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[2019] ZAEQC 8
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South African National Editors' Forum and Others v The Economic Freedom Fighters and Others [2019] ZAEQC 8 (24 October 2019)
IN
THE EQUALITY COURT OF SOUTH AFRICA
(GAUTENG.DIVISION,
PRETORIA)
Case
Number: 90405/18
REPORTABLE:
YES
OF
INTEREST TO OTHER JUDGES:
YES
REVISED:
YES
24/10/2019
SOUTH
AFRICAN NATIONAL EDlTORS' FORUM
First Complainant
NAVARANJENIMUNUSAMY
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
MOLEFEJ
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
7
th
Street, Linden, Johannesburg.
2.4
The fourth complainant is Adriaan Sasson, 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
Avenue, 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, corner 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
('Zonda 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 Zonda 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 Materna 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 [9] 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
(d)
academic freedom and freedom of scientific research
(2)
The right in subsection (1) does not extend to -
(a)
propaganda and war;
(b)
incitement of imminent violence; or
(c)
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 ongtn,
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 as s 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
Ma/ema
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 MustFall
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 Malema on 20 November in response to tweet from Ms
Haffajee:
[13]
Ms Haffajee tweets:
"Malema says this in a speech and then EFF media 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 Malema 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
Ndl
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
90000".
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]
TshekoTsk (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
Sasson".
Mr Sasson 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 it"
[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
Watchenµka
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 Sasson
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 Electoral 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 law 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 Materna 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) - [14] 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 [20]
of her
affidavit constitute hearsay evidence, and ought to be struck
out.
[79]
M Basson's affidavit
79.1
Mr
Sasson 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 Sasson should be killed
[53]
.
79.2
Mr Sasson 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 Sasson refers to insults directed at him as stated in
paragraphs [17] - [21]
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] - [14], [17], [21]
- [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 as both the
complainants and the respondents are acting
in 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
Equality
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
JUDGE
OF 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:
Ian 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 MMl.
[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 'PW5'.
[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]
Islamic
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 Memb.er of the Executive Council for Education (North
West Province) and Another (CCT2/97) [1997) ZACC
16
[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, Sasson, page 170, para 7-8.
[53]
Supporting affidavit, Sasson, 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 "RM5-RM10", pages 90-95; Annexures "PW5-PW32";
pages 140-167, Annexures "AB4-AB25", pages
182-203;
Annexures "MD1-MD10, pages 211-221; Annexures "B83-8B9"
pages 240-246; "BB11-BB12" page 248-249.
[61]
Section 19 - Rules and Court proceedings.
[62]
(EQ44/2009;
EQ13/2012) {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]
22
nd
Session, dated 1 September 2014.
[66]
Dated 16 December 1966, entry force on 23 March 1976, signed by
South Africa in October 1994.
[67]
27
th
Session, dated 2 October 2014.
[68]
33
rd
Session, dated 26 September 2016.
[69]
39
th
Session, dated 21 September 2018.
[70]
1613
th
Session dated 23 December 2006. This is amplified and developed in
Security Council Resolution 2222, adopted at the 7450
th
Session, dated 27 May 2015.
[71]
2009 (6) SA 232
(CC).