191 (WLD).


Islamic Unity Convention v Independent Broadcasting Authority 2002 (4) SA 294 (CC).


S v Engelbrecht 2005 (2) SACR 41.


Delta Motor Corporation (Pty) Ltd v Van Der Merwe 2004 (4) ALL SA 365 (SCA); 2004 (6) SA 185 (SCA).


Trustees for the Time Being of Biowatch Trust v Registrar Genetic Resources and Others 2009 JDR 0559 (CC).


Legislation Cited


Constitution of the Republic of South Africa, 1996 (Act 108 of 1996), sections 9, 10 and 16.


Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000, sections 1 (definition of harassment), 3, 10, 11, 12 and 21.


Rules of Court Cited


Regulation 6(2)(B) (as referenced in the proceedings).


Held


The Equality Court held that the respondent’s public remarks, made during a political address and relating to rape and consent, were based on prohibited grounds of sex and gender and could reasonably be construed as demonstrating a clear intention to be hurtful, harmful, and demeaning to women, thereby meeting the statutory definition of hate speech in section 10 of the Equality Act.


The court further held that the respondent failed to establish that the remarks were protected by the section 12 exclusion on the basis of fair comment, because the remarks were framed as factual assertions, were not supported by the facts as recorded in the relevant judgment, and exceeded permissible limits in light of the Equality Act’s prohibitions.


The court also held that the remarks constituted harassment as defined and prohibited by the Equality Act because they were serious, related to sex and gender, and demeaned and humiliated women and alleged rape survivors.


LEGAL PRINCIPLES


The judgment applied the principle that hate speech under section 10 of the Equality Act is assessed through an objective “reasonable person” standard, asking whether the words could reasonably be construed as demonstrating a clear intention to be hurtful, harmful (including harm to dignity), to incite harm, or to promote or propagate hatred, and that proof of the speaker’s subjective intention is not required for the definition to be met.


It applied the principle that the Equality Act’s hate speech definition is broader than only advocacy of hatred, extending to communications that are hurtful or harmful, and that harm includes impairment of dignity, in line with constitutional values.


The court applied the principle that statutory exclusions or limitations (including the respondent’s reliance on fair comment) must be alleged and proved by the party raising them, and that fair comment requires, among other things, that the comment be identifiable as opinion rather than fact and that the factual basis be truly stated.


On harassment, the judgment applied the statutory principle that conduct may constitute harassment if it is serious or persistent, if it demeans or humiliates (or creates a hostile or intimidating environment), and if it is connected to prohibited grounds such as sex or gender, with seriousness being sufficient even in the absence of persistence.


On costs, the judgment applied the principle that in public interest litigation where a party has acted to vindicate constitutional or statutory rights, a court may consider it appropriate to make no order as to costs, particularly where the litigant acted on a pro bono basis and in the public interest.

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Sonke Gender Justice Network v Malema (02/2009) [2010] ZAEQC 2; (2010 (7) BCLR 729 (EqC) (15 March 2010)

