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[2024] ZAEQC 1
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City of Cape Town v Adams (EC06/2023) [2024] ZAEQC 1 (1 March 2024)
FLYNOTES:CONSTITUTION
– Equality –
Hate
speech
–
Utterances
made on social media regarding city’s municipal manager
– That decisions concerning Coloured people's
lives are
being made by man from Eastern Cape – Right to freedom of
expression does not extend to advocacy of hatred
based on race or
ethnicity – Respondent's reference to "Eastern Cape"
in relation to municipal manager was
racial trope for "Black
African" – Declared that utterances made by respondent
constitute unfair discrimination,
hate speech and harassment –
PEPUDA 4 of 2000.
IN THE EQUALITY COURT
OF SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
Case No: EC06/2023
In the matter between:
THE CITY OF CAPE
TOWN
Complainant
and
FADIEL
ADAMS
Respondent
JUDGMENT DELIVERED
ELECTRONICALLY ON 01 MARCH 2024
MANGCU-LOCKWOOD, J
A.
INTRODUCTION
[1] This
is an application in terms of the Promotion of Equality and
Prevention of Unfair Discrimination
Act 4 of 2000 (“
PEPUDA”
)
regarding utterances made by the respondent against the Municipal
Manager of the City of Cape Town, Mr Lungelo Mbandazayo. The
complainant is the City of Cape Town Municipality (“
the
City”
), acting on behalf of Mr
Mbandazayo, and it seeks orders declaring that the respondent’s
utterances
constitute unfair discrimination, hate speech and
harassment, and also seeks certain ancillary relief.
[2]
The
respondent is the President of the Cape Coloured Congress
[1]
,
which is a registered political party.
He
is also a Proportional Representative Councillor (“
PR
Councillor”
)
in the City.
He
made the utterances in question on social media platforms, and
specifically Facebook, where he hosts ‘live broadcasts’
and addresses his followers, numbered at 5000, on a range of issues
which include service delivery in the City.
The
live broadcasts are usually recorded and subsequently posted to the
respondent’s Facebook page where they may be viewed
by the
public until he removes them.
B.
THE
FACTS
[3]
The
brief background is that in or about 2018
Mr Mbandazayo, in
his capacity as the City’s Municipal Manager, cancelled a
contract for the repair of staircases of residential
flats in the
Cape Flats. Subsequently, the City conducted a forensic investigation
into the cancellation, but failed to make it
publicly available. The
respondent states that he requested copies of the report from,
amongst others, Mr Mbandazayo, and also
made an application in terms
of the
Promotion of Access to Information Act 2 of
2000
, to no avail
.
He believed that he was
entitled to receive the report because he was a PR Councillor.
He
also held the view that the cancellation was as a result of fraud and
corruption amongst certain staff members of the City and
the service
provider awarded the tender by the City for the repairs.
[4] As
a result of his persistence in requesting a copy of the forensic
report from Mr Mbandazayo,
the latter blocked him on whatsapp and
refused to answer any of his phone calls. He also states that he was
prevented from raising
the issue by the Speaker of the Municipal
Council at one meeting of the Council. His main frustration is that,
despite the City’s
awareness of the poor state of the
staircases - which constitutes a health hazard to the residents - it
did not act with requisite
haste in renewing or awarding the contract
to another service provider.
[5] The
specific utterances that are the subject of this application were
made on 6 February 2023 and
10 March 2023.
After
the first of these was made on 6 February 2023, the City’s
legal representatives addressed a letter to the respondent
stating
that the utterances were false, defamatory and racially
discriminatory, and requested him to remove the posts from his
Facebook account and to cease and desist from making further
defamatory and racially discriminatory utterances.
[6]
After
receiving the letter from the City's legal representatives, he hosted
another live broadcast on 10 March 2023, which is also
the subject of
these proceedings. He was resolute in his beliefs and repeated some
of his previous statements. By the time these
proceedings were
launched, the respondent had not complied with the demands made in
the letters from the City’s legal representatives.
C.
THE
UTTERANCES
[7]
The
utterances made by the respondent are common cause. It is their
meaning that is in dispute.
They are as follows:
6 February 2023
“
The
City Manager, in case you didn't know, is Lungelo Mbandazayo.
