IN THE EQUALITY COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Reportable/Not Reportable
Case no: E02/2025
In the matter between:
CHOPHELIKHAYA SIMOTO Complainant
and
KENILWORTH RACING (PTY) LTD Respondent
Neutral citation: Chophelikhaya Simoto v Kenilworth Racing
Coram: MANGCU-LOCKWOOD J
Heard: 28 October 2025
Delivered: 4 December 2025
__________________________________________________________________
JUDGMENT
__________________________________________________________________
MANGCU-LOCKWOOD, J
A. INTRODUCTION
[1] The applicant, Mr Simoto, has brought an application in terms of the
Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (‘the
Act’) based on hate speech and unfair discrimination on the grounds of race . He
seeks compensation in the amount of R5 million plus an order di recting the
Western Cape Gambling Licensing Board Authority to revoke the operating licence
of the respondent. Although the respondent is cited as Cape Racing (Pty) Ltd, it is
agreed that its proper description is Kenilworth Racing (Pty) Ltd.
[2] The catalyst for these proceedings is twofold. First, the respondent refused to
grant the applicant access to its premises on which a container office is located.
Second, the respondent displayed photographs of the applicant together with his
name on the walls of its racecourses and in a WhatsApp group of its security
guards.
[3] The applicant represented himself whilst the respondent was legally
represented. At a directions hearing, the parties agreed that the matter should be
dealt with by way of affidavits, and a full set of papers was delivered together with
heads of argument from both sides. Mr Simoto addressed the court through the
assistance of an interpreter, who interpreted between isiXhosa and English.
[4] At the hearing of the matter the applicant raised a preliminary issue relating
to the inadequacy of documents supplied to him by the respondent upon request. It
transpired that after the directions hearing the applicant delive red a subpoena for
documents, and specifically a memorandum of incorporation of the respondent
(‘the memorandum’). After a document was provided to him, he was not satisfied
on account of a lack of what he considered to be necessary signatures of the
respondent’s directors . The respondent ’s representatives explained in
correspondence that there was no such requirement, and that, in any event, no other
memorandum of the respondent exists apart from the one provided to him. The
respondent’s legal representatives also disputed the relevance of the document to
the proceedings, to which the applicant took exception.
[5] The discovery of documents is achieved in accordance with Rule 35 of the
Uniform Rules of Court. For an applicant to successfully compel the production of
documents, he bears the onus of satisfying the Court that the respondent is obliged
to produce the document , including to satisfy the Court on a balance of
probabilities that the document is relevant or not privileged.1 Relevance is assessed
with regard to what has been stated in the pleadings or affidavits.
[6] In this instance it is not immediately apparent what the relevance of the
memorandum is to the proceedings because the issue relating to the memorandum
did not arise from the papers. When I inquired from the applicant, he stated that his
concern related to whether the deponent to the respondent ’s answering affidavit
had the requisite authority to depose to the affidavit or to represent the respondent.
He needed the memorandum, he said, because his case is based on ‘that issue ’.
However, he admitted that none of this was raised in his papers , and that i n his
replying affidavit he admitted that the deponent , Ms Fi nch, was authorized to
depose to the answering affidavit, and that the facts alleged in he r affidavit are
within her personal knowledge.
1 Centre for Child Law v The Governing Body of Hoërskool Fochville [2015] ZASCA 155; 2016 (2) SA 121 (SCA)
para 18.
[7] He explained that he had raised his need for the document at the directions
hearing, which was only held after he had filed the founding and replying
affidavits. This does not assist the applicant because a directions hearing is a
judicial case management meeting, which is held to regulate the proceedings. It has
no bearing on the merits of the case. A party is required to make out its case in its
pleadings, so that its counterpart may know what case it is required to meet . This
was highlighted at the directions hearing when the parties agreed for the matter to
proceed by way of affidavits . Even in the correspondence between the parties
where the applicant demanded the signed memorandum, he did not foreshadow
this issue by specifying what his complaint was , especially when he was told by
the respondent’s representatives that the document had no relevance to his case.
[8] In any event the applicant does not, and cannot, deny that a signed version of
the memorandum does not exist . He has been told this in correspondence by the
respondent’s l egal representative s. In law, t here is no requirement to produce
documents which are incapable of production, or which do not exist. 2 Supposition
or speculation about the existence of documents or tape recordings to compel
production does not suffice.3 For these reasons, the preliminary point relating to the
failure to produce documents is dismissed.
