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[2010] ZAEQC 1
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Osman v Minister of Safety and Security and Others (EC09/2008) [2010] ZAEQC 1 (15 December 2010)
IN THE HIGH COURT OF
SOUTH AFRICA
WESTERN CAPE HIGH
COURT, CAPE TOWN
Reportable
Case
No.: EC09/2008
In
the matter between:
HAMOUD
ADDOU OSMAN
…...............................................................
Complainant
and
MINISTER OF SAFETY &
SECURITY
….......................................
First
Respondent
NATIONAL COMMISSION OF
THE
SOUTH AFRICAN POLICE
SERVICE
…..................................
Second
Respondent
SOUTH AFRICAN POLICE
SERVICE,
WESTERN CAPE
…......................................................................
Third
Respondent
STATION COMMANDER,
MILNERTON POLICE
STATION
…............................................
Fourth
Respondent
CORAM:
DM
DAVIS
J
JUDGMENT
BY: DAVIS J
FOR
THE COMPLAINANT: ADV K NYMAN
INSTRUCTED
BY: UCT LAW CLINIC
FOR
THE RESPONDENTS: ADV D O POTGIETER SC & ADV F ESSOP
INSTRUCTED
BY : STATE ATTORNEY
DATE
OF HEARINGS: 11
OCTOBER
2010
DATE
OF JUDGMENT: 15 DECEMBER 2010
REPORTABLE
IN THE EQUALITY
COURT OF SOUTH AFRICA
(WESTERN CAPE, CAPE
TOWN)
CASE NUMBER: EC09/2008
DATE: 15 DECEMBER 2010
In
the matter between:
HAMOUD
ADDOU OSMAN
…...............................................................................
Plaintiff
and
MINISTER
OF SAFETY & SECURITY
….............................................
1
st
Defendant
NATIONAL
COMMISSIONER
OF
THE SOUTH AFRICAN POLICE SERVICE
…..............................
2
nd
Defendant
SOUTH
AFRICAN POLICE
SERVICE.
WESTERN CAPE
…..................................................................
3
rd
Defendant
STATION COMMANDER,
MILNERTON
POLICE STATION
…....................................................................................
4
th
Defendant
JUDGMENT
DAVIS.
J
Introduction
:
This
case concerns a complaint of unfair discrimination based on the
grounds of ethnicity and social origin instituted in terms
of
section 20 of the Promotion of Equality & Prevention of Unfair
Discrimination Act 4 of 2000 ("the Act"). In
brief,
complainant contends that on 22 May 2008 during a period of violence
which was described as being of a xenophobic nature,
which occurred
in Dunoon, certain identified police officers, who were armed,
refused to come to complainant's assistance to
remove goods from his
shop ('the Blue Lagoon'), when they most certainly had the means and
ability to do so.
In complainant's view,
their failure to assist him, was because he was regarded as "a
foreign national", who did not
deserve the same protection as
South African citizens. Complainant contends that this conduct was
based on xenophobia and falls
within the framework of the Act.
Accordingly, he claims damages in the amount of R515 000,00.
The Factual
Background
:
On
the evening of Thursday, 22 May 2008 at approximately 18:00, a
meeting was called at the Sophakama Primary School in Dunoon
by
various community structures, including the SAPS in Milnerton, for
both local and foreign residents, in order to convey a
message of
anti-xenophobia, particularly in the light of xenophobic attacks
that occurred in Gauteng during this period. A pamphlet,
which
advertised the meeting and which was made part of the record, makes
the object to the meeting clear. All of this was common
cause.
It is also common cause
that shortly after this meeting was adjourned, crowds in the Dunoon
and Joe Slovo informal settlements,
gathered on the streets and
commenced a looting spree by attacking and ransacking foreign owned
shops in the area. It appears
also to be common cause that South
African shops and businesses were not attacked on the evening in
question. Respondents were
thus not required to use resources to
protect local businesses.
