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[2016] ZAEQC 1
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ANC v Sparrow (01/16) [2016] ZAEQC 1 (10 June 2016)
IN
THE MAGISTRATES COURT FOR
THE
DISTRICT OF UMZINTO
HELD
AT SCOTTBURGH CIVIL COURT
CASE
NO: 01/16
DATE:
10 JUNE 2016
In the matter
between
ANC
..............................................................................................................................
COMPLAINANT
and
PENNY
SPARROW
.......................................................................................................
RESPONDENT
COURT
Thank you. On this day, 10 June 2016, in the
Equality Court for the district of Umzinto held at Scottburgh in the
matter between
African National Congress, being the complainant, and
Penny Sparrow, the respondent, case number 1/2016. Presiding
officer,
I Khalil. For the complainant, can I just invite
counsel?
MR
POTGIETER
Thank you, Your Worship, I am
Adv Denzel Potgieter, I am a member of the Cape Bar. I appear
for the complainant in this matter,
the African National Congress, on
instructions of Mr Williams from Attorneys Robert Charles, also
from Cape Town. Thank
you.
COURT
Thank you, Adv Potgieter. For the
respondent? Can I just ask that her name, is there anybody
present for the respondent?
Yes? Please stand up.
You may come forward to the microphone. Yes, your full names,
please.
MS
COWIE
Charmaine Carina
Cowie.
COURT
Surname again, please, ma’am?
MS
COWIE
Cowie [spelt].
COURT
Thank you, yes, and who are you to the respondent?
MS
COWIE
Her daughter.
COURT
Yes, Ms Cowie? May I just perhaps start
off by asking where is the respondent? Is she not present at
court today?
MS
COWIE
She is not present,
she is sick at the moment with sugar diabetes. It has taken its
toll.
COURT
Yes, is there anything in particular you wanted to
tell the Court?
MS
COWIE
She is unable to come
to court today.
COURT
Yes?
MS
COWIE
Because of the stress
obviously that this has caused. She did try and get legal
counsel and no-one will represent her.
COURT
Yes?
MS
COWIE
So she just doesn’t
know what to do and the presiding detective on the case phoned me
last night and said to me I need to
come in today to make an apology
and ask for a postponement to find out so that she can actually find
out what she can do and how
she can make an apology to the Court.
COURT
An apology for?
MS
COWIE
For the comments she
made on Facebook.
COURT
Ms Cowie, is my understanding correct that
the respondent had requested you to come to court today?
MS
COWIE
Yes.
COURT
So you don’t come of your own accord.
You come pursuant to a request from her.
MS
COWIE
Yes.
COURT
That’s how I have understood you.
MS
COWIE
And from the
policeman.
COURT
So the police, did I understand that correctly,
asked that the respondent be present or you be present to apologise?
MS
COWIE
She can’t be
present because of fear of her life. So that’s why I’m
here.
COURT
Yes, is there anything further?
MS
COWIE
No.
COURT
All right, thank you, you may be seated,
Ms Cowie. Adv Potgieter, may I just hear the attitude of
the complainant?
MR
POTGIETER
Yes, Your
Worship, we note with some surprise what is being told to the Court.
The position in this matter is, Your Worship,
that every conceivable
effort has been made to actually make direct contact with the
respondent, with Mrs Sparrow, over a
period of time. It
has become readily apparent that Mrs Sparrow was evading the
attempts to, for example, to serve the
papers in this matter on her.
Various attempts have been made to serve the papers. In fact,
Mrs Cowie, the daughter,
has been involved in those attempts to
serve papers in this matter on Mrs Sparrow. You will
notice, Your Worship, that
the returns of service, returns of
attempted service in the matter, the operative one you will find on
page 37 of the papers.
COURT
Yes.
MR
POTGIETER
That one
indicates, Your Worship, that on 25 January this year the process in
this matter was – there was an attempt by the
sheriff to serve
the process in this matter and if you look at the return the sheriff
reports that the process was dealt with as
follows. The initial
attempt to serve was made on 22 January and there was an attempt to
serve the papers on Jawitz Properties.
COURT
Yes.
MR
POTGIETER
The sheriff was
then told that the respondent no longer works for that business, that
is on the 22
nd
,
and the sheriff was directed to South Coast Landscaping. So
then the sheriff went on 25 January, three days later, and attempted
to serve the papers at South Coast Landscaping, and the sheriff spoke
to the defendant’s daughter, Mrs Cowie, who is
here, and
Mrs Cowie told the sheriff that the respondent was in
Johannesburg. Then the sheriff later on the same day
on the
25
th
went
to the residential address of Mrs Cowie and there the sheriff
was told that – or in any case the respondent was
not present
at the house and that the note says:
“
Defendant
not there, still in Johannesburg as per daughter, Mrs Cowie.”
[Channels
mute at 00:09 to 00:10] ...part of the affidavit of Ms Perumal,
the local correspondent of Mr Williams.
COURT
Yes.
MR
POTGIETER
She has deposed
to the affidavit in the application for substituted service. We
will get to the substituted service in a minute.
On page 32 in
paragraph 4 of the affidavit of Ms Perumal it is indicated with
regard to these unsuccessful attempts at serving
the papers. It
says in that second paragraph of paragraph 4, middle paragraph, it
starts there:
“
The
deputy sheriff’s first attempt was to serve on the respondent’s
last known place of employment, namely that of Jawitz
Properties and
was then directed by then to the respondent’s daughter, Mrs C
Cowie, at South Coast Landscaping.”
Then
it carries on, it says:
“
I
was informed by deputy sheriff Luke that he had communicated with the
respondent’s daughter who had stated that the respondent
would
be returning from Johannesburg shortly, but she, Cowie, refused to
accept service on her behalf. She also stated that
her mother
was living in fear, therefore she had left this area and was at an
undisclosed address in Johannesburg. It is
clear from this
conversation and from media reports that Cowie was in contact with
the respondent but she refused to divulge the
whereabouts of the
respondent. Her daughter has in all likelihood informed the
respondent that the sheriff intends to serve
process on her and it is
possible that the respondent may wish to avoid service.”
We
then take Your Worship to page 40 of the papers, it is Annexure ANC4
of Ms Perumal’s affidavit. That is a report
from
News 24, the heading reads:
“
Penny
Sparrow flees her nest.”
And
then if Your Worship counts one, two, the third paragraph of that
report it says as follows, on Friday, this report, by the
way, if one
looks just under the heading “Penny Sparrow flees her nest”,
is dated 10 January 2016.
COURT
Yes.
MR
POTGIETER
So that was the
date of this article and it says then in that paragraph that I have
referred Your Worship to:
“
On
Friday, her daughter, Charmaine Cowie, with whom Sparrow has lived
and worked since November...”
She
has lived and worked with Mrs Cowie since November 2015.
“
...told
City Press at her landscaping and nursery business in Park Rynie,
that her mother had gone underground.”
They
quote Mrs Cowie, so Mrs Sparrow has gone underground.
Then Ms Cowie says, and I quote her:
“
I
don’t share her opinions, said Cowie, who was accompanied by a
friend.”
And then they quote
Ms Cowie again:
“
Unfortunately
that is all I have to say at this time. She has gone
underground.”
Then
before we get to the substituted service I just want to complete the
sheriff’s attempts at serving the papers in this
matter and on
page 39 of the papers, Your Worship, there is another return of
service from the sheriff. That return of service
gives the
service address, the address at which an attempt was made to serve,
on the top, just before the block with “Notice”
written
in it, the address is 90 Preston Road, Park Rynie, which we know is
the residential address of Mrs Cowie and who we
know had her
mother living with her since November last year. The return
says, just below the block with “Notice”
in:
“
On
11 February 2016.”
So
Your Worship will recall that the first attempts were on the 25
th
at
Mrs Cowie’s business address and at the same residential
address. So the sheriff went back there on 11 February
at 12
o’clock, and then the sheriff gives a return of the service and
it appears there below the heading of “Fixing”,
appears
there that the sheriff called at that residential address. The
last two lines of the section that deals with the
service says:
“
The
premises remain locked and nobody was present on the premises.