IN
THE EQUALITY COURT FOR THE DISTRICT OF JOHANNESBURG
HELD AT
JOHANNESBURG
FILE
NO: 02/2009
DATE:15/03/2010
In
the matter between:
SONKE
GENDER JUSTICE
NETWORK
...........................................................
COMPLAINANT
And
MR.
JULIUS
MALEMA
.......................................................................................
RESPONDENT
JUDGMENT
In
the words of the author Samuel Butler 1835-1902
" WORDS ARE THE
CLOTHES THAT THOUGHTS WEAR—ONLY THE CLOTHES"
[1]
This matter was brought before the Equality on the 29
th
January 2009. The Respondent is called upon to answer for his conduct
because of a speech that he made, while addressing members
of the
public on the 22
nd
January 2009, at the Cape Peninsula
Technikon in Cape Town.
[2]
'When a woman didn't enjoy it, she leaves early in the morning. Those
who had a nice time will wait until the sun comes out,
requests
breakfast and taxi money. In the morning that lady requested
breakfast and taxi money. You don't ask for taxi money from
somebody
who raped you."
[3]These
are the words complained of, upon which this Court was called upon to
make a finding. This Court was to decide whether
the said comments
amount to
hate speech
and or
harassment
as per the
definitions found within the framework of the Promotion of Equality
and Prevention of Unfair Discrimination Act, Act
4 of 2000, also
referred to as the Equality Act In making such a finding this Court
further would have to decide what appropriate
relief should be
awarded to the complainant.
As
formulated in the complaint, Sonke Gender Justice Network (or SONKE)
seeks an appropriate declaratory relief, an unconditional
apology for
the statements and an order for compensation of the kind contemplated
in section 21(2)(e) of the Equality Act The complainant
contends
these statements constitutes hate speech, (as defined in the Equality
Act), and also cumulatively, and in the alternative
harassment
[4]
At the onset it should be mentioned the complainant carried the
burden of proof and the duty to begin,
[5]
It is common cause between the parties, these statements were made by
the Respondent. In his response he contends it is submitted
the
utterances complained of are not offensive to gender equality nor
hate speech but amount to fair comment in the circumstances
of Mr,
Jacob
Zuma's rape trial. See in this regard S v. Zuma 2006(2) SACR 191 WLD.
Thus, the respondent is placing reliance on one of the
grounds of
limitations as set out in section 12 of the Equality Act
[6]
The legal framework within which the case is to be decided upon to
the Courts mind is sections 9, 10 and 16 of our Constitution,
Act 108
of 1996 and sections 3,10,11, and 12 of the Equality Act.
Section
9 of the Constitution reads as follows-,
(1)
Everyone is equal before the law and has the right to equal
protection and benefit of the law.
(2)
Equality includes the full and equal enjoyment of all rights and
freedoms. To promote the achievement of equality, legislative
and
other measures designed to protect or advance persons or categories
of persons, disadvantaged by unfair discrimination may
be taken.
Section
10 of our Constitution reads as follows
:
Everyone
has inherent dignity and the right to have their dignity respected
and protected.
Section
16 of the Constitution entrenches freedom of expression. It reads :
(1)
Everyone has the right to freedom of expression, which includes -
(a)
freedom of press and other media;
(b)
freedom to receive or impart other ideas;
(c)
freedom of artistic creativity; and
(d) academic freedom and
freedom of scientific research. (2) The right in subsection (1) does
not extend to -
(a)
propaganda of war;
(b)
incitement of imminent violence; or
(c)
advocacy of hatred that is based on race, ethnicity, gender or
religion, and constitute incitement to cause harm.
[7]
This Court will later in the judgement refer back to the provisions
of the Constitution as quoted above.
[8]
The object of the Equality Act, is to enact the legislation required
by section 9, just partially alluded to, and to give effect
to the
letter and spirit of our Constitution in various respects.
[9]
The object of the Equality Act, is to be found in section 3. Same
reads as follows:
(1)
Any person applying this Act must interpret its provisions to
give
effect to
(a)
the Constitution, the provisions of which include the promotion of
equality through legislative and other measures designed
to protect
or advance persons disadvantaged by past and present unfair
discrimination.
(2)
Any person interpreting this Act, may be mindful of
(a)
any relevant law or code of practice in terms of the law
(b)
international law particularly the international agreements
referred
to in section 2 and customary international law
(c)
comparable foreign law
(3)
Any person applying or interpreting this Act must take into account
the context of the dispute and the purpose of this Act.
To
turn then to the relevant provisions contained in the Equality Act.
[10]
Section 10
of the Equality Act defines
hate speech
as
follows: (1) Subject to the proviso in section 12 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.
Section
11
of the Act prohibits harassment, which is defined in section 1
as:
"Harrassment
means unwanted conduct which is persistent, or serious and demeans,
humiliates or creates a hostile or intimidating
environment or is
calculated to induce submission by actual or intended adverse
consequences and which is related to -
(a)
sex, gender or sexual orientation, or
(b)
a person's membership or presumed membership of a group identified by
one or more of the prohibited grounds or a characteristic
associated
with such group."
The
Court then turns in dealing with the definition of hate speech as per
the provisions of the Equality Act.
[11]
HATE SPEECH
In
terms of the definition words communicated amount to hate speech if:
11.1
They are based on one or more of the prohibited grounds, and
11.2
May objectively be considered to be hurtful, harmful, incite harm or
propagate hatred.
As
per the definition of prohibited grounds (such definition to be found
in section 1), two categories are made provision for, either
listed
grounds or unlisted grounds. The unlisted grounds being grounds other
than the listed grounds which perpetuates systemic
disadvantage or
loss of dignity or which affect, a person in the same way as listed