The sole evidence to
buttress the complaint came from the complainant. He testified that
on the evening of 22 May 2008, he had
attended the meeting in the
school hall at Sophakama Primary School in Dunoon. He testified
about the tense atmosphere in the
school. He alleged that the crowds
in the school hall pointed to him and shouted "Somali we will
kill you". I should
add that during cross-examination, he
appeared to deny the nature of this evidence, ascribing it to a
wrong interpretation by
the court interpreter when so confronted
during cross-examination. It appeared that the people in question
spoke Xhosa and he
did not understand the essential contents of
their conversation.
He
further testified, however, that when he left the premises, he went
to his shop, where he told his employees to lock the doors
of the
premises as the situation had become dangerous. He then left Dunoon
at approximately 18:30 and returned to his home in
Bellville. At
home in Bellville, he received a telephone call from one of his
employees at approximately 20:00, who informed
him that his shop had
been broken into and that crowds had commenced looting the contents
thereof At this stage his employees
had fled the shop and were, of
course, not calling him from the premises. At this stage it appeared
that neither he nor his employees
had contacted the police and
informed them that his shop had been attacked.
He testified that he
immediately drove back to Dunoon. It took him approximately between
15 to 20 minutes to return to his shop.
When he arrived in the
vicinity of his shop, three police vans were standing nearby, whilst
the crowds were still carrying goods
out of his shop. He testified
that he approached one of the police officers for assistance in
removing the remaining goods from
his shop. The police officer
responded that they would only assist him if his employees were
still in the shop, but they would
not assist simply to remove goods.
He was then instructed by the police to leave Dunoon as the
situation was becoming more dangerous.
According to his evidence, he
left the area and went back home, only to return to his shop on
Sunday, 25 May 2008
In his evidence, he
reported that he was particularly upset as he had seen his shop
being destroyed whilst several heavily armed
policemen merely looked
on as though this was part of an 'evening's entertainment'. During
cross-examination, complainant's version
of the events did not
appear to be as coherent as when he presented it in examination in
chief. He was confronted with the statement
that he had made at the
Milnerton Police Station on 25 May 2008 when he went to lay a charge
of theft and public violence. According
to this statement, he was
present at his shop at 20:00 on the evening of 22 May 2008 when
crowds arrived. He ran away with his
employees when his shop was
attacked. He later returned to his shop at 23:00 accompanied by the
police and when he tried to remove
the remaining goods from his
shop, the police advised him to leave the shop for his own safety.
In cross-examination, he
alleged that it was the community that told him to return home There
is no reference in this particular
piece of evidence to any
wrongdoing on the part of the police, although I shall return to
this particular aspect later in my
judgment. In his testimony before
the Court, he did allege that he was not present when the looting
occurred. He had only come
to his shop after receiving a call from
his employee. He alleged that after speaking to the police officer,
he left, returned
later that evening at 23:00, when he was told by
the community to leave the shop for his own safety During his
evidence in chief
he never mentioned returning to his shop at 23:00
that night. In fact he testified that he went home after his first
visit to
the shop, only to return on Sunday, 25 May 2008. In
essence, that was the only evidence that the Court was provided with
in support
of the complainant's case.
Mr
Potqieter
.
who appeared together with Ms Essop on behalf of the respondents,
submitted that the complainant was neither a credible nor
a reliable
witness as his version of events had changed numerous times, some of
which I have indicated in my description of his
evidence
viva
voce
and
the statement which he provided to the police. In Mr
Potgieter
's
view, he had contradicted himself in material respects In particular
Mr
Potgieter
referred to his
testimony as to what was said at the meeting in Xhosa, that is in a
language he did not understand.
