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[2019] ZAEQC 6
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South African National Editors' Forum and Others v Economic Freedom Fighters and Another (90405/18) [2019] ZAEQC 6 (24 October 2019)
IN
THE EQUALITY COURT OF SOUTH AFRICA
(GAUTENG.DIVISION,
PRETORIA)
Case
Number: 90405/18
SOUTH
AFRICAN NATIONAL EDITOR’S
FORUM
First Complainant
NAVARANJENI
MUNUSAMY
Second Complainant
PAULI
VAN
WYK
Third Complainant
ADRIAAN
JERGENS
BASSON
Fourth Complainant
MAX
DU
PREEZ
Fifth Complainant
BARRY
BATEMAN
Sixth Complainant
And
THE
ECONOMIC FREEDOM
FIGHTERS
First Respondent
JULIUS
SELLO
MALEMA
Second Respondent
MEDIA
MONITORING
AFRICA
Amicus Curiae
JUDGMENT
MOLEFE J
Summary:
Promotion of Equality and Prevention of Unfair Discrimination
Act 4 of 2000 (Equality Act)
-
Section 10
- Hate Speech -
Section 16 of the Constitution of South Africa
- violation of
freedom of expression and freedom of the press and other media -
Occupation of journalism not an analogous ground
- Unpopular,
offensive or controversial views do not necessarily constitute hate
speech -
Section 11
- Harassment of journalists on public
platforms.
[1]
This is a complaint which has
been referred to the Equality Court in terms of the
Promotion
of
Equality
and Prevention of Unfair Discrimination
[1]
('Equality
Act), in which
the complainants pray for a ruling ordering the following relief:
1.1 Interdicting the respondents from
intimidating, harassing, threatening or assaulting the second to
sixth complainants and any
other journalist;
1.2 Interdicting the respondents from
publishing personal information of the second to sixth complainants
or any other journalist,
whether on public platforms or on social
media or by other means;
1.3 Interdicting the respondents from
expressly or tacitly endorsing the intimidation, harassment, threats
or assaults on the second
to sixth complainants or any other
journalist by supporters or followers of the first respondent,
whether on public platforms or
on social media or by other means;
1.4 Interdicting the respondents from
expressing or tacitly endorsing the publication of personal
information of the second to sixth
complainants or of any other
journalist, by supporters or followers of the first respondent,
whether on public platforms or on
social media or by other means;
1.5 Directing the respondents to
publicly denounce the harassment and abuse of the second to sixth
complainants and other journalists
and to call upon members and
supporters of the first respondent to cease intimidating, harassing,
threatening and/or assaulting
any journalist, or publishing the
personal information of any journalist;
1.6 Directing the respondents to
publish an apology to the complainants in particular, and to
journalists in general, for the threatening
statements that have been
made, coupled with a recognition by the respondents of the
constitutionally protected role played by
journalists in our society;
1.7 Directing the respondents, jointly
and severally, to pay the costs of this matter, on an attorney and
client scale, including
the costs of two counsel.
[2]
The particulars of the six complainants are as follows:
2.1 The first complainant is the South
African National Editors' Forum ('SANEF'), a non-profit organization,
registered in terms
of the laws of the Republic of South Africa, with
its primary place of business at Block A, 18 Cedar Avenue, Richmond,
Johannesburg.
SANEF consists of editors and senior journalists from
all areas of the South African media. The organization advocates for
the
protection and promotion of ethical journalism and media freedom
in South Africa.
2.2 The second complainant is
Navaranjeni Munusamy, an adult female associate editor, employed as
such by the Tiso Blackstar Group
at Hill on Empire, 16 Empire Road,
Parktown, Johannesburg.
2.3 The third complainant is Pauli van
Wyk, an adult female journalist, employed as such by the Daily
Maverick at Two Pence Six
Building, 39 7th Street, Linden,
Johannesburg.
2.4 The fourth complainant is Adriaan
Basson, an adult editor-in-chief, employed as such by News 24, at
Media 24 Centre, 40 Heerengracht
Avenue, Cape Town. He is also the
treasurer of the first complainant.
2.5 The fifth complainant is Max Du
Preez, an adult male journalist and columnist, carrying on business
at Media 24 Centre, 40 Heerengracht
Aven e. Cape Town.
2.6 The sixth complainant is Barry
Bateman, an adult male senior reporter, employed as such by
Eyewitness News at Primedia House,
5 Gwen Lane, comer Fredman Drive,
Sandown.
[3]
The first respondent is the
Economic Freedom Fighters ('EFF'), a political party registered in
terms of section 15 of the
Electoral
Commission Act
[2]
,
with its principal place of business at 78 Korte street,
Braamfontein, Johannesburg.
[4]
The second respondent is Julius Malema, an adult male and president
of the first respondent, employed as such at 78 De Korte
Street,
Braamfontein, Johannesburg.
[5]
Media Monitoring Africa ("MMA') sought leave to intervene in the
proceedings as
amicus curiae
and had sought consent of the
parties to intervene. Written consent has been provided by both the
complainants and the respondents.
Leave to intervene was granted and
the MMA has been admitted as
amicus curiae
in these
proceedings.
Introduction
and Background
[6]
The complainants have joined together to seek a remedy from this
court that will protect them and other journalists from the
abuse and
harassment they allege to have endured, by virtue of their work as
journalists, a result of the conduct of the EFF and
its leader Mr
Malema. The statements objected to, formed part of a speech made by
Mr Malema outside the Zondo Commission of Inquiry
into State Capture
('Zondo Commission') on 20 November 2018 in Parktown, Johannesburg as
well as a number of statements that the
respondents have made against
the journalists, generally.
[7]
Mr Malema said the following outside the Zondo Commission:
"Let us attack fighters, let us
occupy every street, every house, every space in society. Let us not
leave the enemy to chance.
Where we meet the enemy, we must crush the
enemy. On Facebook, Twitter, social media, be there, guard the
revolution. When the
enemy raises its ugly head, cut the head. No
time to entertain enemies of the revolution. We must protect the
revolution at all
costs".
[8]
Mr Malema is alleged to have singled out journalists when he
said the following:
"Peter Bruce, Max Du Preez, there
is Ferial Haffajee, there is Ranjeni Munusamy, there is another one
from Cape Town called
Palesa Moduru, there's another called, this one
that was the CEO of the Gender Commission, Nomboniso Gasa, and the
husband, and
that Pierre De Vos - that's the Ramaphosa defence
force... you must write them down, everywhere you see their names,
attend to
them decisively”.
[9]
Counsel for the complainants submitted that these statements
amount to hate speech and a call for violence. Counsel argued that Mr
Malema then sought to wash his hands of the consequences of his hate
speech by making the following statement:
"These people I'm mentioning by
and them by name, you must engage with them from a civilized point of
view. You must never
be violent with them. Violence is for the empty
heads. In the EFF we thrive through superior logic. Some of them are
women. You
must be extremely gentle with them. And don't use their
gender status to attack them. Engage with them from an intellectual
point
of view. Display discipline and intellectual superiority when
engaging with them. And don't kill them. . .
I've got many of them on my Twitter on
my phone and here. I talk to them all the time but I disagree with
them. I don't have to
declare them enemies. I don't have to kill
them. I want them to live long, to see the success of the EFF. All we
are asking from
the media - be honest”
[3]
[10]
After Mr Malema's speech (mentioned in paragraph [91 above), the EFF
then posted certain parts of the speech on Twitter at
different
times.
[11]
The complainants submit that the conduct of the respondents
constitutes hate speech, within the meaning of section 10 of the
Equality Act,
and
also constitutes an unjustified violation of section 16 of the
Constitution
[4]
which protects freedom of expression and of the press and other
media.
[12]
The complainants have made additional averments in respect of other
matters that allegedly form part of the factual matrix
of this
complaint. The complainants detailed the alleged threats,
intimidation, hate speech and harassment that came from supporters
of
the respondents in the wake of the respondents' statements and
tweets.
