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[2024] ZAEQC 2
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Amaning and Others v Ackerman (EQ3/2023) [2024] ZAEQC 2 (10 May 2024)
FLYNOTES:
CONSTITUTION – Equality –
Hate
speech
–
Communications
between two business associates, one using k word – Unlawful
hate speech amounting to unlawful discrimination
against Black
people – No requirement inherent in verb “communicate”
that offensive words be communicated
widely – Cannot be said
to be in “intimate personal sphere” – Fall
within range of words which may
be “communicated” in
section 10(1) – Equality Act
Promotion
of Equality and Prevention
of Unfair Discrimination Act 4 of 2000
,
s 10(1).
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
JOHANNESBURG
SITTING
AS AN EQUALITY COURT
Case
NO:
EQ3-2023
(1)
REPORTABLE:
YES
(2)
OF INTEREST TO OTHER JUDGES:
YES
(3)
REVISED
10
MAY 2024
_________________________
WRIGHT
J
In the matter between:
EMMANUEL
AMANING
First
Complainant
NICHOLAS
LIEBMANN
Second
Complainant
GARTH
WELLMAN
Third
Complainant
and
WILLEM
ACKERMAN
Respondent
Headnote – The verb
“
communicate
“ in section 10(1) of the Equality Act
considered.
Summary – A
business person used the k word when communicating with a
business
associate.
Held
– On the facts of the case, that the communication was
sufficiently public to be “
communicated
“ within the ambit of section 10(1) of the Equality Act.
JUDGMENT
WRIGHT J
[1]
The first complainant is Mr Emmanuel
Amaning. He is described in his complaint as a person of Black or
African race. The second
complainant, Mr Nicholas Liebmann is
described in the complaint as a person of White or European race and
of Jewish ethnic origin
and religion. The third complainant, Mr Garth
Wellman is described as of White or European race and not Jewish.
[2]
The respondent, Mr Willem Ackerman is described in the
complaint as White and not Jewish.
[3]
Mr Liebmann has withdrawn his complaint.
[4]
The documents in the case are many and relate mostly to
business that the parties did together. There is pending litigation
regarding
that business. I shall cut through that. At the
start of the inquiry, it was agreed by Mr Winks for Mr Amaning and Mr
Wellman and Mr Riley and Ms Nadasen for Mr Ackerman that I need not
decide the rights and wrongs of that pending litigation.
[5]
The business between the parties was at least to some extent
run through a company called Caleo.
Legislation
[6]
Under section 9 of the Constitution, the right to equality is enjoyed
by all. Under section 10, everyone has the right to dignity. Under
section 14(d), everyone has the right to privacy, which includes
the
right not to have the privacy of their communications infringed.
[7]
The
Promotion of Equality and Prevention of Unfair Discrimination
Act, 4 of 2000
is legislated to give effect to the right to equality.
[8]
Under
section 1
, discrimination is defined as:
“
any
act or omission, including a policy, law, rule, practice, condition
or situation which directly or indirectly—
(a)
imposes burdens, obligations or disadvantage on; or
(b)
withholds benefits, opportunities or advantages from, any person on
one or more of the prohibited
grounds”
[9]
Under
section 1
, harassment is:
“
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—
(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”
[10]
Under
section 1
, prohibited grounds include:
“
race,
ethnic or social origin, colour,
religion, conscience,
belief, culture, language 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)“
[11]
Under
section 6
, no person may discriminate unfairly against any
other person.
[12]
Under
section 7(a)
, “ 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
“
[13]
Section 10(1)
, as previously legislated, read “
Prohibition of hate speech —(1) Subject to
the proviso in
section 12
, no person may publish, propagate,
advocate or communicate words based on one or more of the prohibited
grounds, against any person,
that could reasonably be construed to
demonstrate a clear intention to—
(a)
be hurtful;
(b)
be harmful or to incite harm;
(c)
promote or propagate hatred. “
[14]
On 30 July 2021, the Constitutional Court in Qwelane v South African
Human Rights Commission
and others
[2021] ZACC 22
declared that
“
section 10(1) of the
Equality Act is inconsistent
with section 1(c) of the Constitution 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 speech.”
The Court suspended the declaration
for 24 months to give Parliament an opportunity to remedy the
Constitutional
defect.
[15]
The Constitutional Court ordered that during the period of suspension
section 10(1) would
read:
“
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.”
[16]
The required amendment was legislated with commencement date 3 April
2024.
[17]
Under section 11 of the Equality Act no person may subject any person
to harassment.
The complaints
[18]
The complainants allege four incidents.
[19]
The first incident pleaded is that on or about 31 January 2018, at Mr
Ackerman’s
business premises, Mr Ackerman said to Mr Wellman
the following words or substantially the same words - “
the k…..s running this country will just keep f…ing
it up as they have done in the rest of Africa
.” It is
alleged that these words constituted hate speech under section 10(1)
of the Act, unfair discrimination on the
ground of race under section
7(a) of the Act and harassment under section 11 of the Act. The
harassment is alleged to consist in
Mr Ackerman inviting Mr Wellman
to enjoy or endorse the words and Mr Ackerman thereby created a
hostile or intimidating environment.
It is alleged that Mr Amaning
was informed of this incident on or about 14 October 2022.
[20]
The second incident pleaded is that on or about 3 October 2018, at Mr
Ackerman’s
business premises, Mr Ackerman said to Mr Wellman
that Mr Liebmann was “
that f…ing Jew who only wants
to enrich himself in every deal
“ or words to that effect.
