Background

On 8th December 2018 Andile Mngxitama, the Black First Land First leader delivered a speech to a BLF rally in Ikageng Stadium, Tlokwe, Potchefstroom. In his speech he called for his supporters to get ready to kill for the land, stating:

“If we are not ready to die, if we are not ready to die, our children will be slaves like we are slaves. I don’t want your votes I want your commitment, to stand with me, to confront the enemy. Let me tell you something, when you join our movement Black First Land First one of you is equal to a hundred of those who don’t understand what we are fighting for. We mean it when we say, ‘Land or death!’ We mean it when we say, ‘Land or death!’ We are prepared to kill for our land, as much as we are prepared to die for our land. We mean it!”

Citing Johann Rupert’s recent joking remarks that if the Red Berets made good on their threats and came after him he had friends in the taxi industry and he could call upon this “army”, Mngxitama stated:

“Comrades I just want to make it very clear, that Johann Rupert has declared war on us black people …. Johann Rupert says he has control over the taxi industry bosses. We know what that means. Taxi industry bosses are people who are involved in killing other people. Johann Rupert says that if we touch him he is going to unleash on us the taxi industry people.

Now here’s a message to Johann Rupert… Pay the taxi industry bosses. It is okay. But here is the deal. For each one person that is killed by the taxi industry we will kill five white people. For every one black person we will kill five white people. You kill one of us we will kill five of you! You kill one of us we will kill five of you! Kill one of us, kill five of you! You kill one of us, we’ll kill five white people. We will kill the children! We will kill the women! We will kill anything that we find on our way!”

“Let them come kill us, no problem. Every time they come kill us we are not going to kill a taxi industry boss, we are going to kill how many of them?”

Crowd shouts:

“Five!”

“They kill one of us, they kill how many?”

“Five!”

“They kill one of us, they kill how many?”

“Five!”

“They kill one of us, we kill how many whites?”

“Five!”

“We kill their children, we kill their women, we kill their dogs, we kill their cats, we kill anything that comes before us!”

AfriForum took the matter to the Equality Court and requested that these remarks be declared “hate speech”. Below is the ruling by Magistrate Nishani Beharie in the case. - Politicsweb

Text of ruling:

N THE MAGISTRATES COURT FOR THE DISTRICT OF JOHANNESBURG

CENTRAL

HELD AT JOHANNESBURG   CASE NO : EQ 29/2018

Sitting as an Equality Court

In the matter between:

AFRIFORUM - COMPLAINANT

And

BLACK FIRST LAND FIRST - FIRST RESPONDENT

ANDILE MNGXITAMA - SECOND RESPONDENT

This judgment is deemed to be delivered at 10h00 via electronic e mail by circulation to the parties

_____________________________________________________________________

JUDGEMENT

Prologue

“Upon transition our constitutional dispensation made a commitment to building a non – racial and non – sexist society which chooses to celebrate and accommodate our diversity rather than reject it. However, more than 27 years since that constitutional promise was first made, as a country we are still grappling with how to reconcile that promise with our commitment to protecting and promoting freedom of expression and a culture of openness, transparency and healthy democratic dialogue which means that free expression must have its limits. This exercise of navigation is far from complete. This country is still grappling with identifying where the bounds of freedom of expression lie, with the meaning of hate speech, and with the extent to which speech of an offensive and harmful nature can be tolerated. These are issues of broad public interest which remains as relevant today as they ever did.”[1] This will be where my inauguration into unravelling section 10[2] of Act 4 of 2000, herein after referred to as PEPUDA, must commence.

Introduction

1. Afriforum, the complainant herein which exits as a civil rights organization launched a complaint of hate speech as per section 10 of PEPUDA , against the first and second respondents, who are Black First Land First, described in their opposing affidavit as being a Black Consciousness, Pan Afrikanist Movement[3] while described in the founding papers as being a political party [4]and the second respondent who is the leader of the said Movement. Their complaints relate to a speech that was delivered by the second respondent which transpired on the 8 December 2018 at a stadium in Tlokwe, Potchefstroom, North West, hereinafter referred to as the “First Complaint”. It is undisputed that the words were uttered at the homecoming rally of the second respondent and was later broadcast on various social media platforms.
2. Afriforum also avers that a series of “tweets” made by the second respondent on the 9^th of December 2018, also constitute hate speech, herein after referred to as the Second Complaint. These tweets are undisputed and are contained on pages 10 through to 14 in the founding affidavit of the complainant. The second respondent defends the speech on the basis of freedom of expression, arguing that none of the complaints should be taken literally and should be viewed within the framework of other sections of PEPUDA and that I should be alive to the context of the issues.