B. THE RELEV ANT FACTS
[9] The respondent owns and operates racecourses at three sites across the
Western Cape, namely Milnerton, Kenilworth and Durbanville. For some time, the
2 Hoërskool Fochville para 18 . Democratic Alliance and Others v Mkhwebane and Another (1370/2019) [2021]
ZASCA 18; [2021] 2 All SA 337 (SCA); 2021 (3) SA 403 (SCA) (11 March 2021) para 40.
3 Ibid.
applicant was the president of the South African Grooms Association (‘SAGA’)
which represent s some of the grooms employed by trainers to tend to horses
stabled at the properties of the respondent. It is not clear from the papers when his
term as the president ended, but it is common cause that at all relevant times, he
has been involved in organizing the affairs of some of the grooms.
[10] The container office mentioned earlier was allocated , initially by the
predecessor of the respondent and subsequently by the respondent as its owner, for
grooms to administer their affairs. The applicant had access to the container for
purposes of attending to the administrative duties involving grooms. It is common
cause that there is no formal agreement regulating the use of the container, and the
papers indicate that its allocation to the g rooms is based on the goodwill of the
parties, since the respondent is also not the employer of the grooms.
[11] Towards the end of 2023, the applicant assisted the respondent in capturing
the information of grooms so that the respondent could pay them a monthly
stipend. For this task, the parties agreed that the applicant would be paid a monthly
amount of R2000 for the month s of November and December 2023. It a ppears
from the papers that the applicant continued to have access to the premises of the
respondent into the year of 2024. On 19 January 2024 the respondent engaged the
services of a moving company to transport the container from its Kenilworth site to
its Milnerton site.
[12] On 17 January 2024 the respondent received notification of the s et down of
arbitration proceedings relating to a matter between it and the applicant which had
gone stale since 2021. The arbitration proceedings were set down for August 2024,
and until then, the applicant continued to have access into the container office at its
premises in Milnerton.
[13] In brief, the arbitration proceedings concerned the lawfulness of the
termination of a security services contract between the applicant and the
respondent, which had commenced on 26 February 2017 and terminated on 13
May 2019. The award was decided in the respondent’s favour and concluded that
the contract was lawfully terminated.
[14] The respondent states that, although the applicant had no legal right, whether
contractual or otherwise to use the container office in 2024, it allowed him to have
access to the container and its premises pending the finalization of the arbitration
proceedings, for the sake of peace. It was after receipt of the arbitration award
dated 27 September 2024 that the respondent took steps to prevent the applicant
from accessing its premises.
[15] Although the applicant sought to give contrary evidence from the bar , it is
not disputed in the papers that the respondent displayed a total of seven A4-sized
laminated posters, each containing two photographs of the applicant with his name,
and that they were placed at the security checkpoint s of each of the respondent’s
three sites. Four of the posters were posted at Milnerton, three at Kenilworth and
one in Durbanville. At the Milnerton and Kenilworth sites, the posters were placed
on the interior wall of the guard houses at access points. At the Durbanville site the
poster was placed at what the parties refer to as the Silver Gate.
[16] Whilst it is common cause that the poster affixed to the wall at the Silver
Gate of the Du rbanville site was placed in an area inside the premises, it is
disputed that only trainers and grooms had access to the area. The applicant states
that everybody, including the public coming to watch races as well as trainers who
employ grooms, use th e entrance where the posters were affixed. Although it
appears the respondent accepts that members of the public do have access to the
entrance, it seeks to minimize the amount of time that the public would have access
to that entrance.
[17] To summarise the position as contain ed in the papers, the six posters posted
at Milnerton and Kenilworth were all inside guard houses, completely out of view
of the public or patrons. The one poster placed at the Silver Gate of Durbanville,
although placed in an area inside the premises, was accessible to the public.
[18] Apart from the A4-sized posters on walls, the respondent also posted the
same two photographs contained in the posters on the security guard s’ internal
WhatsApp group. Whilst the applicant does not deny that the ph otographs were
posted on a WhatsApp group of the security guards , he disputes that the
information was private or not meant for public consumption. He states that, since
WhatsApp is part of social media it cannot be internal because it can be forwarded
to anyone in the world. In fact, one of the security guards belonging to the
WhatsApp group had forwarded the message to him.
