KILL THE BOER AND HATE SPEECH
Hate speech – Kill the boer song – Call the fire-brigade song – Song to be located within political context and not given a literal interpretation – Not amounting to hate speech – Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000, ss 7(a) and 10(1).
Afriforum v Economic Freedom Fighters [2022] EQ04-2020 (EqC) at [101]-[115]
Facts: On several occasions, Mr Malema, President of the Economic Freedom Fighters (EFF) and another EFF member, Dr Ndlozi, led the singing of the songs “Kill/Kiss the Boer/ Kill/Kiss the farmer” and “Biza a ma’firebrigate; Call the fire brigade.”
Application: Afriforum seeks an order declaring the singing of two songs to constitute hate speech and unfair discrimination in terms of sections 7 and 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (Equality Act). Afriforum also alleges that Mr Malema committed perjury when he said that he did not have money in response to the claim for damages consequent on singing the song.
Discussion: That most of the evidence led was irrelevant and hearsay; the testimony of Afriforum’s three experts and two lay witnesses; the testimony of Mr Roets and his reliance on his book, Kill the Boer: Government Complicity in South Africa’s Brutal Farm Murders; his contention that violence towards white farmers is frequently romanticised, especially in struggle songs; the neutrality and qualifications required of an expert witness; the rejection of the evidence of the church pastor and of an employee of the Institute of Race Relations; the shortcomings in the evidence of the two farm attack victims in showing that the songs incited the attacks; the testimony of the EFF’s expert witness, Professor Liz Gunner, and of Mr Malema; the test for hate speech in light of section 10(1) of the Equality Act and the Constitutional Court case of Qwelane; and that Mr Malema testified that the song has a significant relationship to both the issues of land and economic empowerment of the previously disadvantage members of the society.
Findings: The approach adopted by Afriforum was premised on a literal interpretation of the lyrics of the songs. An analysis of Prof Gunner’s opinion was that the song has to be located within the political context in which Mr Malema is pushing for the land reform and radical economic policy. Declaring the song to be hate speech would significantly alter or curtail freedom of expression. Afriforum has failed to make out a case that the lyrics of the songs constitute hate speech as envisaged in sections 7(a) and 10(1) of the Equality Act. As to whether Mr Malema committed perjury regarding the payment of damages, the court is not persuaded that a proper basis has been made to refer the complaint to the NPA.
Order: The complaints that songs constitute hate speech and unfair discrimination are dismissed.
MOLAHLEHI J
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SELF-HELP EVICTION
Eviction – Self-help – Owner frustrated with delays in eviction proceedings – Forcefully ejecting occupants – Mandament van spolie – Restoration ordered pending determination of eviction application – Prevention of Illegal Eviction and Unlawful Occupation Act 19 of 1998.
Sokanyile v Broad [2022] ZAWCHC 156 at [22]-[49]
Facts: Mr Broad is the owner of a property in Llandudno and sought to evict the applicants, but was frustrated by the delays in the process. He contends that the applicants were not paying rent and that they were going to sub-lease the property to foreign nationals. So he procured a security company to forcefully remove the applicants and to occupy the property to prevent their return.
Application: The applicants were earlier granted an order for restoration of the property and an order interdicting Mr Broad from interfering with their occupation.
Discussion: The mandament van spolie; Mr Broad’s defences: that the applicants were not in possession of the property as contemplated by the mandament; that restoration of the property would be impossible due to illegality; and that no case is made out for the grant of the interim interdict.
Findings: The applicants resided at the property and it was their home. Apart from the lease, they would be protected by the Prevention of Illegal Eviction and Unlawful Occupation Act 19 of 1998 (PIE). They possessed the property and Mr Broad was not entitled to remove them without a court order obtained under the provisions of PIE. The applicants had satisfied the requirements for an interim interdict pending the determination of the eviction application.
Order: Granted earlier.
VAN ZYL AJ
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SARS WHISTLE-BLOWER
Labour – Dismissal for operational requirements – Whistle-blower – Protected disclosure – Labour Relations Act 66 of 1995, ss 187(1)(h) and 189 – Protected Disclosures Act 26 of 2000.
Mashilo v CSARS [2022] JS108-18 (LC) at [83]-[108]
Facts: The applicants, Ms Mashilo and Ms Seremane, were two single mothers and senior executives during the restructuring of SARS by Bain & Company during the tenure of Commissioner Tom Moyane. Their positions were downgraded after they questioned the integrity of the restructuring. They refused to accept the positions, which prompted Mr Moyane to address letters to them with clear terms that they either accept the positions or face dismissal. Ultimately, they were dismissed “due to operational requirements” in terms of s 189 of the Labour Relations Act 66 of 1995.
Application: Applicants seek an order declaring the dismissal of the first applicant automatically unfair due to the protected disclosure made her; alternatively declaring the dismissal of the applicants for operational requirements to be procedurally and substantively unfair.
Discussion: The new structure created by Bain and the position of Domain Specialist; the testimony that executives who accepted positions of Domain Specialist had no meaningful jobs to do; Ms Mashilo’s email to government role players and whether it was a protected disclosure; the effect of unemployment on the applicants; dismissal for operational requirements; the contention by SARS that the reason for their dismissal was their refusal to accept the positions of Domain Specialist; whether Ms Mashilo was dismissed for reasons of making a protected disclosure.
Findings: The missive by Ms Mashilo, to the extent that it detailed and disclosed Bain’s unlawful appointment, constituted a protected disclosure as contemplated by the Protected Disclosures Act 26 of 2000. SARS has dismally failed to prove that its dismissal of the applicants was procedurally and substantively fair. The conduct of SARS in these proceedings deserved the utmost censure and displeasure of the court.
Order: The dismissal of Ms Mashilo and Ms Seremane by SARS were automatically unfair. The dismissal of Ms Mashilo was unfair in terms of s 187(1)(h) of the Labour Relations Act due to protected disclosure she made. The dismissal of the applicants for operational requirements was procedurally and substantively unfair and in breach of the provisions of s 189 of the Act.
Applicants are retrospectively reinstated as SARS employees as of date of their dismissal with full benefits and emoluments effective from 1 September 2022 and are to report for duty then.
SARS is ordered to pay the costs of the applicants on attorney-client basis, including the costs of counsel.
SETHENE AJ
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ABOUT THE EDITOR
Louis Podbielski spent ten years at Juta working on various law reports and has read many thousands of judgments for case selection. He has considerable experience in writing flynotes and headnotes, compiling case annotations, and in refining subject indexes. During his four years at LexisNexis he was involved with legal data, analytics and in developing various legal tech solutions. He now runs his own case law service Louis Case Law
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