We
presume the man is from the Eastern Cape. We understand that he may
not care about Coloured people or the Cape Flats. It’s
generally what you get when you hire from without”.
“
What has
happened here guys is that the Cape Flats has been robbed again…
And a man from the Eastern Cape has made a decision
to cancel it.
Coloured lives don’t matter”.
10 March 2023
“
Young
man… from the Eastern Cape who doesn’t give a crap about
the living conditions of the Coloured people…
I am waiting for
your summons”.
“
These
people
don’t
give
a
crap
about
you,
me,
our
children,
our
grandmothers, or anyone that is poor and Coloured”.
“
Mbandazayo,
I swear to you, I will get that forensic report whether your hand is
cold when I take it from you. I will get that report.
My people will
have justice…
.
Coloured
lives
don’t
matter.
They
don’t
matter
to
you
people.
They
never did”.
We
will take what is ours. We are not asking we are taking. Dis bruin
tyd ouens. We will make the Western Cape brown again
.
You
people are going to jail…I will walk you down the aisle…
I will call my cousins in Pollsmoor… I will tell
them don't be
gentle… don't be gentle want die varke het gesteel van onse
kinders af
”
“
I
don’t speak war guys; I make war. I am not one of those people
that come here and says I come in peace…
if
it's gonna come to a shooting match, the people who know me will tell
you I've never fired a warning shot in my life. Never…Koels
is
duur, en ouens laat sloote in jou kop as jy mis”
[8] The
complainant states that the respondent uses the word “
Eastern
Cape”
as a racial trope to
dehumanise, marginalise and exclude Black African persons employed by
the City. Further, that he seeks to divide
Coloured and Black African
persons on the basis of race by contending that a person from the
Eastern Cape is inherently incapable
of serving the needs of Coloured
communities. And his statements perpetuate and reinforce the idea
that persons of a certain race
belong in only certain parts of the
country. Accordingly, the complainant states that the statements
constitute hate speech, unfair
discrimination and harassment.
In
addition, the complainant states that the statements amount to
incitement to commit violence against City officials, as well
as
intimidation and threats.
[9]
There
were other similar statements made by the respondent - some of which
are alleged to be xenophobic - which are not disputed.
However, that
part of the case was not mentioned during argument in Court or in the
parties’ heads of argument, and as a
result, this judgment does
not focus on them.
[10] The
respondent states that the reference to “
Eastern Cape”
is accurate because Mr Mbandazayo is actually from the Eastern
Cape,
and he (Mr Mbandazayo) had confirmed this in
a previous newspaper article
. The respondent explains that his
utterances regarding Mr Mbandazayo being from the Eastern Cape were
not made on basis of his
race. It was an expression of his
disappointment at Mr Mbandazayo for implementing the policies of the
Democratic Alliance (“
DA”
) whose effect was the
marginalisation of poor communities living in the Cape Flats.
He
was also expressing his disappointment regarding the cancellation of
the contract by the Municipal Manager, which he considered
to be
unlawful; as well as
hi
s
refusal to
release the forensic report.
[11]
The
respondent denies that the reference to the ‘Eastern Cape’
reaffirms the idea of apartheid in terms of which certain
people
belonged only to certain parts of the country.
He disputes the
complainant’s interpretation that the references to the
Municipal Manager being from the Eastern Cape were
a reference to him
being black, referring to the fact that he never mentioned the word
‘black man’ or ‘black
persons’ in his
broadcasts.
[12]
And
when he stated that
the Municipal Manager
may
not care about Coloured people or the Cape Flats, it was because of
what he believed was unlawful cancellation of the contract
and the
consequences thereof. In this regard, he refers to complaints he
received that some residents, who happen to be Coloured,
suffered
injuries as a direct result of the dilapidated state of the
staircases and no medical, financial or other kind of assistance
had
been offered by the City to them. He therefore formed the opinion
that by cancelling the contract,
the Municipal Manager
showed
that Coloured lives do not matter, and that he was incompetent and
unable to fulfill responsibilities as a Municipal Manager
of the
City.
[13] The
respondent further explains that when he said “
[t]hese
people don’t give a crap about you”
, this statement
was not directed at the Black African population group in the Western
Cape, but to the DA whose leadership is predominately
white. In any
event, he states that since the DA’s membership is constituted
of mixed races, he cannot be accused of discrimination
on the
prohibited ground of race.