grounds.
[12]
Thus, any words communicated may amount to hate speech, if they meet
the above criteria as set out in section 10. It should
also be noted
that section 10 expressly refers to "words" and not to a
picture or non-verbal forms of communication.
To the matter at hand
it is admitted by the Respondent that he had uttered the words
complaint of.
[13]
From the above definition quoted, it is clear that the Equality Act's
definition of hate speech is broad. It extends beyond
communicated
words that promote hatred by specifically including within its scope
the communication of words that are hurtful or
harmful.
Hurt
or harm in this context is not limited to direct physical harm, and
extends to an attack on dignity. See in this regard the
decision of
Islamic Unity Convention v Independent Broadcasting Authority 2002(4)
SA 294 (CC) at pg 32.
[14]
A court in assessing whether the words complaint of falls within the
definition of hate speech the following questions would
have to be
asked:
14.1
Are the words communicated based on one or more prohibited grounds?
14.2
May any reasonable person consider the words to be intended to hurt,
harm or incite hatred?
14.3
Is the use of the said words falling within the prescribed exclusion
as set out in section 12?
If
the answer to either of the first two questions is in the
negative,
the words complaint of do not amount to hate speech. If indeed the
answer to either of the first two questions is in the
positive,
the words amount to hate speech. Important is that intention on the
part of the Respondent is not required.
[15]
The test is whether a reasonable person would construe the speech as
demonstrating a "clear intention" to be hurtful.
If the
complainant succeeds in proving the words complaint of amounts to
hate speech, it however would not be the end of the inquiry.
[16]
An assessment would still need to be made whether or not the words
are not protected under section 12. In the event of such
a finding
being made, the words would still constitute hate speech, but the
Respondent cannot be held liable. Thus, the provisions
of section 12
can be raised as a defence.
[17]
In applying the above criteria to the evidence placed before this
Court, the following assessment is hereby made.
(a)
Prohibited grounds
It
is clear the words complained of are based on not only one but two of
the listed prohibited grounds, i.e gender and sex. The
Respondent
when giving evidence conceded when the utterances complaint of was
made by him, he was firstly referring to the act
of sexual
intercourse, and secondly to the behaviour of the complainant in the
S v. Zuma rape trial. The Respondent having made
the utterances in
respect of the opposite gender to himself.
(b)
Words intended to hurt harm or incite hatred
Here
the context within which the words were uttered needs to be assessed.
It is common cause between the parties the words were
uttered at a
political rally, during an electioneering campaign, by a prominent
political leader. It was also common cause the
Respondent holds
significant social and political influence and particularly over
young people. On the said day he was addressing
an audience
predominantly tertiary students consisting of both males and females.
He testified on that day as he was on the campaign
trail; his
objective was to persuade the audience to agree with what he says,
and to mobilize the youth on the African National
Congress victory.
Upon a question raised by a student in the audience as to why they
should support Mr. Zuma as president, he in
trying to interpret what
was said in the Zuma judgement had made the utterances complaint of.
The respondent had further contextualise
the utterances by testifying
he on the day had mentioned women who lie and report rape under false
pretext will not advance the
struggle against rape, but yet the
newspapers had failed to report on this. Furthermore, his political
party promotes the advancement
of women and specifically black women
and will never promote any hatred of women as he was mentored by
several women, and raised
by his grandmother. He considered the
report in the newspaper thus as selective reporting by the media, and
conceded upon his utterances
having been made, the audience had
cheered with loud applause.
(b)(i)
The respondent was also questioned at length as to the generality of
his utterances, with particular reference to the first
two sentences
i.e.
"
When a woman did not enjoy it, she leaves early in the morning. Those
who had a nice time will wait until the sun comes out,
requests
breakfast and taxi money.........
This
he had denied.
He
was adamant the utterances made refers specifically to the
complainant in the S v. Zuma -matter and that he was referring to
the
behaviour of the complainant in that matter.
(b)(ii)
In support that the words complaint of could be construed as hurtful
harmful or to incite hatred, the complainant called
two witnesses.
(b)(iii)
Mr. Mbuyiselo Botha's evidence on point was that SONKE considered the
utterances as gender insensitive more so in the light
that South
Africa has a high statistic of rape. He considered the utterances
made to encourage women to be seen as sexual objects
and felt
aggrieved by the statements as it portrayed women as fair game and
stereotyped them. He was of the opinion the utterances
made by the
Respondent seem to imply how women should or should not react after
an alleged rape. Furthermore, that the utterances
made by the
Respondent may lead to women who refuses advances made by men, to be
subjected to extreme forms of violence and even
rape. This he
attributed to the applause received by the audience on the day the
utterances was made. He considered the utterances
as gender
insensitive, and was of the opinion it trivialise rape. He further
testified even if the utterances were made by a female
SONKE would
still have lodged a complaint.
(b)(iv)
The next witness called by the complainant was Ms. Lisa Vetten.
At
the onset this Court wishes to express its opinion on the expertise
of Ms. Vetten. She was called as an expert in the filed of
gender
violence. Her experience and qualifications having been set out in
the report submitted to this Court. In order for a witness
to be
called to give evidence as an expert the matter upon which the
witness will testify to, must call for specialised skill and