Mr
Potqieter
submitted that the
complainant's attempt at criticism of the interpreter was
disingenuous in that the Court had observed that
the complainant was
reasonably well versed in English and in fact had spontaneously
given some of his evidence in English to
the Court. He would thus,
in Mr
Potgieter
's
view, have heard if the interpreter had not interpreted his evidence
properly and he could then have corrected it as he had
done on other
occasions. At one stage he testified that the crowds were pointing
at him and shouting "nas amakweri nas",
alternatively that
he had the feeling that they were saying the latter phrase while
pointing at him. In Mr
Potqieter
's
view, his evidence about the situation at the school was unreliable
and was indicative of the general quality of his evidence.
Ms
Nyman
.
who appeared on behalf of the complainant, sought to defend the
quality of the complainant's evidence. She submitted that it
was his
belief that the police officer had manifestly failed to come to his
assistance, because of xenophobic considerations.
In support of this
allegation, she referred to testimony of the complainant that when
his previous shop had been looted in Fish
Hoek, the police there had
come to his assistance. In other words, he had firsthand experience
of having dealt with the police
under similar circumstances. The
basis of his belief that it was xenophobia which had been at the
source of the police omission,
was accordingly based on a comparison
with previous experience of the police under similar circumstances.
According to the complainant
in this particular case, the police
officers had clearly acted in a passive fashion, as if the entire
looting spree was no more
than "entertainment".
ECD9.'2008
Ms
Nyman
also sought to explain
the contents of the statement which the complainant had provided to
the police and of which Mr
Potqieter
had made much in his
argument In her view, it was unlikely that a vulnerable person such
as the complainant, would have set out
his entire complaint with the
police when giving a statement to the very people about whom he was
complaining. Ms
Nyman
.
therefore, submitted that even though there were contradictions
between the police statement and his evidence, these contradictions
did not negate the credibility of his evidence that the looting had
taken place in the presence of police officers.
The Legal Basis of
Complainant's Case
:
Given that I have set
out the essence of the complainant's evidence, it is now necessary
to turn to the law upon which the complaint
is predicated. Section 1
of the Act defines discrimination as:
"Any act or
omission, including a policy, law, rule, practice, condition or
situation which directly or indirectly imposes
burdens, obligation
or disadvantage on;
or
withholds benefits, opportunities, advantage from any persons on one
or more of the prohibited grounds."
Ethnicity and social
origin are listed as prohibited grounds of unfair discrimination in
subsection (1)(a) of the Act. Section
1 defines nationality to mean:
"Ethnic or national
origin and includes practices associated with xenophobia and other
adverse assumptions of a discriminatory
nature, but does not include
rights and obligations normally associated with citizenship."
In
President
of the Republic of South Africa & Another v Hugo
1997
(4) SA 1
(CC),
Goldstone
,
J, on behalf of the majority of the court, paragraph 41, explained
that the object of the prohibition of unfair discrimination
and the
manner of approach unfair discrimination, should be dealt with as
follows:
"The prohibition of
unfair discrimination in the interim Constitution seeks not only to
avoid discrimination against people
who are members of disadvantaged
groups, it seeks more than that. At the heart of the prohibition of
unfair discrimination lies
a recognition that the purpose of our new
constitutional democratic orders, the establishment of a society in
which all human
beings will be accorded equal dignity and respect,
regardless of their membership of particular groups."
The court held that in
order to determine whether the impact of discrimination was unfair,
it was necessary to look at the group
who was disadvantaged, the
nature of the power in terms of which the discrimination was
effected and the nature of the interest
which had been effected by
the discrimination. In
Union
of Refugee Women & others v Director Private Security Industry
Regulatory Authority & Others
2007
(4) SA 395
(CC), the court held that refugees constituted a
vulnerable group in our society, because "they had been forced
to flee
their homes as a result of persecution, human rights
violations and conflict and very often they, or those close to them,
have
been victims of violence on the basis of very personal
attributes such as ethnicity or social origin." (at para 28).
