IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Reportable
Case no: 2026-161021
In the matter between:
CASPER JACOBUS STRYDOM APPLICANT
And
SANLAM LIFE INSURANCE LIMITED FIRST RESPONDENT
SANLAM CONNECT (A DIVISION OF
SANLAM LIFE INSURANCE LIMITED) SECOND RESPONDENT
Coram: AG CHRISTIANS AJ
Heard: 21 July 2026
Delivered: 31 July 2026
2
JUDGMENT
Christians AJ
Introduction
1. The applicant seeks an interim interdict to restore and preserve the
contractual relationship between himself and the first respondent
pending the institution and determination of an action in which he
intends to seek a declaration that the termination of his Financial
Adviser Contract (the contract) with the first respondent is unlawful,
invalid and of no force and effect.
2. The applicant is a financial advisor who, for the past 28 years, has
acted in that capacity as an independent contractor for the first
respondent, Sanlam Life Insurance Limited (Sanlam). On
17 June 2026 Sanlam’s Heinrich Punt informed the applicant that, on
the basis of a report which concluded that he (the applicant) had
breached Sanlam’s Workplace Harassment Policy (the Harassment
Policy), Sanlam intended to terminate his contract. The letter
advised that Sanlam’s Thesen Naicker and Etienne Marais would
discuss the practical implementation of the termination with the
applicant. The applicant attempted to persuade Sanlam to reconsider
its decision but, on 1 July 2026, Mr Punt confir med Sanlam’s
decision to terminate the applicant’s contract with it. While certain
steps were taken on 7 July 2026 to implement the termination, it is
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common cause that the termination, unless interdicted, will take full
effect on 31 July 2026.
3. The application was launched on 8 July 2026. At the
commencement of the hearing, I indicated that I was satisfied that
the application is urgent and counsel proceeded to address me on the
merits of the application.
The issues
4. The applicant’s case is premised on the contention that Sanlam
terminated the contract because of a statement made by him in a
telephone conversation with a consultant, Ms Kelsey Visagie , on 18
January 2026. As pointed out by the applicant, and as appears from
Sanlam’s answering papers, Sanlam considered the statement to be
in breach of its Workplace Harassment Policy (the Harassment
Policy).
5. The statement in question was to the effect that there was “nou weer
ń bobbejaan op die lyn” (the impugned statement).
6. Ms Visagie and Sanlam interpreted the impugned statement as being
directed at or about Ms Visagie . Having so understood the
statement, they took the view (understandably) that it was racist in
nature and a breach of the Harassment Policy.
7. The applicant explains that the impugned statement is an Afrikaans
expression referring to a poor connection. He contends that Ms
4
Visagie and Sanlam misunderstood him and that he did not breach
the Harassment Policy in uttering the impugned statement.
8. I discuss the reasonable interpretation of the impugned statement
later in this judgment. The point for present purposes is that the
applicant argues that he is entitled to challenge , at a trial in due
course, Sanlam’s termination of the contract on the basis that Sanlam
wrongly found that, in uttering the impugned statement , the applicant
breached the Harassment Policy . He further contends that, if he is
successful on this score, the termination would have been unlawful
and he will be entitled to reinstatement. However, so the argument
went, if the status quo is not preserved, he will irreversibly lose the
goodwill he has built with his clients over decades through trust,
continuity and personal service. On this basis, the applicant
contends that success at a trial in due course will be meaningless if
he is not granted the interim relief that he seeks.
9. Sanlam, on the other hand, holds firm in its view that the impugned
statement was racist in nature and that it was entitled to terminate the
contract because of it. In support of its interpretation of the
impugned statement, Sanlam referred to an earlier complaint against
the applicant in 2022 which, although amicably resolved at the time,
Sanlam views as relevant to the interpretation of the impugned
statement. Sanlam also referred to a more recent interaction which it
similarly contends adds context to the manner in which the phrase
should be interpreted. Sanlam further contends that these two further
incidents point to the character of the a pplicant and that, because he
5
has shown himself to have prejudicial tendencies against people of
colour, Sanlam was entitled to terminate the contract even if its
interpretation of the impugned statement is wrong.
10. Sanlam described the two other incidents as follows:
10.1. The first concerned a complaint i n October 2022 by four
employees from Sanlam’s head office about the applicant’s
treatment of them at an adviser session. They reported that
the applicant told them that Afrikaans was the local language
in Oudtshoorn in a manner that appeared hostile to them.
The last name of one of the complainants, a coloured woman,
was Van der Merwe and the applicant asked her about the
origin of her “traditionally Afrikaans” surname and
persistently asked her whether she knew any “Van der
Merwe jokes”. The complainant was offended by the
applicant’s conduct (the implication being that she found his
comments to be racially motivated). The applicant treated
another one of the complainants, a Black man, with hostility,
including by accusing the complainant of not understanding
his questions and inviting another colleague to translate his
questions from Afrikaans. Although the applicant initially
brushed off the complaint s by suggesting that the
complainants were “sensitive ”, he ultimately apologised to
them and the complaint was resolved amicably. I shall refer
to this complaint as “the 2022 complaint”.
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10.2. The second is alleged to have occurred during a conversation
with one Ms Erika Hagan in which the applicant expressed
his view to Ms Hagan that service levels have gone down
since Sanlam “verkleur ”, which Sanlam took to mean that
service levels had gone down since it appointed people of
colour. I shall refer to this incident as “ the Hagan
conversation”.
11. I deal with these two incidents later in this judgment as well.
12. Although not expressly stated in the answering affidavit, it was
argued on Sanlam’s behalf that it is entitled to rely on one or both of
the other two incidents to justify the termination of the applicant’s
contract. The relevance of this submission is that, if correct, it will
not be sufficient for the applicant to show, at a trial in due course,
that he did not breach the Harassment Policy when he uttered the
impugned statement. If Sanlam is correct, the termination of the
applicant’s contract may well be upheld based on the strength of
Sanlam’s alternative justification. This enquiry goes to the heart of
whether the applicant has established a prima facie right to
reinstatement in these proceedings.