knowledge. A person so called must be a person with experience or
skill to render him, or her an expert in a particular subject
The
guidance offered by the expert should be sufficiently relevant to the
matter in issue to be determined by the court. The expertise
of the
witness should not be elevated to such heights that the court's own
capabilities and responsibilities are abrogated. The
opinion offered
to the court must be based on admissible evidence. Furthermore, the
opinion of the witness must not usurp the function
of the court. See
in this regard S v. Engelbrecht
2005 (2) SACR 41.
The
Respondent during cross examination took issue with the expertise of
Ms. Vetten, more specifically her lack of formal qualifications
in
the field of psychology in order to formulate an opinion on the
behaviour of rape victims, in response thereto, it was her evidence

she was a trained counsellor and have gained a range of experience
over some 18 years, which past experience includes activities
as a
counsellor, trainer and researcher. As researcher statistics she had
assisted in compiling have been relied upon by government
agencies in
the past Furthermore, as a counsellor she has worked with over 200
women who have experience some form of violence.
(b](v)
Save for the respondent attacking Ms. Vettcn's lack of formal
qualifications i.e that she is not a person holding a degree,
no
suggestion was made that the research and literature relied upon by
her in her report is unreliable or may be called into question.
No
evidence was lead by the respondent to contradict the evidence of Ms.
Vetten.
(b](vi)
As a consequence this court is satisfied her evidence is relevant and
of value to some of the issues to be determined by
this Court, and
that specialized knowledge on gender based violence is required in
this matter.
(b)(vii)
To turn then to her evidence presented. In essence she testified, the
comments of the Respondent constitute an act of myth-making
in that
what he reported as the facts of the S v. Zuma trial are distortions
of the actual findings of the case. The comments made
by the
Respondent rely upon generalizations about women, rape and consent
which reinforce rape myths and that he is abrogating
to himself the
prerogative of deciding what does and does not constitute rape. Myths
and stereotypes are typically created by groups
dominant in society.
Thus, when men proclaim what is and is not sexual violence, and
justify their reasoning with rape myths, they
reinforce men's
dominance and perspectives at the expense of women equality.
Furthermore,
the victim in the Zuma matter requested neither breakfast nor taxi
money from the accused. The decision read at page
218 as follows:
"
The next morning she wandered around in the house for at least one
and a half hours. She took food from the fridge...."
The
judgement refers to the accused having offered the complainant taxi
money, which she had refused.
(b)(viii)
The respondent's revision of the facts is calculated to suggest that
some sort of normal morning after behaviour had taken
place between
the victim and the accused, which he suggests means that no rape
could have taken place. In making the claims he
did, he relied upon a
number of rape myths one being that women who did not enjoy sexual
encounters leaves soon thereafter. Secondly,
that "real"
rape survivors do not ask for things from their attackers. He further
reinforced the myth that women lie
about rape. The witness was of the
opinion, the Respondent through his comments advances the notion of
male sexual entitlement.
His statement is to imply that consent is to
be inferred from a victims conduct, rather than
explicitly asked
and further that inferences of consent can be made after the fact of
sex—not beforehand. In making such statements the Respondent

