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[2022] ZAEQC 1
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Solidarity and Another v Black First Land First and Others (EQ2/19) [2022] ZAEQC 1; [2022] 2 All SA 549 (GJ) (2 March 2022)
I
N
THE
EQUALITY
COURT
OF
SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NUMBER: EQ2/19
Reportable
Of
Interest to Other Judges
Revised
In
the matter between:
SOLIDARITY
First Applicant
BEREAVED
FAMILIES
AS
PER
ANNEXURE
"A"
Second
Applicant
and
BLACK
FIRST LAND FIRST
First Respondent
LINDSAY
MAASDORP
Second Respondent
ZWELAKHE
DUBASI
Third Respondent
JUDGMENT
MOKGOATLHENG
J:
1.
The
Applicants
have
instituted
proceedings
against
the
Respondents
in
terms
of
Section
20
of
the
Promotion
of
Equality
and
Prevention
of
Unfair
Discrimination
Act 4 of 2000
("The
Act")
alleging
that
the
Second and Third
Respondents
made
certain
comments
pursuant
to the death of the four white
leaners
arising from the collapse
of
the
walkaway
bridge
at
Driehoek Hoerskool on 1
February
2019.
According
to
the Applicants these comments:
1.1
Discriminated
against
the
deceased
four
l
earners
on
the
basis
of
race
in
contravention
of
section 7 of The Act;
1.2
Were
intended to be hurtful, harmful, and promoted and propagated hatred
based on race, in contravention
of
section
10
of
The Act;
1.3
Were
unwarranted,
serious
and
were
intended
to
demean,
humiliate
and
create a hostile and intimidating environment
based
on race.
2.
The
Applicants
allege
that
the
comments
made
by
the
Second
and
Third
Respondents
with
which
the
First
Respondent
has
identified
with,
did
not
only
celebrate the
death
of the four white
learners,
but
conveyed
the
implicit
message
to the reader of ordinary
intelligence
that whites
because
of the colour of their skin are:
2.1.
Deserving
of
death;
2.2.
Deserving
of
punishment;
2.3.
Are
land
thieves;
2.4.
Need
to be fought; and
2.5.
Are
the enemy of the Respondents and Blacks in general.
3.
The
Applicants
contended
that
because
of
these
comments,
from
the
average
reasonable
South
Africans
and
member
of
the white
community
and
more
specifically
of
the families
of
the
deceased
and
injured
white
learners,
was
on
of outrage, disappointment, disgust, degradation, and humiliation
because
these
comments
constituted a serious affront to the families of the four
l
earners
constitutional
right
to their life, dignity and equality.
4.
Further
the
Applicants
contend
that
not
only
did
the
Respondents
celebrate
the
demise
of the four
l
earners
because of their race, but the Respondents comments were
clearly
intended
to
be
harmful
and
hurtful
to white
people
in
general
and
to the families
of
the deceased
and
injured
white
learners
in
particular.
Further,
the Applicants argue
that
these
comments
were
intended
to
incite,
promote,
and propagate
racial
hatred.
The
Applicants
allege
that
the
Second
and
Third
Respondents
being
members and office bearers
of
the
First
Respondent
a
registered political party in
terms
of
the
Electoral
Act,
aspect rendered
their
comments more worth of censure, condemnation
and
prosecution.
5.
The
Applicant
further allege
that
the
Respondents
comments
constitute racial discrimination,
hate
speech, and harassment as defined by section 7, 10, 11
of
the Act, and have resulted in the individual applicants
suffering
damages
arising
from the impairment of their
rights
to equality,
life,
dignity, emotional and psychological suffering,
humiliation,
and degradation and their hate speech comments in amount of
R150,
000.00,
respectively
against
the second and third respondents.
6.
The
Applicants
also
seek
an
order
declaring
that
the
Second
and
Third
Respondents comments are hate speech as defined
in
the
Equality
Act,
and
also interdicting
and
restraining
the
Respondents
from
publishing,
propagating,
advocating or communicating the said hate
speech
comments
as
defined in section
10
of the
Equality
Act in any form whatsoever.
7.
Further,
the
Applicants
seek
an
order
that
the
Respondents
should
publish
an
unconditional apology to them at a date and time to be arranged with
the court and or the Respondents within 30 days of the finalization
of this matter. The Applicants also seek an order that the
Respondents should pay the costs of this application.
THE
RELEVANT FACTS
8.
The
relevant facts are as follows:
8.1.
On
1
February
2019,
at
approximately
08h00,
a
most
tragic
incident
occurred
when a walkaway
bridge
collapsed at the Hoerskool Driehoek,
causing
the
deaths
of
four
learners
-
Roydon
Olckers
(age
17),
Marli
Currie
(age14),
and
Marnus
Nagel
(age
16)
-
and
injuring
approximately
20
(twenty)
other
learners,
some
of
whom
are
still
in
a critical
condition
in
hospital.
8.2.
Within
minutes
of
the
incident
having
occurred
a
number
of
social
media
and
online newspapers covered the tragic event as it unfolded. On
the
same day,
one
Siyanda
Dizzy
Gumede
posted
on
his
Facebook
page
the following comments:
'Don't
have
a
heart
to
feel
pain
for white kids. Minus 3
future
problems'.
See
annexure
"AJB2"
8.3.
The
Second Respondent thereafter, on
his official twitter
account,
#TakeBLFtoParliament
@BLF_Lindsay,
posted
the
following
comment:
'Siyanda
Gumede
is
correct!
God
is
responding,
why
should
we
frown
on the ancestors petition
to
punish
the
land
thieves
including
their
offspring'
8.4.
When
asked for clarification by
the
Citizen, the Second Respondent said he was "not certain"
(whether) the victims were white,
adding
he
would
mourn
them
if
they
(the
victims)
turned
out
to
be
black. The
Second
Respondent
added that:
"If
our God has finally intervened
and
our ancestors have petitioned
and
seen that these white
land
thieves have now died then I
definitely
celebrate
it. I celebrate the death of our enemies, their children, their cats
and
their
dogs.
That
is
our
position."
See
annexures
"AJB3"
and
"AJ84",
respectively.
8.5.
The
Third
Respondent
also
commented
on
the
post
of
Siyanda
Gumede
stating
that:
'Ancestors
are
with BLF (Black First Land First), as we fight they fight too.
They
shake
the
land,
and
white
buildings
built
on
stolen
land
collapse.
Keep
fighting Zinyanya you
are
fighting
a
good
fight.
Camagu.'
See
annexure
"AJB5"
9.
The
comments and statements
of
the
Second and
Third
Respondents were reported
by
a
number
of
media
houses,
and
have
received
extensive
coverage.
The Applicants
state
that by posting the said comments
on
social media platforms and
by
publishing
and
making
comments
and
statements
to
the
mass
media
as
the
Second
and
Third
Respondents
did,
who
are
respectively
national
spokesperson
and
deputy
secretary
general
of
the
First
Respondent,
there
was
further publication
and
consequently,
the Respondents
should
be
further
held liable
for
the
secondary
publication
of
the
comments
posted
because
the
Respondents
knew
that
these
comments
would
be
made
public
and
reported
by
the mass media.
10.
Further,
the Applicants
allege
that the Second and Third Respondents have made
it
clear that the said comments and remarks made by
themselves
are in conformity with and bear the official political views of the
First Respondent.
THE
RESPONDENTS'
DEFENCE
11.
All
the
Respondents
are
represented
by
Mr.
Andile
Mngxitama,
the
president
of
the
First Respondent (Black First Land First). The Second and Third
Respondents
are
both cited
in
their
capacities
as
the
national
spokesperson
and
deputy secretary
general
respectively
of
the
First
Respondent
,
a
political
party
which
at
the
inception of these proceedings was registered as such in terms of the
Electoral
Laws
of the Republic of South Africa.
12.
The
Respondents
admit
the
publication
and
the
contents
of
Annexures
"AJB",
"AJB2", "AJB3", "AJB4", "AJBS",
and
"AJB6",
and
further
admit that
the
Second
and
Third
Respondents
have
made
the
comments
and
statements
attributed to
them
in
the
mass
media
and
that
same
have
received
extensive
coverage and publication in the mass media.
13.
The
Respondents
deny that the comments
and
remarks made by the Second and Third Respondents are also the
official view and political policy of
the
First Respondent and
stated
that
such an
allegation
by
the
Applicants
is
a
misrepresentation. The Respondents allege that the strategic
objective of the First
Respondent
entails
the
institutional
obliteration
of
white
supremacy
and
the establishment
of
a radically
new
and meaningful state that will be fully
responsive
to
the
people's
needs.
The
First
Respondent
argues
that the
Driehoek
Hoerskool
tragedy read
with
the
comments
and
remarks
made
by
the
Second
and
Third
Respondents
highlights
the
need
for
a
dialogue
to
be
prioritised
on
the
national
political agenda towards facilitating the
real
i
sation
of a peaceful society.
14.
The
Respondents state that the Second
and
Third
Respondents'
comment do not amount
to
incitement
to
cause
imminent
harm
to
white
people.
The
Second
and
Third
Respondents
were merely acknowledging
an
event that
had
occurred
as
an indication of the historical redress for the evils of colonialism
that back people have been
and
continue
to
be
subjected
to
and
the
suffering
endured
by
black
people
understandably
brought
into
question
whether
God
was
with
them
or
not
in
the travails, the death and
injuries
the white
l
earners
sustained was an indication that Blacks
were
not
forsaken
by
God
and
that
factor
was
instructive
regarding
the
political situation
in
South Africa.
15.
The
First
Respondent
denies
that
the
Respondents
celebrated
the
death
of
the
white learners at the Driehoek Hoerskool tragedy. The First
Respondent is against
violence
and was formed to end the violence which
has
been going on since
1652
with
the arrival of white people in
South
Africa. This violence is structural and arises from colonialism which
in
turn
is
based on the theft
of
land by the whites
from
the blacks. The collective pain of blacks is based on colonialism.
The complaint of the
Applicants
exposes
the
selective
outrage
on
the
part
of
whites
and
their
organisation which
in
turn
dismisses the collective pain of blacks and gives recognition only to
white suffering
.
16.
The
Respondents
deny
that
even
if
the
comments
were
uncomfortable,
crude
or
offensive, they state
that
these
comments and remarks
did
not
constituted
a serious
affront
to
the
human
dignity
of
the
complainants and
white
people
in
general and neither did these comments constituted
incitement
to cause imminent harm or violence.
17.
The
Respondents further deny
that
their
conduct was intended
to
be
hurtful,
harmful
or
that
it
promoted
and
propagated
hatred
based
on
race.
The
Respondents
also
deny that their
conduct
was
intended
to demean,
humiliate,
or
create a hostile and intimidating environment
based
on race against white people.
18.
The
First
Respondent
states
that
what
happened
at
Driehoek Hoerskool is
a
tragedy,
and
is something that should not happen to any child.
In
a normal society all of
us
should without
hesitation,
find the
death
of
the four white
learners
tragic
and
sad.
19.
In
context,
Siyanda Gumede's comments were intended to perceive white children as
future
problems
because
they
are
the
same
people
who
have
benefited
from
the dispossession
of
Black
people,
but
under
normal
circumstances
South
Africa and should condemn such comments
outright,
but
doing so now would amount to
an
erasure
of
the bitter history black people are living through.
The
Histor
y
of
the A
pp
lication
20.