[14] When
he stated that “
we will make
the Western Cape brown again”,
he
was expressing a hope that his party will take control of the Western
Cape after the next government elections, and there were
no racial
undertones invoked.
[15]
The
respondent denies that his statements were threatening in any way.
When he stated that he would get the forensic report whether
or not
the Municipal Manager’s hand was cold, he was referring to the
winter season and was at the time sitting in front
of a fireplace. He
was not referring to death or making a death threat. And when he
spoke of war and a shooting match and not being
one to fire a warning
shot, he was referring to a ‘metaphorical war’, which he
is politically fighting in government
as a PR Councillor. He denies
that he was inciting violence against City officials.
D.
THE
RELEVANT LAW
[16]
In
Rustenberg Platinum Mine v SAEWA (obo Bester) and Others
[2]
the Constitutional Court
held that the test to determine whether the use of words is racist is
objective, and is whether a reasonable,
objective and informed
person, on hearing the words, would perceive them to be racist or
derogatory.
[17]
However,
the context in which the words or phrase is used is determinative.
[3]
Phrases that appear neutral or innocuous may carry an entirely
different meaning when viewed in context.
[4]
And as both parties in this matter admit, the context in our country
is that the impact of the legacy of apartheid and racial
segregation
has left us with a racially charged present.
[5]
[18]
As
the Constitutional Court observed, “
it
cannot be correct to ignore the reality of our past of
institutionally entrenched racism and begin an enquiry into whether
or
not a statement is racist and derogatory from a presumption that
the context is neutral — our societal and historical context
dictates the contrary
.
Racism
and racial prejudice have not disappeared overnight, and they stem,
as demonstrated in our history, from a misconceived view
that some
are superior to others.”
[6]
Such
an approach takes cognisance of the substantive-equality demands that
flow from the Constitution, and takes into account of
how words
perpetuate and contribute towards systematic disadvantage and
inequalities.
[7]
[19]
This
includes the use of coded language and racial tropes
,
which
the Constitutional
Court
in
Masuku
recognised
are
inherently
imbued
with
deep
historical
roots
and
contemporary
manifestations.
[8]
[20]
The
Constitutional Court has also stated that the purpose of hate speech
regulation is linked to our constitutional object of healing
the
injustices of the past and establishing a more egalitarian society,
by curtailing speech which is part and parcel of the system
of
subordination of vulnerable and marginalised groups in South
Africa.
[9]
E.
DISCUSSION
[21] The
starting point must logically be the respondent’s express
statements. What you get when
you hire from without, according to
him, is a person who “
may not
care about Coloured people or the Cape Flats”
and
“
who doesn’t give a crap
about the living conditions of the Coloured people”.
There
is no doubt from these words that what the respondent sought to
emphasise is that Mr Mbandazayo is an outsider who has different
interests from people of the Western Cape, specifically Coloured
people; and who has no care for Coloured people. The reason given
in
these statements for the Municipal Manager’s supposed lack of
care for Coloured people is that he is from the Eastern
Cape. It is
not that he cancelled a contract or that he was failing to fulfil his
obligations as a Municipal Manager.
[22] In
that same vein, the respondent repeatedly emphasises with incredulity
that decisions concerning
Coloured people’s lives are being
made by a man from the Eastern Cape.
He
constantly notes that a man from the Eastern Cape made the decision
to cancel the contract. The rhetorical question is: “
Of
what relevance is the fact that the Municipal Manager is from the
Eastern Cape to the cancellation of the contract?”
The respondent’s
papers do not address this issue, which is at the core of this
application. The answer can only be that the
fact that the Municipal
Manager is from the Eastern Cape, according to the statements,
disqualifies him from making decisions affecting
Coloured people,
including the cancellation of the contract.
[23] In
one such reference, the respondent refers to the Municipal Manager as
a “
young man
from the Eastern Cape”
.
This can be viewed in no other way than a means, not only to
marginalise Mr Mbandazayo, but also to belittle him – to
express
that he is viewed by the speaker as a person of low ranking.
It is another way of expressing that he is not qualified to make
decisions
concerning the Coloured community.