[19] In court the applicant added that the contents of the Whatsapp message had
been posted on Facebook , although he only discovered that after delivery of the
replying affidavit. He also claimed that he was told by people located in South
Korea regarding the WhatsApp message. Whilst I note that th e applicant has
throughout disputed the closed and internal nature of the WhatsApp information,
the information provided from the bar is nowhere mentioned in the paper s,
including by a supplementary affidavit, to enable the respondent to respond . There
was no proof provided thereof . I accordingly do not take into consideration for
purposes of this judgment.
[20] The issue for determination is whether display of the posters of the applicant
on the wall s as described above and on the WhatsApp group constitutes hate
speech and unfair discrimination based on race.
C. HATE SPEECH
[21] Hate speech is proscribed in terms of s 10(1) of the Act, and it now 4 reads as
follows:
‘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 be harmful or to
incite harm and to promote or propagate hatred.’
[22] When the prohibition of hate speech in s 10(1) is read with the proviso in s
12 of the Equality Act, it proscribes expression: (a) that constitutes publication,
propagation or communication of words; (b) based on one or more of the
prohibited grounds against any person; (c) that coul d reasonably be construed to
demonstrate a clear intention to be harmful or to incite harm, and to promote or
propagate hatred; and (d) provided that bona fide engagement in artistic creativity,
academic and scientific enquiry, fair and accurate reporting in the public interest or
publication of any information, is excluded.5
4 Prior to Qwelane v South African Human Rights Commission and Another [2021] ZACC 22 2021 (6) SA
579 (CC); 2022 (2) BCLR 129 (CC) para 1(d) of the order, s 10(1) proscribed the publication, propagation or
communication of words based on a prohibited ground, that could reasonably be construed to demonstrate a clear
intention to ‘be hurtful’.
5 See Afriforum para 36.
[23] As to ‘publication, propagation or communication of words ’, the provision
has been interpreted to include any expression of ideas, whether by word or
conduct.6 Whilst ‘publish’, ‘propagate’ and ‘advocate’ require some form of public
dissemination, ‘communicate’ is capable of both being public and private. 7 To
‘communicate’ in terms of section 10(1) plainly requires transmission of words or
information to a third party. 8 The prohibition targets the ‘meaning behind the
words, and not simply the words’.9
[24] On application of these considerations, I am satisfied that the posting of
photographs with the name of the applicant, on WhatsApp and on property walls,
whether accompanied by text or not, constitutes ‘publication’ and ‘communication’
of a message, within the meaning of s 10(1) of the Equality Act. The WhatsApp
messages, even if they were posted in a closed group of security guard s, qualify as
‘communication’ in terms of the provision.
[25] In order to constitute hate speech pursuant to s 10(1), the communication
must be reasonably construed to demonstrate a clear intention to be harmful or to
incite harm, and to promote or propagate hatred. The test in this regard is objective,
and the question is whether a reasonable person in the circumstances surr ounding
the expression, would reasonably construe the words or conduct as demonstrating
an intention to be harmful, incite harm or propagate hatred (“the objective
reasonable person test” ).10 The emphasis is on the effects of the hate speech, not
6 Qwelane para 113. Afriforum NPC v Nelson Mandela Foundation Trust and Others (371/2020) [2023] ZASCA 58;
2023 (4) SA 1 (SCA); [2023] 3 All SA 1 (SCA) (21 April 2023) para 34.
7 Qwelane para 115.
8 Qwelane para 116.
9 Qwelane para 115.
10 Qwelane paras 96-101; Afriforum para 42.
the intent.11 But expressions that are merely hurtful or offensive are insufficient to
constitute hate speech.12
[26] It is most convenient to resume with a consideration of how the WhatsApp
messages are to be construed. It is common cause that the photographs posted there
were accompanied by a written text message, which stated as follows:
“Team your guys should know this guy he used to deal with the grooms on site
and his container is still on site he is not allowed on the premises anymore if he
comes there management should be informed immediately.”