After a diligent search and enquiry with neighbours no
other manner
of service is possible and it appears that what the sheriff then did
was to affix the papers on the premises.”
So
that was the last attempt that was made by the sheriff. So by
this stage, Your Worship, at the very least, Mrs Cowie
was very
well aware of what was taking place. She knew that the sheriff
was endeavouring to serve papers on her mother.
She knew the
whereabouts of her mother. She said to the sheriff in
Johannesburg but she also said that her mother has gone
underground,
so she knew where the mother was. To add to that, Your Worship,
the fact that this matter had consistently received
media coverage,
prominent media coverage, in the mainstream media, print media,
etcetera, etcetera. So one can safely accept,
we submit with
respect, that the respondent herself, apart from the fact that on the
probabilities Mrs Cowie would have told
her look here, this is
what’s going on, they’ve got papers there for you, the
respondent herself must have been aware
that this matter has been
launched and that the matter is proceeding and that there are
attempts to serve papers on her.
Well, that was not the end of
the complainant’s endeavours to make sure that the respondent
is given fair notice of this
matter, because the complainant came to
court here and obtained an order for substituted service of the
process and an order was
obtained, Your Worship, on 15 March 2016 for
substituted service and you will find the substituted service, the
manner of substituted
service that was affected, you will find in the
service affidavit or Mr Williams and the operative part of that
affidavit
is on page 49, Your Worship, that is what we would like to
draw your attention to.
COURT
Yes.
MR
POTGIETER
And Your Worship
will notice from there that the substituted service was effected in
the following way, the process was advertised
in accordance with the
court order of 15 March. In the Saturday Star on 9 April 2016.
In the Saturday Independent on
the same date, 9 April 2016, and in
the Sunday Times of the following day, 10 April 2016. So there
was publication of the
process in those major newspapers.
And
you will notice then, Your Worship, in subparagraph 7.4 on that page
49 Mr Williams indicates that a process was also forwarded
by
registered mail and if Your Worship then goes to page 55 in the
papers, that is Annexure PGW5, Your Worship, will find the
certificate of posting of the registered notice and Your Worship will
notice there that the registered letter was addressed to Ms Penny
Sparrow at 90 Preston Road, Park Rynie, 4182. That was the, we
know, residential address of Mrs Cowie where we know
the
respondent was living since November last year. So we submit,
with respect, Your Worship, that adequate attempts and
steps have
been taken to ensure that the fact that this matter is pending in
this court was brought to the attention of the respondent.
COURT
Thank you, just one moment, Mr Potgieter, but
that appears to be almost common cause by virtue of the appearance of
Mrs Cowie
at court today and she confirms that the respondent is
indeed aware that the matter is in court today and is aware of the
matter.
MR
POTGIETER
Yes, in fact,
that is the point that we are driving at.
COURT
Mmm.
MR
POTGIETER
And the next
point that we want to make, this is made against the backdrop of our
submission, this is a delaying tactic, Your Worship.
It is
absolutely unwarranted.
That
is not the conduct of a reasonable person who is concerned about
dealing with this matter. Having been aware, as we now
know,
from what the daughter tells the Court, she does nothing.
The
daughter comes here after the complainant has gone to all the
expenditure and everything to set this matter up to get it ready
to
be heard, ripe for a hearing.
She
does nothing all this time to approach the Court or to put some
version or to indicate what her attitude is towards the matter,
nothing. The daughter comes this morning.
That
is not the conduct of a reasonable person. We are seriously
intending to do something about this matter. Now what
does the
daughter say, how does Mrs Cowie see it?
She
doesn’t indicate to Your Worship that the respondent suggests
that she’s got a defence to this matter.
COURT
Mmm.
MR
POTGIETER
She says well,
the respondent wants to find out how she can, what she can do to
apologise for her conduct. That is provided
for in the relief
that the complainant is seeking, Your Worship, exactly that, that one
of the items of relief that this Court
would be asked to give is for
Mrs Sparrow to give a written undertaking that she will never
conduct in this kind of detestable,
she never engage in this kind of
detestable conduct again. So she will get an opportunity to
apologise and to say sorry,
I’ve done this, I will never do it
again. So that’s taken care of, Your Worship.
So
there is nothing that she wants to add to the merits of this matter.
She is talking to the relief, really, and we are talking
the same
thing.
We
are also saying yes, she should be apologising and yes, she should
give a written undertaking, so we agree with her that she
should do
that.
Mrs Cowie
says that the respondent, amongst other things, is not coming to
court because she fears for her life. So she
is not going to
come to court. She is not saying she is going to come to court,
she is never going to come to court because
she fears for her life.
So
under those circumstances we are saying that there is absolutely no
basis for delaying this matter any further. This is
a serious
matter, Your Worship. There is considerable public interest in
this matter. It is in the interest of justice,
it is in the
interest of the public that we dispose of this matter.
It
is in nobody’s favour, it doesn’t do anybody any good to
have this kind of thing hanging in the air. It is
bad for all
of us and we are submitting with respect that there is no basis, no
basis has been given to you why this matter should
be delayed any
further.
It
is most of this is common cause, really, and perhaps just to round
that off, Your Worship, I have a bundle of authorities that
I will be
handing to you shortly, but I am just referring you, just in this
context, to section 4(1)(a) of the Promotion of Equality
and
Prevention of Unfair Discrimination Act, the Act that we are
concerned with in these proceedings, and the Act says in section
4,
dealing with the guiding principles:
“
In
the adjudication of any proceedings which are instituted in terms of
or under this Act the following principles should apply.
a)
The expeditious and informal processing of cases
which facilitate participation by the parties to the proceedings.”
So
under those circumstances there is really no case before you, Your
Worship. There is just a bold request that the matter
should be
postponed because the police detective said something last night, but
that doesn’t take the matter any further.
There is no
ground to delay and we submit that the matter should proceed, Your
Worship. The respondent cannot be prejudiced.
In fact,
even now with Mrs Cowie present here we don’t know where
the respondent, she hasn’t told us where the
respondent is.
The complainant is ready to proceed and we therefore ask, Your
Worship, that the matter continue.
COURT
Adv Potgieter, just a few enquiries by the Court.
It seems from what Mrs Cowie has informed the Court today, but
for
the police officer telephoning her last night, she would not have
been present in court today and it seems according to Mrs Cowie
that her presence in court today is motivated by some talk by the
police officer of a warrant for the arrest of the respondent.
Would you – is your understanding the same?
MR
POTGIETER
That is correct.
It is actually, thank you for reminding us.
COURT
Yes.
MR
POTGIETER
That is exactly
what she said and that is also a cardinal factor in this matter.
COURT
Mmm.
MR
POTGIETER
Yes, we
understand it that way, Your Worship, as well.
COURT
It also seems to me and perhaps you can address me
on this, that the test in such matters falling within the ambit of
the Equality
Act and the Equality Court, that a postponement of the
hearing, the law seems to place a greater degree of satisfaction
before
it can postpone a hearing in that, I would understand it in
most other matters in law, it would be in the interest of justice to
grant or refuse a postponement but in these matters it seems to be
compelling reasons or circumstances.
MR
POTGIETER
That is
precisely, that is exactly the law, because, Your Worship, in these
kind of matters, it is not the kind of matter between
two
individuals. There is a public interest. The public is
affected by this thing.
COURT
Mmm.
MR
POTGIETER
So there is a
wider interest and that’s why there is this provision in the
Equality Act that once you deal with these things
as promptly as
possible, because the longer they fester the worse it becomes, so you
have to deal with it, you must nip it in the
bud and in the bigger
good of society in the country.
COURT
All right, thank you very much, Mr Potgieter.
MR
POTGIETER
Thank you, Your
Worship.
COURT
Mrs Cowie, please come forward, ma’am.