Legal Framework
[13]
Section 16 of the Constitution guarantees freedom of
expression in the following terms:
"(1) Everyone has right to
freedom of expression which includes
(a)
freedom of the press and other media;
(b)
freedom to receive or impart information or ideas;
(c)
freedom of artistic creativity; and
(2) academic freedom and freedom of
scientific research
(a)
The right in subsection (1) does not extend to –
(b)
propaganda and war;
(c)
incitement of imminent violence; or
(d)
advocacy of hatred that is based on race, ethnicity, gender or
religion, and that constitutes incitement to cause harm".
[14]
Section 16(2) of the Constitution provides for some types of
speech that are not protected: propaganda and war, incitement of
imminent
violence and hate speech. Whenever government regulation
goes beyond those narrow section 16(2) categories of unprotected
speech,
then section 16(1) is infringed. Where freedom of expression
is in issue, the departure point is whether the particular form of
speech is excluded by section 16(2). If not, it is then protected by
section 16(1).
The Equality Act
[15]
The Equality Court was
promulgated by Parliament in order to purportedly give greater effect
to section 9 of the Constitution.
[5]
[16]
Section 10(1) provides that:
"(1) Subject to the
proviso
in
section 12, no person may publish, propagate, advocate or communicate
words based on one or more of the prohibited grounds, against
any
person, that could reasonably be construed to demonstrate a clear
intention to –
(a) be hurtful;
(b) be harmful or to incite
harm;
(c) promote or propagate
hatred".
[17]
The prohibited grounds referred to in section 10, include:
"(a) race, gender, sex,
pregnancy, marital status, ethnic or social origin, colour, sexual
orientation, age, disability, religion,
conscience, belief, culture,
language, birth and HIV/AIDS status; or
(b) any other ground where
discrimination based on that other ground –
(i) causes or perpetuates systemic
disadvantage;
(ii) adversely affects the equal
enjoyment of a person's rights and freedoms in a serious manner that
is comparable to discrimination
on a ground in paragraph (a)”.
[18]
Section 10 must however, be read with section 12 which provides that:
“
(12) No person may-
(a) disseminate or broadcast any
Information;
(b) publish or display any
advertisement or notice,
that could reasonably be construed or
reasonably be understood to demonstrate a clear intention to unfairly
discriminate against
any person: Provided that
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, is not precluded by this
section".
[19]
It is immediately apparent that
section 10 of the
Equality
Act
is broader in scope
than section 9 of the Constitution
[6]
.
This discrepancy has recently received significant judicial
attention. In
Masuku and
Another v South African Human Rights Commission
[7]
,
the Supreme Court of Appeal
('SCA') held as follows:
“
[14]... There is cause for
concern that the provisions of s10 of the Equality Act have the
effect of condemning speech that is protected
under s 16(1) of the
Constitution. In their book "The South African Constitutional
Law: The Bill of Rights·, the writers
Cheadle, Davis &
Haysom examine the provisions of s10 of the Equality Act. They
suggest that the formulation of s 10 of the
Equality Act is 'a most
unfortunate convoluted formulation' and it may well constitute an
unjustified limitation of the freedom
of expression in the context of
a constitutional order 'committed to robust deliberation' for these
reasons:
"'It extends the prohibited
grounds contained in s16(2) of the Constitution in that the latter
provision refers to race, ethnicity,
gender or religion only, and
uncouples hurt and harm from incitement to cause harm. While the
extension of the prohibited grounds
can doubtless be justified in
terms of the limitation clause as contained in section 36,
particularly in the context of the prohibited
grounds contained in
section 9(3), the wider formulation adopted in section 10(1) will
also have to be saved in terms of section
36. The combination of an
extension of the prohibited grounds beyond those contained in section
16(2) and the dispensing with the
requirement of causation creates
the potential for challenge'.
The contention that a more extensive
definition of hate speech can be justified under s 36 is at the least
debatable ass 16(2) provides
an internal limitation clause"'.
[20]
The main issue to be determined is whether the complaint brought
against the respondents in terms of the
Equality Act
can be
sustained as hate speech. The respondents, in addition to submitting
that the court cannot uphold the complaint on the basis
of hate
speech, raised the following legal defences:
20.1 the complainants' lack of
locus
standi;
20.2 SANEF's
locus standi;
20.3 the jurisdiction of the Equality
Court; And
20.4 the striking out of the factual
allegations in the complainants' affidavits.
Locus
standi
of the complainants
[21]
The complainants brought a founding affidavit deposed to by the
chairperson of SANEF, Ms Mahlatse Mahlatse which forms the
basis of
the application. Attached to the founding affidavit are several
supporting affidavits by the second to the sixth complainants.
The
respondents argue that the complainants' supporting affidavits have,
gone over and above the allegations made, by introducing
further
evidence, which they argue, is highly irregular. The respondents base
this defence on the contention that SANEF is the
only complainant
before this court, and that the evidence of the remaining
complainants is relevant only to the extent that it
supports SANEF's
evidence.
[22]
The complainants' counsel contends that each complainant's affidavit
contains evidence about how they were affected by the
hate speech and
harassment directed at them, as a result of the statements and tweets
made by the respondents. Counsel argues that
read together, the
complainants' affidavits establish a clear picture of an environment
enabled by the respondents, in which their
supporters are spurred to
threaten, intimidate, harass and abuse journalists in the name of
EFF.
[23]
It was therefore submitted that the individual supporting affidavits
are relevant in their entirety to the complaint that has
been
referred to this court, and that all six complainants have
locus
standi
to join together and institute this complaint in terms of
sections 20(1)(a) and (c) of the
Equality Act,
that each of
the complainants seek identical relief from this court, and also
associate themselves with the complaint as articulated
by the first
complainant.
[24]
Counsel for the respondents argued that even if the complaints are
before the court in their own right, then the supporting
affidavits
fall to be struck-out from the record because they do not meet the
relevant threshold required for relief sought in
terms of the
Equality Act.
This argument will be dealt with in the
striking-out application.
[25]
The second to sixth complainants emphatically state that each of them
has authorised Ms Mahlatse to represent them and to bring
this
application. Each complainant, in his/her personal capacity seeks the
relief sought in the notice of motion. In my view, there
is no merit
in the
point in limine
relating to their lack of
locus
standi.
Locus
Standi
of SANEF
[26]
The respondents submitted that
SANEF has failed to establish the requisite
locus
standi
to bring this
application, as a direct result of their failure to prove appropriate
authority in these proceedings. It is argued
that although SANEF
purports to bring this application in the interests of protecting
journalists and media freedom in South Africa
[8]
,
it has failed to identify its members in the founding papers or
undertaken to identify same to the court when it is a membership
based organization.
[27]
In the founding affidavit, Ms Mahlatse says:
"I have been authorized to
institute these proceedings and to depose to this affidavit on behalf
of SANEF by resolution of
its management committee"
[9]
.
[28]
The respondents' counsel argued
that, having regard to SANEF's constitution
[10]
,
it is clear that the management committee is not entitled to
authorise these legal proceedings. While accepting that SANEF can
sue
and be sued in its own name (according to section 3 of its
constitution), the respondents deny that the power to institute
or
defend such proceedings, vests with the management committee on the
following grounds:
28.1 Clause 7.15 only designates the
management committee as having a general responsibility for 'policy
and administration'. The
clause does not enumerate the management
committee's power to institute or defend legal proceedings;
28.2 The Editors' Council may be
capable of delegating certain powers (in respect of legal
proceedings) to the management committee
in terms of clause 7.9,
however, and notwithstanding that there is no proof of same, it is
notable that the Editors' Council is
itself not clothed with the
authority to bring or defend legal proceedings brought by or against
SANEF. None of the powers listed
in clause 7, generally, as they
pertain to the Editors' Council, include any powers regarding SANEF's
ability to participate in
legal proceedings. Evidently, the Editors'
Council cannot delegate a power that it does not have to the
management committee.
28.3 The Forum is the highest
decision-making body of SANEF, as it appears from the section of the
constitution in respect of its
structure, to the extent that it is
contended that the Forum, in a plenary session of its members, may
authorize such legal proceedings.