This case turns to a
considerable degree on the facts as set out and the law which
applies to the burden of proof. Much of the
law as I have set it
out, is common cause and there as no conflict between the parties as
to the legal basis upon which the complaint
was predicated. Having
said that, however, it is perhaps necessary to say something about
the concept of xenophobia which lay
at the heart of the events which
gave rise to this dispute. It is this concept of xenophobia which
makes this case so deeply
troubling, because whatever the quality of
the evidence of the complainant, the fact is that as a result of
this violence, complainant
lost a vibrant livelihood with which he
was able to provide a decent standard of living for his family. The
fact that he was
able to do this, after having to flee his own
country and re-establish himself in our constitutional democracy and
then be confronted
with the horror of the xenophobia which unfolded
on the evening in question, only compounds the poignancy of this
case.
To the extent that it is
relevant, therefore,
Sachs
,
J, in his minority judgment in the
Union
of Refugee Women
case,
at para 143 and 144, provides a useful description of the nature of
the violence which unfolded on the evening in question.
He refers in
particular to the Braamfontein declaration:
"Xenophobia is the
deep dislike of non-nationals by nationals of recipient state. Its
manifestation is a violation of human
rights. South Africa needs to
send out a strong message that an irrational prejudice and hostility
towards non-nationals is not
acceptable under any circumstances."
Sachs
,
J then continues:
"This prejudice is
strong in South Africa. It strikes at the heart of our Bill of
Rights. Special care accordingly needs
to be taken to prevent it
from even unconsciously tainting the manner in which laws are
interpreted and applied. If refugees
are treated as intrinsically
untrustworthy, with their capacity to perform honestly and reliably
being placed presumptively in
doubt, then xenophobia is given a
boost and constitutional values are undermined... The constitutional
response to xenophobia
need not, of course. involve exaggerated
xenophilia. Just as refugees should be protected from irrational
prejudice, so they
should not be able to lay claim to irrational
privilege. The law... must be applied in a manner that is fair,
objective, appropriately
focused and keeping with the letter and
spirit of our international and national legal obligations.
Exercises of power that purport
to have a neutral foundation, but
track stereotypes are often seen as flowing from a reinforcing
negative presuppositions. Indeed
the routinised way in which power
is exercised, can readily become entangled in the public mind with
existing prejudicial assumptions
reinforcing prejudice as
establishing a downward spiral of disempowerment. One of the
purposes of refugee law is precisely to
overcome the experience of
trauma in displacement and make the refugee fee! at home and
welcome. Disproportionate and uncalled
for adverse treatment would
defeat that objective and induce an unacceptable and avoidable
experience of alienation and helplessness.
It would be most
unfortunate that the left hand of government supervises the security
industry took away what the right hand
of government, that accords
to accredited refugees a special status, gives."
Of course the question
which vexes this Court is whether, on the evidence provided, it can
concluded that complainant suffered
discrimination because of the
xenophobia as
Sachs
.
J has described it and which would then bring his complaint within
the scope of the Act.
As mentioned earlier,
therefore, the key question in the light of all of this legal and
evidential analysis, turns on the burden
of proof. The Supreme Court
of Appeal has recently dealt with this question in a joint judgment
Navsa
and
Nhlantla
.
JJA set out the position with regard to proof in
Manonq
& Associates (Ptv) Ltd v City Manager. City of Cape Town &
Others
[2010]
2ASCA 169 (SCA) at para 54-55:
"As stated earlier
in this judgment, the court below approached the evidence on the
basis that it was for the CCT (respondent)
to prove that it had not
discriminated against the company. The burden of proof in cases of
discrimination brought in the Equality
Court, is dealt with in S13
of the Act. The relevant part of S13(1) provides:
1. If the defendant
makes out a
prima
facie
case
of discrimination:
(a) The respondent must
prove, on the facts before the court, that the discrimination did
not take place as alleged..."
Discrimination is
defined in S1 of the Act as follows:
"It means any act
or omission, including a policy, law, rule, practice, condition or
situation which directly or indirectly:
imposes burdens,
obligations or disadvantage on; or
withholds benefits,
opportunities or advantages for many persons on one or more of the
prohibited grounds.