These words are alleged to be hate speech and harassment, the latter
in that Mr Ackerman thereby
invited Mr Wellman to endorse the words
and Mr Ackerman created a hostile or intimidating environment.
It is alleged that
Mr Liebmann was informed of the incident on or
about 3 October 2018.
[21]
The third incident pleaded is that on or about 23 August 2019 Mr
Ackerman sent a text
message to Mr Wellman with the words –
“
Garth after today I might be seen as racist but I will man
alone kill every k….r that cross my path. So God help me.
“ This text is pleaded to amount to hate speech, unfair
discrimination on the ground of race and to harassment in that by
inviting Mr Wellman to enjoy or endorse the words or by communicating
the assumption that Mr Wellman would enjoy or endorse the
words Mr
Ackerman demeaned Mr Wellman or created a hostile and intimidating
environment for Mr Wellman. It is alleged that Mr Amaning
was
informed of this incident on or about 14 October 2022.
[22]
The fourth pleaded incident is that during or about October 2021 in a
telephone call Mr
Ackerman said to Mr Wellman – “
my
k…..s know their place
.” It is pleaded that these
words amount to hate speech, unfair discrimination on the ground of
race and to harassment. It
is alleged that Mr Amaning was informed of
these words on or about 14 October 2022.
[23]
The relief sought is an order declaring that Mr Ackerman’s
words amount to hate speech,
unfair discrimination based on race and
to harassment. Further, an order is sought that Mr Ackerman pay
R500 000 to the Ahmed
Kathrada Foundation, which has as its core
objective the deepening of non-racialism. It is sought too, that Mr
Ackerman make a
public apology and that Mr Ackerman undergoes fifty
hours of racial sensitization training to be conducted by the South
African
Human Rights Commission or an institution or person nominated
by it. Costs are sought.
[24]
In his affidavit in answer, Mr Ackerman says that the
accusations are a bad faith
attempt to defame his good name and they
are an attempt to leverage Mr Ackerman into halting the pending
litigation. Mr Ackerman
alleges that Mr Liebmann and Mr Wellman were
in fact running a self-enrichment scheme at Mr Ackerman’s
expense. They are
alleged to have committed fraud.
[25]
Mr Ackerman alleges that Mr Wellman asked him for bridging finance
for one of Mr Wellman’s
companies and that Mr Ackerman donated
to a charity of Mr Wellman’s choice.
[26]
Mr Ackerman alleges that the complainants waited years to lay their
complaints.
[27]
Regarding the first incident, Mr Ackerman denies using the alleged
word.
[28]
Regarding the second incident, Mr Ackerman admits saying that Mr
Liebmann “
only wants to enrich himself in every deal
“
but denies using the words “
f…ing
Jew
“.
[29]
Regarding the third incident, Mr Ackerman says further in his
affidavit in answer to the
complaints that “
I have no
knowledge of such a text, or whether I indeed sent same. Accordingly,
I deny same and put the Complainants to the proof
thereof.
“
Mr Ackerman says further that on the day in question, 23 August 2019
his wife, daughter and domestic worker were robbed
at gunpoint at his
residence. His daughter was threatened with gang rape and his
domestic worker was viciously beaten. He
pleads that he was
very upset and that his hatred was directed only at the perpetrators.
[30]
Regarding the fourth incident, he denies the alleged words.
[31]
Mr Ackerman says that a company in which Mr Ackerman has a 40%
shareholding employs “
75 people of whom 49 are people of
colour
.“ Mr Ackerman says that he has donated towards
bursaries for Black persons and that he donates to charity.
The documents and
chronology
[32]
The parties prepared a joint bundle of documents for the hearing and
prepared full witness
statements for all witnesses. It was agreed
pre-trial that evidence in chief would consist only in each witness
confirming his
statement. This latter exercise shortened the length
of the hearing considerably.
[33]
The documents are many, mostly relating to the pending litigation. I
set out below a chronology
of the relevant events as they are
reflected in documents. I intersperse the four alleged incidents to
show where they fit into
the chronology.
[34]
For some years, Mr Amaning, Mr Wellman, Mr Liebmann and Mr Ackerman
are in business together
in one way or another.
[35]
January 2018 – the alleged first incident.
[36]
5 February 2018 – Mr Wellman emails Mr Ackerman, saying that he
“
enjoyed the meeting last week
“ and referring to
Mr Ackerman’s possible exit from Caleo.
[37]
7 March 2018 – Mr Wellman emails Mr Ackerman, referring to a
loan to be made by Mr
Ackerman to Caleo.
[38]
3 October 2018 – the alleged second incident.
[39]
23 August 2019 – Mr Ackerman’s domestic worker, wife and
daughter are robbed
at gunpoint at their home.
[40]
Later the same day – Mr Ackerman sends a Whatsapp text message
to Mr Wellman reading
“
Garth after today I might be
seen as a racist but I will man alone kill every k….r that
cross my path. So God help me
.” The full k word is used and
is spelled with two f’s.
[41]
Later the same day – Mr Wellman sends a text message to Mr
Ackerman advising him
to stay away from social media and containing
the words “
This is what can destroy you
. “
[42]
Later the same day – Mr Ackerman sends a text message to Mr
Wellman reading “
Deleted it Was in an extremely emotional
state
. “
[43]
24 August 2019 – Mr Wellman sends a text message to Mr
Liebmann, referring
to Mr Ackermann and including the words
“
I feel for him but this is not an out of character break
out. This is who he is. I am really finding it hard to have this
caliber
of human as my shareholder. He is governed purely by his
emotions
“ and “
We need to write a letter to each
other, discussing his exit as a result of this
. “
[44]
25 August 2019 – Mr Liebmann emails Mr Wellman, copying Mr
Amaning and saying, in
reference to Mr Ackerman “
He has
shown disloyalty; untrustworthiness and above all discrimination and
in fact contempt for humanity in the form of outright
racism.