[27] It is not disputed that the purpose of the WhatsApp group is the
dissemination of information relating to the affairs of security guards. In fact, the
opening wo rd of the above message, “Team”, supports the respondent’s version
regarding who the intended recipients were, namely that this was communication
addressed to its security team.
[28] Whilst I accept the applicant’s argument that the intended recipients could
have forwarded the communication to persons outside the WhatsApp group, the
express wording of the message indicates that it was addressed to the members of
the group. If any person outside the group were to receive the message, it would be
obvious from its contents that the message was not intended for them. They would
immediately be aware that they are not expected to “know this guy” , as the
message expects them to . They would als o n ot have a duty to look out for the
applicant and then to prevent him from accessing the premises. At most, they
would know that the security team at the respondent’s premises had an instruction
to prevent the applicant from accessing the premises.
11 Qwelane para 100.
12 Qwelane para 103.
[29] Another aspect indicated by the express wording of the message is the
purpose of attaching the photographs. The message directs the attention of the
recipients to the identity of the applicant with the opening wording: “ your guys
should know this guy ”. This could only be a cross-reference to the photographs of
the applicant which accompanied the message. This is the only reference in the
message to the photographs, though indirect. It shows that the function of the
photographs posted in the group was to provide a visual reference for the recipients
regarding subject of the communication, namely the applicant.
[30] Another purpose of t he message which is evident from its wording was to
alert the recipients to the fact that the applicant was no longer permitted onto the
respondent’s premises. The message conveyed a sense of seriousness about the
applicant’s presence at the premises, as d isplayed by the instruction given to the
recipients to immediately call management if they identified him on the premises.
The reason for the prohibition was, however not disclosed. Given that the message
was sent to security guards, it must be accepted that the issue related to the security
of the property of the respondent . It is arguable that t he message rendered the
presence of the applicant at the respondent’s premises a trespass. The basis for this,
however, was not provided to the recipients.
[31] Whether it can be concluded that th e WhatsApp message demonstrates a
clear intention to be harmful or to incite harm, and to promote or propagate hatred,
within the meaning of s 10(1) is a matter of applying the objective reasonable
person test referred to earlier. Although it is arguable that the implication of being a
trespasser at the premises of the respondent may have negative connotations, it is a
far cry from exhibiting a clear intention to be harmful or to incite harm, and to
promote or propagate hatred, within the meaning of s 10(1).
[32] In both the instance of the WhatsApp messages and the public display of the
posters on the respondent’s walls , t he applicant has sought to establish such an
intention by referring to the histor ical oppressive treatment of grooms, from as far
back as 1994 and his involvement with the affairs of grooms . He does not rely on
any specific incident or factual evidence to form a basis for a conclusion that the
statements in question were intended to be harmful or insight harm or propagate
hatred against him. That is, except for the cancellation of his company’s security
contract which he agrees has no relevance to these proceedings.
[33] Whilst it is correct that the imputation of being a trespasser may have been
hurtful to him, especially after having had access to the premises over the years,
there is no basis established here that the statements in question were intended to
be harmful or to incite harm or propagate hatred against him within the meaning of
the Act . At most, what has been established is tha t the respondent lacked the
courtesy of communicating its intention to prevent access to its premises. However,
as the case law indicates, expressions that are merely hurtful or offensive are
insufficient to constitute hate speech. 13 Rather, it appears that the respondent was
driven by its decision to limit admission to its premises, in line with its exclusive
property rights. However offensive its execution of that decision, it does not rise to
hate speech as defined in the Act.
[34] In the case of the photographs displayed on the walls, the common cause
evidence is that the photographs were not accompanied by any writing other than
13 Qwelane para 103.
the full names of the applicant. Here too, the objective test referred to above finds
application, and the question is whether a reasonable person in the circumstances
surrounding the communication, would reasonably construe the posting of the
posters as demonstrating an intention to be harmful, incite harm or propagate
hatred.
