SOUTH AFRICAN HUMANRI GHTS COMMI SSION

TO: MR JOHN VAN DEN BERG

PER EMAL:

Our Ref.: Provincial Ref.: AP1/08/2019 GP/1617/0225

Date: 01October 2019

Dear Sir,

RE: APPEAL TO THE CHIEF OPERATIONS OFFICER

1. The above matter and your letter of appeal received by our offices refers. Kindly please accept our apologies for the delay in our response to your appeal. The Commission is experiencing high volumes of complaints where its assistance is required and which is impacting on the timeliness of our responses.

2. I confirm receipt of the aforesaid letter and the contents thereof have been noted.

3. The South African Human Rights Commission (''Commission'') was established to investigate prima facie violations of human rights as contained within the Bill of Rights, of the Constitution of the Republic of South Africa, 1996 (''Constitution ''). The Commission's mandate is further informed by the South African Human Rights Commission Act, 40 of 2013 (''SAHRCAct'').

4. Upon perusing your file in this matter, I note from your initial complaint you stated that:

4.1 The MEC and DDG of the Gauteng Department of Basic Education (the MEC and DDG) are both guilty of race baiting arising from their conduct in response to a complaint of racism at the Koeitjies and Kalfies Creche;

4.2 The MEC and DDG accused the Creche of racism without following 'properly­ regulated procedure' and disseminated messaging to this effect;

4.3 Exposed young children to unfavourable attention by relaying and disseminating an unredacted image of them on social media

4.4 Impugned the dignity and infringed the right to equal treatment of those in the creche through disseminating contemptuous remarks about their race.

5. The provincial office dismissed your complaint and advised you of its decision on the 2nd day of February 2018.

6.  The appeal against the decision of the provincial office is summarised briefly as follows:

6.1 The rights to expression are trumped by fiduciary duties. On this basis statements by the MEC and DOG constituted a misuse of power in the absence of fair process to establish whether the allegation of racism directed at the Creche were in Indeed true;

6.2 The Commission incorrectly Interpreted the communication by the MEC and DDG when it found that the statements did not evidence a clear Intention on the part of the MEC and DOG to harm, hurt, or incite harm or promote or propagate hatred on the basis of race. In this respect, psychological harm was raised in relation to women and children inside the Creche.

6.3 The best interests of the children were not fully addressed, and that;

6.4 The right to freedom of expression is not the basis upon which other rights may be violated. In particular, stigmatisation, and impact to the Creche are factors which demonstrate the need for an investigation into the conduct of the MEC and DOG.

7. The appeal is against the entire finding by the provincial office and Its decision on this basis to close your file.

8.  After a thorough analysis and due consideration of your complaint, the subsequent appeal, together with the original Politicsweb article: /opinion/panyaza-lesufi-addicted-to-nonracialism-or-racebai Commission Is satisfied that:

8.1 In respect of the complaint relating to a violation of section 33 of the Constitution, governed by the Promotion of Administrative Justice Act 3 of 2000 (PAJA), the complaint Is Interpreted to mean that the conduct complained about constituted administrative action. The Commission notes however, that no administrative decision arose from the conduct in question.

The contextual analysis by the provincial office in this regard is persuasive, both in the interpretation of the comments and the domestic environment. It is difficult therefore to deduce from the facts that announcing an Intention to visit the Creche amounted to an administrative decision envisaged In PAJA.

In the circumstances, the appeal based on this ground is dismissed.

8.2 In respect of the appeal regarding application of the Promotion of Equality and Prevention of Unfair Discrimination Act, 4 of 2000 (PEPUDA) and section 10 of PEPUDA in particular, current jurisprudence has provided some guidance on the interpretation and application of the section. However, judicial pronouncements have not always been consistent.

The Commission has noted these Inconsistencies both in the response from the provincial office and in related pronouncements. It is again recorded that together with the systemic nature of complaints relating to hate speech, many of which are the subject matter of complaints before the Commission itself are part of the evolving jurisprudential landscape as they do not readily lend themselves to hard and fast tests. As a result matters involving hate speech are currently before the Constitutional Court and the pronouncement of the court is much needed, and will indeed be of great assistance in navigating the evolving terrain of hate speech.

Having considered the determination of the provincial office, It Is noted that the current legal interpretations, although not specifically formulated for "race baiting", were applied to the facts of the complaint. The tests applied by the courts in matters relating to hate speech have been applied correctly. According to section 3(3) of PEPUDA it is stipulated that In applying the Act, the context of the dispute and the purpose of PEPUDA must be taken Into account.