“
[45]
28 August 2019 – Mr Wellman emails Mr Liebmann, empathising
with Mr Ackerman about
the attack on his family and saying “
it
does not excuse the language nor the attack on whatsapp
“
and saying “
We have experienced several irresponsible
events in his behaviour before. I would like to proceed with his exit
from the business
. “
[46]
30 July 2021 - The Constitutional Court hands down judgment in
Qwelane. The wording of
section 10(1) of the Equality Act changes as
set out above.
[47]
October 2021 – the alleged fourth incident.
[48]
30 September 2022 – Mr Wellman sends a letter to Mr Ackerman.
The letter includes
the words “
I would like to extend my
gratitude to you and Lydia [ Mr Ackerman’s wife ] for your
clientship and years of relationship.
I see no wrongdoing from any
party that requires hostile and unnecessary departure from the
current relationship. What has transpired
has had consequences in the
relationship and I would like to think we can all move forward
positively from today.
“ The letter also contains the words
“
Non aggressive communication will result in a better
outcome for everyone
. “
[49]
14 October 2022 – Mr Wellman informs Mr Amaning of Mr
Ackerman’s texts to Mr
Wellman.
[50]
25 January 2023 – Mr Liebmann sends a letter to the Financial
Service Council Ombud
about Mr Ackerman. In paragraph 30, Mr Liebmann
writes “
We know that, from previous conduct, Mr Ackerman
had a problem with Jews, in his view, apparently for their self-
enrichment, blacks,
in his view, apparently for their entitlement and
Mr Wellman because Mr Ackerman feels that Mr Wellman turned his back
on him.”
[51]
20 February 2023 or shortly thereafter – Ms Rothman of the
Financial Advisory Intermediary
Services writes to Mr Ackerman, per
his wife, Lydia Ackerman. This letter is in response to a complaint
laid by Mr Ackerman about
the financial behaviour of the
complainants. Ms Rothman says that she will close her file as there
are disputes of fact and the
matter is better raised in a court.
[52]
14 February 2023 – the present case is instituted.
[53]
1 March 2023 – Mr Ackerman deposes to his affidavit in answer
to the complaints,
saying that he has no knowledge of the text of 23
August 2019 and denying that he sent the text. Mr Ackerman denies
using the k
word.
[54]
7 June 2023 – Mr Amaning’s discovery affidavit is
delivered. It lists the text
exchanges between Mr Wellman and Mr
Ackerman.
[55]
20 June 2023 - Mr Ackerman signs his witness statement. In
paragraph 31, he says
that “
Regarding the alleged Whatsapp
message, as was stated in my answering affidavit, I had no knowledge
of such text, or whether I indeed
sent same.
“ In paragraph
32.2 he says “
As a deeply religious man, I used the word “
K….r “ [ spelled with two f’s ] in the sense that
it means
disbeliever in God. It was not meant against any race, but
only against those persons that committed the heinous crime.”
[56]
3 April 2024 – Section 10(1) of the Equality Act is
amended as set out above.
Mr Amaning’s
witness statement
[57]
Mr Amaning was born in Ghana and raised in South Africa. He grew up
in the small town of
King Williams Town where racial inequalities
were starkly visible. His early life was heavily influenced by the
racial disparities
that mark our society. His formative years were
spent at Dale College Boys High School, a beacon of hope for racial
democracy.
Mr Amaning was an active participant in the
discourse on racial equality.
[58]
Mr Amaning has experienced racism. Once, he went to Muizenberg on
holiday and entered a
shop. He was a shopper like any other. As he
moved around the shop he was followed as if he was a common thief. He
felt stripped
of his dignity. This was not an isolated event.
[59]
In mid-2022, Mr Amaning was called an “ e
ffing k….r
“
in an incident on the road. Mr Amaning traced the perpetrator, a man,
by his number plate. He attempted to receive an apology.
The
perpetrator denied the accusation and Mr Amaning never received an
apology.
[60]
Mr Amaning was copied on Mr Liebmann’s email of 25 August 2019.
Mr Amaning did not
dig deeper into it, merely assuming that what was
referred to by Mr Liebmann was a statement made by Mr Ackerman like
that commonly
made by older White people, such as “
this
country is going to the dogs.
“
[61]
On 14 October 2022, Mr Wellman, speaking to Mr Liebmann and in the
presence of Mr Amaning
referred to Mr Ackerman’s text message
of 23 August 2019. On enquiry by Mr Amaning, Mr Wellman showed Mr
Amaning the message.
A wave of anger surged within Mr Amaning and a
storm of emotion was ignited. Simultaneously, Mr Amaning felt sad at
the persistent
injustice and discrimination. Fear and anxiety gripped
Mr Amaning. Mr Amaning felt alienated.
[62]
Mr Amaning also had to deal with a financial burden. Mr Amaning had
undertaken to buy out
Mr Ackerman’s shares. Mr Ackerman thought
that he was doing Mr Amaning a favour.
[63]
Mr Amaning will not be defeated by the incidents. He resolves to
fight for understanding,
tolerance and equality.
Mr
Wellman’s witness statement
[64]
Mr Ackerman never shies away from expressing his views. Mr Ackerman
frequently adopted
a disparaging tone, especially when
addressing the topic of BEE.