[29]
Counsel for the respondents, argued that on this basis, the court
should refuse to hear this application, as the authority
that SANEF
purports to have to bring these proceedings is incompetent in law.
[30]
The complainants counsel submitted that management committee is the
body that is required to deal with the day-to-day administration
and
the implementation of SANEF policies. Counsel argued that SANEF was
therefore properly authorized by the management committee
to
institute these proceedings, and if there was any defect in the
authorisation, it was ratified by the council at the meeting
held on
9 February 2019. Counsel relied on the minutes of the meeting which
were recorded as follows:
“
The decision to explore legal
action against the EFF that was taken at our last council meeting in
November 2018, was taken forward
by MANCOM. The case is now
proceeding in the equality court and a judge has been allocated·.
[31]
In my view, the challenge to SANEF's authority is simply not correct
and I am satisfied that SANEF has the requisite
locus standi
to
bring this application, and that SANEF and its deponent Ms Mahlatse
have been duly authorized to bring this application.
The
jurisdiction of the Equality Court
[32]
The complainants submitted that the respondents have published,
propagated, advocated and communicated words that could reasonably
be
construed to demonstrate a clear intention to be hurtful or harmful
to, or to incite harm or promote hatred at each of the individual
complainants, and journalists generally. These words and statements,
appear in speeches and tweets published by the respondents,
all of
which are referred to in the complainants' affidavits and in the
complainants' heads of argument.
[33]
The complainants referred to the examples of these statements and
tweets which include the following:
33.1
Statement made by Mr Malema
on
5
July 2018:
[11]
“
Journalists, once they take
side, are politicians. They must be treated as politicians. The same
way we treat Malusi Gigaba, the
same way we treat [Fikile] Mbalula,
the same way we treat Zizi Kodwa, is the same way we will treat
journalist who descend into
the arena.
Ranjeni [Munusamy] is a politician.
All EFF people must know that in dealing with Ranjeni you are dealing
with a politician. She
is a politician that has proposed to other
politicians Pravin Gordhan must be made president. Only a politician
can make that suggestion
and she will be treated as such, she is a
politician".
33.2
Tweet posted by EFF on 20
November 2018 at 4:45 pm:
[12]
"#Pravin Must Fall Malema:
Everywhere you see their names you must attend to them decisively.
They are no different to Bell
Pottinger who was hired as a machine
for the Guptas and Jacob Zuma".
33.3
Tweet posted by Mr Malama on
20 November in response to tweet from
Ms Haffajee:
[13]
Ms Haffajee tweets: "Malema says
this in a speech and then EFF medfa turns
it
into a tweet
which goes viral. We get attacked by EFF trolling army. It happens
every day. Once marked like this it's open season
by the digital army
@ RanjeniM is threatened and attacked every day. This must end".
Mr Malema tweets: -it won't end, you
are Ramaphosa Defence force. Just start acting professional It will
end automatically”.
33.4
Tweet posted by Mr Malema on
24 November 2018 in response to tweet from Ms van Wyk:
[14]
Ms van Wyk tweets: "#Julius
Malama has to take responsibility for violence meted out to
journalists. He is stoking the flames
of a campaign against
journalists whose work he disputes... And ultimately endanger the
lives of journalists".
Mr Malema tweets: ·you are
sick, go to hell satan”.
33.5
Tweets posted by Dr Ndlo_zi
and Ms Mkhaliphi
on
30
November 2018:
[15]
Dr Ndozi (EFF spokesperson) tweets;
"Fighters don't be surprised when @ Vodacom gathers journalists
to strategies on how to
deal with EFF. It just means our fight is
right where it belongs, in the belly of the beast:#White
MonopolyCapitalism. We would
not be doing well if they were not all
uniting against us#Asijiki”.
Ms Mkhaliphi (EFF Deputy Secretary
General) tweets: “Vodacom have declared war against EFF...
let's go. Let's see who will
win this war ... Fighters Lets goooo”.
33.6
Retweet posted by Mr Malema
on 3 December 2018:
[16]
“
A list of Stratcom journalists
home addresses would be a good Christmas present”.
33.7
Tweet posted by Mr Malema in
December 2018 in response to tweet from Mr Basson:
[17]
Tsheko Tsk (EFF supporter) tweets:
"But for the first time I agree with him, we must slaughter
these white animals if they
kill black Africans, actually we must
come up with action to kill white people like you @Adriaan Basson".
Mr Basson tweets: “Just opened a
criminal case of intimidation against EFF supporter@ TskTsheko for
threatening to kill me
@SA Police Service very professional & I
will assist them in tracking down suspect No condemnation yet from
EFF".
Mr Malema tweets; "We won't do if
[34]
The complainants in the
founding affidavit
[18]
contended that the conduct of the respondents constituted hate speech
as defined in section 10 of the
Equality
Act
and violated section 16
of the Constitution. In their replying affidavit
[19]
,
the complainants state that the conduct of the respondents breaches
sections 10 and 11 of the
Equality
Act.
[35]
The respondents submit that the
complainants have failed to establish neither the hate speech claim
nor the harassment claim and
in this regard, counsel for the
respondents relied on the
South
African Human Rights Commission v Khumalo
[20]
where Sutherland, J held
that section 10 of the
Equality
Act
must be read
conjunctively with section 16 of the Constitution
[21]
.
[36]
Importantly, Sutherland J held
that the test for hate speech then is
"whether
the utterances could be reasonably construed to demonstrate
a
clear intention to incite
harm”
[22]
.
In other words, even if the
prohibited utterances in question could qualify as hate speech on its
terms but fail to incite, or reasonably
construed as inciting harm,
no liability could arise in respect of section 10.
[37]
In identifying three different
kinds of harm that arises from the kind of speech prohibited by
section 10 of the
Equality
Act,
the court emphasised
that only if the utterer, uttered words which have the effect of
inciting the causation of harm, then liability
would arise in respect
of section 10
[23]
.
[38]
The Supreme Court of Appeal's
approach in
Masuku and
Another v South African Human Rights Commission
[24]
applied a restrictive
interpretation to section 10 of the
Equality
Act
"[31] In summary, the starting
point of the enquiry in this case was that the Constitution in s16
(1) protects freedom of expression.
The boundaries of that protection
are delimited in s16 (2). The fact that particular expression may be
hurtful of people's feelings
or wounding, distasteful, politically
inflammatory or downright offensive, does not exclude it from
protection. Public debate is
noisy and there are many areas of
dispute in our society that can provoke powerful emotions. The bounds
of constitutional protection
are only overstepped when the speech
involves propaganda for war, the incitement of imminent violence, or
the advocacy of hatred
that is based on race, ethnicity, gender or
religion, and that constitutes incitement to cause harm. Nothing that
Mr Masuku wrote
or said transgressed those boundaries, however
hurtful or distasteful they may have seemed to members of the Jewish
and wider community.
Many may deplore them, but that does not deprive
them of constitutional protection".
[39]
Section 10 of the
Equality
Act
is of limited
application and only applies to the prohibited grounds. Prohibited
grounds are defined in section 1 and includes,
but is not limited to
race, gender and disability. The definition of
'prohibited
grounds'
creates the
ability for a person claiming ·relief under section 10, to
establish analogous grounds. The complainants, in
their heads of
argument
[25]
,
belatedly attempted to establish journalism or occupation as an
analogous ground. This is notwithstanding that, SANEF has simply
not
pleaded any facts to demonstrate that the complainants suffer any
discrimination based on any analogous grounds. The complainants
overlooked the fact that the analogous grounds refer to an intrinsic
or inalienable quality or characteristic for which a person
may be
discriminated against.
[40]
Counsel for the complainants
submitted that
'occupation'
constitutes a ground that
fits comfortably into part (b) of the definition of
'prohibited
grounds'.
Counsel argued
that
'occupation'
in
relation to journalists in particular, hate speech, harassment and
abuse directed at them, perpetuates systematic disadvantage,
undermine their human dignity and adversely affect the equal
enjoyment of their rights and freedom in a serious manner that is
comparable to discrimination on a ground in part (a) of
'prohibited
grounds',
and that
journalism as an occupation should have been a listed ground. In this
regard counsel relied on
Minister
of Home Affairs and Others v Watchenuka and Another.