The context

3. It is common cause that an interview was conducted on 4^th December 2018, hosted by Power FM. Host Given Mkhari interviewed businessman Johan Rupert. During the course of the interview Mr. Rupert made mention of having a long -time friend in the taxi industry hinting at sparking a war in the taxi industry which is what is contended by the second respondent , [5]said words being uttered sparked the reaction of the first and second complaints. It is against this back drop, it has been submitted by the respondent’s, that I should adjudicate the matter. I find further guidance in section 3 (3) of PEPUDA.[6]
4. In the matter of A Brink v Kitshoff NO 1996 (4) SA 197 (CC), the following was held, “As in other national constitutions, section 8 is the product of our own particular history. Perhaps more than any of the other provisions in chapter 3, its interpretation must be based on the specific language of section 8, as well as our own constitutional context. Our history is of particular relevance to the concept of equality. The policy of apartheid, in law and in fact, systematically discriminated against black people in all aspects of social life…. The deep scars of this appalling programme are still visible in our society. It is in the light of that history and the enduring legacy that it bequeathed that the equality clause needs to be interpreted.”[7]This reference to section 8 of PEPUDA, should have impetus herein. I opine so because systemic inequality in SA still exits.

The Directions Hearing

5. In many Equality court cases heard in Higher courts it has been unanimously decided that Equality Court proceedings should be flexible in nature. Thus in the Directions Hearing parties decided to supplement the affidavits filed with that of viva voce evidence. I decided that in light of the respondents not disputing that the second respondent had uttered the words complained of I could accept the admission of the video recording of the speech at the Homecoming rally as well as other recordings admitted into evidence by both parties including documentary evidence. I will proceed to label these various items as I opine that they were relevant to the dispute at hand. I would also like to comment on the application for the video recording and broadcasting of these proceedings which was addressed at various stages of the proceedings.
6. While I had submitted that if parties which were various members from the media wanted to record and broadcast these proceedings they had to have sought permission from the Magistrates Commission it is now clear that recording of District Court proceedings and these Equality Court proceedings should be done by way of application with notice to various parties as has been done in the High Court.[8] I do not believe that any party to these proceedings were prejudiced as no proper application to televise was received from any persons and while this matter proceeded over a number of years the press seemed to have lost interest in the matter.

Evidence

7. Both parties submitted various video recordings as well as documentary evidence which were germane to the adjudication of the matter. I had intimated that I would supply reasons for the admission of the video clip without following the rules of evidence due to the fact that at the Directions Hearing the respondent’s did not object to the admissibility of same which had been discovered. It was also not disputed that in fact the video depicted a speech given at the Homecoming Rally thus the crux of the issue would be for me to adjudicate if the contents of the speech fell within the ambit of hate speech as per PEPUDA. My submission is that it is necessary to sketch out this evidence as it proceeded to unfold. Viva voce evidence of Mr Roets was led on behalf of the complainant and the second respondent testified in his case.

7.1. Exhibit A, is video footage of the first complaint.

7.2. Exhibit B, is video footage of Mariana Heunis describing her traumatic encounter as she was a victim of an attack which took the life of her husband who was a farmer.

7.3. Annexure A is the Facebook profile of the second respondent.

7.4. Annexure B is the book penned by Mr. Alex Roets, titled, “ Kill the Boer”

7.5. Annexure C, a document titled, The National Rural Safety Strategy.

7.6. Annexure D, Report of the Committee of Inquiry into Farm Attacks.

7.7. Annexure E, a document titled, Census of Commercial agriculture, 2007.

7.8. Annexure F, an article titled, The grey line in between the rainbow: (Re)thinking and (re)talking critical race theory in post – apartheid legal and social discourse by J.M. Modin

7.9. Annexure , X, complainant’s Bundle

7.10. Annexure , Y, respondent’s Bundle

7.11. Annexure, Z, Researched article by M.S. Conradie, titled, Critical Race theory and the Question of Safety in Dialogues on Race published in the Acta Theologica.

