Hate speech is a crime

March 1st, 2015
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Equality Court rules in favour of domestic worker

By Peter Williams

The District Court of Cape Town, sitting as an Equality Court, has recently made a landmark ruling in Nomasomi Gloria Kente v Andre van Deventer (EqC) (unreported case no EC 9/13, 24-10-2014, Cape Town Magistrates Court) (Magistrate Koeries), by awarding a domestic worker R 50 000 in damages. This was after it found in the domestic worker’s favour in a case of hate speech and harassment. Ms Kente, a domestic worker, complained that after her shift had ended, she requested her employer’s boyfriend to look after his own child for a brief period of time. while she took a shower. He was upset about this, grabbed her by her pyjamas, spat in her face and told her that she was ‘a pathetic K****r, that he hated K****rs and that he hated her.’ He continued by saying that ‘K****rs had stolen our land’. Ms Kente complained that she had been subjected to racial abuse and harassment over a number of years and that she had previously lodged a case with the police, only to find out that the perpetrator had paid an acknowledgment of guilt fine in the sum of R 150.

Magistrate Jerome Koeries found that the incidents had occurred as described by Ms Kente and indicated that hate speech will not be tolerated by our courts and that violence against women will have dire consequences. The court found that the word ‘K****r’ constitutes hate speech. The judgment implies that where derogatory words, such as ‘K****r’, or even ‘Hotnot’ or ‘coolie’ or other derogatory words are used, the court will not hesitate to deal with it harshly. The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (the Equality Act) provides for victims of hate speech to claim damages for the hurt, humiliation and degradation, which they suffered and in Ms Kente’s case, a substantial amount was awarded, relatively speaking.

Hate speech and harassment

In terms of s 10 of the Equality Act, words that are communicated amount to hate speech if:

‘i. The words are based on one or more of the prohibited grounds referred to in the Act. Prohibited grounds include race, gender, ethnic or social origin and colour;

ii. Objectively it is considered to be hurtful, harmful, incite harm or propagate hatred. The intention of the person who utters the words is irrelevant; and

iii.It does not fall within the proviso to section 12 (the proviso refers to bona fide engagement in artistic creativity, academic and scientific inquiry and the like.)’

In the case of Herselman v Geleba (ECG) (unreported case no 231/2009, 1-9-2011) (Dawood J), the court held that the use of the word ‘baboon’ amounted to hate speech as defined in s 10 of the Equality Act. The court held that ‘the word “baboon” has racial undertones and a derogatory meaning and would be construed as such by a reasonable African person.’ Similarly, in the case of Strydom v Chiloane 2008 (2) SA 247 (T) a person had called another person a ‘baboon’ in the presence of two co-workers. The court (two justices of the High Court) found that the magistrate was right ‘to find that the words complained of fall within the definition of “hate speech” as defined in section 10 of PEPUDA [the Equality Act].’ Referring to Mangope v Asmal and Another 1997 (4) SA 277 (T) at 286J – 287A, the court stated that: ‘Applying that definition, it is, in my view, clear that when the epithet “baboon” is attributed to a person when he is severely criticised, as in this case, the purpose is to indicate that he is base and of extremely low intelligence. But I also think that it can be inferred from the use of the word in such circumstances that the person mentioned is of subhuman intelligence and not worthy of being described as a human being.’

There can therefore be no doubt that the word ‘K****r’ constitutes hate speech as defined in s 10(1) of the Equality Act as it refers to the race, colour, ethnic or social origin of the complainant and it is both hurtful and harmful.

Section 11 of the Equality Act provides that: ‘No person may subject any person to harassment.’ ‘Harassment’ is defined as ‘unwanted conduct which is persistent or serious and demeans, humiliates or creates a hostile or intimidating environment or is calculated to induce submission by actual or threatened adverse consequences and which is related to –

(a) sex, gender or sexual orientation; or (b) a person’s membership or presumed membership of a group identified by one or more of the prohibited grounds or a characteristic associated with such group …’. It is clear that the conduct that the complainant was exposed to meets the requirements of this definition and as such constitutes harassment.

How to interpret s 10(1) of the Act

Section 10(1) has given rise to interpretation issues. It reads as follows:

‘10 Prohibition of hate speech

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.’

The question is whether subsections (a), (b) and (c) should be read with an ‘and’ or with an ‘or’, in other words whether the conjunctive or disjunctive approach should be used. If the conjunctive approach is used, it means that three requirements must be present or the acts must occur in a group-context, before a court can find that an utterance amounts to hate speech. For the disjunctive approach, it is sufficient for a complainant to prove that the prohibited words were either hurtful or harmful. This issue was expressly discussed in the Herselman case, where two justices of the High Court considered this provision and held the following: ‘If one has regard to the purpose of the Act, the object of the Act and the Interpretation clause it militates against the acceptance of the conjunctive approach … In this case the disjunctive approach appears to be the correct approach in interpreting the provisions of section 10(1) or else the very purpose of the Act may well be defeated.’