[35] The applicant states that his photographs were displayed as if he was a
convict, or a ‘wanted person’ or a suspect. T his is denied by the respondent as
speculation. The respondent relies on the purpose of the communication already
discussed in relation to the WhatsApp messages, nam ely to alert the security
guards so that the applicant’s access to the premises could be prevented. Whilst the
law emphasises that the effects of the communication must be given consider ation
above the intent of the message conveyed14, no other intention has been established
by the evidence. And as I have already observed, the meaning of the
communication conveyed by the WhatsApp text was to direct the attention of the
security guards to look out for the applicant and to prevent his a ccess to the
premises. It would be anomalous to have a different purpose for displaying the
same photographs posted in the WhatsApp group on the walls. There is no such
suggestion made in any event. And i t must be emphasized that the respondent’s
reasoning or intention for displaying the photographs is also not disputed in the
papers.
[36] On the other hand, the applicant’s imputed meaning is nowhere found on
either the posters displayed on the walls, or in the WhatsApp messages. As I have
already indicated, the most that can be said is that the applicant was not wanted at
the premises. While I accept that that may be hurtful, it does not rise to the level
14 Qwelane para 100.
required of an intention to be harmful or to incite harm or propagate hatred against
him.
[37] I also observe that the photographs themselves were neutral. There is
nothing about them which might be viewed as derogatory or undignified. There is
no basis to conclude that an objective reader would reasonably construe them to
demonstrate a clear intention to be harmful or to incite hard and to promote or
propagate hatred against Black people. There are also no coded or racist messages
emerging from the posters or their context, and none was established by the
applicant.
[38] In Qwelane15, the Cons titutional Court had regard to the meaning of the
word ‘harmful’ as contained in s 1 0(1) and concluded that it encompasses
emotional and psychological harm that severely undermines the dignity of the
targeted group as well as physical harm. The Court had regard to SAHRC v
Khumalo16, where three types of harm were referred to as being envisaged in the
provision, as follows:
“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 to the social
cohesion in South African society” which can undermine our nation building project.”17
[39] What must be emphasised is that the harm envisaged must derive from
membership of the target group. This brings me to another necessary requirement
of hate speech s 10(1), which the applicant has failed to meet, namely that it must
15 At para 154.
16 South African Human Rights Commission v Khumalo 2019 (1) SA 289 (GJ) paras 95 - 97.
17 Ibid.
be based on one or more of the prohibited grounds against any person. Prohibited
grounds are defined in the Act as follows:
“'prohibited grounds' are-
(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)”
[40] In his papers the applicant did not rely on any of these grounds for his claim
based on hate speech. Even in the proceedings before me, the applicant’s argument
in this regard went no higher than to claim that people may possibly view him as a
criminal when they view the posters. Upon the court seeking clarity from him, the
applicant was candid enough to admit that there have been no such conclusions as
yet, and that it is a mere possibility which he foresees. That is a far cry from
establishing a ground ba sed on one or more of the prohibited grounds. It is in this
regard that the respondent states the applicant’s claim is based on presumptions
without evidence.
[41] In court, the applicant sought to rely on what may be termed an unlisted or
analogous ground to the specific prohibited grounds set out in paragraph (a) above,
specifically paragraph (b)(i), which provides for “any other ground where
discrimination based on that other ground causes or perpetuates systemic
disadvantage”. Not only was this not foreshadowed in his papers, but even when
he did raise it, he was unable to substantiate it, save to refer again to the claim that
people may possibly view him as a criminal when they view the communication. It
has already been held in an employment context necessitating a clean criminal
record that being a convict in itself does not qualify as an unlisted ground of
discrimination.18 However, I am willing to accept that, depending on the context, to
be unjustly viewed as a possible convict or suspect may well cause or perpetuate
systemic disadvantage, and have a negative effect on human dignity and the equal
enjoyment o f rights and freedoms justifying recognition as a ground of
discrimination.
[42] The problem in this case is that this whole issue is based on conjecture. As I
have already mentioned, the applicant himself admits that, despite his allegations
of the far -reaching extent of the communication, there have been no conclusions
that he is a c onvict or a suspect. It is quite clearly his own subjective view. As I
have indicated, the applicable test is objective. It has accordingly not been
established that there was hate speech in this case, whether based on a prohibited
ground or a ground analogous to a prohibited ground.
D. UNFAIR DISCRIMINATION
[43] 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
18 Vass v South African Police Services (C 747/2009) [2013] ZALCCT 27 (22 August 2013).
practice that appears to be legitimate, but which is actually aimed at
maintaining exclusive control by a particular group.”