The onus :

8. Equality court procedure is civil in nature. Thus the onus rests on the complainant to prove on a balance of probabilities that “hate speech” in accordance with section 10 of PEPUDA has been perpetrated. The locus classicus herein is the matter of Pillay v Krishna and another 1946 AD 946. The first principle is understood to be that if one person claims something from another in a court of law, then he has to satisfy the court that he is entitled to it.[9]In Equality court matters issues of onus have been prescribed by PEPUDA where unfair discrimination arises. I would interpret that in the cases of “hate speech” it is the complainant who must prove that the infraction had occurred. The respondent can rebut but it must be remembered that, he who asserts, proves, and not he who denies, since a denial of fact cannot naturally be proved provided that it is a fact that is denied and that the denial is absolute.[10] I am reminded that in this matter we are not concerned with any denials of fact. It is my duty to decide if the first and the second complaint constitutes “hate speech” and it is the duty of the complainant to prove so.

The first complaint.

9. The first complaint relates to the speech that was delivered by the second respondent at the Homecoming rally. The speech was broadcast via a media platform and is contained in Exhibit “A”. It is a particularly lengthy speech in the vernacular as well as in English. The English portion sees the second respondent chanting “every one of us will kill five white people;” “We’ll kill their children”; “We’ll kill their women”; “We will kill everything that will fight us on our way.” It would be impossible to note and recite verbatim the contents of said speech thus I will proceed to summarize same. The second respondent requests an army of soldiers. He goes on to refer to Jesus as being a soldier who went with donkeys and then refers to the atrocities of apartheid. He speaks of land expropriation. He tells the crowd that he will point to the correct people that they should stab, hinting that Black people are directing their anger to each other which is wrong. The speech refers to reclaiming of the land in order to address the inequalities of the past.
10. He then refers to the comments made by Johan Rupert in the interview with Given Mkari. Specific mention is made of Johan Rupert’s referral to “control of the taxi industry”. He speaks of the need for jobs and of a social grant if jobs cannot be provided. Reference is made to the detrimental effects of drugs. He also laments that Pravin Gordan is focused on White people. He calls on Black persons to defend themselves. Mention is also made of corrupt politicians as well as slavery. At the end of the speech it becomes clear that the words “ dubul ibhunu”, as well as “ the Boers smell”, “ the Boers rape” , “ shoot shoot all emanate from the crowd and were not uttered by the second respondent.

The second complaint

11. The second complaint relates to a series of “tweets”, statements made by the second respondent on Twitter on the 9^th December 2018. There are quite a number of said “tweets” and will not be repeated verbatim as they are clearly depicted in the founding affidavit deposed to by Mr. Roets. Save to summarize that the second respondent postulates that he would like to see how the Human Rights Commission will deal with the BLF, warning that if Johan Rupert sends his taxi bosses to kill one black person then BLF will respond with five white lives.
12. He “tweets” inter alia that some blacks believe that blacks have no right to self-defense. “We must smile when we get killed.” He goes on to state that whites are lobbying Twitter to shut down his handle because he says that “if they kill us we shall kill them back”. His other ‘tweet’, inter alia “We are not going to allow Johann Rupert to repeat that. This time around when they hit us we do the the natural thing and hit back. Life for life.” Essentially all the “tweets” contain a reference to Johan Rupert, black on black violence, the killing of white persons and self -defense.

Mr. Roets Evidence

13. The complainant’s have introduced Mr. Roets as their expert witness. He was their sole witness. It has been averred that he was an expert in “farm – murders/ attacks”. I have inserted this term as a quotation because the term itself has been the subject of much controversy in this matter. Various definitions have been proffered by both litigants. I will return to this issue in the advanced stage of my judgment. The complainant’s pronounce that Mr. Roets is an expert by virtue of having researched and subsequently penned a book titled, “Kill the Boer”. Said book which was handed into evidence details inter alia various accounts of traumatic and horrific attacks on many White farmers in South Africa.
14. It is common cause that Mr. Roets has various qualifications in the field of Law. Mr. Roets, himself admitted that the subject of “farm –murders/ attacks” are very personal to him. The preface to his books commences with the very reference, “This is personal”. It is common cause that Mr. Roets ancestry is rooted in the agricultural industry. He has labored to campaign for the prioritizing of “farm attacks.” He gave lengthy viva voce evidence and was cross – examined quite extensively. The crux of his evidence is that he firmly believes that there is a strong correlation between “hate – speech” and the brutal murders suffered by White farmers in South Africa. He opines that speech akin to the complaints herein, especially by influential persons like the second respondent off sets hatred leading to the senseless and often unnecessary torture of White farmers where they are attacked and subjected to merciless conduct. Very often the motive for said attacks are not just robbery or the deprivation of property. Many of these attacks were described and the video of Mrs. Heunis was also admitted into evidence. Under cross examination the respondent’s challenged the correlation of “farm-murders/attacks” with “hate speech” and disputed Mr. Roets contention that he was an expert witness.