13. The issues to be determined in these proceedings, therefore, are the
following:
13.1. whether this court should accept the applicant’s explanation
as to the meaning of the impugned statement;
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13.2. even if the court accepts the applicant’s explanation, did
uttering the impugned statement breach the Harassment
Policy on the basis that Ms Visagie’s and Sanlam’s
interpretation thereof was objectively reasonable?
13.3. if the answer to both of the above enquiries is in the
applicant’s favour, should this court consider the other two
incidents and, if so, to what extent, in deciding whether to
grant or refuse the interdict sought?
13.4. flowing from all of the above, has the applicant met the
requirements for interim interdictory relief in these
proceedings?
The impugned statement
14. The applicant explains his interaction with Ms Visagie as follows:
14.1. The conversation occurred on 18 January 2026, while he was
attempting to obtain information relating to the investments
of one of his clients.
14.2. From the commencement of the conversation the telephone
connection was poor. Both he and Ms Visagie experienced
difficulty hearing one another and repeatedly had to repeat
information.
8
14.3. Despite the communication difficulties, the conversation was
courteous, cooperative and directed solely towards resolving
his client’s enquiry.
14.4. While his conversation with Ms Visag ie continued, he also
experienced persistent problems with his computer system
and internet connection. He became increasingly frustrated
with the technical difficulties.
14.5. Read with the content of his initial response to Sanlam, it
appears that he was trying to access the relevant Sanlam
online platform so that he and Ms Visagie could view a
particular document simultaneously. When he was unable to
do so, he enquired from his colleague in the adjacent office,
Mr Francois Beets, if he was able to access the platform. Mr
Beets indicated that he was not experiencing the same
difficulty, to which the applicant responded “ nou weer ń
bobbejaan op die lyn”.
14.6. From his perspective, his conversation with Ms Visagie
carried on in the courteous and cooperative manner in which
it had started.
15. Ms Visagie, who was still on the line during the applicant’s brief
exchange with Mr Beets, heard the statement and assumed it was
directed towards her, a coloured woman.
9
16. There was not dispute, nor could there be, that if the statement was
directed to or about Ms Visagie (or any person of colour for that
matter), that the impugned statement would have been grossly racist
and unacceptable. There would, then, be no question that Sanlam
would have been entitled to terminate the applicant’s contract.
17. The difficulty in this case, however, arises from the applicant’s
explanation that the impugned statement was not directed at or about
Ms Visagie at all, but was an expression of frustration about the
technical difficulties he was experiencing during his conversation
with her.
18. The first step in the enquiry before me, therefore, is to decide
whether the applicant’s explanation should be accepted for purposes
of these proceedings for interim interdictory relief. The proper
interpretation of the impugned statement goes (at least in part) to the
heart of the enquiry into whether the applicant has established a
prima facie right deserving of protection pending the outcome of
proceedings in due course.
19. In determining whether a prima facie right has been established; the
proper approach to the affidavits is as follows:
“In determining whether or not the applicants crossed the threshold,
the right relied upon for a temporary interdict need not be shown on
a balance of probabilities, it is enough if it is prima facie established
though open to some doubt.
10
The proper approach is to take the facts set out by the applicants
together with any facts set out by the respondents, which the
applicants cannot dispute, and to consider whether having regard to
the inherent probabilities the applicants should, not could, on those
facts obtain final relief at the trial.
It is also necessary to repeat that although normally stated as a
single requirement, the requirement for a right prima facie
established, though open to some doubt, involves two stages. Once
the prima facie right has been assessed, that part of the requirement
which refers to the doubt involves a further enquiry in terms whereof
the Court looks at the facts set up by the respondent in contradiction
of the applicant’s case and if there is a mere contradiction or
unconvincing explanation, then the right will be protected. ”
1
20. Put differently, the test requires a court to consider an application for
interim relief on the strength of the applicant’s version unless the
respondent puts up facts that cast serious doubt on whether the
applicant should obtain final relief at trial in due course.
21. As far as the impugned statement is concerned, I am of the view that
the applicant’s explanation must be accepted at this stage. Not only
does it accord with my own interpretation of the phrase upon my first
reading of the founding affidavit, but the applicant presented the
expert evidence of Dr Karien Van Den Berg, a forensic linguist and
senior lecturer at the University of the North- West, who conducted a
linguistic analysis of the impugned statement in the context within
11
which it was made. It bears mentioning that Dr Van Den Berg’s
expertise and assistance were accepted and endorsed by the Equality
Court in South African Human Rights Commission and Another v
Malema and Another.2
22. Having listened to the audio recording of the applicant’s
conversation with Ms Visagie, and his brief interaction with Mr
Beets whilst Ms Visagie remained on the line, Dr Van Den Berg
concluded that, in her expert opinion, “ the linguistic evidence
provides substantially stronger support for interpreting the disputed
expression as a figurative expression relating to ongoing
technological difficulties than as a racially offensive reference
directed at the call- centre consultant ”. She went on to opine that
“[w]hile the latter interpretation may be theoretically conceivable in
other communicative, social, or historical contexts, the linguistic
evidence contained in this interaction does not support it as the most
linguistically justified or most probable interpretation”.
