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[2019] ZAEQC 1
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Strydom v Black First Land First (11/2018EQJHB) [2019] ZAEQC 1 (6 May 2019)
IN
THE EQUALITY COURT OF JOHANNESBURG HELD AT JOHANNESBURG
CASE
NO: 11/2018 EQ JHB
In
the matter between:
LUCY
STRYDOM APPLICANT
AND
BLACK
FIRST LAND
FIRST FIRST
RESPONDENT
ANDILE
MNGXITAMA SECOND
RESPONDENT
ZANELE
LWANA THIRD
RESPONDENT
LINDSAY
MAASDORP FOURTH
RESPONDENT
ZWELAKHE
DUBASI SIXTH
RESPONDENT
THANDISWA
YAPHI SEVENTH
RESPONDENT
INTRODUCTION
1.1 The matter appeared just before my
learned brother Mr Sibanyoni, for direction hearing.
2. On the 12 March 2019 the matter was
before me for further direction hearing.
3. The Attorney, for BLF, had
withdrawn before Mr Sibanyoni, and they 1
st
to 7
th
Respondent appeared in person, and Mr Mngxitama, the 2
nd
Respondent argued on behalf of all the Respondents.
4. There was a commotion in court,
which was led into the record by Mr Mngxitama, to the effect that the
complainant husband, racially
abused the 2
nd
to 7
th
Respondent on the Courts Corridor which they submitted had nothing to
do with the Complainant. Adv. Mosikili for the Complainant
confirmed
the incident into the Record.
5. The Complainant is Lucy Strydom
(Felix); the Complainant is of a Portuguese descendant but married to
a White South African,
Afrikaner but Strydom.
6. The partied during direction
hearing submitted that they would follow a Motion Court Procedure.
The parties were bound by their
papers.
FACTS
2.1 The Complainant, was wrongly cited
on their papers as the Applicant, instate of Complainant, the Court
corrected that into the
record.
2.2 The Complainant is assisted by
SAHRC.
2.3 The Complainant in her founding
affidavit submitted under oath to the effect that the Respondents
uttered verbal utterances,
and written statements especially by the
First Respondent; against White South Africans, through its members
in public.
2.4 The Complainant alleged that they
construed a sequel of slogans constituting hate speech against White
persons in South Africa.
2.5 She stated that the slogans
emanated from the Apartheid Era. The slogans at play are:
(a) Kill the Farmer; Kill the
Boer;
This slogan became known as the late
Peter Mokaba Slogan.
(b)
Dubula lbunu, this slogan became known as Julius Malema slogan.
(c)
One settler, One Bullet is alleged is the First Respondent's slogan.
(d)
Land on Death, this too forms part of the First Respondent's slogan.
(e)
The Applicant has canvassed particularly that both these slogans were
Peter Mokaba, and Julius Malema's slogan which is
alleged constitutes
hate speech.
COMMON CAUSE
3.1 It is common cause that: The
Respondent is
Black First Land First
; a Political Party
registered in terms of
Section 15
of the
Electoral Commission Act of
1996
; with its Headquarter at 602, Renaissance Centre, Gandhi Square
Johannesburg.
3.2 The first to seventh Respondent
are as cited on the Application.
3.3 This Court has Jurisdiction.
3.4 In terms of
Section 20(1)
of the
promotion of Equality and prevention of unfair discrimination Act
2000 (The Equality Act). Any person acting in the public
interest may
institute legal proceedings, acting in the public interest; this is
what Mrs Lucy Strydom has done.
4.
RELIEF SOUGHT
4.1 The Complainant seek, an order
from the court, to declare certain speeches, and written statement of
BLF slogans, directed at
White South African persons, declared as
hate speech, on the basis of race.
4.2 The complainant seeks an order to
obtain appropriate relief and for such court to make a pronouncement
against BLF, constituting
hates speech directed on people's race.
4.3 The complainant further seeks, an
order to obtain appropriate relief, and for such to explicit
pronouncement against BLF slogans,
hate speech directed based on
race.
4.4 An order directing 2
nd
to 7
th
Respondents to take immediate and meaningful step
to:
(a)
Delete or remove
posts
made by the 1
st
Respondent using
Land or Death
within one week from date of the order.
(b) That the First Respondent
donate an amount of R150 000.
(c) That the Respondents issue
an unconditional apology on behalf of the 1
St
Respondent
to South African for using slogans.
·
One settler one bullet
·
Land or Death
· That the apology provided to
the South African Human Rights Commission for approval and published
on the Commission Website.
5.5 An order in terms of
Section
21(2)(1) of the Equality Act
recommending the IEC to review
the 1
st
Respondent's eligibility as a Political Party,
given the 1
st
Respondent's violent threats to White people
5.6 An order in terms of
Section
21(2) of the Equality Act,
directly the Court to submit the
matter to the Director of Public Prosecutions, having jurisdiction,
for a possible institution
of criminal proceedings against the 1
st
Respondent in terms of the Common Law or relevant legislation.
