Spartan Caselaw

AfriForum v Economic Freedom Fighters [2024] ZASCA 82

CONSTITUTION – Equality – Hate speech – Dubula ibhunu, kill the boer – Word “bhunu” part of verse in song

Context in determining whether hate speech established – In full context singing of song by respondents not prohibited hate speech – Reasonably well-informed person would appreciate that Mr Malema was not actually calling for farmers, or white South Africans of Afrikaans descent, to be shot – They would understand that he was using an historic struggle song as provocative means of advancing his party’s political agenda – Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000, s 10(1).

Facts: AfriForum is a civil rights organisation with an emphasis on the protection of minority rights. It averred that the respondents, being the Economic Freedom Fighters (the EFF), the EFF’s President, Mr Malema, and Dr Ndlozi, who is an EFF Member of Parliament, had committed hate speech in terms of section 10(1) of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (Equality Act). The hate speech complaint centred on the song which is commonly known as “Dubula ibhunu”. AfriForum’s complaint was directed at the words “awudubula ibhunu, dubula amabhunu baya raypah” (kill the Boer – the farmer). AfriForum pointed to six occasions on which Mr Malema had chanted the song, albeit that on some occasions Mr Malema had substituted the word “kiss” for “kill”. In addition, it pointed to a single occasion when Dr Ndlozi chanted a similar song including the words: “Shisa lamabhunu, EFF ingen’endaweni” (burn these Boers, EFF enters in the space, or place).

Appeal: The Equality Court dismissed AfriForum’s complaint. Before the Supreme Court of Appeal, AfriForum took the view that the overwhelming bulk of the evidence led in the Equality Court was irrelevant to the appeal. AfriForum submits that the Equality Court erred in finding that it had failed to establish that the impugned words were based on a prohibited ground. It accepts that the Equality Act does not protect farmers as a group. As to the question of whether the songs also demonstrate an intent to incite harm or propagate hatred, AfriForum submits that the Equality Court erred in the application of the objective test to be applied. The court had impermissibly accepted Mr Malema’s evidence of his subjective intention and his understanding of the song.

Discussion: AfriForum made an application for the recusal of Acting Justice of the Supreme Court of Appeal Keightley due to certain prior comments made. The gist of AfriForum’s case was that the impugned remarks show that Justice Keightley holds very strong personal views based on her perception of AfriForum as ideologically driven and litigating “anachronistically”, for the sake of it. The court finds that it cannot be said that the test for recusal as laid down in the Constitutional Court has been met or that there is any reason to apprehend bias from Justice Keightley. The EFF raised a point in limine against AfriForum’s hate speech complaint based on res judicata, or more accurately, issue estoppel. They point out that AfriForum previously instituted a hate speech complaint in the Equality Court against Mr Malema and that a mediation agreement ensued, entered into and signed by, AfriForum and Mr Malema. The EFF contends that the issue in this appeal was finally disposed of by the settlement order and that it was impermissible for AfriForum to seek to relitigate the same issue in the Equality Court, and subsequently on appeal to this court. AfriForum contends that Mr Malema did not stick to his side of the bargain, as is manifested by his repeated singing of Dubula ibhunu on the occasions identified in AfriForum’s complaint. The court concludes that the interests of justice and equity do not support the application of the issue estoppel defence in this case.

Findings: The word “bhunu” is part of a verse in a song. Its meaning must be determined with reference to that verse as a whole. The meaning of the verse, in turn, must be assessed in its broader context, including, but not limited to, the circumstances in which the verses were sung on the particular occasions identified. Put simply, “bhunu” may have different meanings in different contexts. The reasonably well-informed person would appreciate that when Mr Malema sang Dubula ibhunu on the first six impugned occasions, he was not actually calling for farmers, or white South Africans of Afrikaans descent, to be shot, nor was he romanticising the violence exacted against them in farm attacks. They would understand that he was using an historic struggle song, with the performance gestures that go with it, as a provocative means of advancing his party’s political agenda. In respect of the first six occasions when Mr Malema sang Dubula ibhunu it is found that the court correctly found that AfriForum had failed to establish that this constituted hate speech under section 10(1). Mr Malema was doing no more than exercising his right to freedom of expression, which is protected under section 16 of the Constitution, in the course of participating in the activities of, and campaigning for the political party of which he is leader, which rights are protected under section 19(1)(a) of the Constitution. Not much further attention was paid to Shisa lamabunu at the trial. It falls to be treated as another form of protest song sung by Dr Ndlozi along the same lines as Dubula ibhunu.