The
prohibited ground of unfair discrimination relied on by the company
is race and as pointed out above, it relied specifically
on ss 7(c)
and (e). In
Prinsloo
v Van der Linde & Another
1997
(3) SA 1012
(CC) para 23, the Constitutional Court, in dealing with
the equality clause in the interim Constitution said the following:
"The idea of
discrimination (to employ a neutral description term) seems to lie
at the heart of equality jurisprudence in
general and of the s 8
right or rights in particular."
Thus to even begin to
get off the ground, the company must, at the very least, show that
it was treated differently to other engineering
consultants in
relation to COT or CCT projects. The company had to show that in the
totality of City projects, it receives disproportionately
fewer
contracts so in relation to other consultants Since the very premise
of the company's case was race, it had to establish
a
prima
facie
case
that the discrimination was race based."
In the present dispute,
the complainant was required to show that he had been subjected to
treatment from the police which discriminated
against him on the
grounds of ethnicity or social origin, In short, his case was that
the treatment that he received had been
based on xenophobic
considerations, that is discrimination, because he was a Somali
national and was not a South African.
I had decided earlier
during the proceedings that complainant's evidence established a
prima
facie
case.
That then required respondent to show, in the first place, that no
discrimination, as alleged, had taken place. To this
end, respondent
called two witnesses. Colonel Van Wyk testified that he was the
Station Commander SAPS in Milnerton on 22 May
2008. The Milnerton
Police Precinct was responsible,
inter
alia,
for
the policing of Dunoon and the Joe Slovo informal settlements.
Colonel Van Wyk confirmed that there were a large number of
foreigners and refugees living in these areas and that they ran
approximately 100 spaza shops in this area
He testified that a good
relationship had existed between the police and the foreign
community in the area and that he had never
received any complaints
from foreigners in the area about police officers acting in a
discriminatory nature, neither from individuals
nor from the various
associations. He testified that in early May 2008, the Milnerton
Police had become aware of xenophobic attacks
that had spread
through parts of the country and particularly in Gauteng. It was
decided, therefore, that a pre-empting strategy
was needed to
protect foreigners in their area and to prevent such attacks from
occurring.
In the week leading up
to the events which, on the basis of this case, Colonel Van Wyk
testified that he deployed extra police
patrols in the Dunoon area
where most of the foreign nationals resided and there was enhanced
police intelligence in order to
pre-empt any attacks that might
occur. No report backs of any unusual activity in the area were
received. He testified further
that the various community structures
in the area requested that a meeting be held in order to plan how
the police in the community
could deal with any xenophobic attacks
in the event that they occur in the area. A planning meeting was.
therefore, held on 19
May 2008 at the Dunoon Resource Centre. It was
attended by various civic organisations, sector crime fora, street
committees,
foreigners residing in the area and the local
councillor, Stemele. Colonel Van Wyk could not attend the meeting,
but sent Lieutenant
Colonel Ncata and Colonel Hobana, who attended
on his behalf.
It was decided at this
meeting that there was a need for a bigger meeting which would
include a broader local and foreign audience
drawn from the
community of Dunoon, in order to disseminate a message which would
prevent xenophobic attacks from occurring.
22 May 2008 was the date
set for this particular meeting which was to be held at the
Sophakama Primary School Hall in Dunoon.
According to Van Wyk, this
was the venue which was generally chosen for such meetings in the
area. The police undertook to assist
in advertising the meeting by
printing and helping to distribute pamphlets, to which reference has
been already made. Accordingly
some 200 English and Xhosa pamphlets
were distributed over the period 21/22 May 2008 by members of the
police, the street committee
members, as well as Bambanani
Neighbourhood Watch members. The police used a PA System in their
vehicles to announce the meeting.
The message that was
conveyed was that the police and the community were very concerned
to prevent any xenophobic attacks and
that the meeting had been
called to serve this purpose. Van Wyk also testified that he and
Lieutenant Colonel Ncata attended
a meeting on 20 May 2008, which
had been called by the third respondent. Disa Court in Bishop Lavis.