23. In support of these conclusions, Dr Van Den Berg highlighted the
following:
“The expression occurs within an uninterrupted discourse thread
that begins with references to poor audibility and a deteriorating
telephone connection, develops through recurring comments about
the computer system stalling and repeated technological difficulties,
includes progressively stronger expressions of frustration such as die
verdomde internet, followed by the browser error message Site can’t
12
be reached, and culminating in Mr Strydom suggesting that he would
phone back later, once he has managed to access the system. ”
24. Other contextual indicators highlighted by Dr Van Den Berg were
the following statements made during the course of the conversation:
“haak vas”, “sukkel”, “hierdie ding haak nou eers weer {bietjie} vas
vanmôre”, which were followed shortly by the impugned statement,
“nou weer ń bobbejaan op die lyn”. She also highlights the use of
“weer” in both of the last two statements as being indicative that
both statements were concerned with the same thing: the poor
connection. The applicant’s frustrati on appeared to continue even
after the impugned statement was uttered, because he again
complained by stating “ nou sukkel ek alweer met die verdomde
bleddie internet”.
25. Dr Van Den Berg also explained that the broader context of the
conversation did not support an interpretation of the impugned
statement as a racially offensive utterance.
26. This, then, explains what the applicant likely intended to convey
when he uttered the impugned statement. But what of the objective
interpretation to be attributed to it?
27. While the specific phrase “bobbejaan op die lyn” does not appear to
be an official Afrikaans idiom, Dr Van Den Berg further explained:
“One of the most productive conceptual source domains in Afrikaans
is the use of animals to characterise human behaviour and everyday
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experiences. Animal names frequently function as figurative vehicles
through which speakers conceptualise personality traits, social
interaction, emotions, and events. Among these, references to
bobbejaan are particularly salient in colloquial Afrikaans, because
they evoke culturally familiar observations of baboon behaviour,
including curiosity, opportunism, boldness, disorder,
destructiveness, social disruption, and mischievousness. These
behavioural characteristics motivate numerous figurative
expressions and colloquial usages, including ń bobbejaanstuipe kry;
bobbejaanstreke, die bobbejaan agter die berg gaan haal and other
creative uses in which the animal serves as a conceptual metaphor
for troublesome or disruptive behaviour rather than referring to the
animal literally.
…
… the mere presence of the lexical item bobbejaan does not
determine the meaning of an utterance. Rather, linguistic ally
appropriate interpretation depends on identifying which aspect of
the conceptual frame is activated by the surrounding discourse.
Accordingly, where competing interpretations are possible, the
expression should be interpreted in relation to its immediate co- text,
the broader discourse organisation, and the communicative purpose
of the interaction, rather than by attributing a single symbolic
meaning to the lexical item in isolation.”
14
28. The reason I draw so comprehensively from Dr Van Den Berg’s
opinion is because, in addition to the many creative and colourful
ways the term bobbejaan may be or is used in Afrikaans discourse, it
is also one of the most abhorrent appellations by which Black South
Africans are referred to by racist individuals.
29. But what Dr Van Den Berg’s opinion demonstrates is that not every
colloquial use of the term bobbejaan carries with it racist
connotations.
30. The impugned statement also appears to have been used enough
times for Google’s artificial intelligence tool to offer an explanation
that is consistent with the applicant’s explanation. This, then, brings
me to the manner in which Sanlam handled Ms Visagie’s complaint
and whether the outcome of that process casts serious doubt on the
applicant’s version as to the meaning of the impugned statement.
31. Although I am not required to in these proceedings, I nevertheless
accept, without reservation, that Ms Visagie, when she heard the
applicant utter the impugned statement, believed that it was directed
at her. From her vantage point, and because the applicant was
clearly talking to somebody else and not to her, it is understandable
that she assumed the statement was about her. Her understanding
would have been informed by her own experiences, direct or
indirect, of life under apartheid South Africa or the ever persistent
remnants of its racist regime. All too frequently, Black people in this
country are still referred to as baboons in contexts that are plainly
15
intended to be racist and degrading. While the term, as far as my
limited knowledge goes, is not usually used to refer to coloured
people, it could not have been expected of Ms Visagie, in that
instance, to evaluate whether baboon was reserved as a particularly
degrading appellation for Black people only or whether it was
indiscriminately used towards anyone of colour. The debate, really,
is irrelevant as far as Ms Visagie’s understanding is concerned. It is
enough that, given the history of this country, and likely her own
lived experiences, she cannot be faulted for, in the moment,
interpreting the impugned statement as being directed at her.
32. Sanlam, for its part, and at the applicant’s request, referred the matter
for an independent enquiry by Ms Tanya Venter, an advocate
employed by Tokiso Dispute Settlement (Pty) Ltd. The referral
culminated in a report which the parties referred to as the Tokiso
report. The Tokiso report essentially rejected the applicant’s version
on the basis that he was unable to prove that the impugned statement
is an official and recognised Afrikaans idiom. Evidently, all that he
provided to Ms Venter was a link to Google AI (known as ‘Gemini’)
which stated the following:
“Die gesegde ‘ń bobbejaan op die lyn’ verwys na ń steurnis of
onderbreking tydens ń telefoongesprek. Dit word gebruik wanne er
die lyn sleg is… Die oorsprong kom uit die dae van oop
telefoondrade waar diere soms teen pale gestaan of aan kabels
gehang het…
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In die ou dae is hierdie term ook algemeen gebruik wanneer mense
gesukkel het om met telefoonoperateurs in verbinding te tree…”
33. In short, and although not an official literary source, the AI generated
explanation is consistent with the applicant’s . It indicates that the
genesis of the impugned statement goes back to the days when
telephone lines were above ground and animals interfered with them
or hung on them. It also indicates that it was used in the past when
people struggled to get through to an operator (evidently a reference
to the manner in which telephone calls were connected in the past:
i.e. when ‘person A’ would have to dial a central number for an
operator who, in turn, would connect ‘person B’ to the call).
34. Be that as it may, Ms Venter did not accept the AI generated
explanation and rejected the applicant’s explanation.
35. She concluded that the impugned statement was reasonably received
by Ms Visagie as racial harassment and that the applicant had
breached the Harassment Policy. She further recommended that the
applicant’s contract be cancelled in terms of clause 29.1 of the extant
contract between the applicant and Sanlam, read with section 5.1 of
the Harassment Policy.