[26]
[41]
I do not agree with this
argument. The purpose of the
Equality
Act
is clear: the Act seeks
to protect people from being adversely disadvantaged for conditions
that they are subjected to, but which
fall outside their ability to
change or control. Occupation is not such a characteristic
[27]
.
The complainants' reliance on
Watchenuka
is inappropriate. The case
simply was not concerned with the
Equality
Act
and did not establish
occupation as a ground analogous to a ground of discrimination in
terms of section 9 of the Constitution.
[42]
Analogous grounds are personal
characteristics that, like. enumerated grounds, are
"immutable,
difficult to change or changeable only at unacceptable personal
costs
”
[28]
.
The Constitutional Court has explained the test for
"analogous
grounds"
as
follows:
[29]
"[19] I will now apply the above
principles to the facts of this case. The disadvantaged group in this
case is foreign citizens.
Because citizenship is an unspecified
ground, the first leg of the enquiry requires considering whether
differentiation on that
ground constitutes discrimination. This
involves an inquiry as to whether, in the words of Harksen:
"... objectively, the ground is
based on attributes and characteristics which have the potential to
impair the fundamental
human dignity of persons as human beings or to
affect them adversely in a comparably serious manner''.
I have no doubt that the ground of
citizenship does. First, foreign citizens are a minority in all
countries, and have little political
muscle. In this respect, I
associate myself with the views expressed by Wilson J in the Canadian
Supreme Court in
Andrews v Law Society of British Columbia
that:
"Relative to citizens,
non-citizens are a group lacking in political power and as such
vulnerable to having their interests
overlooked and their rights to
equal concern and respect violated. They are among those groups in
society whose needs and wishes
elected officials have no apparent
interest in attending·(citation omitted).
Second, citizenship is a personal
attribute which is difficult to change. In that regard, I would like
to note the following views
of La Forest J, from the same case:
"The characteristic of
citizenship is one typically not within the control of the individual
and, in this sense, is immutable.
Citizenship is, at least
temporarily, a characteristic of personhood not alterable by
conscious action and in some cases not alterable
except on the basis
of unacceptable costs".
[43]
There are no personal attributes linked with being a journalist in
the sense contemplated by
Larbi-Odam supra.
Journalism is a
profession, and not a characteristic comparable to the grounds listed
in section 10 of the
Equality Act,
and I have no doubt that it
is not based on attributes which have the potential to impair the
fundamental dignity as human beings
or affect them adversely.
[44]
In my view, journalism is not
an inherent and immutable quality. It is a career choice for which an
individual opts. Unlike race,
sex or gender, a career choice cannot
be what defines one's affiliation as per what is envisaged by the
Equality Act,
nor
can it constitute a protectable interest.
·Press
exceptionalism'
i.e. the
idea that journalists deserve special protections as a class of
belonging to their chosen profession was rejected by Cameron,
J (as
he then was), who regarded that notion not only unconvincing, but
dangerous as well
[30]
.
[45]
I have noted that the complainants' papers are riddled with instances
where they express their complaints in respect of the
statements made
by the respondents, and how they consider them defamatory, derogatory
and upsetting. None of the classes of speech
listed in section 16(2)
apply to these proceedings. Some of the statements are indeed
hurtful, distasteful and offensive, but they
are not excluded from
protection. In my view, the objections as framed by the complainants,
strictly speaking, falls outside the
jurisdiction of the Equality
Court.
[46]
Unpopular, offensive or even controversial views do not necessarily
constitute hate speech, and caution needs to be exercised
when
declaring something as hate speech. If all distasteful or offensive
statements are labelled as 'hate speech' (even when they
do not
qualify as such), then the serious nature and magnitude of such
designation will be undermined. The complainants have simply
failed
to make out a case that the speech complained of Is hate speech and
have failed to establish a breach of section 10 of the
Equality
Act.
Section
11 of the Equality Court
[47]
The complainants submitted that the harassment to which the
complainants and other journalist have been subjected to by the
respondents and their followers is prohibited by section 11 of the
Equality Act.
[48]
Harassment is limited in terms of its definition in section 1, as
follows:
"'harassment' means unwanted
conduct which is persistent or serious and demeans, humiliates or
creates a hostile or intimidating
environment or is calculated to
induce submission by actual or threatened adverse consequences and
which is related to –
(a) sex, gender or sexual
orientation; or
(b) a person's membership or
presumed membership of a group identified by one or more of the
prohibited grounds or a characteristic
associated with such group".
[49]
The complainants argued that as evidenced by the respondents'
statements and tweets, followed by their supporters' tweets,
followed
in turn by the respondents' express or tacit approval, the intention
is to create a hostile and intimidating environment
that discourages
or stops the complainants in particular, and journalists in general,
from reporting critically on the respondents.
It is submitted that
because of this hostile and intimidating environment, journalists
have fears or reservations about reporting
on the respondents.
[50]
By way of example, counsel for the complainants referred the court to
the following statements from the supporting affidavits:
50.1
Ms Munusamy states that
following Mr Malema's address on 20 November 2018, the consistent
attacks on her integrity and professionalism
are wearing her down and
that she is
"finding it
increasingly difficult to do my work”
[31]
.
50.2
Ms van Wyk states that the aim
of the comments or tweets were
"to
shut me down and to stop me (and journalists like me) from writing
articles that are critical of the EFF and its leaders'”
[32]
.
50.3
Mr Basson states that Mr
Malema's comments are likely to
"have
a
chilling
effect on
a
younger
generation of journalists, which in tum will fundamentally undermine
the right to freedom of expression, including freedom
of the press
and other media.”
[33]
.
[51]
The complainants contend that the EFF was obliged to take all
reasonable steps to ensure that journalists are not subjected
to
harassment by any of their representatives or supporters. In this
regard, the complainants rely on
Brown
v Economic Freedom Fighters
[34]
.
I agree with the respondents' counsel that the facts in
Brown
are distinguishable from
this case.
Brown
was
decided in respect of the Elactoral Code of Conduct, which creates a
positive obligation for political parties to take all reasonable
steps to ensure that their members and supporters do not engage in
any conduct that amounts to harassment of journalists.
Brown
is inapposite because,
unlike the Electoral Code, the
Equality
Act
does not create a means
of vicarious liability for persons to be held liable for the conduct
of third parties.
[52]
In my view, vicarious
liability, or a form thereof, does not apply
in
casu.
The common law
principles of vicarious liability are discussed in
K
v Minister of Safety and Security
[35]
:
"[24] The general principles of
vicarious liability holds an employer responsible for the wrongs
committed by an employee during
the course of employment. The Courts
have held that as long as the employee is acting "within the
course and scope of his
or her duty” or is engaged with the
affairs of his master" that the employer will be liable. The
principle of vicarious
liability is not peculiar to our common law,
but is also to be found in customary law rules. It is clear
therefore, that there
is a deep-seated sense of justice that is
served by the notion that in certain circumstances, a person in
authority will be held
liable to a third party for injuries caused by
a person falling under his or her authority".
[53]
At common Jaw level, vicarious liability only applies in
circumstances where there is an employment relationship in place
which necessitates an element of control. This is absent
in casu.
The complainants do not allege, nor can they allege that the
tweets they object to belong to a person in respect of whom the EFF
can exercise control. On the facts before the court, it is not clear
whether those persons who tweeted are EFF members or supporters.
There is no direct evidence presented to causally link the conduct of
the third parties who tweeted, with the actions of the respondents.
[54]
Counsel for the respondent
contended that it would also be unjust to hold the respondents liable
in circumstances where their supporters
conduct themselves in a way
that the respondents themselves have stated should not occur. In this
regard, counsel relied on the
Constitutional Court's decision in
SATAWU and Another v Garvas
and Others
[36]
.
In that case, the court was
called upon to consider whether the extension of liability in terms
of section 11 of the
Regulation
of Gatherings Act, 205 of 1993,
to
the organiser of a strike was permissible. In that case the extension
of liability in terms of section 11(1) was limited by section
11(2).