You’ve heard what has been submitted by counsel for the
complainant
in this matter, Adv Potgieter. Is there anything
you would like to say? Anything further?
MS
COWIE
I don’t want to
say anything in fear of saying the wrong thing because you’ve
got a layman here versus High Court lawyers.
There’s just
no chance I can say anything, in all fairness. I don’t
know which way to turn.
COURT
Would you – perhaps the Court can assist
you. Would you like to say anything about the postponement of
this case, anything
further?
MS
COWIE
The only reason why
I’m asking for a postponement is now the Court is aware that my
mother cannot get legal representation
because of the high profile of
the case and if it is properly investigated, the investigator who has
been dealing with us from
day one has been in contact with both me
and my mom and knows everything and has been quite surprised as to
why no-one has contacted
him and we have – we just don’t
know what to do, basically.
COURT
All right.
MS
COWIE
If I can state, she
is retired, a pensioner, she’s got no money. She’s
quite old, there’s no chance of her
getting any income either.
She is divorced and she is now officially homeless. So it is
extremely difficult to pretty
much do anything to bring her forward
here.
COURT
Yes.
MS
COWIE
I don’t want to
prolong it either, we also want it to end.
COURT
Okay. Thank you, Mrs Cowie. Thank
you.
-
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
- -
RULING ON
APPLICATION
COURT
A ruling, this is an application for a
postponement of this hearing under the Equality Act. The
respondent is not present
in court, however, Mrs Cowie, the
respondent’s daughter, is indeed present in court today.
It
is the daughter, Mrs Cowie, who seeks this postponement on
behalf of the respondent. The application has been strenuously
opposed by counsel for the complainant.
The
basis for the application is that the respondent is fearful for her
life. It appears that she has been unable to secure
legal
representation and the reason for her seeking the postponement, it
appears from the submissions by Mrs Cowie, is that
she would
like to apologise.
In
clarification Mrs Cowie stated to apologise for the comments
posted by the respondent. It is also clear that some
investigating officer had contacted either the respondent or
Mrs Cowie and asked them to be present in court today, failing
which a warrant for the respondent’s arrest will be
authorised. So I have understood Mrs Cowie.
Counsel
for the complainant has addressed the Court in detail regarding the
diverse occasions on when the sheriff of the court had
attempted to
serve notice of the institution of the proceedings on the respondent.
In
this regard the complaint herein was instituted or lodged with the
Court on 29 January 2016. To the extent that the respondent
could not be located by the sheriff of the court, the complainant was
then compelled to seek relief from this Court to serve the
institution of the application or the complaint on the respondent by
way of substituted service which was also done.
I
do not think it necessary to deal with each of those attempts and the
substituted service in any greater detail as it appears
that the
respondent is well aware of the complaint as well as the hearing
today in court.
The
respondent had accordingly some four and a half months to either
obtain legal representation to contact the complainant’s
legal
representatives or for that matter even the Clerk of the Equality
Court to communicate her difficulties. She has not
done so, as
best it is known.
I
am in agreement with counsel for the complainant, that from the
submissions made by Mrs Cowie there appears to be nothing
to be
added to the merits of this matter save for perhaps an apology which
in any event is part of the relief that has been sought.
The
postponement of matters which are scheduled for hearing, the
legislature had decided it could only be granted in compelling
circumstances or for compelling reasons.
In
most other matters that the courts adjudicate upon the usual or
traditional test is what is or is not in the interest of justice.
In other words, looking at the rights of the parties and the interest
of society perhaps. It is a value judgment that the
Court
makes, but in Equality Court matters or matters falling under the
ambit of the Equality Court, the legislature had decided
to impose a
more stringent test, that is one of compelling reasons, before a
postponement of the hearing may be granted.
As
pointed out by counsel for the complainant, that stands to reason
having regard to the guiding principles in the adjudication
of
proceedings under the Act. That is in section 4(1)(a) which
refers to the expeditiousness of the proceedings, as well
as the
participation of the parties.
When
all is said and done it is apparent to me that but for the
investigating officer contacting either Mrs Cowie or the
respondent
yesterday or a few days ago and asking them to come to
court or a warrant for the arrest of the respondent will be issues,
that
is the main reason it appears why the respondent’s
daughter is at court today.
I
am in the circumstances not satisfied that there have been compelling
reasons put forward to this Court to have these proceedings
postponed. I have also considered the various reasons in
totality, quite apart from each reason that has been submitted and
I
still cannot come to the conclusion that there are indeed compelling
reasons to postpone this matter.
In
the circumstances I accordingly make the following order, that in
terms of Regulation 12(4)(a)(ii) under the Equality Act, that
is the
regulations under the Equality Act, I direct that the proceedings
continue in the absence of the respondent. Thank
you.
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- -
MR
POTGIETER
As the Court
pleases.
COURT
Thank you. Mrs Cowie, you may be
present throughout these proceedings if you so wish.
MR
POTGIETER
Thank you.
[Channels mute from 00:53 to 00:54] to hand up a copy to Your
Worship.
COURT
Thank you, Adv Potgieter.
MR
POTGIETER
Your Worship, we
do not intend to present any evidence today. We will just
address submission to the Court, Your Worship.
COURT
Yes?
MR
POTGIETER ADDRESSES COURT
Your
Worship, it is not exaggerating to make the submission that Sunday, 3
January 2016, was a rather low point in terms of race
relations, the
start of the year for us as a country.
We
were all still in the spirit of the festive period and this is the
incident that we are confronted with. The post in question
that
the respondent had placed has been referred to often, Your Worship,
one has read through it time and time again, but it does
not fail to
really evoke the full gambit of emotions if one looks at this thing.
It
induces a sense of shock. It is hurtful. It evokes rage.
It even makes you feel a bit despondent if you think
that this was
2016, the beginning of 2016.
So
it is not surprising, Your Worship, as we indicate in the Heads of
Argument on page 4 when we deal with the consequences of the
post,
that in the terminology of the social media this thing went viral.
Because
we know, Your Worship, and we will get to the authority in that
regard, but we know if a white person calls black people
monkeys, we
know what it is all about. It is trouble.
We
can do without it and so apart from this thing going viral, as they
say, in that context of social media, it hit the headlines
in the
mainstream media as well.
It
has been publicised over and over because in a sense it is a kind of
a sensational thing also. It is not incorrect, Your
Worship, to
submit that the response from the average reasonable South African
was one of outrage, disapproval, and in fact, that
is what happened
to the respondent because the political party that she had membership
of acted swiftly and we refer to it in our
Heads of Argument what
they did and how she was removed as a member.
So
there can be little question, debate, about the fallout consequences
of this. On page 5 of the Heads, Your Worship, we
refer to the
statutory provisions and we have included, if you have regard to the
index of the list of authorities, there is a
copy of the Act.
It is item 13 of the bundle and we refer in the Heads, Your Worship,
to section 10(1) which obviously Your
Worship is aware of, which
section 10(1) of the Equality Act which amongst other things
prescribes hate speech for obvious reasons.
We
refer on page 6 to the prohibited grounds that the section refers to
and there are things like race, ethnicity, equality, ethnic
origin
and things like that. [Channels mute 01:01 to 01:02]
...to
that context and we refer you to what on top of page 7 what Chidel
and the other authors say in the South African Constitutional
Law,
that the extract that we want to bring to Your Worship’s
attention is in the bundle and this is largely trite.
We
refer to the objects of the Equality Act, to prevent and prohibit
unfair discrimination and harassment, promote equality and
eliminate
unfair discrimination to prevent and prohibit hate speech and to
provide for matters connected [channels mute 01:03 for
15 seconds].
We
refer in paragraph 11 to the fact that the enactment of the Equality
Act was foreshadowed in the Constitution in section 9.4
of the
Constitution.
Over
the page, Your Worship, on page 8, paragraph 12, we give a little bit
more of the background. We refer you to
Currie
et al
,
that comment, and then in paragraph 13 we refer you to what the South
African Human Rights Commission said in the matter of Freedom
Front
versus the Commission.