The
matter
was
argued on
the
17
September
2019 before
this
court
by
the
Applicants
represented
by
Advocate
Groenewald
and
the
Respondents
represented
Mr.
Mngxitama.
On
the
03
December
2019
this
court
handed
down the
judgment
and
declared
the
proceedings
a
nullity
pursuant
to
the
Supreme
Court of Appeal
(SCA)
judgment
in
the
matter
between Qwelane v South African Human Rights Commission
[2019] ZASCA
167
;
2020 (2) SA
124
(SCA) which was delivered on the 29 November 2019 before this court
handed down
i
ts
judgment
in
the present matter on December 2019.
21.
In
that
judgment
Supreme
Court
of
Appeal
(SCA) held
that
section
10
of
the
Promotion
of
Equality
and Prevention of Unfair
Discrimination
Act
4
of
2000 in
i
ts
present form was inconsistent with the provisions of section
16
of
the Constitution and
was
consequently
invalid.
Consequently
this
court
pursuant
such
pronouncement by
the
Supreme Court of Appeal declared the proceedings a nullity
because
the
Applicants
case
was
predicated
upon
section
10(1)
of The
Equality
Act.
THE
SCA JUDGMENT
22.
.
This
Court granted the Applicants
l
eave
to
appeal
to the Supreme Court of Appeal. The Supreme
Court
of Appeal ("SCA") upheld the appeal instituted by the
Applicants
on
24 March 2021.
23.
The
salent
features
of
the Supreme Court of Appeal judgment
are
the
following:
[1]
"After the hearing,
the
parties
were
informed
that
judgment would
be
handed
down
on
3
December 2019. The events that took place on that
day,
though
not confirmed on affidavit, were
,
as
recounted
by
counsel
for
th
e
appellants
and
confirmed
by
Mr
Mngxitama,
as
follows
.
Mokgoathleng
J
requested
the
parties
to
address
him
on
the
effect
of
this
Court's
judgment
in
Qwelane v
SAHRC,
which
had
been
delivered
on
29 November
2019
and
which
held
that
s
10 of the Equality Act was unconstitutional.
It
should be noted that this matter was subsequently appealed to the
Constitutional
Court
and
its
judgment
is
awaited.
[2]
After hearing oral submissions
,
thejudge
adjourned
the matter to consider the submissions.
What
occurred
thereafter
we
simply
do
not
know.
What
we
do
know
is
that
Across
the
front page
of
what
appears
to have
been
the
written
'judgment'
prepared
by
the judge,
he
had written by hand,
'[t]he
judgment
is
a nullity in view of the SCA judgment
of
Jonathan Dubula Qwelane case
No
686/2108
'
.
The
order
that
was subsequently issued by the
registrar
recorded:
'The
proceedings
in
case EQ2
/
2019
are declared a nullity
'
.
[3]
Whether
the court a quo considered the entire proceedings or merely the
judgment
to be a
nullity
is, on
the
papers before us, unclear. However, what is
apparent
is
that
the judge had
prepared
a
written
'judgment' in the matter before the Qwelane
judgment
was delivered by
this
court. In it the
judge
found in favour of the applicants. The offending comments were
declared
to amount to hate speech in terms of s 10(1) of the Equality Act. The
second and
third
respondents
were
interdicted
from
repeating
the
comments
and
were ordered
to
publish
an apology w
i
thin
30 days
,
directed
to all South Africans, and to be disseminated
by the
South African Human Rights Commission, in which they acknowledged
that their
comments
were hate speech and that they were wrong to publish them. In
addition,
the
second
and
third
respondents were ordered,
jointly
and severally,
to
pay
R50
000
damages,
arising
out of
emotional
and psychological pain, and humiliation to each of
the
families of the deceased within 30
days.
[4]
The
Qwelane
judgment
dealt
with a
newspaper
article
written
by the late
journalist
Jonathan
Dubula
Qwelane
in which he criticised homosexual
relationships
and
gay marriages
.
After a
detailed exposition
of
the interplay between
hate
speech and s 16 of the
Constitution,
which guarantees freedom of speech, this Court held that s 10
of
the Equality Act unnecessarily
limited
freedom of speech and was therefore unconstitutional.
[5]
One
of the primary functions of a court is to bring to finality the
dispute with which it is
seized.
It does so by making an order that is clear, exacts compliance
,
and
is capable of being
enforced
in
the event of noncompliance.
The
court ord
e
r
in this
matter
did
not
achieve
finality
nor
was it capable of being
enforced.
As it was put
by
Nugent
JA
in
Makhanya
v
University
of
Zululand:
'The
power
of
a
court
to
entertain a
claim
derives from the ·power
that
all organised
states
assume to themselves
to
bring to
an
end
disputes
amongst
their inhabitants
that
are
capable
of
being
resolved
by
resort
to
law.
Disputes
of
that kind are brought to an end either by upholding a claim that is
brought before it by a
claimant
or
by
dismissing
the
claim.
By
so
doing the
order
either
permits
or denies to the claimant the right to call into play the apparatus
of the state to enforce the
claim.'
[6]
The
high
court
simply
failed
to
discharge
its
primary
function.
The
order
that
it
issued
declared the proceedings
a
nullity, and hence declined to determine
the
dispute before the court. To like
effect,
the
court,
by
rendering
its
own
'judgment'
a
nullity,
left
the parties without
a
binding
decision.
A
court
does
not
enjoy
the power
not
to
decide
a case that
is
properly
brought
before
it. Nor may a court declare its own proceedings to be a nullity.
[7]
[A court
may
lack
jurisdiction or
suffer
from
some
other
limitation
of
its
powers.
But
a
court, pronouncing
on
these matters
nevertheless
renders
a
decision
that
is
dispositive
of
the case before it. But that
is
not what
happened
before
the high
court
in
this matter.
The
decision of this Court in Qwelane plainly had relevance for the
decision that the high court was required to make. The high
court
should have taken time to consider Qwelane, and the parties'
submissions,
and
then
rendered
its
judgment
so
as
to
decide the
case.
More incautiously,
the
high
court
might
have
handed
down
the
written
judgment
that
it
had
prepared, without regard to Qwelane. In either event, an order would
have been issued that determined
the
dispute before the court.
[8]
The high
court
took
neither
course
of action
.
Instead,
it
pronounced
its
own
'judgment'
to
be
a nullity or indeed the proceedings to be a nullity. It
simply
declined to resolve a dispute that was properly before
it
and left the parties with no decision. That state of affairs cannot
be left undisturbed
by
this Court.
[9]
Once that
is
so, the matter
must
be
remitted
to
the court
a
quo to enable
the
dispute that was
properly
before
it,
to be
finally
resolved. The proceedings
had
reached
an
advanced stage. Th
e
judge
had
been addressed in argument by both parties, whereafter judgment
had
been
reserved.
All
that remained
was
for the judge
to
deliver his judgment.
That
is where the proceedings must recommence.
On
that there seemed to be agreement before us. There was some concern
that the presiding judge
may
have since retired. In that event, the parties appeared to accept
that the matter could recommence
before
another judge,
as
directed by the Judge
President
of
the division.
Should
another
judge
come
into
the matter,
he
or she
would
obviously
be
free
to issue such directives as to the further conduct
of
the matter
as
appears meet, including but not limited to requiring further argument
in the matter."
24.
The
Supreme Court of Appeal orde
r
:
(i)
The
Order of the court a
quo
is
set aside;
(ii)
The
matter
is
remitted
to
the
Equality
Court
to
be
finalised,
either
by
the
presiding
judge
or
in
the
event
that
the
presiding
judge
is,
for
whatever
reason,
unable
to finalise the matter,
any
other Judge
as
the Judge President may direct
25.
Pursuant
the Supreme Court of Appeal order the
judge
President
directed that this court which initially presided in
this
matter should finalise the same as per the order of the Supreme Court
of Appeal.
26.
On
the
recommencement of
the
proceedings
following
the
Supreme
Court
of
Appeal
order
on
13
April
2021
this
court
issued
a
directive
to
the
litigants
to
file
further submissions
pursuant
to
the
judgment
of
Jonathan
Qwelane
v South African Human
Rights
Commission
Case
2019
ZA
SCA
167
;
2020(2)
SA 124 (SCA).
The
further
heads
of
argument
were
to
be
submitted
before
a
specified
date. The applicants filed their further
submissions.
The
Respondent
despite
the directive to file further or additional written heads of argument
did not do so despite having been advised by the Registrar
that they
should file their heads of argument
timeously.
27.
Subsequently
thereto
this
court
instructed
the
Registrar
to
request
the
parties
to agree on a date for the further
hearing
and
recommencement
of
this
matter.
The Applicants responded
and
indicated
that
they
had
written
to
the
Respondents suggesting an agreed date for the further
hearing
of this matter but that there was no response fourth coming
from
the
Respondents.
28.
The
Applicants
duly
filed their
heads
of argument
before
the stipulated
time.
The Respondents failed
to
file
their
heads of
argument.
Consequent to
the
Respondents failure to adhere to the courts directive, the Court
Registrar set down the matter for
hearing
and recommencement
on
the 21 July 2021
.
29.
The
Deputy Sherriff of the High Court WB Van Dijk on his return of
service certified that
on
the
18th
June
2021
at
11H24
he
went
to
the
address
253
Park
Street
Malvern
being
the
place
of
business
of
the
first
Respondent
and
duly
served
a
copy
of
the
notice
of
set
down
set
on
the
roll
21st
July
2021
on
Nomasonto
Ngwenya Venter
an
adult person who was
in
charge of the
premises
of
the Black
First
Land First. The
notice
of set down was
also
served to Mr. Andile
Mngxitama
who is
the
representative of the Respondents at their Email address Black first
and
landfirst
@g
mail.com
and
at
the
Respondents
chosen
domicilium
citandi
et
executandi
at
5th
floor,
office
514,
Klamson
Tower
s
,
151,
Commissioner
Street
Johannesburg.
30.
The
submissions regarding the SCA Jonathan
Qwelane
Judgment.
On
the
21
July
2021
the
Applicants
represented
by
Advocate
Groenewald
were
present. The
Respondents
represented
by
Mr.
Andile
Mngxitama,
who was representing
the
first
,
second
and
third
Respondents
was
not
present
at
court.
There
was
no
explanation
proffered
by all Respondents
regarding
their
absence.
Consequently
the
matter proceeded in their absence. After
the
hearing
argument from
Advocate
Groenewald
on
behalf
of
the
applicants
the
court
reserved
its
judgment.
Subsequent
to this court
having the
caused
a directive
to
be issued,
calling
upon the parties to
file additional written submissions to address the Constitutional
Court
judgment
in the matter of
Qwe/ane
v South African
Human Rights
Commission
and Another
[2021] ZACC
22
(Qwelane)
and
the
effect,
if
any,
it
might
have
on
the matter
.
Advocate
Groenewald on behalf of the applicants submitted that the factual
findings
which
this
court
already
made
remains
undisturbed
and
need
not
be revisited. In his
heads of argument we shall only indicated how the SCA Jonathan
Qwelane judgment
supports and justifies
the order so made by
this court.
31.
.
While
preparing
judgment in this
matter,
the
Constitutional
Court
on
the
30
July
2021 delivered the Appeal judgment
in
the
matter of Jonathan Dubula Qwelane and South
African
Human
Rights
Commission
in
Case
13/2020,
pursuant
thereto I issued a directive dated the
18
October 2021 to
Hurter
Spies INC the Attorneys
of
the
Applicants,
and
also
to
first
Respondent,
Black
First
Land
First,
the
second
Respondent, Lindsay Maasdorp, and the third Respondent, Zwelakhe
Dubusi
, and instructed
the
Registrar
to
serve
same
at
the
addresses
of
the
parties
chosen
domicilium
et
executandi
citendi.