In accordance with a contextual assessment, the objective intention of the Department can be construed as directed at rooting out racism, as articulated by the provincial office. The provincial office's determination that a "clear intention" to be hurtful, to be harmful or promote harm, and/or to promote or propagate hatred is therefore accepted.

The provincial office further determined that there was not "any form of racial discrimination" (para 6). The provincial office's determination in this respect is accepted, given the current definition of "discrimination" as set out In PEPUDA. Since the impugned conduct does not pass the test for discrimination as currently defined, the prohibition of publication of Information that unfairly discriminates, as enshrined in section 12 of PEPUDA, is not applicable.

The complaint relating to racial bating Is therefore dismissed.

8.3 Having perused both the complaint, appeal and decision of the provincial office as indicated above, It appears from the perusal that the best interests of the child, required much closer consideration. In the complaint, this concern receives some attention but is referred to as a violation by extension. The rights of children should be protected from for example the dissemination of photographs of them through the media without requisite legal protections in place were not addressed fully by the provincial office.

It is noted that the matter was not fully considered by the Commission.

A consideration of one dimension of the mandate of the Commission, to protect respect for a culture of human rights, Independently, objectively and fairly, demonstrates the significant breadth of the remit of the Commission. Its enabling legislation, in fact does not limit the breadth or authority of the Commission save where stipulated by legislation, its own procedures and policies. To this extent, the Commission may of its own accord initiate investigations to secure appropriate relief where rights appear to have been violated.

The Commission therefore is not always restricted by the parameters of a complaint. In addition, where a complainant has requested support and has declared that "we are not legally trained...please take appropriate corrective measures", and the complaint deals with or adversely impacts a vulnerable group, It would behove the provincial office to more closely scrutinise such a complaint.

In this matter, the provincial office, having responded to the complaint, did not fully apply itself to the rights of the children. In particular an acknowledgement that the rights of children be given paramount importance, given their vulnerability and the need to exercise particular vigilance in respect of their rights where such rights become susceptible to violation.

The determination by the provincial office did not address the rights of the children fully as reflected in its letter to the complainant. The posting on social media of un-redacted pictures of the children concerned, as well as the MEC's disclosure of the address of the creche, and his invitation to his social media followers and unknown others who may have read the call to join him at the creche have serious implications for the best interests of children.

The provincial office is therefore directed to investigate this matter In accordance with its duty to protect the best interests of the child.

In addition, the provincial office should at the conclusion of its investigation, provide the outcomes of the investigation to all parties to this matter, including the DOG and MEC of the Gauteng Department of Basic Education.

9.  The advice of the Provincial Office in respect of civil claims in the event of defamation claims is supported. Article 12 (8) of the Commissions Complaints Handling Procedures has been correctly applied.

10. In terms of Article 12 (8) (a) of the Commission's Complaints Handling Procedures:

''If the Provincial Manager makes a finding that the complaint does not fall within the jurisdiction of the Commission, or could be dealt with more effectively or expeditiously by another organisation, institution, statutory body or institution created by the Constitution or any appllcable legislation, the complaint must ... be provided with the contad details of the said organisation, institution or body in order to pursue the alternative option himself or herself (Indirect referralj... "

11. Accordingly, your appeal against the decision of the provincial office is dismissed, subject to paragraph 8.3 above.

12. Toe findings on appeal will be transmitted to the head of the Gauteng Provincial Office of the Commission.

13. With regards to the provisions of both the Constitution and the SAHRC Act, the Commission's Legal Services Unit Is charged with the duty to investigate complaints of human rights violations and the manner within which this is dealt with is determined by its Complaints Handling Procedures.

14. Should you not be satisfied with this finding then kindly be advised that you may challenge same In court through the process of judlclal review.

15. An application for judicial review must be made within 180 days of the date on which all Internal remedies were exhausted. Where there are no Internal remedies available, the application must be made within 180 days of the date on which the applicant became aware of the decision ( or could reasonably be expected to have become aware of the decision). A person who asks for judicial review after this period will not be successful, unless they can convince the court that it Is "fn the interests of justice" to allow It.

Yours faithfully,

Signed

THE SOUTH AFRICAN HUMAN RIGHTS COMMISSION

CHANTAL KISOON

CHIEF OPERATIONS OFFICER

cc PROVINCIAL MANAGER, GAUTENG PROVINCE

THE SOUTH AFRICAN HUMAN RIGHTS COMMISSION