Police, various civil society
representatives, media and foreign
nationals were present at the meeting, which had been called to
discuss the way forward in
the Western Cape, should attacks similar
to that which had occurred in Gauteng occur in this province
According to Van Wyk, third
respondent addressed the various civil
society stakeholders, followed by a media briefing and lastly met
with various station
commanders in the Western Cape.
In this meeting, all
station commanders were instructed to formulate contingency plans to
deal with possible attacks that may
arise in and around the Western
Cape Van Wyk testified that pursuant to this meeting on 21 May 2008,
he organised a meeting at
the Milnerton Medi-Clinic with all the
main role players in the Milnerton area He met with various
officials from the Milnerton
Fire Brigade, the ambulance service,
the hospital manager, disaster management, the Metro Police Service,
members from the neighbourhood
police stations, as well as the key
holder of the Killarney Racetrack. He included the key holder in the
meeting as part of their
contingency plan to use the racetrack as a
venue to accommodate foreigners and refugees who might need shelter
should any of
these attacks occur.
He testified that, on 22
May 2008, the day had begun without any untoward incidents. He had
to leave Milnerton to attend the Provincial
Crime Combating Forum in
Bishop Lavis, but was intent to return for the community meeting.
His meeting took longer than anticipated
and accordingly he asked
Ncata and Hobana to represent him at the community meeting. They
were in constant telephonic contact
with regard to the progress of
the meeting. Van Wyk testified that Ncata informed him that hundreds
of local and foreigners had
come to the school
hall for the meeting. It
was decided to move the meeting outside on to the schools soccer
field. It was now becoming dark, there
was no electricity on the
soccer field. A power sound system was organised and the meeting
decided to postpone the meeting to
the Saturday afternoon. An
announcement by Councillor Stemele was then made.
Van Wyk arrived at the
school to meet up with Ncata at approximately 19:00. At that stage
the crowds had left the school premises.
Shortly thereafter, he
received the first report of a foreign shop which had been attacked
in Dunoon When they arrived on the
scene, he found that the foreign
shop had been looted. Police had cordoned off the area for further
investigation. He then received
further reports of violence and
immediately called for backup. He gave instructions to the joint
operation centre to be activated
to the Killarney Racetrack. He then
activated the various emergency services, the air wing support and
the crime control units.
He further called the Provincial
Commissioner Petros to inform him of the situation in Dunoon and
Commissioner Petros, who lived
in the Milnerton area, began to walk
immediately towards Dunoon.
Van
Wyk despatched his branch commander to pick up Commissioner Petros
en route to Dunoon. They drove through Dunoon and eventually
to the
Killarney Racetrack
When they arrived at the
racetrack, the SAPS helicopter was on standby and Commissioner
Petros and Van wyk boarded the helicopter.
Van Wyk testified that he
monitored the situation from the helicopter, issued instructions. He
saw the attacks unfolding on the
ground. The attacks had begun to
intensify. Bigger groups started splitting with the smaller groups
and the violence spread all
over Dunoon into the Joe Slovo area. Van
Wyk testified if a complaint was reported to the joint operation
centre, details were
recorded and a vehicle was despatched to the
particular scene. The complaint and the follow up would be reported
in the occurrence
book. There were no entries in the occurrence book
between 20:00 and 21:00 on the night of 22 May 2008 of any
complaints received
of attacks which had occurred at the Blue
Lagoon, that is. of course, the location of complainant's shop.
Van Wyk testified that
he continued to co-ordinate the operation from the helicopter,
untill it needed to refuel. He then returned
to the racetrack to
ensure that foreigners will be accommodated. The main instruction
given to the police was to remove all foreigners
out of any harm and
to ensure that they were taken to a place of safety. The principal
priority was to save lives. Later that
evening when large SAPS and
other trucks arrived on the scene, they did try to save some of the
goods from the various foreign
owned shops. He testified it was a
very slow process removing goods from these shops, as they were
small items that had to be
loaded on to trucks. He had one truck at
the Milnerton Police Station, but he requested Metro Police and the
City to send through
further trucks to assist. Van Wyk testified
that the members of the police did their very best to assist as many
foreigners as
possible in extraordinary difficult circumstances.