The
commission reminds us in that context that race, gender, ethnicity
and to a lesser extent religion were the very lines upon
which
apartheid society was legally and systematically divided. These
divisions the commission says were the fault lines
of our society and
represented the points at which we were most vulnerable.
Then
the commission, and importantly for our purposes, Your Worship, the
commission indicates that section 16(2)(c) of the Constitution
withholds constitutional protection from hate speech which
accentuates the chasms that were fostered before 1994 and which
threatened
to tear the society apart.
And
then we proceed on page 9, Your Worship, with our submission that
what the respondent had engaged in was hate speech in contravention
of section 10.
We
set out the reasons for that submission from paragraph 14 onwards.
We refer Your Worship in paragraph 14, there is reference
to footnote
number 12. We refer you to the matter of
Strydom
v Chiluane
where
the obvious point is made that where a white person makes these kinds
of remarks concerning blacks it has a racial connotation
and a
discriminatory import and you will find the references in footnote
12.
There
is Strydom, it is in the bundle, then there is Leboa, Platinum
Mines. Perhaps I can ask Your Worship just to make a
note by
Leboa Platinum Mines that the relevant paragraph numbers are 6, 8 and
12.
COURT
Thank you.
MR
POTGIETER
Where that is
being dealt with and Your Worship will notice that the last reference
in footnote 12 is to an unreported judgment
of
Herselman
v Kaleba
. It is also in the
bundle. In fact, it is item 4, but what we want to ask Your
Worship, just to make a note because
the layout of that judgment
unfortunately is not very easy to follow, but the section that we
would like to draw your attention
to you will find at paragraph
B(2)(a)(b).
So
if Your Lordship has regard to those paragraphs you will find the
reference to what we submit, with respect.
We
then, Your Worship, refer the Court to a few cases which deals with
this kind of insult where black people are called baboons,
things
like that, and we refer you to paragraph 16 in the matter of
Mangope
v Asmal & Another
.
These
are political figures, I am sure Your Worship will recall these names
where the defendant had called plaintiff a baboon and
the Court then
deals with the import of referring to someone as a baboon.
We
cite, Your Worship, the extract from page 286I-A from that judgment
at the foot of page 9 over onto page 10 where the Court said
in the
last section:
“
Applying
that definition it is in my view clear that when the epitaph baboon
is attributed to a person when he is severely criticised,
as in this
case, the purpose is to indicate that he is of a base and extremely
low intelligence but I also think it can be inferred
from the use of
the word in such circumstances that the person mentioned is of
subhuman intelligence and not worthy of being described
as a human
being.”
Then
in paragraph 17 we come back to
Strydom
v Chiluane
and
we unpack that a little bit. This is also a complaint in terms
of section 10 of the Equality Act, it was dealt with in
the Equality
Court where a black employee was called a baboon by his white
superior.
Then
we quote, Your Worship, from paragraphs 13, 14 and 15 of that
judgment and we on page 11 we submit you will find the operative
parts that are directly relevant to present purposes and the purpose
of this matter before Your Worship.
We
underline the comment at the top of page 11 from paragraph 14 where
it says:
“
It
follows that the person described as a baboon in those circumstances
may rightfully perceive them to be hurtful.”
That
is one of the elements of section 10, conduct that is hurtful and
then perhaps I can just complete it, importantly, in paragraph
14,
the Court finds that:
“
The
words complained of fall within the definition of hate speech as
defined in section 10 of the Equality Act.”
And
the Court repeats that finding in paragraph 14 where again it says,
and we emphasise the words again, the words complained of
also falls
within the definition of hate speech.
We
in paragraph 18 come back to the Herselman matter, the unreported
matter, which deals with the same insult and the Court concluded
in
Herselman that the use of the word baboon amounted to hate speech.
Can
we just ask Your Worship in this context, just to make a note that
the section that we refer to is on page 8 of that judgment.
Your Worship will notice that the judgment itself is actually not
paginated.
We
have numbered the actual pages from 1 to whatever it is, so we have
done the numbering and on our written number 8 of that report
Your
Worship will find that section.
COURT
Yes.
MR
POTGIETER
Your Worship,
then we proceed in paragraph 19 dealing with the specific insult in
this instance where there was a reference to monkey
and we submit,
with respect, that it is exactly the same import, it has the same
import if you call a person a baboon, if a white
person calls a black
person a baboon or a monkey, the import is the same and we refer to,
in paragraph 19, to the definition in
chambers, 20
th
Century Dictionary, which was used by the Court in
the Mangope matter.
We
have a copy of the pages in that dictionary in the bundle for Your
Worship’s convenience and we refer to the definition
of monkey
which is basically the same.
Over
the page in paragraph 20 we refer you to the definition of monkey in
the shorter Oxford English Dictionary. We have included
a copy
of the relevant page in that dictionary in the bundle.
In
fact, it is the last item in the bundle and we conclude that section
on page 12 in paragraph 21 with the submission that the
respondent
had patently resorted to hate speech in post by referring to blacks
as monkeys. [Channels mute for a few seconds
at 01:17]
...adversely
on the dignity of blacks and as such caused harm. We then have
a short section on
locus
standi
on
the bottom of page 12, over to page 13, and we submit that the
complainant in terms of those subsection listed in paragraph 23
has
locus
standi
to
bring this matter to the attention of this Court.
We
then say in view of all those submissions at the foot of page 13 that
the complainant has made out a case for the relief, the
clarity, the
relief that is sought in paragraphs 1 to 3 of the Notice of Motion.
COURT
Yes.
MR
POTGIETER
And we then deal
with the question of sanction and we refer Your Worship to various
matters.
COURT
Yes.
MR
POTGIETER
We’ve got
copies of all those decisions for Your Worship’s assistance and
we just give them to convey some sort of an
idea of sanction, quantum
and things like that, although we refer Your Worship to what has been
said in some of these cases.
Obviously it is a discretionary
matter.
One
can get guidelines from other awards but you deal with the matter of
sanction in the light of the particular circumstances and
the facts
of the matter that is being dealt with.
We
refer Your Worship on page 15 in paragraph 27 to a decision in an
English case. We’ve got a copy of that report attached
there but it gives an idea of how one pictures the sanction that you
impose.
If
you under pitch you actually minimise the effect and if you over
pitch it is also not appropriate. So you have got to find
a
balance and as we submit, which you do by having regard to the
particular circumstances.
We
submit in paragraph 34 on page 19 of the Heads, Your Worship, that
compensation in the sum of R200 000 which is sought in
the
Notice of Motion is an appropriate sanction in the circumstances.
This
conduct is particularly egregious, hurtful, uncalled for and it is
the kind of instance where – and one would like to
think, Your
Worship, that it would only be a very small minority of people who
would support, endorse this kind of conduct.
So
we would submit that the Court has to send out a message through the
sanction that it imposes. This is unacceptable.
It would
be dealt with through the appropriate channels so that people do not
take the law into their own hands and the sanction
should then be a
message to the few others that might be like-minded that this does
not work in this country at this point in time.
COURT
Sorry, just on that point. There seems to be
an upsurge, at least of reported matters, dealing with the hate
speech.
So when you make reference to few it seems that it is
increasing.
MR
POTGIETER
It is. It
is disconcerting, to say the least, Your Worship. We have
referred to some of it in the papers.
COURT
Yes.
MR
POTGIETER
Mr Williams
and I are dealing with a number of them currently. One can just
express the hope that this is not the direction
in which we are
heading because you are right, there are way too many for comfort.
COURT
When it comes to assessing the quantum it is
obviously difficult to assess injured feelings and this is, we are
talking of millions
of blacks in South Africa particularly.
Then should the general rule not be that the Court should lean
towards more restraint
rather than over-emphasising the deterrent
effect? I understand what you’re saying. There is a
balance but it
seems to me where it is difficult to assess the Court
should lean towards restraint.
MR
POTGIETER
Yes.
COURT
You would agree with that.