[65]
Around 2018, Mr Ackerman’s strident opinions began to display
an increasingly disturbing
racial undertone. In the years that
followed, their relationship deteriorated due to Mr Ackerman’s
bigoted statements, sometimes
placed on social media.
[66]
Mr Wellman speaks of his shock at the four incidents. It was no easy
matter standing up
to Mr Ackerman because of their business
relationship and Mr Ackerman’s being prone to litigation and
having an aggressive
demeanour.
[67]
In 2018, in an attempt to alleviate the mounting tension, Mr Liebmann
reached out to Mr
Ackerman. Mr Ackerman was dismissive and
disrespectful, telling Mr Wellman “
to tell that Jew boy not
to flirt with me.
“
[68]
Mr Wellman did not send the text message of 23 August 2019 to Mr
Amaning as he did
not want Mr Amaning to be hurt.
[69]
During the time when the parties were splitting, Mr Ackerman
patronizingly told Mr Amaning
that “
I am doing you a
favour
.”
Mr Ackerman’s
witness statement
[70]
In Mr Wellman’s letter of 30 September 2022, Mr Wellman wrote,
as set out above,
that he, Mr Wellman “
sees no
wrongdoing
” by Mr Ackerman.
[71]
Mr Ackerman was used by Mr Liebmann and Mr Wellman as merely a
funding instrument.
Often, Mr Ackerman was at odds with Mr
Liebmann and Mr Wellman over business. Mr Ackerman says that
their company was used
as a self-enrichment scheme. Mr Ackerman
accuses Mr Liebmann and Mr Wellman of fraud.
[72]
Mr Ackerman denies the first incident. Mr Ackerman says that Mr
Wellman asked Mr Ackerman
for bridging finance after the alleged
first incident. Mr Ackerman says that in the light of this
request the complaints
make no sense.
[73]
Mr Ackerman admits that he has said of Mr Liebmann that he only wants
to enrich himself.
Mr Ackerman denies using the words “
f…ing Jew
. “
[74]
Mr Ackerman speaks of the robbery at his house. He has no knowledge
of having sent
the text to Mr Wellman on 23 August 2019,
shortly after the robbery. He says that “
As a deeply
religious man, I used the word K….r in the sense that it means
disbeliever in God. It was not meant against
any race, but only
against those persons that committed the heinous crime against
my family and our domestic worker,
who I consider to be part of
our family.
“ Mr Ackerman spells the k word with two
f’s. Mr Ackerman was traumatised by the attack.
[75]
Mr Ackerman denies the fourth incident.
[76]
Mr Ackerman refers to his company’s BEE status, its employing
49 people “
of colour
“ out of 75 people. He
helps young persons with bursaries, including women and persons
with disabilities. Mr Ackerman
donates to charity.
[77]
Mr Ackerman is not a racist, nor does he hate Jewish people. Mr
Liebmann has repeatedly
called Mr Ackerman an “
f…ing
Dutchman.
“
[78]
The complaints are laid in bad faith to divert attention from the
self-enrichment scheme
that the complainants are running and
from the pending litigation.
[79]
The delay in raising the complaints and the requests for a donation
and a loan evidence
the falsity of the complaints.
Mr
Wellman’s testimony
[80]
Mr Wellman was called to testify first. In evidence in chief, Mr
Wellman confirmed the
correctness of his witness statement.
[81]
The cross-examination of Mr Wellman was long and probing. Mr Wellman
conceded that
there had been friction in the business between
the parties from about 2018. Mr Wellman conceded that after the
first incident
in January 2018 he requested a loan from Mr
Ackerman for their business. Mr Wellman conceded that he did
not immediately
challenge Mr Ackerman at the first incident as he
felt that he was in a difficult position as Mr Ackerman was at
the time
co-shareholder with Mr Wellman in Caleo and Mr Ackerman was
also a client of Caleo. Mr Wellman conceded that he should have
challenged Mr Ackerman straight away. Mr Wellman said that money is
an enabler. Mr Wellman testified that because Mr Ackerman was
stronger financially than Mr Wellman, Mr Wellman was reluctant to
confront Mr Ackerman. Mr Wellman said that the k word can’t
come out unless it is already there.
Mr Amaning’s
testimony
[82]
Mr Amaning confirmed the correctness of his witness statement.
[83]
The cross-examination of Mr Amaning was long and severe. Mr Amaning
spoke of the
anger and hurt felt by him and Black people at the
use of the k word. Mr Amaning said that if he had received Mr
Liebmann’s
email of 25 August 2019, he did not act upon
it as Mr Amaning was at that time off work for about a year. Mr
Amaning and
his wife had lost their son and their daughter was
seriously ill in hospital. Had Mr Amaning been aware of the
email and
in a stronger position to deal with it, he would have
dealt with it.
[84]
Mr Riley suggested to Mr Amaning that Mr Amaning’s entire
witness statement is a
fiction and that Mr Amaning is a racist.
Mr Amaning held his dignity throughout.
[85]
Mr Amaning emphasised that he sought not retribution but only a
better society.
Mr Ackerman’s
testimony
[86]
Mr Ackerman confirmed the correctness of his statement, subject to
two minor changes.
Mr Ackerman said that after the robbery,
speaking with his wife, and later that evening with Mr Wellman,
he used the k word,
with one f, which he pronounced in court with the
stress on the i rather than on the a, as in the infamous
South
African pronunciation. Mr Ackerman said that he was referring only to
the perpetrators of the robbery, as non-believers.