Order: The application for the recusal of Keightley AJA from the adjudication of or further participation in the determination of this appeal is dismissed with costs, such costs to include those of two counsel where so employed. The appeal is dismissed with costs, such costs to include those of two counsel where so employed.

SALDULKER JA, MATOJANE JA, MOLEFE JA, NHLANGULELA AJA and KEIGHTLEY AJA

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Buhle Waste (Pty) Ltd v MEC for Health, Gauteng [2024] ZAGPJHC 493

COSTS – Party and party – Uniform Rule 67A – New taxable costs regime discussed

Complexity of matter and novel issues – Costs of senior counsel to be taxed on Scale C and that of junior counsel on Scale B – New regime does not consider seniority of counsel, but rather complexity of matter and value of claim or importance of relief sought – However, court should be wary not to grant or approve costs on a scale which counsel of a certain seniority would not ordinarily charge his or her own attorney and client.

Application for leave to appeal: The court considers an application for leave to appeal in terms of section 17 of the Superior Courts Act 10 of 2013 to the full bench of the Johannesburg High Court. The applicant for leave to appeal is Buhle Waste (Pty) Ltd. The application for leave to appeal is against an order and judgment dismissing an application in terms of section 18(1) and 18(3) of the same Act for leave to execute an earlier order granted which is the subject of a pending appeal in respect of which leave was also granted. There were two issues for the court to decide in this application for leave to appeal. The first is whether or not the order was appealable and if so, the second is whether the requirements for leave to appeal have been satisfied.

Order final in effect: It is the applicant’s contention that given the relatively short duration (three years) of the tender contract granted to the 10th applicant, that by the time the matter is argued and finalised before the Supreme Court of Appeal, it may become academic. Hence any relief it obtains in due course will likely have no practical effect as the contract will have already run its course. In a matter where a party appeals against an order refusing an application to execute an earlier order pending the outcome of an appeal, it may only be appealable if it can be shown that the order being appealed against is final in effect. The risk (no matter how great) of the order being appealed against being rendered academic because of anticipated delays (no matter how well founded) in the appeal process does not make it final in effect. Should the risk materialise and the appeal court finds that the delay was caused by any party to the litigation, it is free to make an appropriate order dealing with this.

Costs and Rule 67A: After the hearing of this matter, the court asked the parties to make additional submissions on the issue of costs in the light of the new taxable party and party costs regime ushered in by the new Uniform Rule 67A and amended Rule 69(7). The new regime came into operation one week before the hearing of this matter and should only be applicable to work done after 12 April 2024. The court was referred to the case of Mashavha v Enaex Africa (Pty) Ltd [2024] ZAGPJHC 387. Wilson J held that on the facts of the case that had to be argued before him, Scale A was the applicable scale to be applied. It was submitted by all counsel that given the complexity of this matter that Scale C should be the applicable tariff for all counsel, including junior counsel where so employed. The court agrees that the requirements in Rule 67A(3) have been satisfied. The issues requiring determination in this leave to appeal were novel in nature.

Seniority: While the new taxable costs regime no longer considers seniority of counsel, but rather complexity of the matter and value of the claim or importance of the relief sought to be the deciding factors, a court should be wary not to grant or approve costs on a scale which counsel of a certain seniority would not ordinarily charge his or her own attorney and client. This would run counter to the intention of the new regime and views expressed by Wilson J. The junior counsel employed by the State respondents, according to his group website, was admitted as an advocate in January 2014. Before than he was an attorney of roughly eight years standing. Normally counsel in this category would charge out their services closer to the upper limit of Scale B rather than Scale C, irrespective of the complexity of the matter. The two-thirds rule in place at the GCB in terms of which second or junior counsel charge their services out to their clients at two-thirds what their seniors charge is not expressly endorsed by the new regime. The previous costs regime allowed second counsel to recover only up to 50 % of the fees of the first counsel. If Advocate Mhambi is indeed charging two-thirds of what his leader Advocate Mokhari SC is charging, the effect of the order will have the same tempering effect on what can be recovered in respect of both counsel’s fees on the party-and-party scale.

Order: The application by Buhle Waste (Pty) Ltd for leave to appeal the dismissal of its application in terms of section 18(1) and 18(3) of the Superior Courts Act 10 of 2013 for leave to execute the order dated 30 November 2023 is dismissed. The applicant is ordered to pay the party-and-party costs of the first, second, fourth and fifth respondents as well as those of the 10th respondent. The aforesaid costs shall include the costs of two counsel where so employed. For all legal services pertaining to this application rendered by counsel after 12 April 2024, the costs of Senior Counsel shall be taxed on Scale C and that of Junior Counsel shall be taxed on Scale B.