There
was no evidence produced to show that, in relation to the respondent,
Mr Mbandazayo may be considered a ‘young man’.
Instead,
an article
attached
by the respondent indicates that the Municipal Manager will be 62
years old this year, whilst the respondent’s answering
affidavit shows that he will be turning 48 years this year.
There
was accordingly
no
basis for the respondent to refer to the Municipal Manager as a young
man other than to demean him. Simply put, the
message
conveyed is that Mr Mbandazayo’s professional capabilities are
inferior by reason of his origin from the Eastern Cape.
[24] Also
disturbing is the manner in which the social origin of Mr Mbandazayo
is introduced into the
live broadcast: “
We
presume
the
man is from the Eastern Cape
”.
This supposed presumption has not been explained by the respondent
.
At the same time, the answering affidavit relies significantly on a
newspaper article dated 11 May 2018, in which the Municipal
Manager
confirmed that he was from the Eastern Cape. The respondent states
that it was against the background of this article that
he referred
to Mr Mbandazayo as being from the Eastern Cape.
[25]
The
question then is why was it necessary to
presume
that Mr Mbandazayo is
from the Eastern Cape if the respondent was aware of the newspaper
article at the time at which the statements
were made? And who is
‘
we’
to whom
this presumption is attributed? The respondent’s papers do not
provide answers to these questions. When viewed in
light of the
respondent’s own version that he was already aware, from the
article dated May 2018, that the Municipal Manager
was from the
Eastern Cape, the only reasonable inference is that the phrase ‘
we
presume’
was
used as a further means of ‘
othering’
the Municipal Manager
and to cast him in suspicious, diminished light.
[26]
It
is not a big leap to conclude from the respondent’s statements
that, according to him, the reason that the Municipal Manager
who is
from the Eastern Cape does not care about Coloured lives is because
he is not Coloured. If he were Coloured he would be
so qualified and
would care about the issues affecting them. That interpretation is
supported by the respondent’s repeated
explanations in the
answering affidavit that he drew the inference that the Municipal
Manager did not care about Coloured people
from, amongst other
things, the consequences of the cancellation of the contract which
were dire to the “
people
of the Cape Flats who happen to be Coloured”
.
This is nothing but ‘othering’. It links the fact that Mr
Mbandazayo is of a different race from Coloured people to
his failure
to renew the contract. It similarly links the fact that Mr Mbandazayo
is of a different race from Coloured people to
his lack of care for
Coloured people.
[27] Not
being Coloured, in the case of Mr Mbandazayo means being Black
African. It is what constitutes
an additional, disqualifying strike
against Mr Mbandazayo from making decisions concerning Coloured
people according to these statements,
including the cancellation of
the said contract. It conveys, according to the respondent, that
“
Coloured
lives
don’t
matter”.
It
is what makes the cancellation particularly bitter.
[28]
The
corollary is that, if a person from the Eastern Cape has no business
making decisions affecting people of the Western Cape,
he or she is
only qualified to make decisions over Black African people in the
Eastern Cape. The implication is that he or she
must go back to the
Eastern Cape. This conclusion is confirmed by the respondent’s
explanation that he
is
frustrated by the “
large
scale lack of jobs within the Western Cape [which] is highlighted by
the fact that a local government chooses to employ an
individual from
another province [thereby] overlooking so many more competent and
qualified individuals who live in the Western
Cape”
[10]
.
This belief is repeated in the respondent’s heads of argument,
where it is stated that the respondent believes that
there
were suitable candidates who could have been appointed from within
the Western Cape.
[11]
This
belief simply reaffirms the apartheid concept of separate
development, a well-documented phenomenon from whose consequences
our
nation continues to reel.
[12]
It is
an
affront to the constitutional guarantee that South Africa belongs to
all who live
in
it.
[13]
[29]
As
for the respondent’s averments that he was actually referring
to the DA, none of the specific utterances discussed above
were
directed at anyone other than the Municipal Manager. The DA is not a
‘man’ from the ‘Eastern Cape’.
And as the
complainant points out, in terms of the Constitution, a Municipal
Manager is required to operate with high standards
of professional
ethics, and must provide service impartially, fairly, equitably and
without bias;
[14]
and with a
duty to only execute lawful policies of the government of the
day
[15]
. In other words,
properly construed in the light of these constitutional provisions,
Mr Mbandazayo is a professional who must be
seen to be operate above,
or separate from, party politics, and not as an extension of the DA.