Mr. Andile Mngxitama’s Evidence.

15. The second respondent possesses a Masters in Sociology with a focus on Land and Agrarian Issues. His was born and raised on a White owned farm in Potchefstroom. During his childhood he was exposed to the horrors of apartheid and felt marginalized. He was passionate about land reform. He does not dispute the utterances of his speech as well as his “tweets”. He attributes the words uttered as being a response to Rupert’s utterances that he had a private army in the taxi industry during his interview with Given Mkari. He understood that to be an open declaration of war but the audience just laughed it off as a sign of indifference. He had experienced taxi violence and felt that Rupert’s utterances could spark black on black violence. According to him the first and second complaints were not to taken literally but figuratively. His words were meant to expose what his experiences as a Black person in South Africa are which is a disregard for the killing of Black lives. Hence he references the killing of five White lives for every Black life killed. It is also meant to be a call for the defense of killing Black lives. He views his speech as rhetorical. He never had the intention to actually kill any persons of White descent.
16. He referred to his discipline of Study being Sociology. He has studied how societies are formed as well as how they function and referred to Critical Race Theory. According to him there is a serious relationship of inequality between Black farm Workers and White farm owners with the result that Black Farm workers are treated as slaves. A recording of an interview with Alex Roets was viewed and in said interview Mr. Roets expresses a view that democracy is only suited to a homogenous society, Mr. Roets speaks of self- governance. Mr. Mxgitama sees this notion of Mr. Roets that democracy does not work in a multi – disciplinary society as a reflection of apartheid and being racist.
17. His evidence was that some Black persons have been brainwashed into minimizing the importance of their own lives. His utterances were meant to expose this view. By his “tweets” he meant to awaken the consciousness of White persons and points to the context within which the utterances were made. He testified that he never had the intention of being hurtful or to incite harm or propagate hatred. He referred to his study of Critical Race Theory which exposes the incapacity to have a race discourse. According to him Black speech is criminalized. In comparison Johan Rupert can utter words like “having an army in the taxi industry” which is just laughed off? He sees these Equality Court proceedings being brought to criminalize his right to free speech. He was cross- examined at length and continued to reiterate that his utterances were never meant to be taken literally. Thus viva voce evidence was concluded.

Farm- Attacks/killings

18. Before I delve into the substantive law regarding the definition of hate – speech as per PEDUDA and whether the complainant has succeeded in proving on a balance of probabilities that the first and second complaints fall within the ambit of section 10 of PEPUDA, I believe that the concept of “farm-attacks and farm killings” needs to be conceptualized. While it is not particularly relevant in deciding the issues at hand I believe that it is necessary to examine the concept. The evidence that was presented with the various exhibits and annexures contained various meanings. I will not repeat them save to conclude that the term itself does not fit into a particular category of either a statutory or a common law offence. With regard to criminal law a “farm attack/ killing” would seem to constitute perhaps aggravating factors to be taken into account when a person is convicted of certain criminal conduct that occurs on a farm. My conclusion is that Mr. Roets book, “Kill the Boer” does not prove any correlation between a “farm-attack/killing” and “hate- speech” as per section 10 of PEPUDA. In arriving at this conclusion I must therefore agree with the matter of Afriforum v E.F.F. , Malema and Ndlozi[11]While it was argued by the complainant’s that I should not see this matter as precedent, the decision has not been overturned it stands as precedent.[12]
19. In the J Qwelane matter[13], the locus classicus in matters of this nature, section 10 of PEPUDA was declared to be constitutionally invalid and was declared to be read as cited earlier on in this judgment. The court went on to state that, “considering the phrase “to incite harm”, it is imperative to point out at the outset that there is no requirement of an established causal link between the expression and actual harm caused”.[14]Thus there was no need for Mr. Roets to satisfy me that there was a correlation between “farm- attacks/killings” and hate – speech as per section 10 of PEPUDA.