Notwithstanding that the legislature specifically chose to extend
liability in this way, a factor which is not applicable
in this case,
the court ultimately found that the section withstood constitutional
scrutiny on account of the fact that, having
regard to the
circumstances, the organiser of the strike could escape liability,
where they failed to take reasonable steps to
limit any consequent
damage by third parties.
[55]
In this current matter, the complainants' attempt to hold the
respondents liable in the absence of such an express duty is,
in my
view, impermissible. Furthermore, the complainants' attempt to hold
the respondents liable in this way, serves to impose
strict liability
in the absence of an express provision to that effect in the
Equality
Act.
[56]
The failure of the complainants
to establish causation is more apparent when regard is had to the
explanation advanced by the respondents
in
the answering affidavit in
respect of social media, and why they cannot be held liable for the
conduct of third parties unknown
to them, who tweet in an offensive
and potentially unlawful way
[37]
.
This remains unchallenged.
[57]
In the premises, causation, as an essential element for liability is
absent, and the application should fail. However, we are
all aware
that social media is a huge part of our lives. With the huge numbers
of social media users, all types of users will undoubtedly
be
subjected to some form of social media trolling during their usage.
Trolling is defined as creating discord on the Internet
by starting
quarrels or upsetting people by posting inflammatory or off topic
messages in an on-line community.
[58]
Social media has changed the way people communicate. The change
specific to social media is the anonymity of its agents; those
who
write and comment often use nicknames and aliases. Anonymity leads to
avoidance of responsibility. On application to the facts
of this
case, the anonymous third parties, ('trollers') cannot be said to
have acted on behalf of the EFF. No established legal
relationship
exists between the anonymous third parties and the EFF that could
attract liability to it.
[59]
Applying the principles of vicarious liability to illustrate that no
liability may arise is apposite in this case. The conduct
of the
anonymous third parties can never be attributed to the respondents
where the conduct in question is in direct violation
of Mr Malema's
speech.
[60]
There is no dispute that the Constitution recognises and specifically
protects the freedom of the media. The importance of
the media in our
society has also been repeatedly re-affirmed by our courts in several
landmark cases.
60.1
In
van
Breda v Media 24 Ltd
[38]
the court held:
"[10] The right of the media to
gather and broadcast information, footage and audio recordings flows
from s 16 of the Constitution.
The right to freedom of expression is
one of a 'web of mutually supporting rights' that holds up the fabric
of the constitutional
order. The right is not limited to the right to
speak, but also to receive information and ideas. The media hold a
key position
in society. They are not only protected by the right to
freedom of expression, but are also the 'key facilitator and
guarantor'
of the right. The media's right of freedom of expression
is thus not just (or even primarily) for the benefit of the media: it
is for the benefit of the public".
60.2
In
Khumalo
and Others v Holomisa
[39]
Constitutional Court
explained the role of the media:
"[22] The print, broadcast and
electronic media have a particular role in the protection of freedom
of expression in our society.
Every citizen has the right to freedom
of press and the media and the right to receive information and
ideas. The media are key
agents in ensuring that these aspects of the
right to freedom of information are respected. The ability of each
citizen to be a
responsible and effective member of our society
depends upon the manner in which the media carry out their
constitutional mandate".
60.3
In
National
Media Ltd and Others v Bogoshi
[40]
,
the vital role of the media
was stressed:
“
[l]n a system of democracy
dedicated to openness and accountability, as ours is, the especially
important role of the media, both
publicly and privately owned, must
in my view be recognized. The success of our constitutional venture
depends upon robust criticism
of the exercise of power... It is for
this very reason that the Constitution recognises the special
importance and role of the
media in nurturing and strengthening our
democracy".
[61]
The right to free expression protects the
underlying values of free and frank debate, the promotion of
openness, transparency and
accountability and among others, freedom
of information. Freedom of the media undeniably aids the quest for
truth and allows citizens
the necessary exposure to information
required for meaningful social commentary. This is crucial to the
pursuit of a participatory
democracy where all citizens are active
and involved, having access to information, and platforms to share
their views.
[62]
The media has sometimes come under scrutiny for its portrayal of
events and people in circumstances where bias is shown towards
certain people and/or versions of events. With the advent of greater
connectivity in an age of technological advances, more media
sources
and greater access to those sources by more people than ever before,
there is an equally heavy burden on the media to report
in a manner
which does not violate other people's rights.
Final
Interdict
[63]
The complainants seek a final
interdict against the respondents and it was submitted, that to the
extent that the relief sought
falls outside the
Equality
Act,
the complainants have
in any event met the requirement for an interdict that can be granted
by the High Court. The complainants'
counsel submitted that in the
event that this court hold that the complaint ought to have been
referred to the High Court in terms
of section 20(3) of the
Equality
Act,
it would be convenient
that I hear this matter sitting as the High Court, and to consider
the interdict application. In this regard
counsel relied on
Minister
of Environmental Affairs and Tourism v George and Others
[41]
:
"[19]... Given that the problem
of concurrency will inevitably recur, the most productive and
expeditious way of achieving
efficiency would seem to lie in the
matter being referred to the same High Court Judge who, in his
capacity as an Equality Court
Judge is presiding in that Court".
[64]
The respondents' response to this submission is that I should not
detain myself with examining whether the requirements of
an interdict
have been met. Counsel for the respondents contended that the
complainants have failed to establish a breach of section
10 of the
Equality Act,
and are therefore not entitled to a common law
interdict from this court. The failure to establish such breach shows
an absence
of a right. I agree with this submission.
[65]
It is trite in our law that where a right has not been established,
the court need not entertain the matter further. The complainant's
attempts to establish the right in respect of generic relief, so as
not to be harassed and intimidated, is inappropriate for the
exercise
of this court's statutory limited discretion. In my view, the
complainants have failed to make out an appropriate case
for
interdictory relief on the papers before me. The kind of prohibitory
and never-ending interdict that the applicants seek has
already been
rejected as an unjustifiable infringement on free speech.
Strike
Out Application
[66]
The respondents' answer to the factual allegations in the
complainants' affidavits is to seek their striking out on the basis
that they are irrelevant, or constitute hearsay or that the
respondents have no knowledge of the facts alleged and therefore
cannot
dispute same. The strike-out application is based on the
premise that it is incompetent to establish a cause of action (or
several
causes of action) on anything other than the founding
affidavit. It is for this reason that the application to strike out
the supporting
affidavits (including annexures) was brought.
[67]
Rule 6(15)
[42]
provides for the striking out of any matter contained in an affidavit
in application proceedings, which is· scandalous,
vexatious or
irrelevant. A court will not grant an application to strike out,
unless it is satisfied that the party seeking relief
will be
prejudiced in the conduct of the claim or defence, if the application
is not granted.
[68]
In
Vaatz
v Law Society of Namibia
[43]
it was held:
“
The phrase 'prejudice to the
applicant's case' clearly does not mean that if the offending
allegations remain, the innocent party's
chances of success will be
reduced. It is substantially less than that. How much less depends on
all the circumstances; for instance,
in motion proceedings it is
necessary to answer the other party's allegations and a party does
not do so at his own risk. If a
party is required to deal with
scandalous or irrelevant matter the main issue could be side-tracked
but if such matter is left
unanswered the innocent party may well be
defamed. The retention of such matter would therefore be prejudicial
to the innocent
party:
[69]
The respondents do not dispute that there are six complainants before
court, but what they dispute is, the contents of the
supporting
affidavits to the extent that they go beyond what is alleged in the
founding affidavit deposed to by Ms Mahlatse.
It
is argued that the supporting affidavits have gone over and above the
allegations made by introducing further evidence, which
is highly
irregular.
[70]
These supporting affidavits are briefly discussed below.
[71]
Ms Munusamy's affidavit
71.1
Ms Munusamy stated in her
supporting affidavit that she is one of the journalists that Mr
Malema singled out in his address to EFF
supporters on 20 November
2018 at the Commission of Inquiry. She even broke down in the
presence of her colleagues. As a result,
she has been singled out for
attacks by EFF supporters who have taken it upon themselves to
threaten and harass her
[44]
.