The
court
advised
all
the litigants that
because
the aforementioned Constitutional Court judgment
dealt
with the constitutionality
of
section
10
of
the
Equality
Act
4
of
2000
on
which
the Applicants
case
was
predicated,
the
Constitutional
Court
judgment bears a
direct
and definitive relevance on their case before this court because the
US/case between the parties was predicated on
Constitutionality
of
section
10
of
the
Equality
Act
read
with
section
16
of the Constitution.
32.
The
court further
indicated
in its directive that this court was obliged in the interests
of
justice
and
by
law
to
accord
the
parties
the
opportunity
to
submit
additional
heads of argument for consideration by this court in view of the said
Constitutional Court judgment
in
the matter between Jonathan
Qwelane
v South African
Human
Rights Commission
regarding
Constitutionality
of
section
10(1)
of the Equal
i
ty
Act 4 of 2000 read with section
16
of the Constitution.
33.
This
court thereafter
instructed
the Registrar to advice the parties to agree on the date of the
further
hearing
of this matter, further that the parties are at liberty to file
further
additional
heads
of
Arguments
having
regard
to
the
Constitutional
Court
Judgment
in
the
matter
of
Jonathan
Dubula
Qwelane
v
South
African
Human
Rights
Commission
and
Another,
case
Number:
CCT13/20
of
[2021]
ZACC
22
delivered on 30 July 2021.
34.
On
the
15
November
2021
this
court
instructed
the
Registrar
of
this court
Mr.
M. Mthembu
to
set
this
matter
down
for
the
hearing
on
the
30
November
2021
Mr
.
Mthembu
duly
advised the
Applicants
and
the
Respondents accordingly
.
The
Applicants
on the 18 November 2021 duly acknowledge
receipt
of the notice of set down. The Respondents despite
service
of the notice of set down at their chosen domicilium
et
executandi
citandi
did
not
acknowledge
receipt
of the
notice
of
set
down
dated 15 November 2021
.
35.
The
Respondents
did
not respond to the
Court's
directive.
The
Applicants attorneys
on
18
October
2021
responded
to
the
courts
directive
and
suggested
that
they
proposed
filing their
client's
further
written
submissions
by
5
November
2021
,
and
that
the
Respondents
file
their
written
submissions
by
19
November
2021.
The
Respondents
did
not
respond
to the
Court's
directive.
The
Applicants duly
filed
their
further
submissions timeously which
were
settled by
Advocate
Kemp. The Respondents despite due notice to file their further
submissions did not file any further submissions
as
directed by the Court.
36.
On
the
30
November
2021
the
matter
proceeded.
The
Applicants
were
present
and
were
represented by
Advocate
Kemp
.
There
was
no
appearance
by
the
Respondents
nor
by
their
chosen
representative
Mr.
Andile
Mngxitana,
further
there was explanation proffered regarding all the respondents
absence.
The
Recommenced
Hearing
on 30 November 2021.
37.
Mr.
Kemp
submitted
that pursuant to
the
Constitutional court in
the
case of Jonathan Qwelane
v
South
African
Human
Rights
Commission
amended the constitutional
invalidity
of
section
10
of
the
Equality
Act
4
of
2000
to
the
limited
extend
and
as
ordered
by
the
Constitutional
Court
section
1
of
the
Equality
Act
was
decreed that
it
should
read
as follows:
'subject
to the provision
in
section
12
no
person
may
be
publish,
propagate,
advocate
or
communicate
words
that
are
based
on
one
or
more
of
the
prohibited
ground
against
any
person
that
would
reasonably
be construed to demonstrate
a
clear intention to be harmful incite harm
and
to promote or propagate hatred".
38.
Further
Advocate
Kemp
submitted
that the nature
of
the test regarding hate speech is objective meaning that the court
consider
the
comments
impugned
as opposed to the intention of the person propagating or advocate in
making the communicated words
based
on one or more of the prohibited grounds against any person.
39.
Further
Advocate Kemp submitted that the Constitutional Court held that
elements of section 10
of
the Equality Act 4 of 2000be
read
conjunctively
by
having recourse
to
the
core
of
what
Constitutes
hate
speech
at
paragraph
78
of
its
judgment namely that
:
"Hate
speech
is
the
antithesis
of
the of the values
envisioned
by
the
right
of free speech,
whereas
the
l
atter
advances
democracy
hate
speech
is
destructive democracy"
40.
Further
Advocate
Kemp
contended that comments that damage the Constitutional project of
nation
building
is
to
be
seen as harmful, consequently
he
submitted that
the
comments of the Respondent in celebrating the death of white children
amount to
hate
speech because the
comments
are
harmful to the dignity
of
the person as
well
as the targeted group and to society
in
general.
41.
Advocate
Kemp
contended
that
the
Respondent's
defence
of
justification
of
their comments as an
exercise
of their Constitutional right
to
freedom of expression has
absolutely
no
merit
even
under
the
old
test
as
expressed
by
Supreme
Court
of
Appeal
such
defence
would
not
have
succeeded
especially
in
view
of
paragraph
112 of the
Constitutional
Court's
ratio
that
incitement
to
cause
harm
is
an ineluctable
impairment
more
especially
because
the
Constitutional
Court
held
in
Jonathan
Qwelane
v
South
African
Human
Rights
Commission
case
that
the
comments
would still Constitute hate speech even under the old test as
enunciated
in
paragraph
184
of the Constitutional Court Judgment that:
"Before
the amendment
of
section
10
,
the
elements of hate speech that were clear
and
Constitutional were those in section
10(1)
(b) and (c) and it is these provisions that
Mr.
Qwelane
fell
font
of.
Therefore,
he
could
not
have
claimed
that
he
was prejudiced by not knowing the law before hand and the hate speech
prohibition did not exist at the time article
was
published
"
.
Consequently
Kemp
argued 4 the same
ratio
obtains
in
the present case with
regard
to the Respondents.
41(A)
The
High
Court
did
not
agree
with
the
Supreme
Court
did
and
held
that
section 10
of
the
Equality
Act
is
impermissibly
broad
and
vague
that
persons seeking to exercise their right to freedom of expression
cannot
with sufficient clarity
and
certainty
predict
would constitute
hate
speech or not and thereof the Supreme Court
of
Appeal
dismissed
the
complaint
against
Mr.
Qwelane
and
read
in
a
new
reading of section
10
of the Equality Act.
41.
(B)
The
matter
then
proceeded
to
the
Constitutional
Court
where
the
crux,
because
the
outcome
of
the
matter
in
the
Constitutional
Court
is
that
it
concerns the constitutional
invalidity
of section
10
of the Equality Act to a limited extent. The
Constitutional
Court
has
now
provided
finality
and
clarity
and
the
remedy
they
ordered
in
confirming
only
to a
limited
extent
the
finding
of
the
Supreme
Court
of
Appeal was also a reading in order and essentially
similar
to how it read previously
except
with
regard
to the present reading one word has fallen awa
y
.
41.
(C)
The test
now;
firstly
it
is objective,
not
subjective
,
objective, which means
that
it
implies that the reasonable person, what
meaning
they would take from the
comments
that are impugned as opposed to the intentions the person on
receiving end
of
the
comments
or
the
person
making
that.
Aspect
number
two
is
that
the
Constitutional
Court
has made it clear that section
10
of the
Equality
Act should be
read
conjunctive,
meaning
that
the
elements
cannot
really
be
separated,
conjunctive reading is necessary indicative that the elements cannot
be separated.
41
.
(D)
Constitutional Courts reasoning in
this
regard
delved deeply into
the
meaning
of hate speech, the reason why
it
is prohibited and why that specific type of speech
is
seen
to
be
constitutionally
compliant
in
limiting
the freedom
of
expression.
Freedom
of
expression,
especially
given
South
Africa's
particularly troubled racial past.
It
is very difficult to define the limits which
constitutional
rights
should
have
preference
over
the
right
prevails
over
the
other
the
constitutional
Court
approached
this
problem
by
l
ooking
at
the
core
of
what
constitutes
hate speech
and
is
the
purpose
of
preventing
it.
At
paragraph
78
of
the judgment
the
Court held: "Hate speech
is
the antithesis
of
the values
envisioned
by
the right to free speech whereas
the
latter advances democracy
hate
speech is destructive of democracy"
Because
the hate speech has an effect on the broader society at paragraph 79
the court states that:
"The
expression
of unpopular
or
even
offensive
beliefs
do
not
constitute
hate speech".
41
.
(E)
At paragraph 80 of the
judgment
the
Court quotes with approval from case laws emanating from the Supreme
Court of Canada
:
"Prohibiting
any
representation
which
ridicules,
belittles
or
otherwise
affronts
the
dignity
of
protected
groups
could
capture
a
great
deal
of expression
which
while
offensive
to
most
people
falls
short
of
exposing
its
target
group
to
the
extreme
devastation
and
vilification
which
risks
provoking
discriminatory
activities
against
that group".
41
.
(F)
The core of it is really is hate speech where the group is subjected
to a type of
comment
that whilst it being insufficient to that person personally to feel
attacked there
is
a knock-on effect in terms of broader society and what that comment
tends to imply regarding the group and as vilification
.
This
is
an
extremely pertinent word in
this
regard in paragraph 86 the Court states:
"The
purpose of hate speech regulation in South Africa
is
inextricably
linked
to our constitutional
object
of
healing the
injustices
of
the
past
and establishing
a
more egalitarian society"
41
(G)
Hate
speech
relates
to
a
broader
matrix
of
values
and
what
is
important,
so
that speaks to the purpose of prohibiting hate
speech.
Paragraph
108
and
109
regarding
the
necessity
of
a
causal
link
between
the
speech
and
harm,
because
we know
incitement
was
seen
in
the
past
to
be
a
key
component
but
in
light
of
the
Constitutional
Court
Qwelane
judgment.
The
case at
109
with
reference
to the
Supreme
Court of Canada:
"The
Court
went
on
to
find
that
reasonable
apprehension
of
societal
harm
as
a
results of hate speech is
sufficient"
.
The
court goes on to confirm this at paragraph 111
that
there is no:
"Our
law does not required a causal link that there
is
no requirements for a causal connection
is
clear from the Equality Act
itself
.
"
41.
(H)
The
proper
interpretation
of
Qwelane
while
the
Court
expressly
said
that section
10
should be read conjunctively,
in
other
words that the speech or
publication
be harmful and that element of incitement. The true expression is
found
at
paragraph
112
and the court here say expressly:
"Lastly
it
is of some significance that the impugned section distinguishes
between
harmful
or to
incite
harm
in
clear
disjunctive
terms.
This
reveals
that
even
on
an
overall
conjunctive
reading
it
may
be
sufficient
to
demonstrate
harm,
absent
incitement
of harm. Thus the section
postulates
prohibiting expression
that
either harms or evokes a reasonable apprehension
of
harm to the target group."
41.
(I)
That
really
is a nub of it that the
new
section
or
how the section
is
to
be
read now it can be understood speech, which
is
harmful,
is
prohibited and also hate speech that incites harm or the reasonable
apprehension
of
harm. Harmful
is
really the
connective
tissue
here
hurtful has been expunged
because
that
is
impermissibly
vague,
but
regarding
when
something
is
harmful
that
relates
to
the
effect
on
society
and
the
Court
made
this
very
clear.
