SAHRC statement to welcome the dismissal of the hate speech appeal case
Tuesday, 11 September 2012
The South African Human Rights Commission (SAHRC) together with the Legal Resources Center (LRC) today appeared in the Supreme Court of Appeals in the matter concerning a hate speech case; wherein Port Elizabeth magistrate, Johan Herselman, referred to a cleaner, Khayalethu Geleba, as a “baboon”.
The case was dismissed following his unsuccessful appeal last year at the Eastern Cape High Court (Grahamstown) where he was found guilty of hate speech.
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In his appeal Herselman, who uttered the words “moenie soos ‘n bobbejaan wees nie”, proposed that his words did not constitute hate speech as they did not contradict section 10 of the Equality Act because he claims that he did not intend to hurt or harm. In his defence, he further claimed that section 10 of the Equality Act ought to be read to include “incitement to cause harm” as provided for in section 16 of the Constitution. Moreover, he claimed that paragraphs (a), (b) and (c) of section 10 of the Equality Act should be read conjunctively and not disjunctively.
Contrastingly, Geleba’s counsel rejected Herselman’s claims stating that they were fundamentally unsound. He further stated that Herselman intended to tell Geleba that he was being stupid and that the choice of words, when understood in the South African social and legal context, demonstrates an intention to hurt.
Constitutionally, Geleba’s counsel retorted that Herselman’s claims are not warranted and that section 10 (a), (b) and (c) are to be read disjunctively.
Presiding judge, Justice Navsa, dismissed the matter after warning Herselman that pursuing the appeal would have adverse implications to his credibility as a High Court judge, and may lead to him losing his job. Subsequently, Hereselman and his counsel abandoned the appeal and agreed to tender costs incurred by the LRC, on behalf of the SAHRC, in this matter.
“The SAHRC looks forward to the full unreserved apology and the payment of the amount ordered by the Equality Court,” said SAHRC Head of Legal Services, Pandelis Gregoriou .
Sarah Sephton, the regional director of the LRC in Grahamstown said: “The LRC is extremely disappointed that there is no precedent setting judgment which would send a strong message to the public at large that racist speech in our constitutional dispensation.”
The Commission, furthermore, commits to ensure that Herselman carries out the Equality Court’s order of awarding Geleba a compensatory amount of R4 500 and for him to issue an unconditional apology to Geleba.
South African Human Rights Commission