MR
POTGIETER
Yes, Your
Worship, we are not asking in this instance for the Court to break
the respondent. We do not want revenge.
That is not what
it is about. There is an element of restoring things and that
is why the prayer is that whatever the Court
orders in terms of
compensation should go for a good cause, goes to institutions.
We have given you three names to assist
you.
COURT
Yes.
MR
POTGIETER
It can go to
institutions that will make a difference along these lines because
that is really what we want. We don’t
want money from the
respondent. We want to eradicate this kind of thing because it
is in all our best interest, so yes, it
is a discretionary matter and
we have proposed what we have proposed and eventually it is in Your
Worship’s hands, and it
is quite right, I mean, you have to
balance things.
I
guess, Your Worship, that what we are saying is that when you do this
exercise and you do the balancing you have to also throw
into the pot
the fact that there is a completely unacceptable rise in this kind of
thing.
So
there must be an element of deterrence, too, because that is what the
Alexander
v Home Office
one
says, that if you go too soft on the thing then you are really doing
nothing, you might as well do nothing about it. So
you have got
to find somewhere. We know it is difficult.
COURT
Mmm.
MR
POTGIETER
We do. We
leave it in your hands to deal with that one. Your Worship, the
rest of the relief we have dealt with there.
Perhaps I can just
say one or two things about the issue of cost. We did not ask
for cost in the proceedings, but cost is
in the discretion of the
Court. The Court is not bound by what we are saying. So
Your Worship is at large if you are
minded that it is also
appropriate to mark some degree of disapproval with this kind of
thing. You are certainly at large
to order cost in this matter
and if you order cost, although we did not ask for it, we will
support that, that is really what we
are saying, because of the
seriousness of the matter.
In
conclusion we can just say, Your Worship, that the efforts of this
Court to have expedited this matter and to have gotten it
right for
the hearing is appreciated. It has been done, we believe, with
commendable speed. We thank you for that.
COURT
Thank you, Adv Potgieter. Just on the issue
of an apology.
MR
POTGIETER
Yes.
COURT
Now obviously that is in terms of the powers of
the Equality Court to make such an order, but I just want you to
address me on that.
Where an apology is contrived, in other
words, through an order of Court, what is the purpose of that?
You know, where a
person does not come of their own accord and they
have enough time to apologise for conduct, and we understand all
human beings
are fallible, but what is the purpose of the Court
making an order that the respondent issues a written apology?
MR
POTGIETER
Yes, that is a
interestingly enough, Your Worship, that was one of the dilemmas that
we had when we were doing the Truth Commission.
COURT
Yes.
MR
POTGIETER
I was one of the
commissioners there.
COURT
Mmm.
MR
POTGIETER
So often, and
that was our experience, too, it is just done mechanically.
COURT
Yes.
MR
POTGIETER
There is little
value in it for the victim, for anybody, and it becomes just a matter
of routine, really. So what we are saying,
actually, we said in
the papers here at the very least what the respondent should do is to
undertake a written undertaking so that
we have something on record,
public record, that she won’t repeat this.
COURT
Yes.
MR
POTGIETER
Because she seems
to be, you know, she says she wants to apologise.
COURT
Mmm.
MR
POTGIETER
She says she
wants to apologise, but we said at least she should be ordered to
give that written undertaking.
COURT
Yes, I think that point insofar as it pertains to
regulating future conduct, but you know, the apology, the person has
had so much
of opportunity and now the Court makes an order that the
person issues a written apology.
MR
POTGIETER
I see the point.
Can I just take instructions?
COURT
Yes.
MR
POTGIETER
No, we are
inclined, as I have said, that was my personal experience, we are
inclined to leave that in the Court’s hands.
We are not
going to push with that kind of thing. We would be happy for
the relief that we are actually asking in the Notice
of Motion.
COURT
Yes.
MR
POTGIETER
Ja, thank you,
Your Worship.
COURT
Thank you, Adv Potgieter. There is one
further matter, I propose to deliver a judgment at 11:30. I
just want to have
a look at a couple of the authorities. I
think in particular just two on page 2, is that you have given.
There has
been an application before me, well, not formally, but I
have been informed through the court manager that there was a request
to televise the judgment. I just want to hear your views on
that before I grant that relief.
MR
POTGIETER
No, we full
heartedly support that, Your Worship. In fact, we feel that it
is in the public interest to do so. This
is the first one of
this line of matters.
COURT
Yes.
MR
POTGIETER
And our client
would certainly appreciate it being dealt with in that sort of public
way, really.
COURT
All right, thank you very much. The
application that was brought to my notice through the court manager
to have the judgment
televised is hereby granted. So the
television crew in the short postponement can do whatever is
reasonable and necessary
to ensure that that indeed happens, if you
all so wish. The matter will stand down for 15 minutes. I
will resume at
11:30, is that in order?
MR
POTGIETER
Yes, that is in
order, Your Worship.
COURT
Is there any objection to that from any of the
court officials? Are you all okay with that. Mr Ngcobo?
MR
NGCOBO
Yes.
COURT
All right, thank you very much. Thank you,
Court stands down until 11:30.
SHORT
ADJOURNMENT
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- -
ON RESUMPTION
JUDGMENT
10
JUNE 2016
COURT
At the outset I must place on record my
indebtedness to Adv Potgieter SC for having prepared such
comprehensive Heads of Argument
as well as his address in court
today.
The
Court is also appreciative of the efforts made by the instructing
attorney, Mr Williams, for having prepared the complainant’s
list of authorities together with the authorities themselves.
Introduction:
In our continued quest towards a society that is just and defensible,
human dignity in its various manifestations
lies at the heart of all
that we yearn for and aspire to as a nation in transition.
This
complaint which comes before the Equality Court concerns social
conflict arising out of alleged hate speech.
The
African National Congress, the complainant, a political party duly
registered in terms of section 15 of the Electoral Act 51
of 1996
brings this matter both on behalf of itself and a representative
capacity in the public interest before the Equality Court.
The
respondent is an adult white female, estate agent from Scottburgh, a
coastal town, some 30 kilometres to the south of Durban.
It
is alleged that the respondent at all times material hereto was a
member of the Democratic Alliance, a duly registered political
party.
The
complaint arises from the respondent’s posting on social media,
her Facebook page, of comments making reference to black
people as
monkeys and other alleged racist comments pertaining to the use by
black persons of public beaches on New Year’s
Eve.
Facebook
is a social networking website that enables users worldwide to
communicate with each other. It is perhaps apposite
at the
outset to refer to the words posted by the respondent, which read as
follows:
“
These
monkeys that are allowed to be released on New Year’s Eve and
onto public beaches, towns, etcetera, absolutely have
no education
whatsoever. So to allow them loose is inviting huge dirt and
troubles and discomfort to others. I am sorry
to say that I was
among the revellers and all I saw was black on black skins.
What a shame. I do know some wonderful
thoughtful black
people. This lot of monkeys just don’t want to even try
but think they can voice opinions about statute
and their way.
Dear, oh, dear, from now on I shall address the blacks of South
Africa as monkeys as I see the cute little
wild monkeys do the same,
pick, drop and litter.”
These
words were posted on 3 January 2016 and subsequently went viral.
It drew unprecedented coverage and publicity, both
nationally and
internationally.
The
complainant contends that the words posted constitute hate speech as
defined in
section 10
of the
Promotion of Equality and Prevention of
Unfair Discrimination Act 4 of 2000
, Equality Act, and could
reasonably be construed as having been made with a clear intention to
be hurtful towards black people
in general, namely Africans, coloured
and Indians.
The
respondent, it appears, disappeared from public life after the social
media comments had gone viral and could not be located
for the
purpose of serving the complaint on her.
Her
Facebook account was also subsequently closed. Pursuant to a
substantive application to this Court and having regard to
the
provisions of section 19 of the Equality Act read with Regulation
7(1) thereunder relating to service of process, leave was
granted to
serve notice of the institution of the proceedings on the respondent
by way of substituted service.