The
damage
to
the
Constitutional
project of nation building is to be seen as harmful. That is
the
ratio
of
the Constitutional and that is the heart of the new test,
here
at paragraph
154
is a good summary
of
that submission again the with reference to the Supreme
Court
of Canada:
"On
the plain reading harmful. .."
"...harmful
can
be
understood
as
deep
and
psychological
harm
that
severely
undermines
the dignity of the group."
41.(J)
"In
keegstra
the
Supreme
Court
of
Canada
eloquently
summed
up
the two types
of
interconnected
harm
that
resonates
with
the
ethos
of our diverse constitutional
democracy,
namely
harm done to society at large. Similarly in the case
of
the
SA
Human
Rights
Commissioner
v
Khumalo
three
types
of
harm
were
illustrated:
first, the reaction of persons who
read
the
utterances
and who are inclined to share those views; second, the type of harm
experienced
by
the target group, which includes demoralisation and physiological
hurt and the harm caused from
responding
in
kind, thereby creating a spiral of invective back and forth
and
third,
harm
to the social cohesion
in
South African
society
which
can
undermine our national building project."
41.(K)
The
crux of it, that
statement
of
what
constitutes
harm
with
reference
to a societal project and the values
of
the constitution finds expression
in
how the
Equality
Act is and how to be interpreted. The content of that harmful
comments of the
second
Respondent
were
harmful
and
they
promote
hatred
and
in
fact, everything
else
contained
also
therein.
When
we
apply
this
new
test
to
the
comments
of
the
second
respondent,
it
is
applicant's
submissions
that
they
amount to hate
speech
both under the old and the new section 10
of
the Equality Act.
41(L)
If
we
look at the new test, the fact that
harmful
should be defined by harm to society,
as
well as the
dignity
of
the
person
and the targeted
group.
Celebrating
the death of white
children
has
the effect
of
making it very
obvious
that
a
different
racial
group
is
to
be
seen
as
the
enemy
and
that
they
are
in
conflict with
that
person
and that
it
would
not
be the implication
of
course
and
tragedy
if
more
of
these persons
of
that
targeted group
were
to die.
The
Respondents
justification
that
the
comment
did
not
cause
or
incite
or
call
for
violence.
41(M)
The test
it
would
not have succeeded and especially now where the court
at
paragraph
112
in the Jonathan Qwelane matter made it clear that incitement to cause
harm is not an ineluctable requirement. The crux of it
is
that
the speech must be harmful
,
both
to the targeted group and to society. Consequently
given
by
the
judgment
the court already wrote, the ratio on that judgment
is
congruent with the ration of the Constitutional Court.
41(N)
In that
regard
the
Constitutional
Court
found
that
Mr
.
Qwelane
'
s
comments
would
still
constitutes
hate
speech
and
that
he
would still
be
liable
for
those
comments
having
regard
to
the
old
and
the
new
object
test
propounded
by
the Constitutional
Court.
Quote from paragraph
184:
"Before
the
amendment
of
section
10
the
elements
of
hate
speech
that
were
clear and constitutional
were
those
in
section
10(b)
and (c), so excluding and it is these provisions that Qwelane fell
foul of, therefore
he
could not have claimed that
he
was
prejudiced
by
not
knowing
the
law
beforehand
and
that
the
hate
speech
prohibition
did not exist at the time the article was published."
41(O)
The
exact
same
circumstances
obtain
in
this case previously the comments
made
by
in
terms
of
the
old
test,
under
(b)
and
(c)
that
law
existed
when
the
Respondents
made
the comments,
and
the fact that
has
changed does not mean that they could predict with certainty what
they were falling foul of when they made these comments.
41(P)
Finally
with
regards
to costs
nothing
has changed
in
that
regard
either. The
Respondents
have treated the directives of this Court and the Court of their
change in address.
In
these
circumstances
and
additionally
the
fact that
they
had
lost the matter essentially
they
should
be
multed with
costs
in
this case the
Court
ordered
in
the previous order as well. The crux of it, is that the Respondents
celebrated the death
of
white
children.
It
was
a
hate
speech
back
then
it
still
hate
speech.
This
court agreed
and
declared the comments
hate
speech
.
41(Q)
The
relationship between section 16
of
Constitution and these sections in
the
Equality
Act
have
been
addressed
in
the
case
law.
The
Law
as espoused
by
the Constitution Court
in
the
Qwelane
case is trite that
the
interpreting
of
the sections
of
section
10
be understood and to be read conjunctively
and
not disjunctively
and
that the scope of section
10
i
tself
is circumscribed
by
section
16(2)
(c) as set out in
SAHRC
v Khumalo 2019(1) SA 149 (GJ) at [81] - [83].
42.
Advocate
Kemp
contended
that
the
respondents
defence
of
justification
of
their
comments as an exercise of their Constitutional right to freedom of
expression
has,
absolutely
no
merit. Even under the old test as espoused
by
the Supreme Court of Appeal
such
defence
would
not
have
succeeded
especially
in
view
of
paragraph
112
of
the
Constitutional
Courts
ratio
that
incitement
to
cause
harm
is
not
an
ineluctable requirement.
43.
Advocate
Kemp
submitted
that
the
crux
of
the
matter
is
whether
celebrating
the
death of white children is still hate speech in terms of the section
10
of
the Equality Act
in
light of the Constitutional
Courts
judgment
in
the Jonathan Qwelane v South
African
Human
Rights Commission matter. Rhetorically the Applicants
submit
that undoubtedly because what the comments made by the Respondents
because they
bear
all the fundamental
hallmarks
of
hate
speech the
remains
so even
under
the new test
as
formulated
by
the
Constitutional
Court
in
Jonathan
Qwelane
v
South
African Human Rights Commission is the crux of the matter
.
The
Constitutional Court
judgment
44.
The
test
formulated
by
the
Constitutional
Court
is
objective
in
this
new
test
to
comments
some
parts
of
the
previous
judgment,
are
congruent
to
the
ration
and
the
expressions
of
the
Constitutional
Court
and
is
absolutely
in
compliance
with
speech
therein
contained
was
overboard
and
vague
and
therefore
constitutional
impermissible
as
essentially
it
infringed
upon
the
right
of
freedom
of
expression,
which is a constitutionally
protected
rights.
The
Constitutional Court Judgment.
In
light
of the fact that
this
court
previously declared
its
judgment
and
the proceedings
a
nullity in light of the Supreme Court of Appeal judgment
and
orders in the
Qwelane
matter
it
is
appropriate
to
distinguish
between
the
orders
of
the
Constitution
Court (herein referred to as the CC) and the Supreme Court of
Appeal.
The relevant orders made by the Constitutional
Court
read as follow
s
:
In
respect of the confirmation application:
(a)
The
declaration of constitutional
invalidity
of section
10
of the promotion of the Equality and
Prevention
of
Unfair
Discrimination
Act
4 of 2000
(Equality
Act)
made
by
the
Supreme
Court
of
Appeal
is
confirmed
in
the
terms
set
out
in
paragraph (b).
(b)
It
is declared that
section
10(1)
of the
Equality
Act
is
inconsistent
with
section 1(c) and section
16
of the Constitution
and
thus
unconstitutional
and
invalid to the
extent
that
it
includes
the
word
"hurtful"
in
the
prohibition
against
hate
speec
h
.
(c)
The
declaration
of
constitutional
invalidity
referred
to
in
paragraph
(b)
takes
effect from the date of this order, but its operation
is
suspended
for
24 months to
afford
Parliament
an
opportunity
to
remedy
the
constitutional
defect giving
rise
to constitutional
invalidity
.
(d)
During
the period of suspension of the order of constitutional
invalidity,
section 10(1) of the Equality Act will read as follows:
(1)
Subject
to
the
proviso
in
section
12,
no
person
may
publish,
propagate,
advocate
or
communicate
words
that
are
based
on
one
or
more
of
the
prohibited
grounds,
against any person, that could reasonably be construed
to
demonstrate
a
clear
intention
to
be
harmful
or
to
incite
harm
and
to
promote or propagate hatred.
(2)
Without
prejudice
to any
remedies of a civil nature under this Act, the court
may,
in accordance with the section 21 (2) (n) and where appropriate,
refer
any
case
dealing
with
the
publication,
advocacy,
propagate
or
communication
of
hate
speech
as
contemplated
in
subsection
(1),
to
the
Director
of Public Prosecutions
having
jurisdiction
for the institution of criminal proceedings in terms of common
law
or relevant legislation."
45.
After
preparing
the judgment
herein,
On the 21 February 2022 this
court
issued
a directive
to
the
Registrar
of
Court
to set the
matter
down
for
hearing
on the
2nd
March 2022 at
1
O:OOam
or as soon as the matter may be heard. The notice of set down
was
duly
served
on
the
applicants
and
the
respondents at
their
chosen
domicilium executandi et citandi on the 21st of February 2022.
46.
Evidently
the Constitutional
Court
did
not
confirm the declaration
of
constitutional invalidity for
the
same
reasons
as the
Supreme
Court
of
Appeal
did,
it
concluded
that,
"only
that
the
inclusion
of
the
term
"hurtful"
rendered
the
section
vague
and
contrary
to
the
rule
of
law.
In
so
concluding
the
Constitutional
Court
stated
the
following:
"[156]
Despite
the
best
endeavours
to
fashion
a
constitutionally
complaint
and
reasonably
understandable
meaning
of
the
impugned
section,
there
is
no saving
grace
for its
problematic
part. Given
the
troubling meaning of "hurtful "in the context of section
10(1),
it is
difficult
for ordinary citizens to know whether their conduct will
be
"hurtful
"or "harmful" and thus whether it meets
the
threshold required by section
10.
Consequently,
for
all the reasons cited, the term
"hurtful
"in section
10
(1) (a) is vague
and
so breaches
the
rule
of
law.
For that
reason,
i
ts
inclusion
in
section 10(1) results in
the
section suffering from vagueness and it is
thus
unconstitutional.
[157]
section
10(1)
(a)
is
irredeemably
vague
and
undermines
the
rule
of
law
enshrined
in
section
1(c)
of
the
Constitution.
It
thus
does
not
pass
constitutional
muster.
However,
this
does
not
render
the
entire
impugned
provision
unconstitutional.
It
is possible to excise the constitutionally
offensive
part from the rest of the provision
.
"
46.
Further
to this
the
Constitutional
Court
upheld
the
appeal
against
the
findings
of
the
Supreme Court of Appeal in respect of the complaint against Mr.
Qwelane and declared his statements to be 'be harmful and to
incite
harm and propagate hatred;
and
amounted
to
hate
speech
as
envisaged
in
section
10
of
the
Promotion
of
Equality and Prevention of Unfair Discrimination Act No 4 of 2000
."
47.
The
undeniable
consequence
of
the
Constitutional
Court
judgment
is
that
this
court's
previous
judgment
and
order
requires
no
further
scrutiny
seeing
that
it
complies
with
the
l
egal
principles
so
set
ut
by
the
Constitutional
Court.
The aforementioned ought
to
be
apparent
from
the
following
extracts
of
the
Constitutional Court judgment:
"In
confirming
that
the
test
to
be
applied
is
objective
the
Constitutional Court
confirmed
the following:
"[97]
This approach accords with the interpretation advanced in
SAHRC v
Khumalo
that
"[t]he
objective test in
section
10(1)
implies in
the
terminology
used
to
articulate
it,
that
an
intention
shall
be
deemed
if
a
reasonable
reader
would
so
construed
the
words.
