Louis Case Reports

HATE SPEECH AND THE CHINESE COMMUNITY

Constitution – Equality – Hate speech – Comments about Chinese community in South Africa – Findings of hate speech made against respondents and fines imposedPromotion of Equality and Prevention of Unfair Discrimination Act 4 of 2002, s 10.
Chinese Association v Henning and Others [2022] EQ2-2017 (EqC) at [177]-[222]

After a Carte Blanche insert on animal abuse and the trade in donkey skins, comments were made on social media about the Chinese community in South Africa. This prompted the Chinese Association of Gauteng to approach the Equality Court with an application against 12 of the people who made the online comments. The central issue was whether the various statements posted by the respondents on the platforms of the Donkey Sanctuary and the Carte Blanche Facebook page constitute hate speech and were therefore harmful against the persons of Chinese origin as contemplated in section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2002.

Makume J discusses the comments made by each of the respondents which included “slant eyes freaks”, “they are not human”, “wipe them out”, “they are rot of the earth”, “I think we should start killing their children for cure for the common babalaas” and “the Chinese are despicable savages can’t even call them people”; the three categories of respondents being the defaulters, the confessors and the opposing respondents; the testimony of Ms Sadlier of The Digital Law and whether she testified as an expert or not; the testimony and cross-examination of Mr Pon, the chairperson of the Association; the right to freedom of expression; the Constitutional Court case of Qwelane v SAHRC; the evaluation of the evidence against each of the respondents; the objective test in section 10 whether the statements could reasonably be construed to demonstrate a clear intention to be harmful or incite harm, promote or propagate hatred; and the effect the words would have on people who heard or read them.

The court makes findings against each of the respondents that their comments constituted hate speech, harassment and unfair discrimination against people of China and in contravention of the Equality Act and fines are imposed (the complaint against the fourth respondent is dismissed).

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NON-CITIZENS AND ADMISSION AS LEGAL PRACTITIONERS

Legal practitioners – Admission – Non-citizens not permanent residents – Not permitted to be admitted – Legal Practice Act 28 of 2014 – Constitutionality of section 24(2) – Unfair discrimination – Not unconstitutional.
Rafoneke v Minister of Justice [2022] ZACC 29 at [70]-[105]

Ms Rafoneke and Mr Tsuinyane are citizens of Lesotho and obtained their LLB degrees in South Africa and also completed their articles and vocational training. Their applications to be admitted as attorneys of the High Court were dismissed because they are neither South African citizens nor permanent residents as required by section 24(2)(b) of the Legal Practice Act 28 of 2014. The High Court declared the provisions of section 24(2) unconstitutional and invalid, but only to the extent that they do not allow foreigners who are not permanent residents to be admitted and authorised to be enrolled as non-practising legal practitioners. The applicants, including three Zimbabwean nationals and the Coalition, are not content with the extent of the declaration of invalidity, as ordered by the High Court, and therefore do not seek a confirmation of the order but seek leave to appeal against it.

Tshiqi J discusses how the provisions differentiate between citizens or permanent residents and those who are non-citizens who are not permanent residents; the legislative purposes of the provisions: first, the reservation of access to the profession to citizens and permanent residents; and secondly, the promotion of the administration of justice and the protection of the public from unscrupulous and unqualified legal practitioners; and the applicants’ argument that this differentiation bears no rational connection to a legitimate governmental purpose because, irrespective of the fact that the immigration laws allow them to take up employment in the country, they are still not eligible for admission and enrolment as legal practitioners.

The court discusses whether the provisions are consistent with section 9 of the Constitution which provides that everyone is equal before the law; the right to choose a trade, occupation or profession in section 22 of the Constitution; whether the State, in enacting section 24(2), is effectively regulating the legal profession in an arbitrary manner or manifests “naked preferences” that serve no legitimate governmental purpose; a comparison of the South African law with Canadian and Indian jurisprudence; whether the differentiation amounts to discrimination; and whether such discrimination is unfair. The court finds that the applicants’ employability in different capacities that do not require admission as a legal practitioner is not curtailed by section 24(2)(b). They are therefore not left destitute with no alternative source of employment. The discrimination is not unfair and there is no violation of section 9(3) or section 9(4) of the Constitution. The appeal is dismissed and the order of invalidity made by the High Court is not confirmed.

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EXECUTION AND RESIDENTIAL HOMES

Execution – Residential immovable property – Founding affidavit and supporting annexures – Manager from bank deposing to affidavit – Allegations which were not true – Full and frank disclosure of all relevant circumstances – Standard expected from legal practitioners – Uniform Rule 46A.
Standard Bank v Young [2022] ZAKZDHC 30 at [30]-[46]

After the defendants failed to make certain of the monthly payments on their home loan, the bank approached the court with an application in terms of rule 46A of the Uniform Rules in which it sought default judgment as well as an order declaring the immovable property executable. The founding affidavit was deposed to by Ms Ngcobo, a home loans legal manager in the employ of the bank. The Judge queried with counsel that certain allegations made in the founding affidavit were not borne out by the annexures, particularly in regard to payments made by the defendants. In a supplementary affidavit, Ms Ngcobo explained that the discrepancy was a regrettable oversight resulting from the defendants not making payments directly into their home loan account but by making use of the bank’s general ledger account.

Henriques J discusses the purpose of Rule 46A; that the explanation that payments were made into the general ledger account was already known to the deponent at the time she deposed to the original founding affidavit as it formed part of the annexures to the papers and was reflected in the payment history; that the deponent to the affidavit clearly deposed to an affidavit concerning allegations which were not true; that to say that this was a discrepancy pointed out by the court is factually incorrect and may well amount to an act of perjury; the lack of clarity on the efforts the banks made to assist the defendants to regularise their loan repayments; and that there was no personal service of either the summons and particulars of claim instituting the action, nor the application for default judgment and the Rule 46A application.

The court notes that the attorneys were either remiss or negligent in their obligations not only to the court but to the bank official to ensure that she deposed to an affidavit which was factually correct. It is becoming common practice and more often than not Judges encounter these applications on the unopposed motion court roll. The impression created is that these applications are prepared by an amanuensis and are copied and pasted from previous applications. No one checks them properly to ensure that they are in order.

Attorneys representing judgment creditors are subject to the same obligations, if not an even greater standard. As officers of the court, and in maintaining the highest standards of the profession, the obligation on legal practitioners cannot be compromised or diminished in any manner whatsoever. Judgment creditors are required to make full disclosure of all attempts made to assist the debtors and full and frank disclosure of all relevant circumstances. More often than not these applications are seldom opposed by the debtors and the court relies solely on the contents of the founding affidavit and supporting annexures. A presiding officer must be able to rely on what is contained in such affidavit.

The application is dismissed with costs. The registrar is directed to send a copy of this judgment to the Legal Practice Council and a copy, together with a full set of the application papers, to the Banking Services Ombudsman.

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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

You can read his full CV and more about Louis on his LinkedIn profile where he shares interesting and recent cases.


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