This
was done by advertisement in early April in a national newspaper and
two provincial newspapers circulating in KwaZulu-Natal
and Gauteng.
The
respondent’s daughter, Mrs Cowie, attended the hearing
this morning seeking a postponement. For the reasons
placed on
record earlier this morning the Court was not satisfied that there
were indeed compelling reasons to postpone the matter.
The
respondent has elected not to file any opposition or to contest the
case in court. It was directed that the proceedings
continue in
the absence of the respondent in terms of Regulation 12(4)(a)(2)
under the Equality Act.
The
matter accordingly stands unopposed but the Court is nevertheless
obliged to adjudicate the complaint and relief sought.
The
issue in this case is whether the words posted by the respondent
constitute hate speech as contemplated in section 10 of the
Equality
Act.
As
pointed out by Adv Potgieter for the complainant the Equality Act
does not exist in a vacuum and the complaint lodged must be
interpreted in its historical context taking into account the purpose
of the Act and our constitutional framework.
In
fact, section 3(3) of the Equality Act obligates any person applying
or interpreting the Act to do so.
I
accordingly think it important to appreciate the social interaction
of the different races in South Africa and to set out some
historical
facts in relation thereto in broad outline. See
Du
Toit v Minister for Safety and Security
2010
(1) SACR 1
(CC) 53.
Background:
Our history has been shaped by segregation, violence, intolerance and
systematic discrimination. Perhaps
South Africa stands out
amongst the nations of the world as a country which drew a system of
apartheid, brutally institutionalised
discrimination against the
majority of its people.
Racist
laws, mostly willingly enforced by the courts and other State
institutions separated people on the basis of race.
This,
to a large extent, promoted the evil and abhorrent notion of race
superiority by the privileged white minority over the black
minority. They were favoured simply because they were white.
That is a historical fact.
The
Native Land Act of 1913 and Separate Amenities Act of 1952 are but
two relevant examples of repressive laws that affected social
behaviour and patterns of life.
Millions
of black people were forcibly removed from their homes and condemned
to isolated existences and a life that was overshadowed
by poverty
and misery.
Many
of the well-maintained amenities, including the beaches at popular
resorts and larger cities were reserved for the exclusive
use of the
white minority.
The
use and enjoyment of many beaches in and around Durban, including
Scottburgh, was no different. In fact, it was criminalised
for
black people to use amenities reserved for the white minority.
The
South African nation was thus characterised by gross violations of
fundamental human rights and with it came enormous inequality
between
the races.
However,
much of what transpired in this shameful period is shrouded in
secrecy.
See
Azanian People’s Organisation AZAPO & Others v President of
the Republic of South Africa & Others
[1996] ZACC 16
;
1996
(4) SA 671
(CC).
The
devastating effects of initial colonialism and subsequently the
inhumane and degrading system of apartheid is perhaps best summed
up
in the final report of the Truth and Reconciliation Commission 1998
(1) Chapter 2, paragraph 44, which reads:
“
Amongst
its many crimes perhaps its greatest was the power to humiliate, to
denigrate and to remove the self-confidence, self-esteem
and dignity
of millions of its victims. What followed was a negotiated
transition which the interim constitution identified
as a historic
bridge between the past of a deeply divided society characterised by
strife, conflict, untold suffering and injustice
and a future founded
on the recognition of human rights, democracy and peaceful
coexistence.”
To
pursue these sentiments and help our nation heal the
Promotion of
National Unity and Reconciliation Act 34 of 1995
was enacted.
In
the words of LANGA CJ in the
Du
Toit
case
in paragraph 22 the purpose was to bring closure and understanding as
well as the cleansing of conscience.
Subsequently
the adoption of the Republic of South Africa Act 108 of 1996, the
Constitution, heralded a radical and decisive departure
from the
past.
The
Constitution envisages a society where all South Africans are equally
treated and equally capable of enjoying the opportunity
and benefits
in the country.
At
its most optimistic it envisages a society based on social justice
where the integrity and dignity of every human being is restored
and
protected and where difference is celebrated rather than tolerated as
part of our beloved country’s rich diversity with
all its
people having a place under the African sun.
The
constitutional aspirations are contained in the preamble to the
constitution which, while recognising the injustices of the
past,
envisages a conciliatory vision going forward in a climate of
peaceful coexistence.
During
this transitional period people of different races who live
separately and who were not accustomed to each other commenced
associating and interacting with each other as equals.
In
effect all persons in the country were as a constitutional imperative
required to interact as a unified society at social, political
and
economic levels. See
AfriForum
v Malema
2010
(5) SA 235
(GNP) 11-12.
Whilst
most members of society readily accepted and embraced the concept of
a new society others found it difficult and still currently
do to
readjust and difficult to give up privileges and practices which they
held near and dear.
Perhaps
not unexpectedly with transformation came social conflict and the
constitution recognised the need to put into place mechanisms
to
overcome reluctance to change and conduct regarded as unacceptable in
a new society founded on human dignity, equality and freedom.
See
The
Constitution Chapter 1 Founding Provision
(1)(a).
The
Constitution: Chapter 2 of the constitution contains a bill of rights
which sets out the various rights of application.
Amongst such
rights relevant to the matter at hand are:
Section
9(1) which provides that everyone is equal before the law and has the
right to equal protection and benefit of the law.
Section 10,
which deals with human dignity, provides that everyone has inherent
dignity and the right to have their dignity respected
and protected.
The
only specific difference in the formulation of this right in the
final text when compared to the interim constitution is that
section
10 now proclaims that dignity is inherent.
In
other words, a person’s dignity is intrinsic to his or her
existence as a human being.
Human
dignity in the final text is also the foremost foundational value
when compared to the interim constitution.
Section
15(1) provides for freedom of opinion and section 16(1) provides that
everyone has the right to freedom of expression.
Subsection
16(2)(a) and (b), however, qualify the extent and scope to the right
of freedom of expression to the extent that propaganda
for was and
incitement of imminent violence falls outside the scope of
protection.
So,
too, in terms of section 16(2)(c) is the advocacy of hatred. If
it is based on race, ethnicity, gender or religion also
placed
outside the scope of constitutional protection.
This
latter subsection, however, adds the further requirement that such
advocacy must constitute incitement to cause harm.
There is
inevitably a tension between the constitutional rights to freedom of
expression, section 16, and the right to human dignity,
section 10.
The
importance of the right to freedom of expression appears to have been
initially widely interpreted by the Constitutional Court
as a web of
mutually supporting rights, which, if taken together, protect the
rights of individuals not only individually to form
an express
opinions of whatever nature, but to also establish associations and
groups of likeminded people, even where these views
are
controversial. See
South
African Defence Force v Minister of Defence
[1999] ZACC 7
;
1999
(6) BCLR 615
(CC).
In
the further development of jurisprudence around the right to freedom
of expression a more balanced approach appears to have been
adopted.
While
recognising the freedom of expression is fundamental to a
constitutional democracy, the Constitutional Court held that it
was
not a preeminent right ranking above all others, nor is it an
unqualified right which automatically trumps the right to human
dignity and it does not enjoy superior status on our law. See
S
v Mamabolo
[2001] ZACC 17
;
2001
(5) BCLR 449
(CC).
When
interpreting the bill of rights the interpretive command in section
39 of the constitution compels a Court to promote the values
that
underlie an open and democratic society based on human dignity,
equality and freedom. The Court must also consider
international law and may consider foreign law.
The
right to dignity is a core fundamental human right which is reflected
explicitly in many international law instruments and constitutes
the
moral justification for many other universally accepted fundamental
rights.
The
universal declaration of human rights in the preamble begins with the
assertion that the inherent dignity and the equal and
inalienable
rights of all persons is the foundation of freedom, justice and
peace.
Section
5 of the African Charter on Human Rights and people’s rights
provides that every individual shall have the right to
the respect of
the dignity inherent in a human being.
So,
too, does section 1 of the Universal Declaration of Human Rights
provide that all human beings are born free and equal in dignity
and
rights. See
Fundamental Rights in
The Constitution
, Davis
et
al
, page 71.