CAJEE AJ

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Fair-Trade Independent Tobacco Association v CSARS [2024] ZAGPPHC 457

TAX – Customs – CCTV monitoring

Applicants operating licensed premises for manufacture and storage of tobacco products – Main application seeking to have Rule 19.09 set aside or declared unconstitutional – Contended that new licensing conditions infringe on rights to privacy, dignity and property – Seeking interim interdictory relief against SARS – Interim relief not preventing SARS from tax collection, nor impeding its customs officials to perform their duties – Interim relief granted.

Facts: Rule 19.09 (the impugned rule) was promulgated under the Customs and Excise Act 91 of 1964 and came into effect on 1 August 2022. The new license conditions compel registered licensees, like the applicants who operate their licensed premises for the manufacture and storage of tobacco products, to allow SARS to continually monitor their activities and bonded goods in certain areas with CCTV equipment. SARS contends that the impugned rule was introduced as part of a broader package of initiatives to address the illicit trade of tobacco products which in turn results in rampant tax evasion in the tobacco industry and to foster tax compliance. SARS, in February 2023, commenced with two installations in terms of the impugned rule at BATSA and Gold Leaf, two of the largest tobacco product manufacturers in South Africa.

Application: This application, initially brought by way of urgency, concerns two applications consolidated for convenience as both matters concern the same interim interdictory relief against SARS and in respect of the same subject matter, Rule 19.09. In the main application, the FITA applicants contend that the introduction of the impugned rule is unconstitutional and stands to be set aside, alternatively declared unconstitutional. The second application is by Bozza Tobacco, together with five other independent licensees, who seek to intervene as applicants in the main application. The reason for both the FITA and Bozza applicants seeking the interim relief is that the impugned rule contains, inter alia, new licensing conditions which they both contend are unconstitutional and which infringe on their right to privacy, dignity and property.

Discussion: One of the reasons why the FITA applicants wish this court to “freeze” the position pending the outcome of the main application is that the impugned rule provides SARS with a right to monitor activities on a continuous basis without interruption, and such footage they argue will be immortalised on CCTV footage. This immortalised footage is not in the control of the applicants but SARS. SARS has failed to provide the applicants with protection or indemnify them from harm which may arise from such loss of control over such footage. FITA contends that harm from the collection of footage and data collected is a reasonable and foreseeable consequence in that, if such footage should come into the hands of a competitor, an illegal trader, or should the SARS system be compromised (hacked), the applicants have no interim protection pending the outcome of the main application and are without any remedy. FITA contends further that should the impugned rule be set aside, there will be no remedy from any harm which may have already occurred as a direct result of such immortalised footage. FITA argues that a brand specification and how the management of its production line works regarding output are confidential and constitute proprietary information worthy of protection by each licensee. CCTV footage will capture all recordings in its path without distinction.

Findings: No evidence has been provided to support that any of the applicants are connected with acts of illicit trade or that they are not presently tax compliant. The impact of the interim relief will in consequence not prevent SARS from tax collection, nor impede its customs officials to perform their duties, nor does SARS contend that it will interfere with the other measures it has in place already, albeit on its own version presently inadequate, to prevent tax non-compliance. SARS argues that there is no clear basis in the light of the main application that the applicants’ possess no other satisfactory remedy. This SARS contends even though they, through their attorneys refused to stop the implementation of the impugned rule pending the outcome of the “satisfactory remedy”. Under the circumstances and all be it by their own hand SARS has forced the applicants to bring this application to protect their prima facia rights whilst awaiting a just and equitable result. It certainly was not for the lack of the applicants trying to prevent SARS and warning SARS of its intention to bring this relief prior to the notice of implementation. In consequence this being a satisfactory remedy in the interim, the alternate remedy already initiated.

* See from para [58] on condonation in terms of section 96 of the Customs Act.

Order: Pending the final determination of the main application, the Commissioner for SARS is interdicted and restrained from implementing Rule 19.09 relating to “the requirements in respect of the monitoring of certain customs and excise warehouses through CCTV equipment” as against the applicants. The Commissioner is directed to pay the costs of this application, such costs including with the employment of two counsel, one being a senior counsel on Scale C and junior counsel on Scale B.

RETIEF J

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