6.
THE LAW
6.1. The Constitution provides for
Freedom of Expression.
6.2. Section 16 of the Constitution;
states that everyone has the right to freedom of expression.
6.3. The right in Section 16 does not
extend to:
(a)
Propaganda for war
(b)
Incitement of imminent violence
(c)
Advocacy of hared that is based on
race, ethnicity, gender or
religion
and that constitute
incitement to cause harm
.
6.4.
The promotion of Equality
and prevention of Unfair discrimination Act 4 of 2000
prohibit
hate speech on
Section 10
.
6.5.
The convention on
prevention and punishment of crime fo Genocide (1948)
.
6.5.1
The Rome Statute (killing members of the Group)
6.5.2
The convention of the Elimination of all forms of Racial
Discrimination (1965).
7.
ARGUMENTS BY THE COMPLAINANT
7.1. Complainant submitted heads:
7.2. Whether the statements made by
Respondents constitute hate speech; Counsel submitted that the
Respondents admitted on their
papers that they agree to Land or
Death.
7.3.
Dubula lbhunu,
was
declared hate speech, this is a Malema slogan.
7.4. The Complainant, submit that
one
settler one bullet,
be declared hate speech.
7.5. They further submit that
Land
or Death
, be declared that this is an ultimatum or a call for a
revolution for the return of the land.
7.6. They submit that the Respondents
were seen, heard and associating themselves to the slogan
one
settler one bullet,
they further allege that one settler one
bullet was sung by the members of the Respondent in Pretoria, on the
29th September 2017.
7.7. They further submitted that the
Respondent cannot distance themselves from the chanting of
one
settler, one bullet.
7.8. They further submitted that the
word settler is synonymous with White South African, as they became
settlers in Africa from
Europe and elsewhere, bringing with them,
their language.
7.9. People were provoked by the
utterances of the Respondents "as they were seen wearing
T
shirt
with the words "
fuck white people"
7.10. There are tweets by the
Respondents on their tweeter handler and hashtag #, Land or Death;
they submitted their both written
and uttered word can be indeed to
encourage
Blacks
to engage in sporadic violence against White
South Africans.
7.11. Further referred the counts to
Annexures .. .LS... 1 - 4 and they further submitted that they can be
availed to the court.
7.12. Counsel, submitted that on the
Soweto Declaration
, the Respondents declared that they shall
fight side by side as comrade, sisters and brothers to get the land
back.
8.
RESPONDENTS REPLY (ARGUMENT)
8.1 In person 2nd Respondent on behalf
of the entire Respondents.
8.2 The Court clarified that the
Applicant or Complainant is Lucy Strydom and not SAHRC, and not their
official. (Known as Matthew
Du Plessis.)
8.3 There is no case of imminent
violence by BLF or its member, section 16 referred to imminent
violence.
8.4 On the case of De Klerk Foundation
v Malema, the argued that the court found in favour of Malema.
8.5 The Respondent only admits the
tweet that is attributed to Lindsay Maasdorp, as the 4
th
Respondent.
8.6 Respondent submitted that they had
lodged complaints with SAHRC, relating to racism by Penny Sparrow
5/01/2016, by Hellen Zille
27/03/2017, and by FW De Klerk and Adrian
Vlok 8/05/2017. The SAHRC, did not legally represent the 1
st
Respondent nor facilitate any intention to proceed in terms of
Section 20(1)(d) or (F) of the Equality Act.
8.7 First Respondent is to participate
on the general election in 2019, the complaint seek to prevent them
from participating.
8.8 He submitted that a settler is a
person who belongs to a group of people who were involved in
enslaving blacks, attached the
negotiated settlement of 1994; it felt
the Blacks are still without land.
8.9 Further submitted that Section 25
legalised, historical land theft give legitimacy to colonialism, the
80% of the land is controlled
by a few white families.
8.10 The person with an AK47 T shirt,
having such wording, one settler, one bullet is not a member of the
1
st
respondent.
8.11 He further submitted that, the SA
Jewish Board of Deputies v Masuku Equality Court found Masuku, guilty
but Cosatu and Masuku
appealed the Equality Court judgment. The
Supreme Court of Appeal upheld the Appeal, and dismissed SAJBD
complaint.
8.12 The Respondents further Submitted
that they rejected almost all the Annexures L51, L52, but they admit
that Land or Death is
the slogan of the 1
st
Respondent.
8.13 The statement one settler, one
bullet is accordingly protected by the right of freedom of expression
in terms of Section 16
of the constitution.
8.14 They further submitted that
Apartheid slogans one settler, one bullet kill the farmer, kill the
Boers and Dubula ibhunu, are
not inciting violence, hatred and
against White South African.
9.