Mr Ackerman
said that this was the first time in many years that he had
used the k word.
[87]
It is unusual for a witness to be evasive in examination in chief. Mr
Riley asked Mr Ackerman
when he had previously used the k word. Mr
Ackerman evaded the question. Mr Riley tried again and Mr
Ackerman said that the
previous occasion was some forty years
earlier, during interaction with his pastor when Mr Ackerman was
being inducted
into his church just after he had finished school. Mr
Ackerman said that he could not remember sending the text of 23
August
2019. Mr Ackerman denied sending the text.
[88]
In cross examination, Mr Ackerman was often evasive.
[89]
Mr Ackerman said in cross examination and somewhat out of the blue
that Mr Wellman must
have used a fake Whatsapp to manufacture the
texting between Mr Wellman and Mr Ackerman. There was no basis for
this allegation.
Findings
[90]
Regarding the first incident, on or about 31 January 2018, it is most
unlikely that the
correspondence between Mr Liebmann and Mr
Wellman was manufactured so as to create a basis for the
present case. Everything
about that correspondence points to
genuine concern on the part of Mr Liebmann and Mr Wellman about the
manner and
speech of Mr Ackerman. It is probable that on 31
January 2018, Mr Ackerman used the k word to Mr Wellman as alleged.
[91]
I do not deal with the second incident of 3 October 2018 relating to
Mr Liebmann and
to his being Jewish as Mr Liebmann withdrew his
claim.
[92]
Regarding the third incident on 23 August 2019, the evidence of Mr
Ackerman is so
far removed from the reality of everyday life in
South Africa that it cannot be true. Mr Ackerman spelled the k
word with
two f’s in his text of 23 August 2019. Mr Ackerman,
on 24 August 2019 deleted his message of the day before and said
that
it had been made by him in an emotional state. If Mr
Ackerman thought that his text was innocuous he need not have
deleted
it nor explained why he sent it. Mr Ackerman’s use of
the words “
I might be seen as a racist “
in his
text on the day of the robbery at his house shows conclusively
that Mr Ackerman used the k word in its infamous
South African
sense.
[93]
It is most unlikely in the circumstances that Mr Wellman would
manufacture a false allegation
about a text message which could
easily be exposed as false by Mr Ackerman simply proving his text
history.
[94]
It was argued for Mr Ackerman that the texts allegedly sent by Mr
Ackerman had not
been proved, apart from Mr Wellman’s
alleged dishonesty generally, for want of compliance with the
provisions of the
Electronic Communications and Transactions Act 25
of 2002
.
[95]
Under
section 1
“
data
“ is defined as “
electronic representations of information in any form.
“
Data message
‘’ is defined as ‘’
data
generated, sent, received or stored by electronic means and
includes—
(a)
voice, where the voice is used in an automated transaction; and
(b)
a stored record
“
[96]
Section 15
reads - “
Admissibility and evidential weight
of data messages.—(1) In any legal
proceedings, the rules of evidence
must not be applied so as to deny
the admissibility of a data message, in evidence—
(a)
on the mere grounds that it is constituted by a data message; or
(b)
if it is the best evidence that the person adducing it could
reasonably be expected to obtain, on the grounds that it is not
in
its original form.
(2) Information
in the form of a data message must be given due evidential weight.
(3) In
assessing the evidential weight of a data message, regard must be had
to—
(a)
the reliability of the manner in which the data message was
generated, stored or communicated;
(b)
the reliability of the manner in which the integrity of the data
message was maintained;
(c)
the manner in which its originator was identified; and
(d)
any other relevant factor.
(4) A
data message made by a person in the ordinary course of business, or
a copy or printout of or an extract from such
data message certified
to be correct by an officer in the service of such person, is on its
mere production in any civil, criminal,
administrative or
disciplinary proceedings under any law, the rules of a self
regulatory organisation or any other law or the common
law,
admissible in evidence against any person and rebuttable proof of the
facts contained in such record, copy, printout or extract.
“
[97]
The argument is in my view bad in law. Firstly, and assuming in
favour of Mr Ackerman
but without deciding the point, that the
texts are not “
in its original form
“ as
contemplated in
section 15(1)(b)
, the evidence of Mr Wellman
that he received the texts from Mr Ackerman is clearly the “
best evidence that the person [ Mr Wellman]
adducing
it could reasonably be expected to obtain
.“ It would be
unreasonable to expect Mr Wellman to need to call an IT expert
or experts to prove a chain of data, possibly
involving data
transfers when getting a new cellphone, when Mr Wellman could
and did testify to something that he specifically
remembered. Mr
Wellman did not rely on the texts to jog his memory. The chances of
the texts appearing randomly during a cellphone
update are zero.
There are only two notional possibilities. Either Mr Wellman is
telling the truth or he is lying. In my view,
he is telling the
truth. Secondly, with the provisions of
section 15(3)(d)
in mind, the
texts should carry significant weight as Mr Wellman and Mr Ackerman
were well known to each other, they had communicated
by text before
and Mr Wellman knew precisely who was communicating with him. In the
context of the case as a whole,
particularly the events during
and shortly after the robbery, the texts are proven and carry
significant weight.
[98]
Mr Ackerman said in evidence, implausibly, that he did not
check his text history.
He also, later in his evidence attempted
equally implausibly to explain that he lost data when he
upgraded his phone. It
may well be that people sometimes lose data
when upgrading but Mr Ackerman’s attempt to blame loss of
data is undermined
by his false evidence that he did not check
his text history in the first place.