She has been referred to as part of an 'Indian mob', 'cabal of
kulikies', a 'curry chakalaka woman' and a 'devil’
[45]
.
71.2
Shortly after Mr Malema had
singled her out as being part of the 'Ramaphosa defence force', she
was accosted by three men while
visiting a shopping Centre on 23
November 2018. As a consequence, she has relocated to a new
neighbourhood because she felt unsafe
[46]
.
71.3
Ms Munusamy states that she
suffered online harassment that has affected her well-being and her
ability to function as a journalist.
She did not attend to EFF media
events during the elections and refrained from contacting EFF leaders
for comments
[47]
.
She has also been forced to block Mr Malema on twitter to protect
herself from harassment and intimidation
[48]
.
[72]
It is noteworthy that on Ms Munusamy's own version, she sent a
text message to Mr Materna, thanking him in respect of the speech
complained of, specifically in respect of Mr Malema's message to his
supporters not to resort to violence. The respondents' counsel
argued
that paragraphs [6] - [8] and [10] - 114] in Ms Munusamy's affidavit
goes beyond what was alleged in the founding affidavit,
and pertain
to comments made by neither of the respondents and ought to fall
away.
[73]
Counsel contends that Ms Munusamy could have obtained confirmatory
affidavits to confirm her allegations, which she failed
to do. It is
therefore near impossible for the respondents to rebut the
allegations made by Ms Munusamy, given the fact that, not
only is
such knowledge hearsay and unique to her, but the details are vague
and scant, and the respondents are severely hampered
in being able to
respond thereto.
[74]
It was further argued that it was only in reply that Ms Munusamy
alleges to have moved to a different neighbourhood for her
personal
safety. This is impermissible, it being trite in our law that a party
is not permitted to make a case out in reply. Counsel
contended that
this alone justifies that the affidavits of Ms Munusamy be struck
out.
[75]
The respondents further argued that regarding the incident she
experienced at a shopping mall, there is no indication in her
affidavit as to why she considered the persons who allegedly accosted
her, to be affiliated with the respondents or their treatment
of her
to be directly attributable to Mr Malema's speech. The respondents
are therefore again prejudiced as they are unable to
put up an
alternate version in rebuttal.
[76]
Ms van Wyk's affidavit
76.1
Ms van Wyk stated in her
supporting affidavit that she became the subject of attack and
harassment by the EFF and its supporters
as a result of articles that
she published in the Daily Maverick on 11 October 2018, 21 November
2018 and 9 December 2018, respectively,
alleging that Mr Floyd
Shivambu and the EFF indirectly benefitted from monies flowing from
the VBS bank
[49]
.
Thereafter, when she told Mr Malema in a tweet that he was
endangering the lives of journalists, Mr Malema's response was to
call her 'satan'. EFF supporters then made misogynistic tweets and
online sexual innuendos against her and referred to her as 'satan',
having taken their cue from Mr Malema
[50]
.
76.2
Ms van Wyk states that she
fears for her safety and has been warned by various security
specialists not to take the threats against
her lightly. Her sources
have told her that she may be in physical danger, and her editor had
offered to assign bodyguards to her
[51]
.
[77]
The respondents' counsel argued that Ms van Wyk included various
allegations in both her supporting and replying affidavits
which are
not relevant to the main application. These allegations mostly
pertain to her investigations regarding the VBS bank report
are not
relevant to either of the respondents nor the merits of the
application, and ought to be struck out. Furthermore, Ms van
Wyk's
comments in paragraphs [12.2] - [16] and [18] of her affidavit are
not authorised by the respondents.
[78]
It was further argued that Ms van Wyk alleged to have been warned by
security specialists as to the threats made to her, and
that these
threats were not made by the respondents. There is, however, no
further evidence supplied by Ms van Wyk to confirm the
veracity of
her statements. The remaining allegations in paragraphs [19] and [201
of her affidavit constitute hearsay evidence,
and ought to be struck
out.
[79]
M Basson's affidavit
79.1
Mr Basson stated in his
founding affidavit that after the press conference on 5 July 2018,
where Mr Malema accused journalists of
being 'politicians', he has
been the subject of hate speech that has led to a barrage of abuse
and intimidation by EFF supporters
[52]
.
During a press conference on 16 October 2018, Mr Malema referred to
him as being part of the 1652 mob. This has resulted in a
barrage of
online threatening, abusive and harmful insults by EFF supporters. Mr
Malema had called him a
"racist
thing"
on twitter. One
of the EFF supporters posted that Mr Basson should be killed
[53]
.
79.2 Mr Basson states that he was
"deeply offended by Mr Malema's defamatory statement"
and considers the attacks dehumanising and as an affront to his
dignity.
[80]
The respondents argued that the fact that Mr Basson states that he
was offended and defamed is clearly a defamation allegation.
Insofar
as Mr Basson refers to insults directed at him as stated in
paragraphs [17] - 121] of his supporting affidavit, and paragraphs
[6.1], [6.6] and [6.7] of the replying affidavit, these were uttered
by anonymous twitter users and not by respondents.
[81]
Mr Du Preez's affidavit
81.1
Mr Du Preez states in his
supporting affidavit that he was one of the journalists singled out
by Mr Malema at a rally on 20 November
2018
[54]
As a result. he was attacked by EFF supporters when he attended the
Zondo Commission hearings on 21 November 2018. He has also
been
subjected to extreme harassment on twitter by EFF supporters and had
been called
inter alia
'white racist', 'a stratcom
agent', and been told that he could be dead
[55]
.
81.2
Mr Du Preez states that
strangers, presumably EFF supporters, have approached him in public
places and warned him to refrain from
criticising the EFF and its
leadership
[56]
.
[82]
The respondent's counsel submitted that Mr Du Preez's supporting and
replying affidavits do not contain a single relevant allegation
to
the respondents, as all the complaints pertain to anonymous
individuals in circumstances where even Mr Du Preez fails to
establish
that they are affiliated with the respondents. He also
makes remarks pertaining to the Vodacom incident, which incident does
not
form part of the subject matter of this application, and is
therefore entirely irrelevant.
[83]
Mr Bateman's affidavit
83.1
Mr Bateman states that during
December 2018, he reported on the alleged relationship between Mr
Malema and Mr Mazotti, an alleged
tobacco smuggler. Afterwards, he
and his family have been subjected to a series of twitter threats by
EFF supporters, even threatening
to visit him at his house
[57]
.
83.2
Mr Bateman states that he fears
for his safety given the response by the EFF supporters, who
violently attacked a vandalised Vodacom
premises in response to a
tweet by the EFF's deputy secretary-general that Vodacom had declared
war against the EFF
[58]
.
[84]
Counsel for the respondents submitted that paragraphs [11] - [14J,
[17], 121] - [24], [26] and [28]
[59]
in Mr Bateman's founding affidavit, pertain to tweets made by
anonymous twitter users and cannot be attributed to the respondents.
In addition, Mr Bateman makes extensive reference to the Vodacom
incident, which is not related to the complaint raised in respect
of
this application. These paragraphs are irrelevant and should be
struck out.
[85]
Insofar as the various annexures are concerned the respondents argue
that they consist primarily of inadmissible evidence pertaining
to
tweets sent to the complainants by anonymous third parties
[60]
.
The respondents concede that the contents of some of the tweets are
admittedly abhorrent, but even though that might be the case,
they
argue that it would not be just to attribute the actions of
independent twitter users to that of the respondents. The respondents
have distanced themselves from the tweets by the unknown sources.
[86]
Counsel for the complainants opposed the application to strike
out, and submitted that the evidence sought to be struck out is
indeed
relevant to the complaint that is before this court. I do not
agree with this submission.
[87]
In his heads of argument, the complainants' counsel submitted
that the Equality Court is not empowered to entertain a strike out
application on the basis of the provisions of section 4(1) of the
Equality Act.
Section 4(1) directs that the principles that
should apply in the adjudication of any proceedings include the
'expeditious and informal'
processing of cases, which should
facilitate participation by the parties to the proceedings.