Because
the
objective
test
of
reasonable
reader
is
to
be
applied,
it
is the effect of the text,
not
the intention of the author that
is
assessed"
I
endorse
the
approach.
It
is consistent
with
our
jurisprudence
concerning
similar
issues. An
objective
normative
reasonable person test was accepted by this court, albeit
in
a
different
context,
in
S
v
Mamabolo.
This
is
also
consistent
with
our
common
law
delict of inuria, which evaluates
these
claims
by the reasonableness standard
of
wrongfulness. In Le Roux, this
court
held
that,
in
order
to
determine
whether expression was defamatory-
"[t]he
test
to
be
applied is an objective
one.
In
accordance
with
this objective
test
the
criterion
is
what
meaning
the
reasonable
reader of ordinary
intelligence
would
attribute
to the
statement.
In
applying
this
test
it
is accepted
that
the
reasonable
reader
would
understand
the
statement
in
i
ts
context
and
that
[they]
would
have
had regard not only to what
is
expressly stated but also to what
is
implied."
48.
In
finding
that statements which are merely hurtful are insufficient to
constitute hate
speech
the Constitutional Court state as follows:
[103]
Expressions
that
are merely hurtful, especially when understood in everyday parlance,
are
insufficient
to
constitute hate speech.
It
is
well established
that
the prohibition of
hate
speech
is
not
aimed
at
merely
offensive
speech,
but that offensive
speech
is
protected
by
freedom
of
expression. 139 This
point
is
eloquently
articulated
in
Whatcott,
where
it
was
noted
that
merely
offensive
or
hurtful expression should be excluded from the ambit of
a
hate
speech prohibition
and
respect
should
be
given to the Legislature
'
s
choice
of
a
provision
predicated
on hatred.
140
As
mentioned
above,
the
Supreme
Court
of Canada persuasively defined, in the context of hate speech,
the
legislative term "hatred" as:
"being
restricted
to
manifestation
of
emotion
described
by
the
words
'detestation'
and
'vilification'.
This
filters
out
expression
which,
while
repugnant
and
offensive,
does
not
incite the
level
of
abhorrence,
delegitimisation and
rejection
that
risks
causing
discrimination
or
other harmful effects."
49.
According
to
the
Constitutional Court
the
prohibition of hurtful
speech
would certainly
serve
to
the
protect
the
rights
to
dignity
and
equality
of
hate
speech
victims, however, hurtful
speech
does not
necessarily
seek
to
spread
hatred against
a
person because of their membership
of
a particular
group,
and
it is that which was
being
targeted
by
section
10
of
the Equality
Act.
Therefore,
the
relationship
between
the
limitation
and
its
purpose
was
found
not
to
be
proportionate.
50.
The
Constitutional Court defined 'harmful
'as
follows:
{154]
In construction
to
the insuperable
difficulties
with
'hurtful',
the term
'harmful'
does not suffer the same fate.
On
a
plain
reading,
'harmful'
can be understood
as
deep
emotional
and
psychological
harm
that
severely
undermines
the
dignity
of
the targeted group. In Keegstra, the Supreme Court of Canada
eloquently summed up two types of interconnected
harms
that reasonate with the ethos of our diverse constitutional
democracy, namely
"harm
done
to the members of the target group" and harm
done
to "society at large."
Similarly,
in SAHRC v Khumalo,
three
types of
harm
were
illustrated.
First,
"the
reaction
of
persons
who
read
the
utterances and
who
are
inclined
to
share
those
views
and
be
encouraged
by
them
to
also
shun,
denigrate
and
abuse
the
target
group".
Second,
the
type
of
harm
experienced
by
the target group which includes
"demoralisation
and
physiological hurt
"and
"the
harm
caused
from
responding
in
kind
thereby
creating
a
spiral
of
invective
back
and forth".
And
third
"harm,
"harm
to the social
cohesion
in
South
African
society
"which
can undermine our nation building project."
51.
The
Constitutional
Court
confirm
that
there
is
no
requirement
of
an
established
causal
link
between
the
expression
and
actual
harm committed and
that
the
section postulate prohibiting expression that either
harms
or evokes a reasonable
apprehension
of harm to the target group. The Constitutional Court further
confirmed that
'speech
must be interpreted broadly,
so
as to encompass the ideas behind
the
words themselves and both verbal and non-verbal
expression.
'
52.
In
dealing
with
the
purpose
of
prohibiting
hate
speech
and
the
presumption
of
unfairness
the Constitutional Court state as follows:
"[130]
It
bears
emphasis
that
the
prohibiting
of
hate
speech
seek
to
protect
against
the
dissemination
of
hatred
that
cause
or
incites
harm,
in
that
it
undermines
the
dignity
and
humanity
of
the
target
group
and
undermines
the
constitutional
project
of
substantive
equality
and
acceptance
in
our
society.
Provisions
prohibiting
hate
speech
can
be
contrasted
with
our
law
around
unfair
discrimination.
In
that
context,
listed
grounds are grounds where the "dignity assessment
"
is
presumed
to have
already
been
done
–
ou
r
jurisprudence
tells
us
that
discrimination
on
the
basis
of
a
listed
ground
is
presumed
to
be
unfair.
This
is
based
on
past
experiences,
historic
suffering
or
systematic
disadvantag
e
.
As
a
result,
in
the
unfair
discrimination
scenario
,
the
onus shifts onto the
respondent
to show that discrimination on
a
listed
ground
is
not unfair.
In
this regard,
listed
grounds
differ
from analogous grounds, where unfairness must be shown.
What
must determined and how?
53.
In
dealing
with
the
complainant
against
Mr.
Qwelane
the
Constitutional
Court
confirmed
what must be determined
and
how, as follows:
"[176]
in the context of hate speech,
what
must objectively be determined
is
whether Mr. Qwelane's
article
could
reasonably
be
construed
to
demonstrate
a
clear
intention
to
be harmful or to incite harm and to promote
or
propagate
hatred.
Important
considerations
in
making
that
determination
include
:
who
the
speaker
is
,
the
context
in
which
the
speech
occurred
and its impact
,
as
well as the likelihood of
inflicting
harm and
propagating
hatred
"
.
54.
The
judgment
of
this court
is
on all fours with the aforementioned
assessment
by
the
Constitutional
Court.
I
now
turn
to
briefly,
with
reference
to
the
facts
of
the
matter, indicated why the statements
by
the respondents constitutes hate speech.
(i)
The
Comments by the Respondents
There
is no dispute regarding the comments made by the respondents,
same
have
been
admitted.
(ii)
Can
the statement of the second
and
third
respondent
reasonably
be
construed
to
demonstrate
a
clear
intention
to
be
harmful
or
to
incite
harm and to promote or propagate hatred?
The
answer
to
the aforementioned
must
be in the
affirmative.
This
was
the
exact
purpose of the statements made. It
was
the dissemination
of
hatred with the intent to
cause
or
incite
harm and was
meant
to
undermine
the dignity
and
humanity
of
the
children who
have
died and were
injured,
their parents and whites
in
general.
55.
The
respondents
cannot
dispute
the
fact
that
they
have
vilified
whites
because
Whites
are
the
enemy,
and
they
are
Land
thieves.
The
respondents
view
themselves
as
being
at
WAR
with
whites.
According
to
the
respondents
Whites
people
are
not
deserving of
life,
according
to
the
respondents
their
deaths
ought
to
be
celebrated
even
the death of
innocent
children
including
their
cats
and their dogs.
56.
Even
when
asked
for
clarity on
his
statements
made
the
second
respondent confirmed
that
he
rejoices
in
the
death
of
white
children
and
commended
those
who
have
so
rejoiced
in
their
deaths.
It
is
mere
harmful
statements
which
have
been
made by the
respondents
but
harmful
statements
which
fall
within
all
three of
the
categories
of
harm
identified
by
the
Constitutional
Court,
as
referred
to
above.
This much this court has already accepted
.
57.
The
relevant
considerations
Who
the
s
p
eakers
were
The
speakers were members of a political party in a formal statement
of
the party
.
The
comments enjoy considerable publicity and the comments were shared
across
the
country.
The
comments
were
clearly
intended
to
arouse
their
members
and
followers
and
those
it
hoped to recruit in their
political
aspirations and cause.
Context
in which the speech occurred and its impact
58.
The
statements
were
made
subsequent
to
it
being
reported
by
the
media
that
a
number of children died at school. This court cannot ignore this
backdrop and there
can
be
no
other
"context
"given
to
the
statements
as
suggested
by
the
respondents.
The
impact thereof was devastating. At a time when
parents
had to mourn the
death
of
their
children
they
were
confronted
with
statements
by
the
respondents which dehumanised
and
demoralised
their
children.
59.
The
likelihood
of
the
infliction
of
harm
and
the
propagation
of
hatred
is
beyond
doubt.
It
is difficult
to
conceive of a more egregious
assault
on the dignity of white people than to celebrate the death of their
children and denouncing
their
offspring as thieves
worthy
of
death.
The
children
'
s
dignity
as
human
beings
deserving
of
equal
treatment,
was
catastrophically
denigrated
by
politicians
in
a
widely publicised statement. The harm was not only to a vulnerable
targeted group,
minor
white children, but also to the country's constitutional project,
which seeks to create an
inclusive
society
based
on the
values
of
equality,
dignity
and
inclusiveness
is
indispensable.
60.
The
test,
as
set
out
in
section
10,
whether
the
utterances
could
reasonably
be
construed
to
demonstrate
a
clear
intention
to
be
harmful or incite harm,
promote
or propagate
hatred is objective
in
that the effect of the word
on
hears
or readers is what
is
relevant.
Mindful
of
this
dimension
of
the
test,
the
test
seeks
out
the
dominant impression reasonably created by hearing or reading
those
words. In
this
case
the words
were
published
and read by its primary
audience.
The
word were broadcast to a wider audience.
61.
The
applicants
counsel
Mr.
Groenewald submitted
that
the
respondents
defence
which
is
based
on
the
historical
political
opinion
or
views
of
the first
respondent
underpin
its
pending
litigation
against
The
F.
W
De
Klerk
Foundation, Johan
Rupert,
The Democratic Alliance, Afriforum,
and
Kalie Kriel
which
the respondents are
utilising
as their
defence
to the
historical
l
egacy
of
colonialism,
apartheid
and
white supremacy
perpetrated
by whites against black people. In
the
context of this
case
this legal defence
is
misconceived because, other parties are not party to the present
proceedings
and
historical
context
cannot
amount
to
or
found
a
sustainable tenable defence against the
present
matter
.
The
a
pp
licable
le
g
al
p
rinci
p
les
62.
Section
3
of the
Equality
Act
provides
that" when
interpreting,
The
Act, the court must take
into
account the context
of
the
present
dispute and the purpose of The Act", consequently the dispute is
limited to the comments, remarks and publication
of
the said comments arising from the circumstances
of
the tragic death and injury of the
l
earners
of the Driehook Hoerskool the 1st February 2012 due to the collapse
of the walk on bridge.
The
preamble to the Constitution state;
We
the people of South Africa,
Recognise
the injustices of our past;
Honour
those who suffered for justice and freedom in our land;
Respect
those who have worked to build and develop our country
Believe
that
South
Africa
belongs
to
all
who
live in it,
united
in
our
diversity.