36. Clause 29.1 of the Contract provided the following:
“Each party may for any reason terminate this contract on 24 hours’
notice of termination to the other party.”
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37. Section 5.1 of the Harassment Policy, in turn, provides that:
“Sanlam has a zero- tolerance stance towards any form of
harassment in the workplace, whether committed by or against
employees. Consequences for violations may include termination of
services, contracts or relationships, depending on whether the
perpetrator is an employee or a non-employee.”
38. Sanlam accepted the recommendation and, hence, the termination of
the applicant’s contract with it. As stated, Sanlam’s decision to
terminate the applicant’s contract was conveyed to him by Mr Punt
on 17 June 2026. In the letter, Mr Punt highlighted the following
findings and recommendations from the Tokiso report:
“38. Mr Strydom breached Sanlam’s Workplace Harassment Policy
on 18 January 2026 when he stated on a call that there is “ al weer ń
bobbejaan of die lyn”. The comment was directed at Ms Visagie and
was reasonably received as offensive and as racial harassment.
Considering that Mr Strydom’s explanation for making the statement
is rejected as improbable, it is probable that he was being racist and
offensive about Ms Visagie when he said it.
39. Considering the seriousness of the racial harassment and the
impact it had on Ms Visagie, it was warranted that Mr Strydom’s
contract is cancelled in terms of clause 29.1 of the contract and
section 5.1 of the Workplace Harassment Policy.”
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39. For the reasons already discussed above, I disagree with Ms Venter’s
rejection of the applicant’s version. His version as to what he meant
and was referring to when he uttered the impugned statement is
inherently plausible and, for purposes of these proceedings , I accept
it. In making this finding, I in no way discount the possibility that
further evidence and/or cross -examination at a trial in due course
may result in a different conclusion. B ut b ased on the evidence
before me, and the test to be applied in proceedings for interim relief,
I cannot find that Sanlam has cast serious doubt on the applicant’s
explanation.
40. Sanlam, however, contended that the law and its policy are not
concerned with the applicant’s subjective state of mind when he
uttered the impugned statement. It argues that both require an
objective test based on the reaction of a reasonable person in the
constitutional order.
41. I deal with this argument next.
Was Ms Visagie’s and Sanlam’s interpretation objectively reasonable?
42. The premise of Sanlam’s contention stems from the general
proposition that, White South Africans routinely referred to Black
people as monkeys or baboons and that this is degrading.
43. Of this there is no doubt.
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44. This particular issue was at the forefront in SARS v CCMA, 3where
Mogoeng CJ explained the following:
“South Africa’s special sect or brand of racism was so fantastically
egregious that it had to be declared a crime against humanity by no
less a body than the United Nations itself. And our country, inspired
by our impressive democratic credentials, ought to have recorded
remarkable progress towards the realisation of our shared
constitutional vision of entrenching non- racialism. Revelations of
our shameful and atrocious past, made to the Truth and
Reconciliation Commission, were so shocking as to induce a strong
sense of revulsion against racism in every sensible South African.
But to still have some white South Africans address their African
compatriots as monkeys, baboons or kaffirs and impugn their
intellectual and leadership capabilities as inherently inferior by
reason only of skin colour, suggests the opposite. And does in fact
sound a very rude awakening call to all of us.”4
and
“[I]f a person is called a baboon, when severely criticized, the
purpose is to indicate that he is base and of extremely low
intelligence. It was also stated that it can be inferred from the use of
the word, in the circumstances, that the person mentioned is of
subhuman intelligence and not worthy of being described as a
human being. It follows that the person described as a baboon in
those circumstances may rightfully perceive them to be hurtful. The
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magistrate was accordingly not wrong to find that the words
complained of fall within the definition of ‘hate speech’ as defined in
section 10 of PEPUDA.”5
45. Sanlam argues that, because the term baboon is so widely used by
White South Africans in this racist and degrading way, it is irrelevant
that the applicant, when he uttered the impugned statement, did not
intend to invoke the term baboon in a racist or derogatory manner.
Sanlam’s reasoning relies on its understanding of the generally
accepted legal test which requires an objective evaluation as to
whether the words used are reasonably capable of conveying to the
reasonable hearer that the phrase had a racist meaning.
46. Sanlam also relies on its own Harassment Policy which it says
accords with the courts’ jurisprudence. The Harassment Policy
states, in relevant part, that:
“… conduct is generally assumed to be offensive if it is reasonably
capable of carrying a racist meaning to a reasonable audience ”
and
“The test for racial harassment requires consideration of the
following factors: an objective assessment of the reaction of a
reasonable person in the context of the constitutional order. ”
47. Sanlam’s argument is sound only to a point. The objective test and
the interpretation of the reasonable person rests on the answer to an
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anterior question: viz whether the words were directed at or about a
particular person or group or class of persons.
48. The test does not provide the answer to determining that anterior
question.
49. In SARS v CCMA , Mr Kruger had called his superior a “ kaffir”. In
discussing the historical context to that word, Mogoeng CJ included
the terms baboon and monkeys to illustrate the multitude of ways
White people sought to degrade Black people. It is hard to conceive
of anybody using the term “ kaffir” other than in an obviously racist
context. Indeed, being brazen enough to utter the word out loud my,
in itself, speaks volumes of the person doing so. But the same is not
true of baboon or monkey and Mogoeng J certainly did not find that
to be the case. The discussion of the meaning of baboon was
specifically in the context of it being used to refer to a person.