[88]
In my view, this submission is misconceived. Section 4 does
not create a special species of enquiries heard by the Equality Court
that then disregard all the rules of evidence. I agree that the
Equality Act
contemplates an informal process to adjudicate
disputes and the deviation of the rules in so far as the expeditious
enrolment of
cases is concerned. As far as case management issues are
to be determined, it must be in a more expeditious manner that falls
outside
the Uniform Rules of Court.
[89]
The next argument by the
complainants is that section 19 of the
Equality
Act
[61]
does not make provision for applications to strike out. In my view,
this argument is completely without merit. Section 19 actually
carves
out the ability for the respondents to rely on Rule 6(15) for the
strike out application. The application is an interlocutory
application, and although it is not regulated in terms of the
Equality Act,
it
can still be heard together with the merits in this case, which is an
'expeditious manner' of processing the case.
[90]
The complainants' counsel relied on
South
African Human Rights Commission v Qwelane; Qwelane v Minister of
Justice and Correctional Services
[62]
where it was held:
"[6]... It is equally plain that
access to the Equality Court does not have the traditional and
procedural red tape. The procedure
thereat is also aimed to be
informal as mirrored by ss such as section 21(1) of the Equality Act
which refers to an
"inquiry".
In my view, all of
this points to the fulfilment [sic] of the right to access to courts,
as enshrined in section 34 of the Constitution".
[91]
Counsel also relied on
Manong
and Associates (pty) Ltd v Department
of
Roads and Transport, Eastern
Cape
[63]
where the Supreme Court of Appeal described the Equality Court as a
creature of statute deriving its powers from its empowering
statute.
[92]
The reliance by the complainants on these two cases does not support
their argument nor take their case any further as to why
the strike
out application should not be granted. In the
Manong
matter,
the Judge was called upon to determine a point of law in terms of
Rule 65(d)(3) which is regulated in terms of the Uniform
Rules of
Court. In the
Qwelane
matter, the Judge decided that they were
dealing with a novel issue and had regard to as much evidence as
possible.
[93]
The complainants' contention that a strike out application cannot be
brought in the Equality Court is in my view, wrong. I
have noted that
although on the one hand the complainants argue that the strike out
application cannot be entertained as these
proceedings are an enquiry
and informal, on the other hand they seek a final interdict as relief
against the respondents.
[94]
In my view, the admission of irrelevant information will result in
the respondents suffering prejudice. Apart from having to
deal with
hundreds of pages of irrelevant annexures, the main issue before me
may be side-tracked. Under the circumstances, the
application to
strike out succeeds.
Amicus
Curiae
[95]
Media Monitoring Africa ('MMA')
intervened as an
amicus
curiae
in these
proceedings. MMA is a highly respected NGO which has an established
track record of acting in the public interest in matters
relating to
media issues
[64]
.
MMA seeks to protect the rights to freedom of the media. It does so
from the perspective of a watchdog that seeks to promote ethical
and
fair journalism that supports constitutional rights. Although MMA is
a strong defender of freedom of expression, it states
that it does
not adopt an absolutist stance on freedom of expression or freedom of
the media. On the contrary, when it is appropriate,
MMA contends that
freedom of expression ought to be limited in appropriate
circumstances.
[96]
Although the media's importance in a democratic South Africa is
uncontentious, counsel for MMA made out a generalised case
about the
importance of freedom of expression and freedom of the press and
other media in particular. MMA sought to introduce an
argument on
where an appropriate balance may be stuck between the protection of
media freedom, and the prevention of intimidation
and harassment of
the media on the one hand, and legitimate and robust political
rhetoric on the other hand.
[97]
MMA's counsel submitted that the verbal and written intimidation of
journalists is designed to chill media reports concerning
the
respondents, by instilling fear in the journalists and prevent or
discourage them from carrying out their employment role,
in a manner
that is fair, unbiased and ethical, and that such conduct·cannot
be treated as protected speech under section
16 of the Constitution.
Counsel argued that rather, the expression ought to be recognized as
a concerted campaign by the respondents
to use tools within their
sphere of authority and influence to cower the named journalists from
their professional mandate, for
fear of physical or other harm.
[98]
In my view, this unsubstantiated allegation by MMA against the
respondents is startling, to say the least. No such case is
made out
by the complainants, and the purpose of granting MMA's application to
be admitted as
amicus curiae
was not for it to raise new
facts. An
amicus
is not entitled to raise a new cause of
action.
[99]
MMA relied heavily on international law and
referred the court to the international law instruments applicable to
the safety of
journalists, and the need for State protection of
journalists, and the media in general in the furtherance of an open
and democratic
society, and the enhancement of tolerance of contested
views within society.
[100]
The United Nations General Assembly (GA) and specifically, its Human
Rights Council, have on an ongoing basis, monitored,
considered, and
issued Resolutions pertaining to the safety of journalists. The UN
Security Council has similarly issue Resolutions
on the protection
and safety of journalists in conflict areas. In so doing, the
international law position as expressed by the
community of nations
in the GA, thus including South Africa, have repeatedly committed
themselves to acknowledging the importance
of an independent media
and the need to ensure constant vigilance for any threat,
intimidation, harassment or victimization of
journalists or media
personnel, based solely on the professional reporting function they
fulfill in society.
100.1
The GA Human Rights Council
Resolution 21/12, Safety of Journalists
[65]
,
recalls article 19 of the International Covenant on Civil and
Political Rights (ICCPR)
[66]
which provides that "[e]veryone shall have to hold opinions
without interference" and for the protection of freedom "to
seek, receive and impart information and ideas".
100.2
GA Human Rights Council
Resolution 27/5, Safety of Journalist
[67]
,
reiterates certain recordals from earlier Resolutions, and in
addition:
"Takes
note of the good practices of different countries aimed at the
protection of journalists, as well as,
inter alia,
those
designed for the protection. of human rights defenders that can,
where applicable, be relevant to the protection of journalist'.
100.3
GA Human Rights Council
Resolution 33/2, Safety of Journalists
[68]
,
records the important contribution of the promotion and protection of
safety of journalists to the UN 2030 Agenda for Sustainable
Development, and the commitments therein to promote peaceful and
inclusive societies for sustainable development, including, by
ensuring public access to information and protecting fundamental
freedom. The Resolution recognises:
".
. . that the work of journalists often puts them at specific risk of
intimidation, harassment and violence, the presence
of which often
deters journalists from continuing their work or encourages
self-censorship, consequently depriving society of important
information... ".
100.4
GA Human Rights Council
Resolution 39/6, Safety of Journalists
[69]
,
stated that:
"Alarmed
at instances in which political leaders, public officials and/or
authorities denigrate, intimidate or threaten the
media, including
Individual Journalists, which Increases the risk of threats and
violence against journalists and undermines public
trust in the
credibility of journalism".
[101]
Finally, the UN Security
Council Resolution 1738
[70]
condemns all attacks, violence and the incitement of violence against
journalist in conflict situation. In recalling the Geneva
Conventions
1949, the Resolution urges that journalists are treated as civilians
in conflict situations and emphasises the responsibility
on States
and all parties to respect the professional independence and rights
of journalists and media professionals.
[102]
It is clear that the principles on the safety of journalists are no
different to the foundational values regarding freedom
of media
expression as pronounced on by our courts, and the values and
obligations imposed on South Africa on the international
plain are
harmonious with its constitutional obligations in the domestic
sphere. It is thus incumbent on all organs of State, including
the
judiciary, to not only have regard to, but to take positive steps to
protect the safety and independence of journalists.
[103]
As much as I appreciate the participation of MMA in this matter, it
did not contribute anything insofar as the issue which
is before me
is concerned; which is not about whether the media is important in a
democracy, but whether the complaint breaches
sections 10 and 11 of
the
Equality Act.
Costs
[104]
Although in their heads of argument, the respondents asked for
punitive costs order against the complainants, at the hearing
of this
matter, the respondents' counsel submitted that a both the
complainants and the respondents are acting jn the public interest,
there should be no order as to costs. Counsel contends that the
dismissal of the case is due to it being legally misconceived,
and
reiterated that the respondents do not endorse nor support the abuse
of journalists through social media.