[44] In Rustenberg Platinum Mine v SAEWA (obo Bester) and Others 19 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.
[45] However, the context in which the words or phrase is used is
determinative.20 Phrases that appear neutral or innocuous may carry an entirely
different meaning when viewed in context.21 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.22
[46] On this aspect, the applicant’s main issue is that the respondent has never
dealt in a similar manner with white people in a similar situation. In response, the
respondent has made reference to specific incidents where it restricted and banned
access to similarly situated white people. One was a white individual who, with the
intervention of a court order, is now only permitted to use its facilities to export
horses. Another instance relates to several racehorse owners , some of whom are
white, who are preve nted from using the respondent’s facilities due to unruly
behaviour they exhibited at a race meeting in KwaZulu-Natal.
19 Rustenberg Platinum Mine v SAEWA (obo Bester) and Others 2018 (5) SA 78 (CC) at [28].
20 Rustenberg Platinum Mine v SAEWA (obo Bester) and Others 2018 (5) SA 78 (CC) at [28].
21 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].
22 Qwelane v SAHRC 2021 (6) SA 579 (CC) at [86].
[47] Whilst this evidence is not disputed in the papers, there is no evidence that
those individuals had their photographs displayed in the manner done here against
the applicant. The question is whether that difference in approach amounts to racial
discrimination. The first point against such a conclusion is th e fact that the latter
group identified by the respondent includes people who are not white. A conclusion
can therefore be drawn that the respondent previously dealt with black people
whose conduct it deemed unruly, but it did not display their photographs.
[48] But even if it is true that the respondent has never displayed photographs of
white people in a similar manner as it has done here, that does not amount to unfair
discrimination based on race. The test remains an objective test which requires an
enquiry as to whether a reasonable, objective and informed person, on seeing the
communication and having knowledge of the prevention of access of the applicant,
would perceive that conduct to be racist or derogatory. There is no basis
established to reach such a conclusion.
[49] Regarding the act of preventing access, the evidence establishes that a white
individual has been prevented from accessing the premises of the respondent.
Although there is no evidence regarding the details of how that occurred, it is not
disputed. On consideration of all this information I am of the view that an
objective, reasonable person would not perceive that conduct to be racist or
derogatory. I accept that the applicant may have felt disrespected and his feelings
disregarded, and as already stated, that the respondent was less than courteous in
its conduct. However, that does not rise to racist behaviour.
[50] As I have already mentioned, the only respect in which the applicant sought
to link the conduct of the respondent to discrimination based on race was in regard
to the termination of his security services contract. However, as I have indicated,
an independent arbitrator concluded that the termination was lawfully effected.
Secondly, it is not disputed that the applicant’s company wa s replaced by a 100%
black-owned security service provider, with more experience in the industry than
the applicant’s company.
[51] As regards the applicant’s attempt to connect the display of his photographs
to the history of the treatment of the grooms, my observation is that, while grooms
are an historically disenfranchised group and predominantly Black, the applicant
does not seek to represent them in these proceedings and has expressly disavowed
any connection between this case and his previous involvement with their affairs.
In any event, no such connection has been established by the facts of this case.
[52] I note that the applicant is offended by the fact that his photographs were
displayed without his permission. In this regard , he has made reference to the
Protection of Personal Information Act 4 of 2013 (‘POPIA Act’), although there is
no specific reference to any pr ovisions there. At the very least, i n order for this
court to have jurisdiction for such a claim, the applicant must first and foremost
comply with the requirements of the PEPUDA Act. The applicant has failed to
meet the necessary requirements for a case b ased on hate speech and unfair
discrimination.
E. ORDER
[53] For all these reasons, the claim based on hate speech and unfair
discrimination must fail. There is furthermore no reason why costs should not
follow the result, since the respondent has successfully defended the claim.
[54] In the circumstances, the following order is made:
a. The applicant’s case is dismissed.
b. The applicant is to pay the Costs of the respondent including the costs
of counsel, based on scale B.
_________________________
N. MANGCU-LOCKWOOD
Judge of the High Court
Appearances
For the complainant : C. Simoto (in person)
For the respondents : U. Naidoo
Instructed by : T. Baker, Cliffe Dekker Hofmeyr Inc.
C. Moser, Cliffe Dekker Hofmeyr