The
Equality Act: To promote the achievement of equality and to prevent
unfair discrimination the constitution in section 9(4) obligates
the
State to enact national legislation.
The
Promotion of Equality and Prevention of Unfair Discrimination Act 4
of 2000
, Equality Act, which came into effect significantly on 16
June 2003, National Youth Day, is a manifestation of this
constitutional
obligation on the State.
It
is against this constitutional framework and historical context
described above that the relevant provisions of the Equality
Act
should be considered in deciding whether the words posted by the
respondent amounts to hate speech.
The
Equality Act in the preamble, while recognising that significant
progress has been made in restructuring and transforming society,
however, acknowledges that unfair discrimination remains deeply
embedded in social structures, practices and attitudes which
undermine
the aspirations of our constitutional democracy.
In
the main the Equality Act endeavours to facilitate the transition to
an all inclusive society marked by human relations that
are caring
and compassionate.
Section
10(1) of the Equality Act prohibits hate speech and provides:
“
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 and
c) promote or
propagate hatred.”
The
prohibited grounds are defined in section 1 of the Equality Act as
including
inter alia
race,
ethnical region and colour, listed grounds or any other grounds
unlisted where discrimination based on that other ground,
amongst
other things, undermines human dignity or adversely affects the equal
enjoyment of a person’s rights and freedom
in a serious manner.
The
word “person” is also defined in section 1 and includes a
juristic person, a non-juristic entity, a group or a category
of
persons.
The
use of the word “blacks” by the respondent is clearly a
reference to race, ethnical region or colour of a category
of persons
and as such falls squarely within the definition in section 1 of the
Equality Act.
The
words, or do the words constitute hate speech? The words posted
by the respondent on her Facebook page consist of 118
words in total
and the word “monkey” in reference to black people is
used four times.
In
determining the natural and ordinary meaning of words posted by the
respondent account must be had not only of what the words
expressly
say but also of what they imply. See
Argus
Printing and Publishing Company Limited & Others v Esselen’s
Estate
1994 (2) SA 1
(A).
It
is also useful to consider the approach adopted in the law of
defamation, namely an objective test which is also the approach
in
International Law.
What
would a reasonable person aware of the context and circumstances
understand by the words in their natural and ordinary meaning?
See
Saskatchewan
Human
Rights Commission v William Watcot & Others
2013
(276) Canadian Rights Reporter 270 (SCC).
In
the Concise Oxford English Dictionary 11
th
Edition revised on page 922 the word “monkey”
is defined as:
“
A
small to medium sized primate living in trees in tropical regions.
Colloquially a mischievous person, especially a child,
archaic ape,
someone who appears ridiculous and burdensome.”
In
the shorter Oxford English Dictionary, 5
th
Edition, page 1818 “monkey” is defined
as:
“
Any
of numerous primates including baboons, a monkey, colloquially,
humiliate by making appear ridiculous, monkey chaser (US slang),
racially offensive, a black person from the West Indies or other
tropical region.”
Clearly
the words posted by the respondent, a white female, of and concerning
black people, had a racial connotation and a discriminatory
import.
The
words convey the message build explicitly and implicitly to the
reader of ordinary intelligence the following:
a)
Reference to black people as monkeys conveys the
explicit message that black people are not worthy of being described
as human beings.
Implicit in this is that they have subhuman or
low intelligence.
b)
Use of the terms “allowed to be released and
allow them loose” in the context in which the expressions were
used is
indicative of the respondent’s view that black people
should have restricted freedom of movement.
c)
People who are black are generally uneducated.
d)
Black people are wild and should not be allowed on
public beaches and towns.
e)
Black people exhibit characteristics of monkeys in
that they “pick, drop and litter.”
f)
To be a black[?] person in a crowd of black people
is shameful and causes discomfort and troubles to others who are not
black.
In
Mangope v Asmal & Others
1997 (4) SA 277
(T) 286J-A the view was expressed
that if a black person is called a baboon, which is akin to monkey,
when severely criticised
the purpose is to indicate that the person
is base and of extremely low intelligence.
The
Court accepted that the person may also rightfully perceive such
words to be hurtful.
In
Strydom v Chilwane
[2007] ZAGPHC 234
;
2008
(2) SA 247
(T) in an appeal from a decision in a Magistrate’s
Court sitting as an Equality Court, it was held that reference to the
complainant as “baboon” and words to the effect that this
“baboon” government of yours will provide you
with some
jobs fall within the definition of hate speech as defined in section
10 of the Equality Act.
Similarly
in the case of
J R Hesselman v K E
Belepa
, an unreported case, Eastern
Cape High Court, Grahamstown local division under case number
231/2009, the Court held that the use
of the word “baboon”
amounted to hate speech.
The
Constitutional Court has acknowledged that the term “harm”
as used in section 16(2)(c) of the constitution is not
limited to
physical harm.
LANGA
CJ held in
Islamic Unity Convention v
Independent Broadcasting Authority & Others
[2002] ZACC 3
;
2002
(5) BCLR 433
(CC) the following:
“
Implicit
in its section 16(2) provisions is an acknowledgement that certain
expression does not deserve constitutional protection
because amongst
other things it has the potential to impinge adversely on the dignity
of others and cause harm.”
That
psychological, emotional and social harm can be caused by hate speech
was also accepted by the Supreme Court of Canada in
R
v Cighstra
1993 (SCR) 697 wherein it
was stated that:
“
A
person’s sense of human dignity and belonging to the community
at large is closely linked to the concern and respect accorded
to the
group to which a person belongs.”
In
R v Andrews
43
CCC 3
rd
193
CORRIE JA defined hatred as follows:
“
Hatred
is not a word of casual connotation. To promote hatred is to
instil detestation, enmity, ill will and malevolence in
another.”
The
words posted by the respondent directly invokes enmity and ill will
towards black people simply because they belong to a particular
race,
ethnic origin or colour.
As
such that must amount to the advocacy of hatred based on a prohibited
ground. The proviso in section 12 of the Equality
Act relating
to expression which does not attract liability refers to
bona
fide
engagement in artistic creativity,
academic and scientific inquiry, fair and accurate reporting in the
public interest or publication
of any information, advertisement or
notice in accordance with section 16 of the constitution are clearly
not applicable in this
case.
The
words posted by the complainant are accordingly not protected as
envisaged in section 12 of the Equality Act. By posting
the
offensive words on her Facebook page the respondent thereby
communicated the words to third parties.
As
such, her conduct in so acting amounts to publication. In any
event section 10 of the Equality Act is wide in that it prohibits
not
only the publication of but also the propagation, advocation and
communication of hate speech.
The
respondent knew or ought reasonably to have known and anticipated
that the words posted by her would be republished on social
media and
the press.
She
should accordingly also be held responsible for the secondary
publication of the words posted by her. The question of fairness
does
not apply to hate speech in terms of section 15 of the Equality Act.
Accordingly
a determination of the fairness or unfairness of the words posted by
the respondent is of no relevance.
The
consequence: The words posted by the respondent received
unprecedented coverage nationally and internationally. With it came
a
great deal of hurt, suffering, shame, embarrassment and anger for
South Africans of all races.
Of
recent there has been a dramatic increase of reported incidents of
open racism and hate speech in South Africa. The South African
Human
Rights Commission has publicly reported that in this year alone over
230 cases of racism were registered with the commission.
At
the same time there can be little doubt that there are many other
instances of racism that are never reported and which never
reach the
public domain, either through social media or the mainstream media
and which never see the light of day in our Equality
Courts.
The
words published by the respondent are also highly inflammatory.
There must have been a realisation on the part of the
respondent that
members of the society would be enraged on the comments posted.
The
memories of humiliation, suffering and indignity endured by black
people for so long would have come flooding back, given our
history
described above.
There
was not surprisingly a huge public outcry and members of the
community were deeply hurt, offended and enraged.