50. In Rustenburg Platinum Mine v SAEWA obo Bester and Others
(Bester),
6 in which the Constitutional Court confirmed that the test
for whether words are derogatory and racist is objective , the court
was concerned with the use of the term “ swart man”. Again, there
was no dispute that the phrase was directed at and was about a
person. In any event, the judgment is not authority for the
proposition that context and intention, which are not known to the
listener, are irrelevant. After discussing the evidence that was before
the Labour Appeal Court and the test applied by that court, the
Constitutional Court stated the following:
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[49] The Labour Appeal Court, by sanitising the context in which the
words were used, incorrectly applied the test to determine whether
the words used are derogatory, in the context of this matter, to the
facts in this matter. The Labour Appeal Court, as well as the
commissioner, failed to approach the dispute in an impartial manner
taking into account the “totality of circumstances”. Not only was
“swart man” as used here racially loaded, and hence derogatorily
subordinating, but it was unreasonable to conclude otherwise. It
was unreasonable for the commissioner, within this context, to find
that using “swart man” was racially innocuous.
[50] Furthermore, in scrutinising the version of the witnesses as to
whether they viewed the statement made by Mr Bester as being
racist, the Labour Appeal Court applied a test that was too strict .
The test was not whether they were correct in the context of the
statement to have understood it as being racist; the test was whether,
objectively, the words were reasonably capable of conveying to the
reasonable hearer that the phrase had a racist meaning. Only Mr
Bester could have given evidence that he uttered the words with no
racist intent. He failed to do so. The commissioner made a similar
error in coming to the conclusion that Mr Bester used the words
“swart man” to identify and not to denigrate a person whose vehicle
was parked next to his. The commissioner failed to have regard to
the evidence before him and failed in particular to appreciate the
context in which the words concerned were uttered. During the
arbitration proceedings both parties were ad idem (of one mind) in
this respect. They agreed that using such language at the
23
applicant’s workplace would be detrimental and could warrant
dismissal.
51. The Constitutional Court, therefore, recognised that a person in the
position of the applicant may give evidence to establish that the
impugned words were not uttered with racial intent. It also confirms
that the meaning of the words must be evaluated with reference to
the context within which they were uttered.
52. Sanlam also relied on KPMG v Securefin
7 and Le Roux v Dey 8 in
support of its argument that the test is a purely objective one.
52.1. KPMG was concerned with the interpretation of a document
and the extent to which evidence relating to the context of the
impugned document should be entertained. It was not
evaluating whether words were discriminatory or derogatory
in nature. The case, in any event, is consistent with the well -
established principle that context, together with text and
purpose, forms part of the holistic and unitary approach to
interpretation.
9 These are crucial elements of an objective
enquiry.
52.2. Le Roux v Dey, on the other hand, was also concerned with
defamatory material directed at and about a person. Even
there, where the Court was dealing with the ‘objective test’ to
be applied in respect of statements that are alleged to be
defamatory ‘per se ’, the Court emphasised that regard must
be had to the “ ordinary meaning of the statement ”.
10 The
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dispute in this case is precisely because the impugned
statement does not carry an ordinary meaning. The ordinary
meaning of the word baboon is in reference to the animal and
not as a racist insult (however, frequently it may be used in
the latter sense).
53. In Quelane,11 too, the Constitutional Court recognised that, even
though the test is an objective one, context plays a role in
determining whether words constituted hate speech. In this respect,
the court stated:
[99] Importantly, an objective standard gives better effect to the
spirit, purport and objects of the Bill of Rights. On the one hand, if it
were based on the subjective perception of the target group, it would
unduly encroach on freedom of expression, since claims could be
based on “a multiplicity of trivial actions by hypersensitive
persons”. On the other hand, if it were based on the subjective
intention of the speaker, the threshold for civil liability would be
considerably higher than usual.
[100] An objective approach, accounting for the general
circumstances and context , as well as other factors elucidated by the
Special Rapporteur, is appropriate for what hate speech laws aim to
prohibit. In Whatcott, the Supreme Court of Canada underscored
the effects of hate speech, not the intent, and notes
that systemic discrimination tends to be more widespread than
intentional discrimination. This Court has acknowledged that
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“systemic motifs of discrimination” are part of the fabric of our
society. This analysis is apt when considering the philosophical
underpinnings of hate speech prohibitions that attach civil liability,
coupled with the role of hate speech and systemic discrimination in
this country. However, when plugging in an abstract reasonable
person test in order to construe the meaning of alleged hate speech,
courts ought to be mindful of our diverse and dynamic society and
not inadvertently reify prejudices.
54. Against these principles, it cannot be ignored that White Afrikaners
in South Africa have developed phrases utilising the term ‘baboon’
in many different contexts, not all of which are racist in nature. I
dare say that, unless the word is used in isolation and with reference
to a person or group of persons, the expressions which use the
imagery of a baboon are usually innocuous and artfully specific to
the context in which the expression is used. “ Haal ń bobbejaan
agter die berg” being a particularly colourful example.
55. In the result, if the applicant had referred to Ms Visagie as a baboon,
the only reasonable and objective interpretation that could have been
attributed to his statement would have been that it was racist and
derogatory.
56. But the available evidence does not support the conclusion that he
uttered the impugned statement about Ms Visagie.
57. That is also not to discount how Ms Visagie received the words that
she heard and her reaction to it. She did not have the full context to
26
understand that it was not directed at her. The papers are silent on
whether the applicant’s explanation was ever conveyed to and
discussed with Ms Visagie. It may be that, with the full context, she
would have accepted, and found relief, in the explanation that the
statement was not directed at her.
58. Be that as it may, and applying the appropriate objective test, with
due regard to the context within which the impugned statement was
uttered, I am not persuaded that Sanlam has cast serious doubt on the
applicant’s explanation as to the meaning of the words uttered by
him. Thus, to the extent that Sanlam’s termination of the applicant’s
contract relied on the impugned statement as constituting a breach of
the Harassment Policy, the applicant could, at the very least, obtain
declaratory relief to that effect at a trial in due course.