created the notion that there existed no obligation on men to obtain
explicit consent from women before sex; rather they need only
wait
until after sex to confirm whether or not consent had been given.
She
was of the opinion, not only were these not the facts in the
Zuma-rape trial, but that no such generalisation could conceivably
be
inferred from the judgement in the matter.
(b)(ix)
In contrast to the evidence presented by the complainant, the
Respondent had testified the audience he was addressing on
the day,
did not perceive his utterances as harmful or hurtful No witnesses
were however called by the Respondent to rebut the
evidence presented
by the complainant. The Respondent is an influential a public figure
on whose utterances are widely reported
and on the day in question
was not only addressing an audience, but the broader public.
Therefore, even if the specific audience
he was addressing did not
perceive his utterances as hurtful or harmful he should have been
mindful that such uttered words were
not just meant for that
audience.
(b)(x)
Given the totality of the evidence this Court is satisfied the
uttered words could reasonably be construed as hurtful, harmful
and
demeaning to women. To the Court's mind the first two utterances was
made in general terms and that the Respondent in making
them, had
made it applicable to the complainant in the Zuma-trial. This Court
therefore rejects the contention by the Respondent
that his comments
did not constitute generalisations about women, sex and rape.
(b)(xi)
As a result this Court is satisfied the utterances made by the
Respondent on the 22
nd
January 2009, amounted to hate
speech.
[18]
The Court has next to assess whether the words are not falling within
the prescribe exclusions as set out in section 12.
In
his response in terms of Regulation 6(2)(B), the Respondent sets out
the utterances complaint of are not offensive to gender
equality nor
hate speech but amount to fair comment in the circumstances of Mr.
Jacob Zuma's rape trial. The Respondent had testified
in having made
the utterances, he was trying to interpret what was said in the
Zuma-judgement. Prior to having made the statements
he was relying on
his memory, as he was present in Court when the said judgment was
delivered. He had never before taken the trouble
to read the said
judgment. He further asserted the statements were made in English
being his fourth language and that his highest
level of education had
been Grade 12,
[19]
In order for the Respondent to succeed in his defence he has to
allege and prove:
(a)
the statement complained of was a comment(opinion) and not a
statement of fact and that it was or would have been understood
as a
comment by a reasonable hearer;
(b)
the comment was fair. It need not necessarily have been impartial or
well balanced, that it does not exceed certain limits;
(c)
the facts commented on were truly stated; and
(d)
the matter was of public interest.
See
in this regard Delta Motor Corp(Pty) Ltd v. Van Der Merwe 2004(4)
ALLSA 365 (SCA),
2004 (6) SA 185
(SCA).
[20]
As already alluded too, the Respondent contended he had made the
utterances in reference to the complainant in the Zuma-trial,
in
expressing his opinion. Yet upon reading the first two statements it
clearly is couched
as facts
and not an opinion being expressed
on the behaviour of women when they do or don't enjoy sex. It has
already through the evidence
of Ms. Vetten been shown, that the facts
commented on by the Respondent, were indeed not said in the
Zuma-judgement.
Was the matter commented on of public interest?
The question taken from the audience related to the candidacy of Mr.
Zuma as president. To the Court's mind it seems to have been