Hate – speech as per section 10 of PEPUDA v Freedom of expression

20. Arriving at a decision in this matter involves the examination of competing constitutional rights. On the one hand there is the right to dignity which is one of the reasons why section 10 of PEPUDA was promulgated. The other obvious reason is to prevent harm which can be caused by hate speech which could result in violence directed at particular classes and race inter alia. It is aimed at preventing incidences of genocide especially in a multi -racial and multi -cultural cosmopolitan society like post -apartheid South Africa. The other end of the constitutional spectrum protects freedom of expression given the understanding that it is of utmost importance in the kind of open and democratic society the Constitution has set as our aspirational norm. This is because it is an indispensable facilitator of a vigorous and necessary exchange of ideas and accountability.[15] It cannot be forgotten that the legacy of apartheid endorsed a practice of indoctrination as well as severe censorship of freedom of expression in an attempt to segregate and divide the various races who call SA their home. I will proceed to dissect the hate speech provision, before freedom of expression. Ultimately the question of onus must also be answered.
21. In the matter of SAHRC v V Khumalo, [16], a matter decided pre Qwelane, our Equality Courts in the High Court grappled with the test for determining hate – speech. Sutherland J (as he was then) referred to the phrase, “could reasonably construed to determine a clear intention to ‘incite harm’, as being a tortuous phrase.” I cannot agree more. He went on to submit the following, “It postulates a reasonable reader. It asks what a reasonable reader could think about the speech. If a reasonable person reading the text could understand it to mean an incitement to cause harm, the test is met. What is assessed by the reasonable reader is the effect of the utterances on readers in general. The word “could” in section 10(1) must be emphasized too because the perspectives of ‘reasonableness’ inevitably are located within a band of reasonableness, and the test corresponds to that reality. The test is plainly objective, despite the tortuous phraseology. The subjective intention of the author is irrelevant.^”[17]
22. He went on to outline that the phrase “hate -speech” was not a legal concept and could have a very broad meaning. [18] He also pointed out the following, “The reality is that, given our history, White South Africans collectively have a lot to answer for. However, being relaxed about vituperative outbursts against Whites, on those grounds, contributes nothing of value towards promoting social cohesion. Reference has already been made to the risk of spiraling invective with uncertain but frightening possibilities. There can never be an excuse that absolves any one of us from accountability in terms of section 10(1). There may be surrounding circumstances which aggravate the utterances or mitigate the likelihood of incitement to cause harm; these are matters fall to deal with when remedies are considered.”
23. The High Court’s sitting as Equality Courts have seen many divisive decisions regarding hate speech, so much so in that some have led to being finally adjudicated in the Constitutional Court. Hence my agreement with Sutherland J. I am very much alive to the decisions by Molahlehi J and Lamont J, [19] however I am certain that this matter can be distinguished. In this matter the context is important. However the salient feature herein to my mind is whether the complainants have succeeded in overcoming the hurdle of providing evidence which on a balance of probabilities triumphs the test of proving that in fact hate speech was committed. I am alive to the accession that it is my domain to decide ultimately whether the reasonable person would perceive the complaints to be hate speech but this I can only do after hearing what is presented in its totality.
24. I have sought guidance from the matters of Qwelane and Masuku.[20] Qwelane examines our jurisprudence within the framework of giving meaning to not just formal but substantive equality. Substantive Inequality is often more deeply rooted in social and economic cleavages between groups in society, and so it aims to tackle systemic patterns where the structures, context and impact underpinning the discrimination matter.[21] The concept of intersectional discrimination acknowledged that discrimination may impact on an individual in a multiplicity of ways based on their position in society and the structural dynamics at play. Intersectionality was regarded as being particularly relevant in our grossly unequal society, in which people occupy vastly different positions in society in terms of wealth and resources.[22]
25. Thus, it would appear that hate speech travels beyond mere offensive expression and can be understood as “extreme detestation and vilification which risks provoking discriminatory activities against that group”. Expression will constitute hate speech when it seeks to violate the rights of another person or group of persons based on group identity. Hate speech does not serve to stifle ideology, belief or views. In a democratic, open and broad-minded society like ours, disturbing or even shocking views are tolerated as long as they do not infringe the rights of persons or groups of persons. As was recently noted, “society must be exposed to and be tolerant of different views, and unpopular or controversial views must never be silenced”.[23]
26. Rightfully Qwelane pronounced that the section 10 of PEPUDA as it existed was an “overly extensive and impermissible infringement of freedom of expression. Expressions that are merely hurtful, especially when understood in everyday parlance, are insufficient to constitute hate speech. It is well established that the prohibition of hate speech is not aimed at merely offensive speech, but that offensive speech is protected by freedom of expression.[24]
27. The Masuku matter has also provided invaluable guidance. I have thus utilized the approach as directed by Masuku. The usual first step would be to ascertain the meaning of the words and determine whether they fall within the section. I know that the determination of the meaning of a statement implores an objective test. Making this determination falls within the exclusive functions of a court and no evidence whatsoever is admissible either expert or otherwise.[25] Masuku endorsed this approach for hate speech matters. Adding that it would be remiss to not acknowledge that words are naturally coloured by the context in which they appear and are used.
28. The primary meaning is the ordinary meaning given to the statement in its context by a reasonable person … The reasonable reader or observer is thus a legal construct of an individual utilized by the court to establish meaning.[26]Would a reasonable , objective and informed person on hearing the words perceive them to be hate speech ?In dealing with for example racial tropes which are inherently imbued with deep historical roots and contemporary manifestations , it would be unwise to assume that the context in which words are used is neutral.[27]
29. The court held, “A starting point that phrases are presumptively neutral fails to recognize the impact of the legacy of apartheid and racial segregation that has left us with a racially charged present. This approach holds the danger that the dominant, racist view of the past – of what is neutral, normal and acceptable – might be used as the starting point in the objective enquiry without recognizing that the root of this view skews such enquiry. It cannot be correct to ignore the reality of our past of institutionally entrenched racism and begin an enquiry into whether or not a statement is racist and derogatory from a presumption that the context is neutral – our societal and historical context dictates the contrary.” What this means is that, whilst the determination as to whether words are likely to be harmful and propagate hatred, and thus constitute hate speech, falls within the exclusive aegis of a court, evidence that shines a light on the context of those words may be of assistance to that court in conducting this exercise.[28]