59. However, since the interim relief sought by the applicant relies on
whether reinstatement will follow, as a matter of course, if he
successfully proves that the impugned statement did not violate the
Harassment Policy, it is necessary to consider whether Sanlam has
cast serious doubt on this aspect of the applicant’s case. And it is to
this enquiry that the 2022 complaint and the Hagan conversation
become relevant.
Does Sanlam have an alternative justification for termination?
60. In its answering affidavit, Sanlam contended that the 2022 complaint
and the Hagan conversation are relevant to the proper interpretation
of the impugned statement. Given the analysis above, I do not agree.
27
61. However, in light of Sanlam’s interpretation of these two incidents, it
was submitted on Sanlam’s behalf, that it was, in any event entitled
to terminate the contract, even if its interpretation and treatment of
the impugned statement is wrong.
62. This thread is not directly drawn in Sanlam’s answering papers but
reliance was placed on the general statement that “[e]ven if every
complaint in the founding papers about the investigation, the
findings and the fairness of the process were sound (and none is),
Sanlam Life was entitled to terminate the contract for any reason, or
none, on 24 hours’ notice.”
63. The import of the general right to terminate is, as I understood the
argument, twofold:
63.1. First, regardless of the applicant’s right to challenge the
lawfulness of Sanlam’s termination to the extent that it
relates to the impugned statement, Sanlam is entitled to
cancel the contract, in any event. Flowing from this, to grant
the applicant the relief he seeks, pending the trial in due
course, would be to grant him more rights than the contract
provides.
63.2. Second, and on the basis of the information about the two
other incidents, Sanlam is entitled to justify its termination of
the applicant’s contract – whether before me or at the trial in
due course – based on these incidents alone.
28
64. The first point can easily be remedied by an order expressly limiting
its ambit to the termination based on the impugned statement,
thereby leaving Sanlam’s right to terminate for any other reason
intact. In response, it was submitted that such an order would be a
brutum fulmen because, on the facts already before me, Sanlam
could terminate the contract immediately after I grant such an order.
The response flows into the second point.
65. Sanlam relied on Datacolour International 12 in submitting that it is
settled law that a party may cancel a contract for one reason, but then
justify that cancellation on the basis of any other objective reason –
even one it did not rely on at the time or know of.
66. The proposition made in Datacolour can be tracked back to Matador
Buildings (Pty) Ltd v Harman,
13 in which it was held that:
“Falsa causa demonstration non nocet .14 A party who repudiates a
contract giving a wrong reason for his repudiation is not bound by
the reason he gives, and if in fact there exists a justifiable reason for
his repudiation he is entitled to take advantage of it, notwithstanding
the wrong reason he may have given.”
67. As stated, Sanlam contends that it is entitled to justify the
termination of the applicant’s contract based the 2022 complaint
and/or the Hagan conversation. It was also submitted that Sanlam
could terminate the contract for no reason at all. I am not moved by
the latter submission.
29
68. The first submission, however, is compelling.
69. The applicant has elected not to deal with the 2022 complaint or the
Hagan conversation. His only defence is that Sanlam was not
entitled to raise these issues in its answering affidavit because (a)
they had nothing to do with the impugned statement and (b) Sanlam
did not rely on either of them when it terminated the applicant’s
contract.
70. On the strength of Datacolour and Matador, the approach adopted
by the applicant cannot be sustained as a matter of law.
71. But even on the facts, the applicant’s approach is unsatisfactory.
Sanlam attached to its answering affidavit a letter from Mr Naicker
to the applicant dated 15 April 2025. The letter is headed
“CONTEMPLATION OF CONTRACT TERMINATION” and
specifically raises the 2022 complaint and the Hagan conversation in
addition to the complaint by Ms Visagie. In relevant part, the letter
stated the following:
“5. Further, we have also considered [the impugned statement] in
light of the statement you used in the telephone discussion with Erika
Hagan. In the discussion with Visagie, it seems you’re your (sic)
frustration was related to the poor service levels and not the poor
line. To this end, you confirmed in the discussion with Erika Hagan
that the service levels went down since Sanlam ‘verkleur’, which
suggest that since Sanlam appointed people of colour, the service
levels went down.
30
6. At the same time, we confirmed that this statement is not an
isolated incident. According to our records, the region received a
report from colleagues during a session in which you stated that
Afrikaans is the local language in Oudtshoorn. That may be so, but
English is the Sanlam business language. In addition, you made
comments about a person of colour with a surname Van der Merwe
and made jokes about it. In this incident, you also relied on the view
that in Afrikaans that statements are acceptable and it was not
[your] intention.”
72. The letter is noteworthy because the applicant evidently made a
conscious choice not to place it before the Court. In his founding
affidavit, the applicant deals with the chronology of events by
referring to Ms Visagie’s complaint and then stating simply:
“On 15 April 2026, Mr Thesen Naicker of the Second Respondent
requested that I provide written representations as to why my
Financial Adviser Agreement with Sanlam should not be terminated,
as a result of the aforesaid complaint.”
73. He then attached his response, dated 29 April 2026, in which he only
dealt with Ms Visagie’s complaint.
74. The applicant’s cursory treatment of the 15 April 2026 letter reveals
two things:
74.1. First, he unduly sought to minimise the scope of Mr
Naicker’s invitation by referring only to the impugned
31
statement. This, despite Mr Naicker expressly raising the
2022 complaint and the Hagan conversation as additional
factors that were being considered by Sanlam.
74.2. Second, he made a deliberate choice in his response to Mr
Naicker and in these proceedings, not to address those
incidents at all. Sanlam, accordingly, correctly contends that
those incidents have not been disputed by the applicant.