In passing, I note that this point
is made even clearer when one has
regard to the provisions of the Municipal Structures Act 117 of
1998
[16]
, Municipal Systems
Act 32 of 2000
[17]
and the
Municipal Finance Management Systems Act 56 of 2003
[18]
,
which were not referred to, but in terms of which a clear statutory
distinction is created between municipal managers and politicians.
[30]
What
remains to be said in relation to the respondent’s averment
that the Municipal Manager is to be seen as the face of the
DA is
that the same article attached by the respondent dated 11 May 2018
which reported that Mr Mbandazayo was from the Eastern
Cape, also set
out the history of his involvement in the Pan Africanist Congress
from his student days. In other words, the respondent
could never
have been under the belief that the Municipal Manager was the face of
the DA as he now claims. As a result, the respondent’s
version
in this regard is far-fetched.
[31] It
is therefore clear from the above discussion that the use of the term
“
Eastern Cape”
by the respondent was not a neutral reference to geography divorced
from race. Any reasonable, objective and informed person, on
hearing
these words would perceive them to be racist and derogatory. It is
coded language and a racial trope which is intended
to convey Mr
Mbandazayo as inferior. It matters not that the respondent did not
specifically mention the words ‘race’,
‘black’
or ‘black man’.
[32]
I
am furthermore in agreement with the complainant that the utterances
discussed above undermine the intellectual and leadership
ability and
position of the
Municipal
Manager
on the basis of his birth, ethnicity, social origin and race.
[19]
They are used to isolate, hurt and marginalize the Municipal Manager
on those bases.
[33] I
now turn to consider the complainant’s case based on unfair
discrimination based on race
and harassment.
Unfair
Discrimination
[34] Section
7 of PEPUDA provides, in relevant part, as follows:
“
Subject to
section 6, no person may unfairly discriminate against any person on
the ground of race including --
(a)
The dissemination of any propaganda or idea, which propounds the
racial superiority or inferiority of any person, including incitement
to, or participation in, any form of racial violence.
(b)
The engagement in any activity which is intended to promote, or
has the effect of promoting, exclusivity based on race.
(c)
The exclusion of persons of a particular race group under any rule
practice that appears to be legitimate, but which is actually
aimed
at maintaining exclusive control by a particular group.”
[35] I
have already indicated that the respondent’s utterances convey
that Black African people
from the Eastern Cape generally do not care
about the plight of Coloured people; that they are outsiders to the
issues affecting
Coloured people; and are accordingly not capable to
lead or participate in governance issues affecting them. Further,
they convey
the idea that the Western Cape belongs to “
bruin”
(brown) people and that Black African persons are outsiders from
the Eastern Cape who do not properly belong in the Western Cape.
[36] A
reasonable person would understand these utterances to promote: (a)
racial superiority; (b)
racial exclusivity in the sense that the
Western Cape belongs to a certain race group; and (c) exclusion on
the basis of race because
Black African persons are to be regarded as
unwanted outsiders. Thus, I am of the view that the complainant has
established a
prima facie
case of discrimination based on the
prohibited ground of race. Accordingly, in terms of section 13, the
burden shifts to the respondent
as follows:
“
Burden
of proof
(1)
If the complainant makes out a
prima facie
case of
discrimination—
(a)
the respondent must prove, on the facts before the court, that the
discrimination did not take place as alleged; or
(b)
the respondent must prove that the conduct is not based on one or
more of the prohibited grounds.
(2)
If the discrimination did take place—
(a)
on a ground in paragraph (a) of the definition of “prohibited
grounds”, then it is unfair, unless the respondent
proves that
the discrimination is fair;
(b)
on a ground in paragraph (b) of the definition of “prohibited
grounds”, then it is unfair—
(i)
if one or more of the conditions set out in paragraph (b) of the
definition of “prohibited grounds” is established;
and
(ii)
unless the respondent proves that the discrimination is fair.”