30. Freedom of expression is not a right which is absolute and has its limitations. An example of which is section 10 of PEPUDA. The right to free speech is also protected. The Qwelane matter summed up the right as follows, “ according to Emerson, there are four particular values that undergird the right to freedom of expression These, as I understand them, include: (a) the pursuit of truth; (b) its value in facilitating the proper functioning of democracy; (c) the promotion of individual autonomy and self-fulfillment; and (d) the encouragement of tolerance.

31. Dworkin suggests that these values can be reduced to two overarching justifications: the instrumental conception and the constitutive conception. The former refers to the notion that the quality of government is improved when criticism is free and unfettered, “a collective bet that free speech will do us more good than harm over the long run. The latter refers to the idea that freedom of expression “is an essential and constitutive feature of a just, political society the government of which treats all its adult members, except those who are deemed legally incompetent, as responsible moral agents”
32. As has been acknowledged, “the right to freedom of expression lies at the heart of our constitutional democracy, not only because it is an ‘essential and constitutive feature’ of our open democratic society, but also for its transformative potential” Both the instrumental and constitutive value of freedom of expression, as articulated by Dworkin, bear emphasis.
33. “This Court has already spoken lavishly about this right. The Constitution recognizes that people in our society must be able to hear, form and express opinions freely. For freedom of expression is the cornerstone of democracy. It is valuable both for its intrinsic importance and because it is instrumentally useful. It is useful in protecting democracy, by informing citizens, encouraging debate and enabling folly and misgovernance to be exposed. It also helps the search for truth by both individuals and society generally. If society represses views it considers unacceptable, they may never be exposed as wrong. Open debate enhances truth-finding and enables us to scrutinize political argument and deliberate social values. What is more, being able to speak freely recognizes and protects ‘the moral agency of individuals in our society’. We are entitled to speak out not just to be good citizens, but to fulfil our capacity to be individually human.”
34. In addition, this Court has highlighted that “The corollary of the freedom of expression and its related rights is tolerance by society of different views. Tolerance, of course, does not require approbation of a particular view. In essence, it requires the acceptance of the public airing of disagreements and the refusal to silence unpopular views.” In Islamic Unity, Langa DCJ elucidated:
35. “Freedom of expression is applicable, not only to information or ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the state or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no democratic society.[29]