REPLY BY CONSEL COMPLAINT
9.1 The Respondent, were
opportunistic, with the wording Land or Death, it is clear that they
cannot refer to the Zulu King and
the Blacks who own land e.g. The
Bafokeng Nation of Rustenburg.
9.2 They give an ultimatum that should
you not give back the land; you will die, clearly from Soweto
Declaration, and their Public
utterances.
10.
ASSESSMENT OF TH
E
EVIDENCE
10.1 The Court referred to the literal
translation of the following words:-
(a) Boer is a descendent of any
of Dutch or Huguenot colonist who settled in South Africa, hence the
Court asked Counsel as
to whether she is Mrs Strydom, a descendant of
any of the Dutch people, the answer was found to be in the negative
as she is of
Portuguese descendent, but married to Mr Strydom (an
Afrikaner).
10.2 The Respondent, have denied any
association with one settler, one bullet (wording).
10.3 One settler, one bullet, is
common knowledge known, as a PAN AFRICAN CONGRESS SLOGAN, and in
obiter it cannot be imposed by
the Complainant over the Respondents.
10.4 The Respondent rejected being
associated with one settler, one bullet, or an AK47, photographed on
the back of an unknown supporter.
10.5 The Respondent, have admitted
that the word Land or Death is their slogan.
10.6 This Equality Court has to
pronounce on it.
11.
APPLICATION OF SECTION 10 (LAND OR
DEATH)
11.1 That the words were published
propagated advanced or commenced.
11.2 That the words are based on one
or more of the prohibited ground
11.3 That the words were communicated
to and against any person, which non-juristic entity, or a group or a
category of person as
defined in the Act.
11.4 That the words could reasonably
be consumed to demonstrate a clear intention.
11.5 That the words... so consumed
should be directed towards, hurt, harm, incitement of harm, promotion
of hatred or propagation
of hatred.
11.6 There is evidence the word Land
or Death, are specific words in question in this case were published
propagated, advocate and
communicated. It is submitted that there is
also no dispute pertaining to the specific objectionable utterance
and the fact that
they were uttered at the Land of Soweto
Declaration, and other particular events, and further admitted on the
paper, and in court.
11.7 It is therefore important and
significant to consider, and take into account who the complainant
Lucy
Strydom
is?
.Whether it is reasonable that
she falls within a racial group, and with reference to the context
she live in perceived in South
Africa, understand the relevant
objectionable words. One cannot determine to the person who utters
the words. One cannot determine
the objective test with reference to
the person who utters the words and the circumstances and environment
within which he utters
the words.
11.8 The hurt, harm and hatred
relevant here is marginalisation of white people as a race, pressure
on them as a group that is not
acceptable treatment of them,
different from others, racial discrimination against them, cries
committed against them and in particular
polarisation that still can
result majority of the blacks being encouraged to attack the white
people, it is discouraged, to their
ideals of the New South Africa
being threatened loss of life, being injured physically and
ultimately economic loss to the county.
The COURT adopted the Motion Court
Procedure at the request of the parties this prevented any of the
parties to bring forward electronic
evidence before Court. The
parties were bound by their affidavits. In application no viva voce
evidence is allowed. My learned
brother Mr. Sibanyoni had already
ruled to that effect.
12.
THE RULING
1. No order is made regarding prayer
(a), as it is a statement uttered by persons at gatherings of the
respondent but cannot be
ascribed to the Respondent.
2. The First Respondent's written
statement,
Land or Death
, constitutes hate speech in that it
is a statement that could reasonably be construed to incite harm
against those that own land
and are white people and is therefore
based on the prohibited ground of race.
3. The First Respondent is ordered to
remove the phrase
Land or Death
from its official
T Shirt
(members)
website, and from its entire official document
including, from the
Soweto Declaration
from a
month from today 6 May 2019.
4. First Respondent is ordered to
delete any Social Media post that it has made using hashtag# land or
death with a month from 6
May 2019.
5. No order is made regarding prayer
(F) of a donation.
6. The First Respondent is ordered to
apologise unconditionally, in writing for having used Land or Death,
the apology to be provided
to the SAHRC within a month from 6 May
2019 and this apology is to be published on the SAHRC website.
7. The Office Bearers of the 1
st
Respondent namely 2
nd
Respondent to 7
th
Respondent are ordered to effect the granted orders granted by the
court.
8. In relation to prayer (I), this
Court does not have jurisdiction to pronounce on it. The Electoral
court is the appropriate Court
to deal with this prayer.
9. In relation to prayer (J), this
Court orders that in terms of serious 21(2)(n) of the Equality Act;
the clerk of the Equality
submit the matter to the Director of Public
Prosecutions having jurisdiction for a possible institution of
criminal proceedings
against the Respondent in terms of the common
law.
10. Each party must pay its costs.
______________________
BC MOLWANA
MAGISTRATE
JOHANNESBURG
CENTRAL MAGISTRATE COURT
DATED
06 May 2019