[37] “
Prohibited
grounds”
are defined as -
“
(a)
race, gender, sex, pregnancy, marital status, ethnic or social
origin, colour, sexual orientation, age, disability, religion,
conscience, belief, culture, language, birth and HIV/AIDS status; or
(b)
any other ground where discrimination based on that other ground—
(i)
causes or perpetuates systemic disadvantage;
(ii)
undermines human dignity; or
(iii)
adversely affects the equal enjoyment of a person’s rights and
freedoms in a serious manner that is comparable to discrimination
on
a ground in paragraph (a)”
[38] As
the discussion above shows, the
utterances of the
respondent easily fit within paragraph (a) of the definition of
‘
prohibited grounds’
,
and specifically birth, race and ethnic or social origin.
Accordingly, in terms of section 13(2)(a), the respondent’s
prima facie
discrimination
is presumed to be unfair unless the respondent proves that the
discrimination is fair.
[39] When
determining whether discrimination is fair, section 14 provides as
follows:
“
(2)
In determining whether the respondent has proved that the
discrimination is fair, the following must be taken into account—
(a)
The context;
(b)
the factors referred to in subsection (3);
(c)
whether the discrimination reasonably and justifiably differentiates
between persons according to objectively determinable criteria,
intrinsic to the activity concerned.
(3)
The factors referred to in subsection (2)(b) include the following—
(a)
Whether the discrimination impairs or is likely to impair human
dignity;
(b)
the impact or likely impact of the discrimination on the complainant;
(c)
the position of the complainant in society and whether he or she
suffers from patterns of disadvantage or belongs to a group
that
suffers from such patterns of disadvantage;
(d)
the nature and extent of the discrimination;
(e)
whether the discrimination is systemic in nature;
(f)
whether the discrimination has a legitimate purpose;
(g)
whether and to what extent the discrimination achieves its purpose;
(h)
whether there are less restrictive and less disadvantageous means to
achieve the purpose;
(i)
whether and to what extent the respondent has taken such steps as
being reasonable
in the
circumstances to—
(i)
address the disadvantage which arises from or is related to one or
more of the prohibited grounds; or
(ii)
accommodate diversity.”
[40]
In
applying these provisions, I am persuaded that the respondent’s
utterances amount to unfair discrimination. The utterances
undoubtedly impair the dignity of Mr Mbandazayo;
[20]
and undermine his leadership and self-worth on the basis of his race,
ethnicity, social origin and birth.
[21]
Given our nation’s painful past, it cannot be gainsaid that Mr
Mbandazayo is a member of a group that has suffered past patterns
of
discrimination, specifically by virtue of his race, ethnicity and
social origin. And
the
respondent’s discriminatory utterances reinforce those past
patterns - the notion of separate development where racial
and ethnic
groups are confined to territories in the country.
[22]
The
discriminatory utterances are persistent and pervasive, and there is
every indication in the papers that the respondent lacks
remorse and
in fact intends to continue making them.
[23]
Even after the respondent was served with a letter from the
complainant’s legal representatives, he persisted with his
conduct.
[41]
For
similar reasons, the respondent’s conduct meets the
requirements
of ‘harassment’ which is
defined in section 1 as follows:
“…
unwanted
conduct which is persistent or serious and demeans, humiliates or
creates a hostile
or intimidating environment or is calculated to induce submission by
actual or threatened adverse consequences and which is related
to—
(a)
sex, gender or sexual orientation; or
(b)
a person’s membership or presumed membership of a group
identified by one or more of the prohibited grounds or a
characteristic
associated with such group…
” (my
emphasis)
[42] The
requirements for harassment, which are highlighted above are clearly
met. I now turn to consider
the case of hate speech.
Hate Speech
[43] Section
10 of PEPUDA 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
prohibited grounds,
against any person, that could reasonably be construed to demonstrate
a clear intention to-
(a) be hurtful;
(b) be
harmful or to incite harm;
(c) promote or
propagate hatred.”
[44]
It
is not in dispute that the respondent communicated his utterances to
an unknown number of people who joined his live, public
broadcasts on
Facebook. Even after the live broadcasts, their recordings remain
available on his Facebook page for as long as he
allows the posts to
remain there. In other words, that he communicated, or advocated, or
propagated ideas. Thus, the requirement
of a speech made within the
contemplation of section 10 is met.