[99]
Mr Wellman and Mr Amaning could easily and at no cost simply have
exposed Mr Ackerman’s
texts on social media. The consequences
for Mr Ackerman would have been immediate and damning. Instead
Mr Wellman and Mr
Amaning chose the slower, more expensive route of
court proceedings.
[100]
Regarding the fourth incident, around October 2021, it is common
cause that at that time workers in
a business of Mr Ackerman
were on strike. It is probable that Mr Ackerman used the k word to Mr
Wellman as alleged. Mr Ackerman’s
false evidence about
the third incident hardly instils confidence in his evidence about
the first and fourth incidents.
[101]
Both Mr Wellman and Mr Amaning made occasional minor mistakes of no
consequence in their evidence.
Mr Wellman and Mr Amaning seemed
prepared readily to admit these errors when the correct facts
were pointed out to them.
[102]
Mr Amaning is an honest person who not only has endured racism but
has been put through an unpleasant court
process to obtain justice.
Mr Amaning remained dignified throughout his testimony, even when
subjected to severe cross-examination.
The defence of private
communication
[103]
It was argued for Mr Ackerman that the communications between Mr
Ackerman and Mr Wellman were private and
could not amount to hate
speech as envisaged by section 10(1) of the Equality Act. Reliance
was placed in particular on the judgment
in Qwelane and on the
judgment of the Supreme Court of Appeal in
Afriforum NPC v Nelson
Mandela Trust and others
(371/2020)
[2023] ZASCA 58
delivered on
21 April 2023.
[104]
In
Qwelane
, Justice Majiedt wrote for a unanimous court.
In paragraph 116 of the judgment the learned Justice wrote:
“
In
contradistinction to the other verbs in the impugned provision –
such as “publish”; “propagate”
or “advocate”
that all inherently require some form of public dissemination –
“communicate” is capable
of both being public and
private. But, “communicate” in terms of section 10(1)
plainly requires that the speaker transmits
words to a third party –
there must be communication, the transmission of information. And the
conjunctive reading required
here entails that “communicate”
must be read in light of what appears in section 10(a)-(c). The
concepts “promote”
and “propagate” in (c)
connote the dissemination of information and do not fit the notion of
communicating in private.
And on a reading that accords with section
39(2), one would – in any event – have to read
“communicate”
to mean communication that excludes private
conversations.”
[105]
Paragraph 117 of Qwelane reads:
“
Our
most private communications – and being able to freely
communicate in one’s private and personal sphere –
form
part and parcel of the “inner sanctum of the person” and
are in the “the truly personal realm”. This
approach
resonates with Canadian jurisprudence. I hasten to acknowledge that
their jurisprudence must be understood in view of
the fact that
section 319 of the Canadian Criminal Code extends to private
conversations. It is nonetheless useful to consider
it with that
caveat in mind.”
[106]
Paragraph 118 reads:
“
Hate
speech prohibitions, even those that attach civil liability, should
not extend to private communications, because that would
be
incongruent with the very purpose of regulating hate speech –
that public hateful expression undermines the target group’s
dignity, social standing and assurance against exclusion, hostility,
discrimination and violence. Furthermore, the purpose of hate
speech
prohibitions is “to remedy the effects of such speech and the
harm that it causes, whether to a target group or to
the broader
societal well-being. The speech must expose the target group to
hatred and be likely to perpetuate negative stereotyping
and unfair
discrimination. It is improbable that most private conversations will
have this effect.”
[107]
Paragraph 119 reads:
“
Ultimately,
hate speech prohibitions are concerned with the impact and effect of
the hate speech and protecting the public good;
this is inevitably
limited when communicated in the private sphere. Therefore, true hate
speech presupposes a public dissemination
of some sort, or at the
very least it cannot be conveyed in mere private communications.
Indeed, “the regulation of hate
speech which occurs publicly
sets a normative benchmark and has the potential to shape future
behaviour”.”
[108]
Paragraph 120 reads:
“
This
approach accords with the requirement of a constitutionally compliant
interpretation in terms of section 39(2) of the Constitution.
And
this restrictive interpretation is justified on the basis of the
eusdem generis
canon of construction (of the same kind, class,
or nature): when general words follow specific words in a statute in
which several
items have been enumerated, the general words are
construed to embrace only objects similar in nature to the objects
enumerated
by the preceding specific words of the statute.”
[109]
In my view, the words of Justice Majiedt as set out above were
said in passing, Qwelane being a case
about a widely disseminated
newspaper publication. I am fortified in this finding by the words in
paragraph 73 of the judgment
in
Afriforum
referred to below.
Be that as it may, the passages quoted from Qwelane do not assist Mr
Ackerman.
[110]
The present case concerns communications between two business
associates, one of whom is participating by
using the k word. It may
be, and I make no finding thereon, that if Mr Ackerman had used the k
word in communicating with his wife
and daughter immediately after
the robbery, or perhaps even before it, such communication might be
considered to have been made
within the “
inner sanctum of
the person
“ as those words were used in paragraph 117 of
Qwelane
.
[111]
Afriforum concerned a public display of the old South African flag.
Justice Schippers spoke for the Supreme
Court of Appeal. In paragraph
72 the learned Justice wrote:
“
Afriforum
relies on Qwelane for its submission that the high court erred in
declaring private displays of the old flag as hate speech.