[105]
The Constitutional Court
in
Biowatch Trust v
Registrar, Genetic Resources and Others
[71]
was concerned with the potential chilling effect that an adverse
costs order would have on litigation conducted in the public
interest. Based on
Biowatch
and the respondents'
counsel's submission, there will be no order as to costs.
[106]
In my view, the complainants have failed to establish that
being a journalist qualifies for the protection under section 10 and
11 of the
Eqµality Act
directly or as an 'analogous'
ground. The respondents' conduct does not qualify as hate speech due
to the absence of hatred and
incitement of hatred of journalists as a
whole.
[107]
A constitutionally compliant reading of the
Equality
Act
necessitates a restrictive interpretation, and consequently
favours not limiting the freedom of speech, save in the clearest of
cases, and this is not such a case. Therefore, there is no factual
and legal causation such that the respondents may be held liable
for
breaching the
Equality Act.
[108]
In the premises, the following order is made:
1.
The application is dismissed.
2.
There is no
order as to costs.
_______________________
MOLEFE
J
JUDGEOF
THE EQUALITY COURT
APPEARANCES:
Counsels'
on behalf of Complainants: Adv. D Burger SC
Adv.
T Manchu
Adv.
K Millard
Adv.
A Bevilacqua
Instructed
by: Willem de Klerk Attorneys
Counsels'
on behalf of Respondents: Adv. T Ngcukaitobi
Adv.
K Premhid
Instructed
by: Jan Levitt Attorneys
Counsel
on behalf of
Amicus
Curiae: Adv. Sha'ista Kazee
Instructed
by: Webber Wentzel Attorneys
Date
of Hearing: 5, 6 August 2019
Date
of Judgment: 24 October 2019
[1]
Act 4 of 2000.
[2]
Act 51 of 1996.
[3]
Founding affidavit, pages 15 and 16, paras 15 -18, Annexure mm 2.2 -
mm 2.4 pp 30-32.
[4]
The Constitution of the Republic of South Africa, 1996.
[5]
Section 9 of the Constitution guarantees the right to equality.
[6]
Section 9(1) Everyone is equal before the law and has the right to
equal protection and benefit of the law.
[7]
2019 (2) SA 194
(SCA) at para [14].
[8]
Founding Affidavit, page 11, para 3.2.
[9]
Founding Affidavit, page 11, para 3.3.1.
[10]
Bundle page 485 annexure MM1.
[11]
Supporting affidavit, Munusamy, pages 75-76, para 15.
[12]
Founding affidavit, Mahlase, page 31, annexure 'MM 2.3'.
[13]
Founding affidavit, Mahlase, page 31, annexure 'MM 2.3'.
[14]
Founding affidavit, Mahlase, page 62, annexure 'MM 18'.
[15]
Supporting affidavit, van Wyk, page 118, para 12.1; page 140,
annexure 'PWS'.
[16]
Supporting affidavit, Bateman, page 233-234, para 21-22, page 247,
annexures 'BB 13' and 'BB 14'.
[17]
Supporting affidavit, Basson, page 174, para 19; annexure "AB25”;
Replying affidavit, Basson pages 510-511, para 6.6-6.7;
pages
513-514, annexure "AB1" and "AB2”.
[18]
Founding affidavit, page 6, para 13.
[19]
Replying affidavit, page - , para 26.
[20]
2019 (1) SA 289
(GJ) at para 82.
[21]
Constitution of the Republic of South Africa, 1996.
[22]
Khumalo supra para 88.
[23]
Khumalo supra para 98.
[24]
2019 (2) SA 194
(SCA) at para 31.
[25]
SANEF heads of argument, page 10, para 33.
[26]
2004 (1) All SA 21(SCA).
[27]
lslamic Unity Convention v Independent Broadcasting Authority and
Others
[2002] ZACC 3
;
2002 (4) SA 294
(CC) at para 43.
[28]
Sec 15 of the Canadian Charter of Rights and Freedoms.
[29]
Larbi-Odam and Others v Member of the Executive Council for
Education (North West Province) and Another (CCT2/97)
[1997] ZACC
16
;
1997 (12) BCLR 1655
; 1998 (1)SA 745 (CC).
[30]
Holomisa v Argus Newspapers Ltd 1996·(2) SA 588 (W).
[31]
Supporting affidavit, Munusamy, page 82, para 42.
[32]
Supporting affidavit, van Wyk, page 121, para 18.
[33]
Supporting affidavit, Basson page 175, para 27.
[34]
(14686/2019) (2019} ZAGPJHC 166; [2019)
3 All SA 499
(GJ).
[35]
[2005] ZACC 8
;
2005 (6) SA 419
(CC) at para
[24]
.
[36]
2013 (1) SA 83
CC.
[37]
Answering affidavit page 280·282, para 59--63.
[38]
2017 (5) SA 553
(SCA) at para [10].
[39]
[2002] ZACC 12
;
2002 (5) SA 401
(SCA) at para
[22]
.
[40]
1998 (4) SA 1196
(SCA) at p 1217 B-C.
[41]
2007 (3) SA 62
(SCA) at para 19.
[42]
Uniform Rules of Court.
[43]
1991 (3) SA 563
at 566-567.
[44]
Supporting affidavit, Munusamy page 80, para 32-34.
[45]
Supporting affidavit, Munusamy page 74, para 12, 13, 15.
[46]
Replying affidavit, Munusamy pages 501-502, para 6.3.
[47]
Replying affidavit, Munusamy pages 501-502, para 6.3.
[48]
Supporting affidavit, Munusamy page 77, para 31.
[49]
Supporting affidavit, van Wyk pages 116-117, para 6.
[50]
Supporting affidavit, van Wyk, pages 148-155; 'PW13-PW20' pages
143-146.
[51]
Supporting affidavit, van Wyk, page 122, para 20.
[52]
Supporting affidavit, Basson, page 170, para 7-8.
[53]
Supporting affidavit, Basson, page 203 annexure "AB25".
[54]
Supporting affidavit, Du Preez, pages 206-207, para 10-11.
[55]
Supporting affidavit, Du Preez, page 208, para 14.
[56]
Supporting affidavit, Du Preez, page 209, para 19.
[57]
Supporting affidavit, Bateman page 240, annexure 'BB3'.
[58]
Supporting affidavit, Bateman pages 234-235, para 22-27.
[59]
Supporting affidavit, Bateman pages 231-235.
[60]
Annexures uRM5-RM10'', pages 90-95; Annexures "PW5-PW32";
pages 140-167, Annexures "AB4-AB25°, pages 182-203;
Annexures "M D1-MD10, pages 211-221; Annexures "883-889"
pages 240-246; aB811-BB12" page 248-249.
[61]
Section 19 - Rules and Court proceedings.
[62]
(EQ44/2D09; EQl3/2012) {2017] ZAGPJHC 218; (2017]
4 All SA 234
(GJ);
2018 (2) SA 149
at para [6].
[63]
(457/09) [2010] ZASCA 169; 2011 (2) SA 90 (SCA); 2011 (5) BCLR 548
(SCA); [2011] 2 All SA 383 (SCA).
[64]
See participation of MMA in the matter of Electronic Media Network
Limited and Others v etv (Pty) Limited and Others
2017 (9) BCLR 1108
{CC); Van Breda v Media 24 Limited and Others; National Director of
Prosecutions v Media 24 Limited and Others
2017 (2) SACR 491(SCA)
and Motsepe v S 2015 (5) SA 126 (GP).
[65]
22nd Session, dated 1 September 2014.
[66]
Dated 16 December 1966, entry force on 23 March 1976, signed by
South Africa in October 1994.
[67]
27th Session, dated 2 October 2014.
[68]
33rd Session, dated 26 September 2016.
[69]
39th Session, dated 21 September 2018.
[70]
16th Session dated 23 December 2006. This is amplified and developed
in Security Council Resolution 2222, adopted at the 7450th
Session,
dated 27 May 2015.
[71]
2009 (6) SA 232
(CC).