The police tried to
prevent looting by shooting numerous rounds of rubber bullets into
the crowds and were trying effect arrests.
Indeed they ran out of
ammunition and were required to replenish their stock. All dockets
opened in respect of the incident were
allocated to special
investigation teams under the command of Inspector Boltney, who had
been designated to deal with these issues.
Colonel Van Wyk denied
that he or any of his police officers would have acted in a
discriminatory manner towards the foreigners
on the night in
question. He found it most unlikely that a police officer would
bluntly refuse to assist a foreigner, as had
been testified by the
complainant. Most of the police officers, including himself worked
for close to a 24 hour shift during
the events in question without
any demure or demanding an compensation He confirmed that each
police officer was required to
wear a name plate. If the complainant
had identified a particular police officer with whom he allegedly
dealt, the matter would
have been investigated, and if any
wrongdoing established, disciplinary action would have been taken.
The first, however, that
he came to hear of the complainant's case
was when he received notice of the full proceedings, by then he was
no longer at the
Milnerton SAPS and he had been redeployed to the
Claremont SAPS.
Lieutenant Colonel Ncata
sought to corroborate the evidence of Van Wyk in material respects.
He testified that he was present
at the meeting of the community
representatives on 19 may 2008, as well as the meeting of the third
respondent on 20 May 2008
and the meeting of 22 May 2008. which he
had attended on behalf of Van Wyk. He confirmed that there were no
xenophobic statements
expressed by the crowd in the school hall or
on the evening of 22 May 2008. He denied that members of the crowd
were rowdy or
that they had carried weapons. Neither he nor any of
the police officers posted at the entrance to the school hall had
observed
the crowd carrying weapons. If they had noticed people
carrying weapons, they would have confiscated such weapons. He
testified
it was only after the crowd had been dispersed that the
first report of attacks were received, and this was all after 20:00.
He testified that many
of the foreign nationals, as well as local community members had
called him to come out and assist the
foreigners. It was mainly a
group of young people who were involved in the looting, but most of
the older community members disproved
of this conduct. Ncata
testified that he found it very difficult to believe that a police
officer would refuse to help a foreigner
on the night in question,
as there were many high ranking police officers, politicians,
members of the media and representatives
of NGO's present in the
area that night. Any misconduct on the part of any police officer,
would have been exposed very easily.
In any event he testified that
as far as he could ascertain, all the police officers that evening
had tried their very best to
prevent looting and to assist
foreigners as far as is possible. None of the police officers, in
his view, would have acted in
a discriminatory manner towards
foreigners.
Proof
The evidence having been
summarised, it is possible now to return again to the question of
proof. The phrase
prima
facie
case
employed in section 13 of the Act, presumably is used in its
generally accepted meaning of 'in the absence of further evidence
from the other side, that which is
prima
facie
now
becomes conclusive proof. See
S
v Boesak
[2000] ZASCA 112
;
2000
(3) SA 381
(SCA) at 396. In terms of section 13 of the Act, a
prima
facie
case
triggers an obligation upon the defendant to prove that
discrimination did not take place That, of course, raises the
question
of whether, upon a
prima
facie
case
having been made, the onus now shifts conclusively to the
respondent, who bears the ultimate burden, or whether the ultimate
burden still remains with the complainant. The Act, of course, is
hardly a model of clarity of drafting and makes this question
all
the more difficult to determine.
To the extent that the
onus shifts to the respondent to prove that discrimination did not
take place, a court surely needs to
evaluate the weight of the
prima
facie
case
against that of the evidence produced by the respondent in order to
arrive at a conclusion as to whether there has been discrimination
or not and accordingly hold in favour or against the complainant. As
stated earlier, I found that a
prima
facie
case
had been made out. although the approach adopted in the
Manong
case, may well have made
this threshold somewhat more difficult to negotiate. The judgment of
the SCA was however delivered after
my ruling had been made.