We
therefore, through our freely elected representatives
,
adopt
this constitution as the
supreme
law of the Republic so as to-
Heal
the divisions of the past and establish a society based on democratic
values
,
social
justice
and
fundamental human rights;
Lay
the foundations for a democratic and open society in which government
is based on the will of the people and every citizen is
equally
protected by the law; Improve the quality of life of all the citizens
and free the potential of each person; and
Build
a
united
and
democratic
South
Africa
able
to
stand
its
rightful
place
as
a
sovereign
state in the family of nations."
63.
The
constitution states;
"
South
Africa
is one sovereign,
democratic
state founded on the following
values:
(a)
Human
dignity
,
the
achievement
of
equality
and
the
advancement
of
human
rights
and freedom
;
(b)
Non-racialism
and non-sexism;
and
(c)
Supremacy
of the constitution and the rule of law
."
64.
Section
10(1)
of The
Equality
Act prohibits hate speech and provides
;
"Subject
to the proviso in section12,
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
harmful or to incite harm
;
(b)
Promote
or propagate
hatred."
'prohibited
grounds'
as
defined
by
the
Equality
Act
is
fairly
broad,
and
includes
race,
sexual orientation,
"or
any other ground where discrimination based on that
other
ground causes or perpetuates systemic disadvantage or undermines
human
dignit
y
.
The
proviso in section
12,
states that
any:
"bona
fide
engagement
in
artistic
creatively,
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
precluded
by the section."
65.
"Advocate
of hatred"
Section
16(1)
of the
Bill
of
Rights
protects freedom
of
expression.
Section
16(2),
however,
excludes
certain
categories
of
speech
from
the
protection
of
section
16(1). Section 16(2) (c) removes hate speech from the protection of
section
16
(1)
by
excluding
any
"
advocac
y
of
hatred
that
is
based
on
race,
ethnicity,
gender
or
religion,
and that constitutes incitement to cause harm." One sees
immediately the expression
advocacy
of
hatred
"which
is
echoed and repeated
insection2
(b)
(iv) of
the
Equality
Act.
That
expression
where
it
appears
in
section
2
(b)
(iv)
of
the Equality Act must bear the same meaning as
i
t
bears in section
16(2)
(c) of the Bill of
Rights.
The
prohibition
in section
10
of the
Equality
Act
is
intended
inter
alia
to
prohibit
the kind of speech excluded from protection by section 16(2) (c) of
the Bill
of
Rights.
66.
The
Constitutional Court made
this
clear in
Islamic
Unity
Convention
b Independent Broadcasting and Others (Islamic Unity Convention) when
explaining what genuine hate speech is:
"Section
16
(2) (c) is directed at what
is
commonly
referred
to as hate speech. What
is
not protected by the Constitution
is
expression
or
speech that amounts to "advocacy
of
hatred"
that
is
based on one or
other
of the
listed
grounds,
namely
race, ethnicity, gender or religion and which amounts to 'incitement
to cause harm'
.
67.
Section
1(1)
of the Equality Act defines prohibited grounds
as
follows:
"Prohibited
grounds' are:
(a)
Race,
gender,
sex,
pregnancy,
marital
status,
ethnic
or
social
origin,
colour,
sexual orientation, age, disability, religion, conscience, bel
i
ef,
culture, language and birth; or
(b)
Any
other ground where discrimination
based
on that other ground-
i.
Causes
or perpetuates systemic disadvantage;
ii.
Undermines
human dignity ; or
iii.
Adversely
affects
the enjoyment
of
a person's rights and freedoms
in
a serious manner
that
i
s
comparable
to
discrimination
on
a
ground
in paragraph (a)."
68.
The
provisions of section
10
of the Equality Act are inextricably
linked
to the Bill of Rights.
Section
10
(1)
gives
effect
to
the
following
sections
of
the
Constitutions:
section 9 (the right to equality),
section
1O
(the right to dignity),
and
section
16(2)
(c)
(the
exclusion
of hate
speech
from the ambit of
the
right
to
expression). Similarly,
section
7
of the
Equality
Act which forbids
unfair
racial discrimination
is
linked
to section 9 and
10
of the constitutio
n
.
Section
11
of the Equality Act is also
linked
to
both
constitutional
rights,
and
other
rights
in
the
Bill
of
Rights.
Section
10(1)
read together with the proviso in section
12
which
deals with hate speech.
69.
Section
3 (1) of the Equality Act
provides
that-
Any
person applying this Act must interpret its provisions to give effect
to_
(a)
The
Constitution,
the
provisions
of
which
include
the
promotion
of
equality
through legislative and other measures designed to
protect
or advance persons disadvantage by the past and present unfair
discrimination:
(b)
Th
e
preamble,
the
objects and guiding principles of this
Act
thereby fulfilling the
spirit,
purport and objects of this Act."
70.
Section
3(2) of the Equality Act provides that-
"Any
person
interpreting
this
Act
may
be
mindful
of
-
(a)
Any
relevant law or code of practice in terms of a law;
(b)
International
law,
particularly
the
international
agreements
referred
to
in
section 2 and customary international
law:
(c)
Comparable
foreign law
."
71.
In
the
present instance, it
is
accordingly
appropriate
for this Court
to
make reference to foreign law in considering the proper scope and
application of section
10
of the
Equality
Act,
because
of it on the
right
to equality
in
section
9
,
the
right
to
dignity
in
section
10,
and on the limitation of the right to freedom
of
expression in section
16(2)
(c) of the Constitution.
72.
Section
3
(3) of the
Equality
Act
requires
that
any
person
applying
or
interpreting
the Act
"must
take into account the context of the dispute and the purpose of this
Act."
Section
2 of the Equality Act sets out
i
ts
objects
in
the relevant part as follows:
"
The
objects
of
this
Act
are
-
(a)
To
enact legislation required by section 9 of the constitution
;
(b)
To
give
effect
to
the
letter
and
spirit
of
the
Constitution,
in
particular
-
(i)
The
equal enjoyment of all rights and freedoms by every person;
(ii)
The
promotion
of
equality;
(iii)
The
values
of
non-racialism
and
non-sexiem
contained
in
section
1
of the Constitution;
(iv)
The
prevention
of
the
unfair
discrimination
and
protection
of
human
dignity as contemplated
in
section 9 and
10
of
the Constitution;
(v)
The
prohibition
of
advocacy
of
hatred,
based
on
race,
ethnicity,
gender
or religion
,
that
constitutes incitement to cause harm as contemplated in
section
16(2)
( c) of the Constitution and section
12
of
this Act
;
73.
Section
39(2) of the Constitution provides that;
"When
interpreting any legislation, and
when
developing the
common
law
or
customary
law,
every count, tribunal or forum
must
promote the spirit, purport and objects of the Bill of Rights."
The
duty upon a court to interpret legislation in a manner consistent
with the Bill of Rights was
set
out by the
Constitutional
Court
in
the
case of
Investigating
Directorate:
Serious
Economic
Offences
and
Other
v Hyundai
Motor
Distributors
(pty) Ltd and
others:
in
re· Hyundai
Motor
Distributors
and
Others
v
Smit NO and
Others
(Hyundai)
as
follows:
"The
Constitution
requires
that judicial
officers
read
legislation, where
possible,
in
ways
which give effect to its fundamental
values.
Consistently
with this, when the constitutionality of legislation
i
s
in issue, they are under duty to examine
the
objects and
purport
of
an
Act
and
to
read
the
provisions
of
the
legislation,
so
far
as
possible,
in conformity with the Constitution" (Emphasis added)
74.
Article
20, paragraph 2 of the
I
nternational
Convection
on Civil and Political Rights (ICCPR), ratified by South Africa
on
10 December
1998,
provides that:
"Any
advocacy
of
national,
racial
or
religious
hatred
that constitutes incitement
to
discrimination,
hostility
or violence shall be
prohibited
by
law
.
"
Dignity
Human
dignity
informs
the
interpretation
of
all
other
rights,
including
the
right
to
freedom
of expression and the right to equality. The right to freedom of
expression must be realised in a manner that does
not
violate
the
dignity of others. The
right
to equality must be realised in a manner that ensures everyone
is
equal
before the law and
has
the
right
to equal
protection
and
benefit
of the
law,
so as to
ensure
their
dignity.
Human
dignity entails that
an
individuals
or
groups
have
the
right
to feels
self-respect
and
self-worth,
emotional
and
psychological
integrity.
Human
dignity
is
harmed when
individuals
or groups are marginalised
or
devalued.
See
The Canadian Supreme Court in Law v Canada
(1999)
170
DLR4th
1
(SCC).
75.
Section
7 of the Equality Act provides amongst other that:
"No
person may unfairly discriminate against any person on the ground of
race, including -
(a)
The
dissemination
of
any
....idea,
which
propounds
the
racial
superiority
or
inferiority
of any person...
(b)
The
engagement
i
n
any
activity
which
i
s
intended to promote, or has the effect of promoting, exclusivity
based
on race..."
76.
Section
16
of the Constitution
provides
in its entirety as follows:
Freedom
of expression
(1)
Everyone
has the
right
to
freedom
off
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
;
(d)
academic
freedom and freedom of scientific research.
(2)
The
right
in
subsection
(1)
does
not
extend
to
-
(a)
propaganda
for
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.
"
77.
There
are
clearly
two
parts
to
section
16.
Section
16
(1)
protects
freedom
of expression
and
specifies
categories
of
the
freedoms
that
are
included
under
its
protection, like
freedom
of
the
press
and
media
etc.
Section 16(2),
however,
excludes
certain
specified
categories
of
speech
from
the
protection
of
section
16(1). The
excluded
expressions
can
therefore
simply
not
claim the
protection
of
section16
(1)
.
78.
Hate
speech
is
an
expression
which
is
specifically
excluded
from
protection
by
section
16(2)
(c). Section
16(2)
(c) does so by excluding any "advocacy
of
hatred
that
is based on race, ethnicity, gender, or religion, and that
constitutes incitement to cause harm" as the Constitutional
Court
explained in Islamic Unity Convention. "What is not protected by
the Constitution is expression or speech that amounts
to advocacy
of
hatred'
that
is
based
on
one
or
other
of
the
listed
grounds,
namely
race, ethnicity, gender or religion and which amounts to incitement
to cause harm."
79.
Judge
Sutherland
in
the
case
of The
South
African
Human
Rights
Commission v
Velaphi
Khumalo,
case No: EQ6 of 2016 and EQ1/2018 masterfully explained the reason
why
the
provisions
of
the
Equality
Court
Act
must
be
interpreted
purposively regarding
the
implementation
of
its
value
choices and the policy
options
Thus:
"South
African
society
is,
manifestly,
a
community that exhibits significant social in
which,
amongst
other
social
distinctions,
we
are
marked
off
and
categorised
by
race and personal appearance. A significant inter-racial tension
exist, derived from several circumstances, no
least
from inequality and the
persistence
of
some
degree of
inter-racial
hostility.
This
unhappy
and regrettable condition is our historical
legacy.
The
Constitution has proclaimed
that
we recognise
the
fractured character of our community and set about transforming our
society towards a goal
that
unequivocally
repudiates
inter-racial
hostility
so
that
we
may
build
a
nation
upon
a
consensus
that
every
South
African
deserves
dignity
and
that
our
whole
community,
through
sharing
resources
and
through
respect
for
one another,
can
experience
social
cohesion.
The
pre-amble
of
the Equality Act
states
that
among its objectives
is
an
endeavour.