The court held the following: ‘If one were to adopt a conjunctive approach then racially discriminatory words which are clearly hurtful and even harmful, which are directed at an individual may not fall within the ambit of the Act simply because they may not per se promote or propagate hatred because they were not uttered in a group context. This is untenable and could not have been the intention of the legislature, having regard to the purpose and objectives of the Act and the interpretation clause. Such an approach would undermine the purpose of the Act.’

User-friendly courts

In the case of Woodways CC v Vallie 2010 (6) SA 136 (WCC), the following was said: ‘It is clear to me that the Act creates an informal and inexpensive platform for adjudication of unfair discrimination [as well as hate speech] disputes. It marks a shift from the conventional way of litigation, which emphasises elegance in the formulation of pleadings.

It creates a space for the victims of unfair discrimination to tell their stories so that systemic inequalities and unfair discrimination, which … remain deeply embedded in social structures, may be eradicated.’

At para 32 it states: ‘The informal nature of proceedings before the Equality Court was considered in George and Others v Minister of Environmental Affairs and Tourism 2005 (6) SA 297 (EqC)’, where the following was held: ‘An integral part of the Equality Act, then, is the focus on the creation of a user-friendly Court environment where proceedings are conducted along inquisitorial lines, with an emphasis on informality, participation and the speedy processing of matters … The formal, adversarial, often expensive and potentially intimidating proceedings that prevail in an ordinary magistrate’s court or High Court and which may act as a barrier to those seeking justice, have no place in an Equality Court.’

In Manong & Associates (Pty) Ltd v Department of Roads and Transport, Eastern Cape, and Others (No 2) 2009 (6) SA 589 (SCA) at para 53, the Supreme Court of Appeal held, as per Navsa J that: ‘The Equality Court was established in order to provide easy access to justice and to enable even the most disadvantaged individuals or communities to walk off the street, as it were, into the portals of the Equality Court to seek speedy redress against unfair discrimination, through less formal procedures.’

In Manong and Associates (Pty) Ltd v City of Cape Town and Another 2011 (2) SA 90 (SCA) the court held: ‘Section 20(2) of the Act provides that a person wishing to institute proceedings in terms of or under the Act must, in the prescribed manner, notify the clerk of the Equality Court of their intention to do so. Regulation 6 of the Regulations governing proceedings in the Equality Court provides for a prescribed form to be completed in which the complaint is to be formulated. It is clear that a succinct statement of complaint is required.’ The court then went on to criticise one of the parties, stating that, ‘instead of using the prescribed form, (he) resorted to a rambling 30 page exposition.’

Equality Act v Employment Equity Act

Section 5(1) of the Equality Act provides that the Act does not apply to any person to whom and to the extent that the Employment Equity Act 55 of 1998 applies. In Kente’s case, although the incidents occurred partially at her workplace, the main incident occurred outside her working hours. It was perpetrated by someone who was not her employer and the various incidents occurred sometimes during working hours and sometimes outside of her working hours. At the time of instituting proceedings, Kente’s employer was sympathetic towards her and supported her. For that reason Kente did not deem it necessary to institute proceedings against her employer. She would have had a case against her employer as well, since her employer has an obligation to maintain a safe working environment. In the case of Piliso v Old Mutual Life Assurance Co (SA) Ltd and Others (2007) 28 ILJ 897 (LC), Nel AJ awarded constitutional damages against an employer even though the applicant was subjected to sexual harassment at the workplace by an unknown perpetrator. The court found that where an employee cannot obtain relief through statutory or common-law remedies and their constitutional right to fair labour practices are violated, the employee may approach the Labour Court for relief in terms of s 23(1) of the Constitution.

Conclusion

The Equality Act is a product of the South African Constitution, which has been described as a transformative constitution. This concept entails that law can serve as a medium for social change and that through the enforcement of individual rights (such as in the present case) people can change not only their own lives, but also effect change in society. The Equality Court serves as an important tool to transform society from the vestiges of apartheid and should serve as a vehicle for transformation.

• In The State v Andre van Deventer (unreported case no 17/1430/2013, 6-02-2015, Cape Town Magistrates Court) (Magistrate Alta Le Roux) the court sentenced Andre van Deventer to two years’ house arrest and he is also required to complete 70 hours of community service for calling Ms Kente a ‘k****r’. The community work will be in the service of black women – Editor.

Peter Williams BA LLB (UWC) is a consultant at Robert Charles Attorneys & Conveyancers in Cape Town. Mr Williams represented Ms Kente in the Equality Court.

This article was first published in De Rebus in 2015 (March) DR 26.