[24]
And as I have already found, the respondent’s reference to
“
Eastern
Cape”
in
relation to Mr Mbandazayo is a racial trope for “
Black
African”.
The
speech is accordingly based on the ground of race which is listed as
a prohibited ground in section 1 of the PEPUDA.
[45]
As
for whether a reasonable person would conclude that the speech was
clearly intended to be harmful or to incite harm and promote
or
propagate hatred, the test is objective.
[25]
It matters not whether the respondent intended his speech to be
harmful, or that the complainant subjectively understood the speech
to be so. The determination in this regard falls within the exclusive
function of a court, and no evidence - expert or otherwise
- is
admissible
[26]
. 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.
[27]
[46]
The
Constitutional Court has stated that the first part of the objective
enquiry in this regard is whether a reasonable person would
regard
the speech as demonstrating hatred towards an individual or group on
a prohibited ground; or alternatively, whether a reasonable
person
would regard the speech as inciting harm on a prohibited ground; and
third, does the speech, reasonably construed promote
or propagate
hatred. The first two are
alternatives – only one of them needs to be satisfied.
[28]
[47]
The
incitement of harm requirement includes physiological harm or an
affront to an individual’s dignity, and there is no requirement
to establish a causal link between the expression and the actual harm
committed.
[29]
[48] I
have already stated that what is sought to be conveyed by the
respondent’s utterances
is that Black African people from the
Eastern Cape generally do not care about the plight of Coloured
people, and that they are
outsiders to the issues affecting Coloured
people. I have also already rejected the respondent’s
explanation that the actual
target of his statements was the DA. The
clear implication of the utterances is that the leadership of a Black
African person is
incapable of addressing the concerns of Coloured
communities. Any reasonable person would regard these utterances as
assailing
the dignity of the Municipal Manager. His leadership and
contributions are diminished on the basis of his race, birth, social
origin
and ethnicity. In my view, the respondent’s speech meets
all of the requirements for hate speech as set out in
Qwelane
and
Masuku.
[49] It
was contended that the respondent’s utterances are protected in
terms of section 16 of
the Constitution because they amount to
political speech, and he is entitled to raise concerns about
governance and leadership
in the City. In this regard, section 12 of
the PEPUDA creates an exception to hate speech and discriminatory
speech where it amounts
to a –
“
bona fide
engagement in artistic creativity, academic and scientific inquiry,
fair and accurate reporting in the public interest
or publication of
any information, advertisement or notice in accordance with section
16 of the Constitution”.
[50] Section
16 of the Constitution provides as follows:
“
(1) Everyone
has the right to freedom of expression, which includes—
(a) freedom
of the press and other media;
(b) freedom
to receive or impart information or ideas;
(c) freedom
of artistic creativity; and
(d) academic
freedom and freedom of scientific research.
(2)
The right in subsection (1) does not extend to—
(a) propaganda
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.”
[51]
The
clear wording of section 16(2) is that the right to freedom of
expression
does
not extend to advocacy of hatred that is based on race or ethnicity.
Since I have already found that the respondent’s
utterances
amount to hate speech and unfair discrimination based on race, this
provision cannot assist him.
As
the complainant points out, although the respondent is
constitutionally entitled to raise his concerns about governance in
the
City, including passionately and forcefully, that is no licence
for hate speech or unfair discrimination. The right to freedom of
expression does not entitle him to discriminate against others,
assault their dignity, and propagate hate speech.
[30]
Accordingly, the
proviso
in section 12 does not
apply, and his utterances amount to hate speech.
F.
RELIEF
[52]
I
have found that the respondent’s utterances amount to
hate
speech,
unfair discrimination
based on race and
harassment. I consider it appropriate to grant all the relief sought
by the complainant. Since the utterances
were made on a social media
platform which is accessible to an unknown number of people, it is
appropriate that the respondent
should not only remove the posts but
also apologise publicly to Mr Mbandazayo for his utterances. Given
his recalcitrant attitude
especially after receiving a ‘cease
and desist’ letter from the complainant’s legal
representatives, as well
as some of his beliefs which are highlighted
in this judgment, it is also appropriate that he should be ordered to
attend some
racial sensitivity training.