The
Constitutional Court stated that the concepts to ‘promote’,
and ‘propagate’ hatred in s 10(1)(c) of
the Equality Act
‘do not fit the notion of communicating in private’; and
the word, ‘communicate’ in s
10(1) excludes private
conversations. The Court went on to say that our most private
communications form part of the ‘inner
sanctum of the person’,
which is in the ‘truly personal realm’ and are thus
protected by the right to privacy.
The prohibition of hate speech
should not extend to private communications.”
[112]
In
paragraph 73 of
Afriforum
,
Justice Schippers wrote:
“
However,
Afriforum’s reliance on these statements by the Constitutional
Court, merely underscores the inappropriateness of
deciding, in the
present case, the question whether private displays of the old flag
contravene the Equality Act.
This however, is not to say that a
private display of the old flag can never breach the provisions of
the Equality Act. It is hard
to see how a display of the old flag in
the privacy of a home to which, for example, family members, children
or young people are
invited and indoctrinated in racism and white
supremacy, would not entitle a person to institute proceedings in the
Equality Court
for an order that there has been a breach of the Act.
But that is a case for another day
.” ( My emphasis.)
These words were said in passing.
[113]
Technically, it would be wrong to judge Mr
Ackerman’s conduct regarding the first and third incidents
against the law as it
now stands. That would entail retrospective
operation of the amended section 10(1). There is no warrant for such
a reading. I would
use the old section 10(1) as the yardstick against
which to measure Mr Ackerman’s conduct relating to the first
and third
incidents. However, at least for present purposes the
relevant part of section 10(1) is the same now as it was
pre-amendment.
[114]
The verbs “
publish,
propagate, advocate or communicate
”
are
used in the old section 10(1) and in the amended section 10(1). I
shall assume in favour of Mr Ackerman, but without making
a finding,
that the words used in the present case were not published,
propagated or advocated in the sense of being publicly disseminated
as described in paragraphs 116 and 119 of Qwelane. I focus on the
verb “
communicate
”.
[115]
As Justice Majiedt said in paragraph 116 of
Qwelane
,
“
communicate
”
in terms of section 10(1) “
plainly
requires that the speaker transmits words to a third party
.”
[116]
There is no requirement inherent in the verb “
communicate
“ that the offensive words be communicated widely. It is
sufficient that one person be addressed. A person, intent on
promoting
hate speech might address one person at a time.
[117]
In the present case, what Mr Ackerman did
was precisely to expose Mr Amaning and all Black persons “
to
hatred and was likely to perpetuate negative stereotyping and unfair
discrimination
“ as stated in
paragraph 118 of
Qwelane
.
In the same paragraph, it was stated that “
It
is improbable that
most
private conversations will have this effect
.
“ ( My emphasis ). The use of the word “
most
“ allows that in some cases, conversations or “
communications
”
otherwise considered private would indeed have the effect feared.
This seems to be the import of paragraph 73 of Afriforum.
[118]
Taking my cue from
Qwelane
and
Afriforum
and taking a purposive approach to interpretation, I hold that the
communications in the present case are sufficiently public
“
communications
“ for the purposes of section 10 (1) in that they do not fall
within the “
inner sanctum of the
person”
, which latter words I
read as the kernel of the judgment in
Qwelane
on this point.
[119]
On the facts of the present case, I would find it difficult to hold
that the Legislature, the Constitutional
Court in
Qwelane
and
the Supreme Court of Appeal in
Afriforum
all meant to exclude
from the ambit of section 10(1) of the Equality Act communications,
such as those in context here, between
two White business associates,
one gratuitously using the k word. I would have thought that one of
the purposes of the Constitution
and the Equality Act would be to
move any White persons who may still be in an apartheid comfort zone
out of such a space. In effect,
Mr Ackerman relied on what he assumed
would be the like mindedness of Mr Wellman. This is precisely one of
the assumptions that
the Constitution and the Equality Act seek to
displace.
[120]
To interpret section 10(1) as suggested for Mr Ackerman would not be
to “
promote the spirit, purport and objects of the Bill of
Rights” as required by section 39(2) of the Constitution.
[121]
In
AmaBhungane
Centre for Investigative Journalism NPC and another v Minister of
Justice
and
Correctional
Services and others (Media Monitoring Africa Trust and others as
amici curiae) and a related matter
2021
(4) BCLR 349
(CC), Justice Madlanga wrote for the majority of the
Court in a case dealing with State interceptions of private
communications. At paragraph
23 the learned Justice wrote:
“
The
interception and surveillance of an individual’s communications
under RICA is performed clandestinely. By nature, human
beings are
wont – in their private communications – to share their
innermost hearts’ desires or personal confidences,
to speak or
write when under different circumstances they would never dare do so,
to bare themselves on what they truly think or
believe. And they do
all this in the belief that the only hearers of what they are saying
or the only readers of what they have
written are those they are
communicating with. It is that belief that gives them a sense of
comfort – a sense of comfort
either to communicate at all, to
share confidences of a certain nature, or to communicate in a
particular manner. Imagine how an
individual in that situation would
feel if she or he were to know that throughout those intimate
communications someone was listening
in or reading them.”
[122]
Paragraph 24 reads
“
If
there ever was a highly and disturbingly invasive violation of
privacy, this is it. It is violative of an individual’s
inner
sanctum. In Hyundai Langa DP held that “privacy
is a right which becomes more intense the closer
it moves to the
intimate personal sphere of the life of human beings and less intense
as it moves away from that core”. What
I have typified –
in so far as it relates to the sharing of intimate personal
confidences – certainly falls
within the “intimate
personal sphere”. RICA allows interception of all
communications. The sanctioned interception
does not discriminate
between intimate personal communications and communications, the
disclosure of which would not bother those
communicating. Nor does it
differentiate between information that is relevant to the purpose of
the interception and that which
is not. In other words, privacy is
breached along the entire length and breadth of the “continuum”. And
this intrusion
applies equally to third parties who are not
themselves subjects of surveillance but happen to communicate with
the subject. That
means communications of any person in contact with
the subject of surveillance – even children – will
necessarily be
intercepted.”