75. Even in reply, the applicant contended that ‘the sole complaint which
gave rise to the investigation… and the termination… concerned the
telephone conversation of 18 January 2026 involving Ms Visagie. ’
76. As is the case with the founding affidavit, the statement ignores
entirely the fact that the 15 April 2026 letter expressly raised the
2022 incidents and the Hagan conversation as factors that
compounded Sanlam’s (at that stage preliminary) decision to
terminate its contract with the applicant.
77. The applicant seeks to discount these issues by contending that they
constitute inadmissible hearsay evidence. The contention insofar as
it concerns the 2022 complaints is unpersuasive because the
deponent to the answering affidavit has personal knowledge of the
complaints and the manner in which they were resolved. As far as
the Hagan conversation is concerned, it may be so that the deponent
to the founding affidavit does not have personal knowledge thereof
and that, ordinarily, the allegation might have been found to be
inadmissible hearsay evidence. The problem the applicant faces,
32
however, is that he has personal knowledge of that conversation and
he has not denied making the statement that Sanlam’s standards have
deteriorated since it verkleur[ed].
78. The applicant is also wrong when he states in his replying affidavit
that Sanlam introduced the historical allegations ‘ for the first time in
the answering affidavit ’. As stated, both incidents were mentioned
in the 15 April 2026 letter. It is the applicant who elected not to
include that letter in his founding papers and not to deal with its
contents. He persisted with that election in his replying affidavit.
The ineluctable conclusion, therefore, is that Sanlam’s version is
correct and true.
79. In my view, the applicant’s isolation of the Visagie incident was an
opportunistic attempt to exploit what, as I have found, was a mistake
in approach by Ms Venter and Sanlam. But, in doing so, the
applicant has consciously (and to his peril) left Sanlam’s other
concerns unanswered. While it may be so that the 2022 complaints
were resolved amicably, it may nevertheless shed light on the
applicant’s character. What is more, the conversation with Hagan is,
at face value, racist in nature.
80. I need not decide whether Sanlam relied on these additional factors
when it terminated the contract with the applicant. It is enough for
me to be satisfied that the trial court might consider these factors as
providing a valid justification (even if ex post facto ) for the
termination of the contract.
33
81. And since the applicant has elected not to deal with the possible
consequences of the trial court taking these issues into account, he
has not succeeded in establishing , on a prima facie basis, that
reinstatement should be the outcome of his trial in due course if he
succeeds in establishing that the Visagie incident did not justify
Sanlam’s decision to terminate the contract. Even if he succeeds on
that score (which is likely), the trial court may well uphold the
termination based on Sanlam’s reliance on the 2022 complaint and/or
the Hagan conversation.
82. I turn now to address whether the applicant has met the requirements
for the interdictory relief he seeks.
83. It is trite that the requirements an applicant needs to establish in its
founding affidavit in order to obtain interim relief are the following:
83.1. a prima facie right which requires protection pending the
main case;
83.2. a well -grounded apprehension of irreparable harm if the
interim relief is not granted and the ultimate relief is
eventually granted;
83.3. a balance of convenience in favour of granting an interim
interdict;
83.4. the absence of any other adequate ordinary remedy.
15
34
84. Although, as will be seen, the applicant fails at the first hurdle, I
address each requirement in turn.
Prima facie right
85. The applicant’s sole contention in these proceedings is that the
termination by Sanlam is prima facie unlawful. He further contends
that, despite the factual dispute on this score , for present purposes,
the right to a lawful termination and the fact that the termination is
unlawful, has been prima facie established.
86. But all this means is that Sanlam erred in relying on the impugned
statement to terminate the contract. It does not mean that
reinstatement will follow.
87. Put differently, the applicant has not demonstrated a right, though
open to some doubt, that he will be entitled to reinstatement in due
course. That being the case, this Court cannot grant interdictory
relief that gives the applicant more rights than what he is likely to
achieve at the trial in due course.
88. It is necessary to mention that, according to the applicant, he intends
to rely on the following grounds to prove the unlawfulness of
Sanlam’s termination:
88.1. that Sanlam acted contrary to the agreement;
35
88.2. they failed to exercise their contractual powers lawfully and
rationally;
88.3. they failed to afford him procedural fairness;
88.4. they failed to disclose the Tokiso report; and
88.5. the decision to terminate was disproportionate.
89. The difficulty the applicant faces is that, even if he is correct on each
of these grounds, reinstatement will not necessarily follow as a
matter of course. In any event, apart from the fact that, as I have
found, the Tokiso report reached the wrong conclusion vis a vis the
impugned statement, I am not persuaded, even prima facie , that any
of the abovementioned grounds have merit.
89.1. Sanlam acted in accordance with clause 29.1 of the contract,
read with section 5.1 of the Harassment Policy, when it
cancelled the contract. Save for the flawed underlying
reason, Sanlam acted in accordance with the contract.
89.2. The second and third grounds are not recognised grounds for
challenging the exercise of contractual provisions.
16
89.3. The fourth is moot because the report has now been
furnished.
89.4. As to the fifth, if Sanlam is entitled to terminate the contract
for any reason, including a breach of the Harassment Policy,
36
then the consequence cannot be said to be disproportionate.
Certainly, the enforcement of a contractual provision to
terminate a contract on grounds of racial discrimination
cannot be viewed as contrary to public policy. In South
Africa, a company like Sanlam is entitled, if not obliged, to
adopt a zero tolerance policy in respect of racial
discrimination or harassment.
90. These factors will apply equally to Sanlam’s reliance on the 2022
complaint and/or the Hagan conversation. In the circumstances, the
applicant appears to have very limited prospects of successfully
claiming reinstatement at a trial in due course.
91. I accordingly find that the applicant has not met the first requirement
for an interim interdict.
Reasonable apprehension of irreparable harm
92. The only personal harm identified by the applicant is the loss of his
goodwill which he says he will not be able to recover if the interim
relief is not granted. He also contends that the harm cannot be
restored by an award of damages.
