Latest Topical Case Reports – 6th February 2023

“COCKROACH” AND HATE SPEECH

CONSTITUTION – Equality – Hate speech – “Cockroach” – Used to describe political opponent during television interview – Context of genocide in Rwanda – Amounting to hate speech – Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000, s 10.

Malema v Kunene [2023] EQ4-2021 (GJ) at [39]-[69]

Facts: Mr Kunene is the Deputy President of the Patriotic Alliance and in late 2021, after the local municipal elections, he was interviewed on an eNCA television show. Referring to Mr Malema he said that he was going to “deal with this little frog. Julius is just an irritating cockroach”. He also referred to Mr Malema as a criminal and repeated the word “cockroach”.

Application: Mr Malema filed a complaint in terms of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 and maintains that the utterances were in violation of his protected right to human dignity, integrity and good name and therefore punishable in terms of section 10 of the Act.

Discussion: Whether the use of the word “cockroach” and “frog” when referring to a human being amounts to hate speech and is thus punishable in terms of section 10; the prohibited grounds in the section; the contentions by Mr Kunene that the words were a metaphor and that the complainant himself has previously used the word “cockroach” when referring to another politician by the name of Helen Zille; Mr Kunene’s further contention that reference to the Rwandan issue is insufficient to establish a case of hate speech; and the test in the Qwelane case.

Findings: The war in Rwanda which involved the Hutus and the Tutsis is informative as to how the word “cockroach” was used and understood generally. Mr Malema withdrew his cockroach statement and apologised to Mrs Zille. Mr Kunene has refused to withdraw and apologise for his utterances. The word “cockroach” when used against human beings comes with heavy political baggage as was demonstrated in Rwanda. The court is satisfied that the utterances made by Mr Kunene amount to hate speech.

Order: Mr Kunene is ordered to issue an unconditional public apology to Mr Malema which shall include a retraction of the statement. The registrar is directed to prepare a dossier of the papers filed and submit this, with the judgment, to the Director of Public Prosecutions.

MAKUME J

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RECUSAL OF JUDGE KOEN

JUDGE – Recusal – Criminal trial – Findings and comments made in previous judgments – Particularly on the merits of the charges for private prosecution of prosecutor – Reasonable and inevitable apprehension that if issues presented again, they will be decided by the Judge in a similar manner – Judge recusing himself.

State v Zuma [2023] ZAKZPHC 10 at [59]-[84]

Facts: In October 2021 the court dismissed the special plea raised by Mr Zuma in terms of s 106(1)(h) of the Criminal Procedure Act 51 of 1977 that Mr Downer lacked the title to prosecute. In February 2022 the court refused Mr Zuma leave to appeal the main judgment. Mr Zuma thereafter unsuccessfully petitioned the Supreme Court of Appeal and his reconsideration application was also refused. Mr Zuma then approached the Constitutional Court for leave to appeal this refusal, which the court found not in the interests of justice to entertain. Mr Zuma had in the meantime commenced a private prosecution against Mr Downer and a journalist, Ms Maughan.                             

Issue: The recusal of the presiding Judge in the context of the findings and comments the Judge had made in previous judgments, particularly those concerning the merits of the charges on which the private prosecution is based.

Discussion: That the Judge is enjoined by his oath of office to ensure that Mr Zuma receives a constitutionally fair trial, to regulate the management of the trial, to preserve the integrity of the trial, and to ensure the proper administration of justice; the case law on recusal; that the perception of bias is as important as actual bias; the alleged leaking of confidential medical information; the issues arising from the private prosecution; and that a private prosecution is being pursued against a prosecutor in a pending trial is a matter of considerable concern.

Findings: The Judge had expressed certain views and made findings on the alleged leaking of the medical information by the prosecutor, whether these constituted an infringement of constitutional rights, whether Mr Downer should be removed as prosecutor, as well as other findings made in previous judgments. Reasonably construed, the findings indicated that the Judge had favoured a particular interpretation of the factual issues and pointed to a reasonable and inevitable apprehension that if they are presented again, they would be decided in a similar manner.

Ruling: The Judge recuses himself and withdraws from the trial. The trial will continue before another Judge.

KOEN J

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NO TRAIN TICKET NO CLAIM

DELICT – Wrongfulness – PRASA – Plaintiff not proving that he had a ticket – Claiming for damages from injuries in fall from train – Public policy and legal conviction of community – Failing to prove wrongfulness – Absolution from the instance.

Bhiya v Passenger Rail Agency of South Africa [2023] ZAGPPHC 31 at [72]-[82]

Facts: Plaintiff claims that he was injured when he was shoved and pushed out of a moving train through carriage doors which suddenly opened just outside Pinedene station in 2016.           

Claim: For compensation from PRASA for damages arising from the injuries.

Discussion: That PRASA disputes that plaintiff was a passenger or a fare paying passenger; that a valid train ticket would constitute at the very least prima facie proof that the plaintiff was a passenger and a lawful train user; lawfulness of a commute on a train; the witness testimony; the glaring inconsistencies between the evidence of the plaintiff and his sister; and that the court concluded that plaintiff did not prove that he had a ticket and that accordingly he was not a lawful train user.

Findings: Plaintiff travelled on the train not only in breach of a statutory obligation to pay a fare, but where the failure to comply with the statutory obligation constitutes an offence. Public policy and the legal convictions of society demand that members of society pay for services rendered to them. The plaintiff wanted to benefit from a free train ride. This incites moral indignation. It is unconscionable that in these circumstances the plaintiff is exempted from the first principle of the law of delict “that everyone has to bear the loss he or she suffers”. The plaintiff has failed to prove wrongful conduct on the part of PRASA.

Order: Absolution from the instance is granted.

HASSIM AJ

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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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