Application of the law

36. In the final analysis this matter falls to be decided on the evidence that was presented. Mr. Roets cannot be described as the objective reasonable man. He clearly has an extremely personal interest in matters of this nature. I find that I have to agree with Judge Mohlaleli who concluded that he is not an expert in the field that he claims to be. What I am left with is thus essentially irrelevant evidence presented by the complainant. I say irrelevant because all Mr. Roets did was present his opinion on “farm- attacks”. While I respect that the violent crimes that were highlighted are indeed shocking and that the perpetrators of same should be punished accordingly and that farmers should be given adequate protection, it is not relevant to the issues at hand.
37. While it was not required of the complainant to show a correlation between hate speech and farm attacks, the complainants have still fallen far short of presenting evidence to show that the first and second complaints are indeed hate speech as per section 10 of PEPUDA. I am satisfied that viewed through the lens of the context within which the complaints were uttered the first and second respondents have rebutted any evidence of wrong doing. It was argued by Mr. Oppenheimer that I must not lose sight of the atrocities committed in Rwanda where hateful words drove genocide I cannot lose sight of the fact that some 28 years post -apartheid we in South Africa have been fortunate in that there has been no such crimes committed here.

Conclusion

38. Thus I make the following finding :

The order :

Application is dismissed with costs, including all costs that were reserved.

N Beharie

Sitting as Equality Court Magistrate

Johannesburg Central

2 May 2023.

Footnotes:

[1] Paragraph 91 of SA Human Rights Commission obo SA Jewish Board of Deputies v Masuku and Another 2022 (7) BCLR 850 (CC)

[2] Subject to the proviso in section 12 , no person may publish, propagate, advocate or communicate words that are based on one or more prohibited grounds, against any person, that could reasonably be construed to demonstrate a clear intention to be harmful or to incite harm and to promote or propagate hatred. ( My emphasis )[The section as is now deemed to be after the judgment in Qwelane v SA Human Rights Commission and Another 2022 (2) BCLR 129 (CC)] hereinafter referred to as the Qwelane judgment

Section 12 of PEPUDA “ Prohibition of dissemination and publication of information that unfairly discriminates,

No person may -

(a) disseminate or broadcast any information;

(b)publish or display any advertisement or notice,

that could reasonably be construed or reasonably be understood to demonstrate a clear intention to unfairly discriminate against any person: Provided that bona fide engagement in artistic creativity, academic and scientific inquiry, fair and accurate reporting in the public interest or publication of any information, advertisement or notice in accordance with section 16 of the Constitution, is not prejudiced by this section.

[3] Page 24 PARA 3 of Opposing Affidavit, deposed to by the second respondent. Annexure “X”

[4] Affidavit of Mr Alex Roets, page 6, PAR 6, Annexure “X”

[5] “Jabu (Chairperson of Eskom, Jabu Mabusa) and I have one thing in common. He’s chairman of the ( South African Black) Taxi Association and one of the first (partners) in Business Partners was the taxi association. So I also have my own army. When those red guys come, they’re gonna have to remember the taxi association.”

[6] ‘ Any person applying or interpreting this Act must take into account the context of the dispute and the purpose of the Act

[7] Para 40

[8] The NDPP v Media 24 Limited & others and HC Van Breda v Media 24 Limited & others (425/2017) [2017] ZASCA 97 (21 June 2017)

[9] At page 946

[10] The SA Law of Evidence, 3^rd Edition, DT Zeffertt and AP Paizes page 58.

[17] Paragraph 88

[18] Para 100

[20] Supra footnote 1 and footnote 13.

[21] PARA 58 OF Qwelane

[22] Para 59 of Qwelane.

[23] Para 81 Qwelane

[24] Para 103

[25] Le Roux paragraph , 143 Masuku

[26] Le Roux para 143 Masuku

[27] Masuku para 59

[28] Para 144 Masuku

[29] Paragraphs 69 to 73 of Qwelane.