superfluous to comment on the complainant in the Zuma-matter. The
matter having been finalised a few years prior.
Was the comment
fair?
To the Court's mind it exceeded certain limits as the
statements violated the express prohibitions asserted by the Equality
Act.
[21]
As a consequence this Court is not convinced the defence of fair
comment having been proven by the Respondent and as a consequence
he
should be held liable.
[22]
HARRASSMENT
The
definition of harassment was cited earlier in paragraph 9. Conduct
which constitutes harassment must either be persistent or
serious. It
must further demean, humiliate, or create a hostile or intimidating
environment ,................ and it must relate
to sex, gender or
sexual
orientation.
The
Respondent having denied his utterances amount to harassment.
To
the matter at hand the utterances made refers to sex and gender. With
reference to the expert testimony of Ms. Vetten it clearly
demeans
and humiliates women, and more specifically alleged rape survivors.
To the courts mind the uttered words is viewed as serious,
and not of
particular nature necessarily persistent. Therefore, this
Court
is of the opinion the complainant has also proven the uttered words
constitute harassment as contemplated by the Equality
Act.
[23]
To return then to the provisions as contained in our Constitution.
Albeit that everyone in our democratic state have the right
to
freedom of expression, such right in terms of our Constitution can be
limited if such expression advocates a hatred based on
gender and
constitutes an incitement to cause harm. The Court is of the opinion,
the Respondent through his utterances, has infringed
on the rights of
women to have their dignity respected and protected.
RELIEF
[24]
Paragraph 3 above sets out the appropriate relief as sought by SONKE.
It should be noted the remedial powers of this Court
are given in
section 21 of the Equality Act. Specifically the complainant seeks an
unconditional public apology as contemplated
in section 21(2)(j).
Furthermore, the complainant seeks an order requiring the Respondent
to pay an amount of R 50 000 to an organisation
that provides shelter
for abused women, such as POWA (People Opposed to Women Abuse), as
provided for in section 21(2)(e).
In
respect of an apology to be tendered, the Respondent had testified in
the event of this court ordering same, he would not be
hesitant to
make such public apology. He further testified upon a Court ordering
him to pay the amount of R 50 000.00 as damages
he would do so, once
so ordered by the Court.
[2
5] For the reasons as set out above, this Court finds :
25.1
The utterances complained of as formulated in Form 2 Annexure B to
amount to hate speech and harassment.
25.2
The Respondent is ordered to issue a public apology within two weeks
from date of this judgment in the form of a press release.
25.3
The Respondent is further ordered to pay People Opposed to Women
Abuse (POWA) an amount of R 50 000 within one month of date
of this
judgement.
[26]
As the complainant in this matter has been assisted on a pro bono
basis and has been acting in the public interest, and having
had
regard to the decision of Trustees for the Time Being of Biowatch
Trust v Registrar Generic Resources and Others 2009 JDR 0559
(CC),
this Court is of the opinion no order as to costs would be an
appropriate costs order under the circumstances.
[27]
In conclusion I wish to leave the parties and more specifically the
Respondent with the following words of wisdom by Dr. Oliver
Wendell
Holmes 1809-1894. Mr. Malema being a man of vast political influence,
be wary of turning into:
"The
man that often speaks but never talks".
Dated
at JOHANNESBURG on this 15
th
day of MARCH 2010.
Presiding Officer
Ms. CJ.COLLIS

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