Nonetheless, the
question arises as to the overall evaluation of the evidence. In
this case, complainant's main point is that
the police officers
merely watched while his shop was looted and all they did was to
instruct him to leave the premises. Had
they made an effort to
prevent the looting, to some extent at least, there would have been
a mitigation of loss suffered by the
complainant. That is, in
essence, the central thrust of his case.
If that was the final
factual matrix upon which the Court had to evaluate events,
complainant may have been the victim of discrimination
as defined
and accordingly this Court would have been obliged to find in his
favour But that is not the only factual basis upon
which this Court
has to work. In general terms, the following evidence is also
relevant: The complainant was a single witness.
He gave different
versions as to how precisely he ascertained that the looting took
place. In his first statement he made no
mention of the police
conduct, although as I have noticed, Ms
Nvman
sought to circumvent the
difficulty by saying he would have been reluctant to disclose police
misconduct to the police themselves.
There was no indication in his
case as to the identity of the police officers who were allegedly
involved in the case, even though
there is no suggestion that they,
together with their other police colleagues, would not have had
their name on their uniforms.
By contrast, the two
police witnesses gave detailed accounts of police attempts to
pre-empt and deal with the xenophobic violence.
Ms
Nvman
submitted that the very
manner in which the public meeting had been called and held in a
venue which was so unsuitable, was in
itself a contributory cause to
the violence. I am uncertain as to whether this particular
allegation can add much to the complainant's
case. It appears that
the magnitude of the attendance of the meeting caught the police
authorities by some surprise, but it is
clear that xenophobic
attacks had spread through the country and whatever explanation is
offered, the set of events is a dreadfully
sad reflection on the
fragility of a sense of community enjoyed in South Africa.
As to the evidence read
as a whole, it is difficult, absent further evidence to support the
complainant's version, that the Court
can make a determination on
his allegation. Van Wyk testified about the pressure with which the
police were confronted. The priority
had been set to save lives
before property. These attempts so exhausted the police forces that
even their ammunition supply was
in need of replenishment.
There is no indication
in the detail of the occurrence book of any complaint having been
received insofar as looting at the Blue
Lagoon shop was concerned.
It is difficult to divine any general approach by the police to
discriminate on Somalis on the basis
of their identity. To the
extent that only foreign shops were looted, that was not because the
police were only prepared to guard
shops of South Africans It was
because the violence was targeted exclusively at foreigners
Ms
Nvman
submitted that, whatever
the evidence of Van Wyk and Ncata, it did not discount the
possibility of rogue policemen, who may well
have acted in the
fashion described by complainant. It is at least possible, in the
light of all the evidence, that the police
prioritised, in this
particular case, too inflexibly and perhaps they should have been
more flexible in the provision of assistance
with regard to looting.
If that is the case, it
becomes one based on negligence and not on discrimination in terms
of the Act. It may well be that the
loss suffered by the complainant
was caused as a result of negligence of police officers who were in
the vicinity of the shop,
but that is, of course, a case different
from the one that was brought before this Court, which was based, as
it has to be, on
discrimination.
I, of course, am unable
to say more about whether there is a case which could be mounted on
the grounds of negligence. I merely
suggest that much of the
trajectory of the complaint appears to be directed in this direction
as opposed to that which would
ground the cause of action in terms
of the Act.
This is not a conclusion
to which I have come lightly. The tragedy which unfolded during the
events in question has caused the
complainant to suffer egregiously.
The least, however, that I can do. is that given that this case
having been brought in the
manner in which it was, is to find that
there should be no basis to exercise my discretion to penalise the
complainant any further.
Accordingly I do not intend to make any
award as to costs.
THE
COMPLAINT, HOWEVER, IS DISMISSED.
DAVIS,
J