93. The contention is unpersuasive. The harm identified by the applicant
is precisely the kind of harm that can be quantified in a claim for
damages. His existing clients and the income he generates from each
are eminently quantifiable.
37
94. The applicant also does not expressly state that his existing clients
cannot be reallocated to him if he is ultimately reinstated. I don’t see
why this cannot be done.
95. The applicant also sought to invoke the rights of his clients to
continue to receive his services. This contention, too, is
unpersuasive. Unlike, the case in Van Der Westhuizen and Others v
Life Healthcare Holdings Group (Pty) Ltd and Others ,
17 the
applicant’s clients do not rely on his services as a matter of life and
death. Moreover, in Van der Westhuizen, the individual clients
brought the proceedings in their own name to vindicate their right to
continue to receive their preferred oncologist’s medical expertise and
services. Not only are the applicant’s clients not before this court, no
evidence has been furnished to suggest that they will be prejudiced if
their portfolios were to be assigned to a different adviser.
96. I accordingly find that the applicant has not shown that he (or anyone
else) is likely to suffer irreparable harm if the interim relief is not
granted.
Balance of convenience and alternative remedy
97. The applicant contends that the harm he will suffer must be balanced
against what he says is a minimal inconvenience to Sanlam if it has
to endure the temporary continuation of the existing contractual
relationship.
98. The contention is far too simplistic.
38
99. Sanlam explains that, in light of its concerns about the applicant’s
character, it cannot be expected to hold him out to its clients as a
person accredited by it. Sanlam contends that the interim relief will
require it to continue doing business with a person it no longer has
trust and confidence in. Though the contention may be misplaced as
far as the impugned statement is concerned, it nevertheless applies to
what Sanlam has identified in relation to the 2022 incident and/or the
Hagan conversation.
100. Given that I have already concluded that the applicant has an
alternative remedy in the form of a damages claim, I find that the
harm that Sanlam is likely to suffer if it is compelled to continue to
contract with the applicant, outweighs the applicant’s potential harm.
The balance of convenience, therefore, does not favour the grant of
interim relief against Sanlam.
Conclusion and order
101. Both parties sought costs in the event of success and I find no reason
to depart from the default position that costs should follow the result.
The complexity of the issues also justifies counsel’s fees to be taxed
on the highest scale.
102. In the result, I make the following order:
The application is dismissed with c osts, with counsel’s fees to be
taxed on Scale C.
39
_____________________________
AG CHRISTIANS
ACTING JUDGE OF THE HIGH COURT
Appearances:
For plaintiff: J Van der Merwe SC
Instructed by: MSI Attorneys
For defendant: M de Beer
Instructed by: Werksmans Attorneys
1 Spur Steak Ranches Ltd v Saddles Steak Ranch 1996 (3) SA 706 (CPD) at 714E – G; Webster v Mitchell
1948 (1) SA 1186 (W) at 1189; Gool v Minister of Justice and Another 1955 (2) SA 682 (C) at 688
2 South African Human Rights Commission and Another v Malema and Another (EC16/2022 ; 17/2022)
[2025] ZAEQC 6; 2025 (6) SA 288 (WCC); [2025] 4 All SA 484 (EqC) (27 August 2025).
3 South African Revenue Service v Commission for Conciliation, Mediation and Arbitration and Others
(CCT19/16) [2016] ZACC 38; [2017] 1 BLLR 8 (CC); (2017) 38 ILJ 97 (CC); 2017 (1) SA 549 (CC);
2017 (2) BCLR 241 (CC) (8 November 2016).
4 SARS v CCMA para 2.
40
5 SARS v CCMA footnote 5, citing Strydom v Chiloane 2008 (2) SA 247 (T) para 13 which, in turn, referred
to Mangope v Asmal 1997 (4) SA 277 (T) at 286J-287A.
6 Rustenburg Platinum Mine v SAEWA obo Bester and Others (CCT127/17) [2018] ZACC 13; (2018) 39
ILJ 1503 (CC); 2018 (8) BCLR 951 (CC); [2018] 8 BLLR 735 (CC); 2018 (5) SA 78 (CC) (17 May 2018).
7 KPMG Chartered Accountants (SA) v Securefin Limited and Another (644/07) [2009] ZASCA 7; 2009 (4)
SA 399 (SCA) ; [2009] 2 All SA 523 (SCA) (13 March 2009).
8 Le Roux and Others v Dey (CCT 45/10) [2011] ZACC 4; 2011 (3) SA 274 (CC) ; 2011 (6) BCLR 577
(CC) (8 March 2011).
9 Capitec Bank Holdings Limited and Another v Coral Lagoon Investments 194 (Pty) Ltd and Others
(470/2020) [2021] ZASCA 99; [2021] 3 All SA 647 (SCA); 2022 (1) SA 100 (SCA) (9 July 2021).
10 Le Roux v Dey para 89.
11 Qwelane v South African Human Rights Commission and Another (CCT 13/20) [2021] ZACC 22; 2021
(6) SA 579 (CC); 2022 (2) BCLR 129 (CC) (31 July 2021).
12 Datacolour International (Pty) Ltd v Intamerket (Pty) Ltd 2001 (2) SA 284 SCA para 28.
13 Matador Buildings (Pty) Ltd v Harman 1971 (2) SA 21 C.P.D at 28A.
14 Loosely translated to mean a false description does not invalidate a document if the intention is clear.
15 Setlogelo v Setlogelo 1914 AD 221; Webster v Mitchell 1948 (1) SA 1186 (WLD).
16 See South African Forestry Co Ltd v York Timbers Ltd 2005 (3) SA 323 (SCA)([2004] 4 ALL SA
168) para 27.
17 Van Der Westhuizen and Others v Life Healthcare Holdings Group (Pty) Ltd and Others (18544/2023)
[2025] ZAWCHC 166; 2025 (5) SA 603 (WCC) (15 April 2025)