[53]
There
is furthermore no reason why the respondent should not be ordered to
pay the costs of this litigation. In the pre-litigation
correspondence he was afforded an opportunity to desist from his
conduct, and was warned that failure to do so would lead to
enforcement
of legal remedies. He failed to heed that warning. There
is no reason why the complainant should be put of pocket as a result
of
his reckless disregard for the law. Nevertheless, although it is
laudable to include junior counsel in a matter such as the present,
I
am of the view that one counsel would have sufficed on behalf of the
complainant, and will accordingly only grant costs in respect
of
senior counsel.
ORDER
[54]
In
the circumstances, the following order is granted:
1) It
is hereby declared that the utterances made by the respondent against
the Municipal Manager of
the City of Cape Town, Mr Lungelo Mbandazayo
(Mr Mbandazayo), constitute unfair discrimination, hate speech, and
harassment.
2) The
respondent is ordered to remove the social media posts dated 6
February 2023 and 10 March 2023
which contain the prohibited speech
by end of 4 March 2024.
3) The
respondent is ordered to issue an unconditional public apology to Mr
Mbandazayo for the prohibited
speech contained in his social media
posts of 6 February 2023 and 10 March 2023, by end of 4 March 2024.
4) The
respondent is ordered to enrol for and undertake a programme on
racial sensitivity training,
at his own expense, by end of 30 May
2024.
5) The
respondent is ordered to file a report to this Court and serve it
upon the complainant, evidencing
his compliance with paragraphs 2, 3
and 4 of this Order, by end of 31 May 2024.
6) The
respondent is ordered to pay the complainant’s costs, including
costs of senior counsel.
N. MANGCU-LOCKWOOD
Judge of the High
Court
[1]
The answering affidavit ‘notes’ the complainant’s
averment that the respondent is the
President
of the Cape Coloured Congress, but later states that he is the
President of the ‘
National
Coloured Congress formerly known as the Cape Coloured Congress’
.
His heads of argument, however, state that he is the President
of the Cape Coloured Congress.
[2]
Rustenberg
Platinum Mine v SAEWA (obo Bester) and Others
2018
(5) SA 78
(CC) at [28].
[3]
Rustenberg
Platinum Mine v SAEWA (obo Bester) and Others
2018
(5) SA 78
(CC) at [28].
[4]
Rustenberg
Platinum Mine v SAEWA (obo Bester) and Others; SARS v CCMA
2017
(1) SA 549
(CC) at [86];
Qwelane
v SAHRC
2021
(6) SA 579
(CC) at [86].
[5]
Rustenberg
Platinum Mine v SAEWA (obo Bester) and Others para 48.
See
also
SARS
v CCMA
2017
(1) SA 549
(CC) at [86].
[6]
Rustenberg
Platinum Mine
at
para [49] and [52].
[7]
Qwelane
v SAHRC
2021
(6) SA 579
(CC) at [86].
[8]
SAHRC
v Masuku
2022
(4) SA 1
(CC) at [144].
[9]
Qwelane
v SAHRC
2021
(6) SA 579
(CC) at [86].
[10]
Answering affidavit
para
56.1.
[11]
Although,
the heads of argument do not specify it, the context indicates that
this is in reference to the appointment of Mr Mbandazayo.
[12]
Woolman and Bishop
Constitutional
History in CLOSA
(Juta
Publishers, Cape Town 2012) at 2- 18, explains separate development
as “
the
fictional oasis of tribal government in which Africans could
exercise their own unique political aspirations. The apartheid
regime referred to this racist ghettoization of South Africa as the
policy of ‘separate development’
.
[13]
See
Preamble to the Constitution.
[14]
Section
195(1)(a) and (d).
[15]
Section
197(1).
[16]
Section
83.
[17]
Sections
6, 53 and Item 11 of Schedule 1.
[18]
Chapter
8.
[19]
SARS
at
[86].
[20]
Section 14(3)(a).
[21]
Section 14(3)(b).
[22]
Section
14(3)(c).
[23]
Sections 14 (3)(d) and (e).
[24]
See
Qwelane
at
para [113].
[25]
Qwelane
at
para [176].
[26]
Masuku
at
para [143].
[27]
Qwelane
at
para [176].
[28]
Qwelane
at
[122].
[29]
Qwelane
at
[122].
[30]
See
Masuku
at
[141].