"
"to
facilitate
the transition to
a
democratic
society, united in its diversity, marked by
human
relations that are caring and compassionate,
and
guided by the principle of equality, fairness, equity, social
progress, justice,
human
dignity
and
freedom."
80.
The
court recognises this. The court recognises our past; the court
recognises the
fact
that there
is
still tension.
But
the
court
says that
is
not the context from which
we
shall
move. We shall move from the context
of
what
the
Constitution
provides
and
what
The
Equality
Act
provides,
that
is
our
purpose
and
our
objection
and
objective.
"
in
South
Africa,
however,
our
policy
choice
is that utterances that have the effect
of
inciting
people
to
cause
harm
is
intolerable
because
of
the
social
damage
it
wreaks and the effect it has on impending
a
drive towards non-racialis
m
.
The
idea
that
in a given society,
members
of
a
'subaltern
'
group
who disparage members
of
the
'ascendant'
group should be treated differently
from
the circumstances
were
it the other way around has no place in the application of the
Equality Act
and
would
indeed
subvert its very
purpose.
Our
nation building project recognises
a
multitude
of
justifiable
grievances
derived
from
past
oppression
and
racial domination.
The
value choice in the Constitution is that
we
must overcome
the
fissures
among
us.
That cannot
happen
if,
in
debate,
however
robust,
among
u
s,
one
section
of
the
population
is
licensed
to
be condemnatory
because
its
members
were
victims
of oppression,
and
the
other
section
,
understood
to
be,
collectively,
the
former
oppressors
are disciplined to remain silent.
"
"
There
can
never be an excuse that absolves
any
one of us from accountability
in
terms
of section
10(1).
There
may
be surrounding
circumstances
which
aggravate the
utterances
or
mitigate
the
likelihood
of
incitement
to
cause
harm;
these
are
matters
fall
to be dealt with when remedies are considered."
To
sum
up,
section
1Omust
be
understood
as
an
instrument
to
advance
social
cohesion.
The
"
othering"
of
whites or any
other
racial identity
i
s
inconsistent
with
our
constitution
values. These
utterances,
in
as
much
as
they
,
with
dramatic
allusions
to
the holocaust,
set
out
a
rationale
to
repudiate
whites
as
unworthy
and that they ought deservedly
to
be hounded out, could indeed
,
be
construed to incite the causation of harm in the form of reactions by
Blacks to endorse those attitudes, reactions by whites
to
demoralisation
and
rachet up the invective by responding in
like manner,
and
thus by such developments,
on
a large enough
scale,
derail
the transformation of South African Society."
81.
The
second
and
third
respondents
align
themselves with the postings of Siyanda Gumede. They endorse same and
adopt and repeat same as their own comments and they
identify
with same as their own words.
The
first
respondent
represented
by its president endorses
the
views
of
the second
and
third
respondents
who are members
of
the
BLF,
Mr.
Andile
Mnxitama
as
the
president
of
the
first
endorses
Siyanda
Gumede's
published
view
and
adumbrates
his
standpoint
that
god
and
his
ancestors
are
punishing the white land thieves and their white children.
82.
Even
though the second respondent was not absolutely certain that all the
children who
died
at
the
Driehook
Hoerskool
Walkway
were
white
children,
implicit
in
his
statement
is
that if the victims of the said tragedy, the children turn out to be
black he would
mourn
these
victims
because
then
the
victims
of
the
tragedy
would
be
black
children who
are
not be the offspring
(the
children) of the white
land
thieves (who according
to
the
second
respondent
happen
to
be
white
people)
but
would
be
black
children
who
the
God
and
the
ancestors
of
the
respondents
and
by
extention of logic the God and ancestors of black would
have
intervened on behalf of the
suffering
blacks
and
had
precipitated
in
the tragedy
which
has caused
the
death
of the white
children
and, consequently
black
people celebrate the death of these white
children
because
they are the offspring of white
land
thieves who are the enemies
of
black.
83.
These
comments
constitute
not
only the views and standpoint of the respondents because only the
deaths of the offspring (the children) of Black people who
are not
land
thieves
are
worth
mourning,
but
the
deaths
of
the
offspring's
of
white
land
thieves
cannot
be
mourned and have to be celebrated.
Blacks
are also entitled to celebrate
the
deaths
of
not
only
the
children
of
the
white
land
thieves,
but
even
that
of their cats and dogs.
84.
The
respondents equate the life, and worth of white land thieves and
their children to
that
of
their
dogs,
and
cats,
meaning
the
life
of whites
it
is
not worth
of
being
categorised
as
human
life.
This
in
my view
is
a direct
attack
and
infringement
of
the right to life and equality and human dignity of white people
based on the colour of the skin. On the contrary the respondents
accord Blacks their constitutional
right
to
the
life,
dignity
and
equality
based
on
the
colour
of
the
skin
colour
of
Blacks.
These
utterings
endorsed
by
respondents
are
based on race and are discriminatory and constitute
hate
speech
and consequently
infringe
the
Constitution and The section 10 of the Equality Act.
85.
The
respondents
in
justification
on
of these
utterings
claim that the reference to white
children,
women, their dogs and cats is rhetorical because the historical
legacy of racism
suggest
that
when
white
people
were
perpetrating
black
genocide,
they
acted indiscriminately
and
did not make any distinction
between
black men, black women, children and
their
livestock they killed
them
all
indiscriminately
consequently the
reference
to
white
children
as
well
as
their
dogs
and
cats
is
rhetorical
and
meant
to
create
a
minor
image
which
serves
as
a
deterrent
to
the
black
on black violence. This so-called justification
is
untenable and unsustainable
as
it infringes the Constitution and Equality Act.
86.
I
agree with the applicant's contention that the respondents comments
amount to "discrimination,
hate
speech
and
harassment
on
the
based
on
race
in
that
they
propagate
and
incite
racial
tension
and
hatred
because
they
are
intended
to
be
hurtful,
harmful.
87.
The
submissions
by
the
respondent that
these
comments
are
not
hurtful,
or
harmful
or
intended
to
propagate
and
incite
hate
speech
that
they
do
not
cause incitement to imminent violence
because
the respondents
were
was
merely
acknowledging
an
event that
has
occurred
as
an indication of a historical
redress
for the ills of colonialism that black people have been and continue
to be subjected
is
disingenuous
because
according
to
the
respondents
the
same
event
which
is
sanctioned
by God and petitioned by the black ancestors if it had occurred to
black
children
they would not have celebrate it, but would have mourned the tragic
death of
the
Black
children
but
in
the
same
if
the
opposite
had
happened
they
would
have celebrated the deaths if they occurred to white children.
88.
According
to Mr
.
Andile
Mngxitama
in
the
SA colonial context more
fully
elaborated
in
the
respondents
opposing
affidavit,
it
is
difficult
if
not
impossible
not
to
feel
empathy
and
sorrow
for
whites
in
instances
of
tragedy.
This
would
not
be
the
situation
in
the
free society.
From
this
point
of view, the foundation
of
the
respondent's
utterances
is
a
response
to the
racism
of the white that
constitutes
the
lifeblood
of
colonialism
which
in
turn
is
based on the
historical
dispossession
of
blacks
of
their land. Consequently
the
utterances
of
the
Respondents
suggest
the
reality
of
the
main
contradiction
currently
prevailing
in
the
country,
between
white supremacy
and
black oppression.
In
my view this contention
is
both illogical and
unsustainable
having
regard to the
constitutional
prescripts
founded
on
non
racialism.
89.
Mr.
Andile
Mngxitama
argues
that
the
BLF
does
not
celebrate
the
deaths
of
the
learners
at Driehoek because BLF believe that black children's live also
matter and
this
can
be
achieved
with
the
return
of
the
land
to
ensure
justice.
The
obvious
logical
corollary according to Mr. Mngxitama is that white children lives
also matter
consequently
he
argues.
The
allegation
that
the
response
of
the
"average
reasonable
South
Africa",
the
members
of
the
first
Applicant
(Solidarity)
and
the families
of
the
deceased
and
injured
children
was
that
of
outrage,
disgust
and
disappointment
is
denied
if
it refers to "average reasonable South Africa"
because
we
live
in
a
deeply
divided
society
where
the
majority
is
black.
I
fail
to
logically
follow the tortuous
logic
because it is unsustainable.
90.
The
respondents
further
argue
that
the
applicant's
rights
do
not
extend
to
curtail
their rights to freedom of expression
and
pol
i
tical
engagement on the facts alleged, or in the current political climate
of anti-black
racism
perpetuated by white against blacks.
91.
The
Respondents
state
that
they
are
against
violence
yet
,
they
view
themselves
as
being at WAR with whites, that the incident which occurred has
reassured them that
God
and
their
ancestors
have
not
forsaken
them
and
are
assisting
them
in
their fight against whites, that
consequently
this
tragic incident is in fact seen as a
victory
in
their
WAR
against
whites
who
are
land
thieves
and
beneficiaries
of
colonialism and the oppression
of
Blacks.
92.
.
The
respondents
are
disingenuous
in
their
comments
in
response to the death
of
the
four
white
learners,
by
opinion
that
their
comments
cannot
be
delinked
from
the
historical
legacy
of
colonialism
and
apartheid
imposed
by
white
supremacist
governments
on
blacks, because since the demise of apartheid
a
new democratic and indecisive constitution
is
in existence
.
93.
The
Constitutional Court held in
Tshwane
Metropolitan Municipality v Afriforum and Another
(2016)
ZACC
19
;
2016 (6) SA 279
(CC) para [122]
"Whites
South
Africans
must
enjoy
a
sense
of
belonging.
But
unlike
before,
that
cannot and should never again be allowed
to
override all other people's
interest.
South Africa
no
longer
'belongs'
to
white people
only.
It
belongs
to
all
of
us
who
live
in
it,
united
in
our
diversity.
Any
indirect
or
even
inadvertent
display
of
an
attitude
of
racial
intolerance
,
racial
marginalisation
and
insensitivity,
by
white
or
black
people,
must
be resoundingly
rejected
by
all
South
Africans
in
line with the preamble
and
our values, if our constitutional
aspirations
are
to be realised."
94.
In
essence
the respondents admit that according to them these white children
were
deserving
of death as a redress of white supremacy
because
they are the offspring of the white land thieves who are responsible
for the colonial subjugating of blacks.
In
my view that
these
utterance
cannot
be
justified
by
any
reasonable
person
no
matter what
the
context.
The
respondents
have
referred
to
these
innocent
white children (and
whites
in
general)
as land thieves whose death should be celebrated,
without
any
justifiable
cause.
In
my
view
the
respondent's
comments
are
an
offensive
and
based on
racial
bigotry which
is
discriminatory,
and
is
out lawed
by
the
Constitution and The Equality Act.
95.
In
the
matter of
President
of the
Republic
of
South
Africa
v
Hugo's
the
Constitutional Court
confirmed
that
all
member
of
our
society
will
be
accorded
equal dignity and
respect
regardless of their membership of particular group.
The
court stated as follows:
"At
the heart of the prohibition of unfair discrimination lies a
recognition that the purpose of our new constitutional and
democratic
order is the establishment of a society in which all human beings
will be accorded equal dignity and respect
[1997] ZACC 4
;
1997 (4) SA
1
(CC):
1997 (6) BCLR 708
(CC) (HUGO) at para 41. See
also
Minister
of
Home
Affairs
v
Fourie
[2005]
ZACC
19:
[2005] ZACC 19
;
2006
(1)
SA
524
(CC):
2006 (3) BCLR 355
(CC) at para 60 where
it
was stated:
"Equality
means equal concern and respect across difference. It does not
presuppose the elimination or suppression of differences.