[123]
I emphasise the following words of Langa DP
in
Hyundai quoted above
:
“
privacy
is a right which becomes more intense the closer it moves to the
intimate personal sphere of life of human beings and less
intense as
it moves away from that core.”
[124]
These words underline the need to
differentiate between degrees of privacy, or put differently, where
along a continuum an alleged
right in a particular case sits.
[125]
In the present case, the
communications by Mr Ackerman to Mr Wellman cannot be said to be in
the “
intimate personal sphere”
at least for the purposes of section 10(1).
[126]
In
Bernstein
and Others v Bester NO and Others
(CCT23/95)
[1996] ZACC 2
;
1996 (4) BCLR 449
;
1996 (2) SA 751
(27 March 1996), a
case dealing with insolvency examinations, Justice Ackermann wrote,
in paragraph 67:
“
The
relevance of such an integrated approach to the interpretation of the
right to privacy is that this process of creating context
cannot be
confined to any one sphere, and specifically not to an abstract
individualistic approach. The truism that no right is
to be
considered absolute, implies that from the outset of interpretation
each right is always already limited by every other right
accruing to
another citizen. In the context of privacy this would mean that it is
only the inner sanctum of a person, such as his/her
family life,
sexual preference and home environment, which is shielded from
erosion by conflicting rights of the community. This
implies that
community rights and the rights of fellow members place a
corresponding obligation on a citizen, thereby shaping the
abstract
notion of individualism towards identifying a concrete member of
civil society.
Privacy is acknowledged in the truly personal
realm, but as a person moves into communal relations and activities
such as business
and social interaction, the scope of personal space
shrinks accordingly
.” (My emphasis)
[127]
It may be that the words of Mr Ackerman do not fall within the
meaning of “
publish, propagate or advocate
“
under section 10(1). I find however, that they do not enjoy protected
privacy under section 14(d) of the Constitution and
were not
communicated from the “
inner sanctum of the person
“. They therefore fall within the range of words which may be “
communicated
“ in section 10(1) of the Equality Act.
Remedy
[128] When the case was
launched, an order was sought that Mr Ackerman pay R500 000 to
the Ahmed Kathrada Foundation. Later,
Mr Liebmann withdrew his
complaint. I recognize the withdrawal of Mr Liebmann’s
complaint. I do not attempt to place a value
on Mr Liebmann’s
withdrawn complaint for any purpose. In my view, the sum of R500 000
is fair, to the limited extent that
money may right the wrongs of
this case. Mr Ackerman is a relatively wealthy man who is
unrepentant. This case is about equality
and dignity, not money. Mr
Ackerman may benefit from racial sensitization training and might
embrace the society envisaged by our
Constitution as a result of such
training.
Costs
[129] Mr Amaning and Mr
Wellman were put through the ordeal of an unpleasant hearing when all
they sought originally was an apology
and a recognition by Mr
Ackerman of wrongdoing. A long, convoluted and dishonest defence was
put up. Punitive costs follow.
[130] A new Rule 67A,
relating to the scale of costs in a party and party bill became
effective on 12 April 2024. See Government
Gazette No 50272, R
4477 published on 8 March 2024. The new rule, as part of the Rules “
Regulating the Conduct of the Proceedings of the Provincial and
Local Divisions of the High Court
“ is not presently
relevant, at least for the reason that my order is for attorney and
client costs. See Mashava v Enaex
Africa (Pty) Ltd ( 2022/18404 )
[2024] ZAGPJHC 387 ( 22 April 2024 ) at paragraph 5. It is
accordingly not necessary for me to
determine whether or not Rule 67A
applies to Equality Court costs.
Order
1.
It is declared that Mr Ackerman, on or
about 31 January 2018 and 23 August 2019 and during or about October
2021 used the k word
when speaking to or texting Mr Wellman.
2.
It is declared that this speech is unlawful
hate speech, amounts to unlawful discrimination against Black people,
including Mr Amaning
and constituted unlawful harassment of Mr
Wellman.
3.
Mr Ackerman is to pay R500 000 to the Ahmed
Kathrada Foundation.
4.
Mr Ackerman is to make a public apology to
Mr Amaning and Mr Wellman within five calendar days of the date of
this judgment.
5.
Mr Ackerman is to undergo fifty hours of
racial sensitization training to be conducted by the South African
Human Rights Commission
or an institution or person nominated by it.
6.
Mr Ackerman is to pay the costs of Mr
Amaning and Mr Wellman on the attorney and client scale including
those of counsel.
__________________
GC
Wright
Judge
of the High Court
Gauteng
Division, Johannesburg sitting as an Equality Court.
HEARD
:
22 – 25 January 2024 and 19 April
2024
DELIVERED
: 10 May 2024
APPEARANCES
:
COMPLAINANTS
1 and 3 Adv B Winks
Instructed
By Rupert Candy
Attorneys Inc
rupert@rupertcandy.co.za
010 600
8821
RESPONDENT
Adv N Riley
Adv
A Nadasen, 22-25 January 2024.
Instructed
by Darryl
Furman & Associates
011 447
7747
info@furmanlaw.com.za