We
would do well as a nation in transition to remember that words are
powerful weapons which, if used indiscriminatory, can lead
to extreme
and unacceptable action.
Retaliation
by members of affected race groups could possibly be violent,
resulting in racial conflict, strife and general chaos
on a national
scale in South Africa.
Hate
speech by itself has the potential of undoing the significant gains
made since 1994. Hate speech from wherever it comes
cannot be
underestimated.
In
his book,
Democracy of Balance
by Stefan Brown on page 62 there are four reasons
postulated why hate speech at a social level is prohibited:
a)
To prevent disruption to public order and social
peace stemming from retaliation by victims.
b)
To prevent psychological harm to targeted groups
that would effectively impair their ability to positively participate
in the community
and contribute to society.
c)
To prevent visible exclusion of minority groups
that would deny them equal opportunities and benefits.
d)
To prevent social conflagration and political
disintegration.
As
best it is known no public apology has been forthcoming from the
respondent following this incident. She had four and a
half
months at least to do so.
In
my view this serves to aggravate her conduct and adds insult to the
great hurt caused. In deciding the question of an appropriate
award I take into account that the conduct of the respondent’s
was particularly offensive and hurtful.
The
comments posted attracted much publicity and was widely circulated.
A reference to case law serves as a useful guide in
determining the
award.
In
Strydom v Nederduitse Geregformeerde
Gemeente Moreleta Park
2009 (4) SA 510
(EC) the North Gauteng High Court sitting as an Equality Court
inter
alia
awarded an amount of R75 000
for the impairment of the complainant’s dignity as well as
emotional and psychological suffering
for having been unfairly
discriminated against on the ground of sexual orientation.
In
Zonke Gender Justice Network v Malema
the Magistrate’s Court sitting as an
Equality Court in Johannesburg under case number 2/2008 ordered the
respondent to pay
R50 000 damages for his utterances
constituting hate speech and harassment.
In
N G Kempton v André van Deventer
the Magistrate’s Court in Cape Town sitting
as an Equality Court under case number 9/2013 ordered the respondent
to pay R50 000
damages for hate speech which was racially
motivated.
The
above cases were in my view comparatively less serious than the
present matter.
I
am in agreement with counsel for the complainant that an appropriate
award should, amongst other things, be determined in the
light of the
prevailing conditions, taking into account that in the more than 20
years that South Africa has become a democratic
state racism is still
pervasive in our society and that the time has come for courts to act
more decisively.
At
the same time I bear in mind that because it is difficult to assess
the monetary value of injured feelings, awards should generally
be
restrained but should also at the same time serve as a deterrent.
Hate
speech
per se
is
not a criminal offence in South Africa. It is perhaps a move in
the right direction that there are steps being taken to
criminalise
such conduct.
After
all, laws are made to meet the social demands of our time and to
regulate conduct. Sections of society that are painfully
slow
to change or that refuse to, given our disgraceful history, should
perhaps be compelled to do so under the threat of criminal
sanction.
Persons
who transgress would then be more cautious to act in a way which the
courts respect for the dignity of fellow human beings.
Conduct
such as that of the respondent and other likeminded people has the
potential to ignite racial conflict and cause instability
on a
national scale.
Tolerance
levels are quickly waning. The sooner this is realised the
better it is for our country in moving forward or towards
a society
where the dignity of all who live in it are restored and protected.
Section
25(1)(c) of the Equality Act obligates the State, where necessary,
with the assistance of the relevant constitutional institutions
to
inter alia
develop
action plans to address hate speech and conduct information campaigns
to popularise the Equality Act.
It
is expected that the National Action Plan currently in a draft form
against racism and other forms of discrimination will assist
in our
country overcoming the challenges we currently experience,
particularly in relation to hate speech.
Regulation
12(2) under the Equality Act provides that each party shall bear his
or her own costs unless the Court directs otherwise.
However,
where the respondent fails to appear without reasonable notice
Regulation 12(4)(a)(ii) provides that the respondent may
be ordered
to pay the costs.
The
question of cost is accordingly in the discretion of the Court.
In as much as the complainant has not sought an order
for cost in the
event of non-opposition and bearing in mind that parties should not
be discouraged from approaching the Equality
Court for fear that cost
may be awarded against them, considering the particular circumstances
of this case, including the non-attendance
of the respondent at the
hearing and to mark my disapproval of the reprehensible conduct of
the respondent, in my view warrant
an order for cost against the
respondent.
See
Biowatch Trust v The Registrar Genetic
Resources & Others
2009 (6) SA 232
(CC) 16.
In
all these circumstances and having regard to the powers conferred on
the Equality Court under section 21 of the Act I make the
following
orders.
ORDER
10
JUNE 2016
1)
The words posted by the respondent on her Facebook
page on 3 January 2016 constitute hate speech as defined in
section
10
of The
Promotion of Equality and Prevention of Unfair
Discrimination Act 4 of 2000
Equality Act.
2)
The words posted constituted a serious affront to
the human dignity of members of the complainant and black people in
general, namely
Africans, coloured and Indian.
3)
The respondent is interdicted and restrained from
publishing, propagating, advocating or communicating hate speech as
defined in
section 10 of the Equality Act in any form whatsoever.
4)
The right to freedom of expression entrenched in
section 10 of The Constitution of the Republic of South Africa Act
108 of 1996
does not extend to racist utterances as prescribed by the
constitution as well as unfair discrimination as hate speech as
prescribed
by Act 4 of 2000 Equality Act.
5)
Payment of damages in the sum of R150 000 as
an award contemplated in section 21(2)(e) of the Equality Act payable
by the respondent
within 60 days of the date of service or
publication of this order to the Oliver and Adelaide Tambo Foundation
(OATF) which promotes
non-racialism, tolerance, reconciliation and
social economic upliftment in South Africa.
6)
The clerk of the Equality Court is directed to
submit this matter in its entirety to the Director of Public
Prosecutions KwaZulu-Natal
for consideration regarding the
institution of criminal proceedings, either in terms of the common
law or relevant legislation.
7)
The respondent is ordered to pay costs.
8)
There is one further matter relating to the
non-appearance of the respondent at this hearing and her present
whereabouts.
The clerk, in terms of Regulation 12(4)(b) must
inform the respondent in writing of the order in the preceding
paragraph.
I propose to direct that the orders herein be served
on the respondent via the sheriff or Clerk of the Court and if the
respondent
cannot be located it be brought to the respondent’s
notice by publication in two provincial newspapers circulating in
KwaZulu-Natal
and Gauteng and a national newspaper.
It
is accordingly so ordered. Finally, Mr M Shizana[?], the
Court is indeed indebted to you for having interpreted for
such a
long stretch as well as all the other Court staff members who have
sacrificed their lunch break so that we could finalise
this matter.
I am indeed indebted to all of you. Thank you. Court is
adjourned.
CERTIFICATE
OF VERACITY
This
is, to the best abilities of the transcriber, a true and correct
transcript of the proceedings,
where
audible
, recorded by means of a
mechanical recorder in the matter:
ANC
and PENNY SPARROW
CASE
NO : 01/16
COURT
OF ORIGIN : SCOTTBURGH
TRANSCRIBER
: L GREEFF
DATE
COMPLETED : 11 JULY 2016
NO
OF TAPES/CD : 1
NO
OF PAGES : 56
IN
THE MAGISTRATES COURT FOR
THE
DISTRICT OF UMZINTO
HELD
AT SCOTTBURGH CIVIL COURT
CASE
NO : 01/16
DATE
: 10 JUNE 2016
BEFORE
: MR I KHALIL
PLAINTIFF
: ANC
RESPONDENT
: PENNY SPARROW
ON
BEHALF OF PLAINTIFF : ADV POTGIETER (SC)
ON
BEHALF OF RESPONDENT :
IN ABSENTIA
INTERPRETER
: MR SHIZANA
REPORT ON
RECORDING
Clear recording
with the exception of all channels muting at intervals of a few
seconds each resulting in parties being inaudible.
(Time
codes indicated in transcript).