Respect for
human dignity requires the affirmation of self, not the denial of
self.
Equality
therefore
does
not
imply
a
levelling
or
homgenisation
of
behaviour
or
extolling
one form
as
supreme,
and
another
as
inferior,
but
an acknowledgement and acceptance
of
difference.
At
the very
least,
it
affirms
that
differences
should
not
be
the
basis
for
exclusion,
marginalisation
and
stigma."
Regardless
of
their
membership of particular
groups.
The
achievements
of
such
a
society
in
the
context of our deeply in-egalitarian past will not be forgotten or
overlooked".
At
the heart of the Respondents argument is
the
contention that whites (even white chi
l
dren)
are
not
worthy
of
being
accorded
equal
dignity
and
respect
under
the
Constitution,
due
to their
past,
and
in
fact
they
are
not
even worthy
of
life
seeing
that
their deaths are seen as a victory which
should
be celebrated.
In
the
matter of Harksen v Lane N
.
016 the
Constitutional Court formulated the test
for
discrimination as follows:
"Does
the differentiation amount to unfair discrimination? This requires a
two stage analysis:
Firstly,
does
the
differentiation
amount
to
"discrimination"?
If
it is on
a
specified
ground,
then
discrimination
will
have
been
established.
If
it
is
not
on
a
specified
ground,
then
whether
or
not
there
is
discrimination
will
depend
upon
whether,
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.
If the
differentiation
amounts to
"discrimination",
does
it amount to "unfair discrimination"?
If
it has been
found
to have been on a specified ground, then unfairness will be presumed.
If
on an unspecified ground,
unfairness
will have to be established
by
the complainant. The test of
unfairness
focuses
primarily
on the impact of the discrimination on the complainant
and
others
in
his
or
her
situation
if,
at
the
end
of
this
stage
of
the
enquiry, the differentiation
is
found
not
to be unfair, then there will be no violation of section 8(2) [of the
Constitution]
.
"
96.
I
agree
with
Mr.
Groenewald
on
behalf
of
the
applicants
that
the
parents
of
the
deceased who
should
have
been
afforded
the
opportunity
of
mourning
the
death of
their
children
with
dignity,
but
are
now
confronted
with
a
situation
where
the
respondents
turned a tragic accident into racial
victory,
vilified their beloved childre
n
,
rejoiced
in
their
anguish
and
celebrated
their
death
that
this
conduct
should
be visited with rigorous sanction.
97.
In
Islamic
unity
Convention
Langa
CJ
explained
the
scope
of
section
16
of
The
Constitution:
"Section
16(2)
therefore
defines the boundaries beyond
which
the right to freedom of expression does not extend. In that sense,
the subsection is definitional.
Implicit
in its provisions
is
an
acknowledgment
that
certain
expression
does
not
deserve
constitutional
protection
because,
among
other things, it
has
the
potential
to
impinge
adversely
on
the
dignity
of
others
and
cause
harm
.
Our
Constitution
is
founded
on the
principles
of dignity
,
equal
worth and freedom, and these objectives should
be
given
effect
to'
A
court
should
not
be
hasty
to
conclude
that
because language
is
angry
in
tone
or
conveys
hostility
it
is
therefore
to
as
hate
speech,
even if it has overtones of race or ethnicity.
98.
There
can
be
no
greater
advocacy
of
hatred
than
to
rejoice
and
celebrated
the
death
of
innocent children
because
of
the fate
relating
to the
colour
of
their
skin.
There
can
also be no greater
advocacy
of
hate speech to
proclaim
and celebrate
the
death
of
another
human
being,
and
to
proclaim
such
death
as
a victory.
The
hatred and hate speech
is
galling
even
more
so when those who
have
died were
fallen
by
a tragedy
and
their
only
crime
according
to
the
respondents
is
because they are the offspring's of white
parents
whom the respondents categorise as
l
and
thieves.
99.
This
racial hatred and categorisation
of
the tragic death of these white children
by
Siyanda Gumede is
endorsed
by
the
respondents as "minus three future problems" was
adopted
as
correct
by
the second
respondent
and was
not
repudiated by Mr. Andi
l
e
Mngxitama
in
his capacity
as
the
President
of
B.L.F
(the first
respondent).
Consequently,
this
view
can
be
regarded
as
the
adopted
official
B.L.F
political
policy
regarding the fact that "God has finally
intervened
after
being
petitioned
by
BLF's
black
ancestors"
whose
supplications have
resulted
in
precipitating
the
death of the children
of
white
land
thieves,
that
as a consequence
of
such death, the B.L.F
and
its
members
definitely celebrates same
as
the
deaths
of
their
enemies
,
the
white
land
thieves, their
children
,
their
cats and dogs.
100.
It
is disingenuous
of
Mr. Andile
Mngxitama
to claim that the applicants
are
wrong to claim
that
the comments
made
by
the
second respondent and by logical
extension
also the third
respondent
"are
not the official view
and
political position of the first
respondent
that such assertion
by
the applicants
is
misrepresentation.
101.
Mr.
Andile
Mngxitama
as
the deponent
of
the
answering
affidavit
in
respect of all the
respondents
and
as
the
president
of
the
first
respondent
did
not
pertinently
denounce
and
repudiate
the
comments
of
both
the
second
and
the
third
respondents as not representing the official political policy of the
B.L.F even though both
the
second
and
the
third
respondents
articulated
and
attributed
their
comments
as
the view, standpoint
and
political
policy
position
of the
B.L.F
and
it
Black
Members.
It
is common cause that the comments
made
by the
second
and the third respondents were denied but were admitted by Mr. Andile
Mngxitama
on behalf of all the respondents.
102.
Mr.
Andile Mngxitama
has
admitted
that
the death of the four white
children
and
the serious
injuries
suffered
by
twenty
other
white children was
tragedy
and
was
something
that should not happen to any child in
any
normal society nor at a school
like
Driehoek
Hoerskool,
which
incidentally
is
a
non-racial
high
school,
attended
by all races! That this was a tragedy which
all
of us should without
any
hesitation
find tragic and sad.
Paradoxically
Mr.
Andile Mngxitama stated that B.L.F (the first respondent)
does
not
celebrate
the
death
of
the
learners
at
Driehoek
Hoerskool,
that
B.L.F
is
against
violence
and
was
formed
to
end
violence,
yet
he
did
not
repudiate
the
comments
made
by
the
second
and
third
respondents
regarding tragic
death
of
the
four
learners despite such
comments
being racist,
crude,
insensitive,
barbaric
and
being
made
with
the
intention
to
cause
hurt,
harm
and
cause incitement to propagate racial hatred, these comments
are
contravention of section
16
of the Constitution and section
10
(1) of the
Equality
Act
because
they amounted to the
advocacy
of
racial
hatred which
is
based on race and which also
amounts
to the hate speech.
103.
In
conclusion
the relationship between sections 16
of
the Constitution and these
sections
in
the Equality Act
have
been addressed in the case law
.
The
law
as
espoused
by
the
Constitutional
Court
in
the
Qwelane
case
is
the trite that
the
interpretation
of
the
subsections
of
section
10
be understood
and
to
be
read
conjunctively
and
not
disjunctively
and
that
the
scope
of
section
10
itself
is
circumscribed
by
section 16(2) (c) as set out in
SAHRC
v Khuma/o 2019(1) SA
149
(GJ)
at
[81]
-
[83]3.
104.
The
test as set out in
section
10,
whether
the
utterances could reasonably construed
to
demonstrate
a
clear
intention
to
be
harmful
or
incite
harm, promote or propagate hatred is objective in
that
the effect of the words on hearers or readers
is
what
is
relevant.
Mindful
of
this
dimension
of
the
test,
the
test
seeks
out
the
dominant
impression
reasonably
created by hearing these words.
In
this case the words
were
published
and
read
by
its
primary
audience.
This
words
were
broadcast
to a wider audience.
105.
The
utterance are a mix of allegations of fact and of opinion. The
utterances were, it can be inferred,
aimed
at celebrating
and
to endorse
the
respondents
opinions
that
the
death
of
which
school
children
must
be celebrated
because
they
are
the
children
of
l
and
thieves.
The
content
and
tenor
of
the
utterances
were
clearly
intended to be harmful towards the applicants and promote hatred of
the applicant for the reason advanced
in
the published words.
For
the purpose of this judgment it
will
be assumed that every allegation of fact is false and every opinion
obnoxious and severely disparaging
of
the applicant.
106.
In
the
case
of
Qwelane
v
South
African
Human
Rights
Commission
and
Another the
Constitutional
Court
declared
that
section
10(1)
of
the
Equality
Act
is
inconsistent
with
section
1(c)
and
section
16
of
the
Constitution
and
this
Unconstitutional
and
invalid
to the extent
that
it
excludes the word "hurtful"
in
the
prohibition
against
hate
speech.
Consequently
section
1O
(1) of the
Equality
Act
now
reads as follows:
"Subject
to the proviso in section
12,
no person may publish, propagate, advocate or communicate
words
that
are
based on one or
more
of the
prohibited
grounds, against
any
person,
that
could
reasonably
be
construed
to
demonstrate
a
clear
intention to be harmful or to incite harm and to promote or propagate
hatred."
107.
Regarding
Costs
,
Advocate
Kemp
submitted
that
the
Respondents
have
treated
the
same with extreme contempt and that the Respondents should be multed
with Costs.
The
order
(1)
The
comments
of
the
second
and
third
respondents
are
declared
to
be
hate
speech
and
are prohibited in terms of section
10(1)
of
the
Equal
i
ty
Act
:
(2)
The
respondent
are
interdicted
from
repeating,
posting
or
publishing
the
said
comments
in
any social media platform or any
mass
media platform;
(3)
The
second
and
third
respondents
are
ordered
to
delete
the
said
comments
and
all
references from any
social
media
or
other
public
communication
platform;
(4)
The
second and the third respondents are ordered to publish within 30
days of
the
date of this
order
a
written
apology
directed
at
all South Africans
in
which they
acknowledges
that
their
comments
were
hate
speech,
that
they
were
wrong
to
publish
or
post
same,
and
undertake
to
desist
publishing
or
posting
the said comments as they are prohibited by section
10
(1) of the Equality Act;
(5)
The
apology
made
by
the
respondents
shall
be
communicated
to
the
South
African
Human
Rights
Commission
for
further
dissemination
to
the
South African public;
(6)
The
second
and
third
respondents
are
jointly
and
several
ordered
to
pay
the amount
of
RSO
000.00
to
each
of
the
families
of
the
four
deceased
children
within
30
days
of
this
order
as
damages
arising
from
the
impairment
of
their
right
to
equality,
dignity, emotional and psychological
pain,
suffering, humiliation and degradation;
(7)
The
second and third
respondents
jointly
and
severally
are
ordered to pay the applicants
l
egal
costs the one
paying
the other to be absolved.
MOKOGOATLHENG
J
JUDGE
OF THE EQUALITY COURT
AND
THE HIGH COURT OF SOUTH
AFRICA,
GAUTENG LOCAL DIVISION JOHAHANNESBURG
AND
THE HIGH COURT OF SOUTH AFRICA JOHANNESBURG
Counsel
for the Applicants: Adv. Kemp and
Adv.
Groenewald.
I
nstructed
by: The First,
second
and Third Respondents.
Date
of Judgment: 02 March 2022.