Herselman v Geleba (231/2009) [2011] ZAECGHC 108 (1 September 2011)

Herselman v Geleba (231/2009) [2011] ZAECGHC 108 (1 September 2011)

The court held that the conduct complained of, namely the appellant's use of the word 'baboon' directed at the respondent, fell within the ambit of PEPUDA as it was racially charged and undermined the respondent's dignity. The court adopted a disjunctive reading of section 10, finding that it sufficed for any one of the elements—hurtful, harmful/inciting harm, or promoting/propagating hatred—to be present for conduct to constitute hate speech. The objective test was applied, focusing on the effect of the words on the recipient community, specifically a reasonable African person, rather than the subjective intention of the utterer. The court found that the appellant's utterances amounted...

Citation
[2011] ZAECGHC 108
Parties
Appellant: Johan Rutgert Herselman; Respondent: Khayalethu Eric Geleba
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
1 September 2011
Case Number
231/2009
Procedural Posture
Civil Appeal / Appeal From Equality Court Judgment
Judges
Dawood, Boqwana
Legal Topics
Hate Speech, Promotion of Equality and Prevention of Unfair Discrimination Act, Jurisdiction of Equality Court, Interpretation of Statutes, Freedom of Expression
Constitutional Law Civil Procedure Hate Speech Promotion of Equality and Prevention of Unfair Discrimination Act Jurisdiction of Equality Court Interpretation of Statutes Freedom of Expression

Case Brief

Summary, issues, holding and outcome

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Parties

Johan Rutgert Herselman

Appellant

Khayalethu Eric Geleba

Respondent

Procedural Posture

Civil Appeal / Appeal From Equality Court Judgment

Legal Issues

  1. 1 Whether the conduct complained of falls within the ambit of the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA).
  2. 2 Whether the words in section 10(1)(a), (b), and (c) of PEPUDA are to be read conjunctively or disjunctively.
  3. 3 Whether the objective or subjective test applies to section 10 of PEPUDA.

Ratio Decidendi

The court held that the conduct complained of, namely the appellant's use of the word 'baboon' directed at the respondent, fell within the ambit of PEPUDA as it was racially charged and undermined the respondent's dignity. The court adopted a disjunctive reading of section 10, finding that it sufficed for any one of the elements—hurtful, harmful/inciting harm, or promoting/propagating hatred—to be present for conduct to constitute hate speech. The objective test was applied, focusing on the effect of the words on the recipient community, specifically a reasonable African person, rather than the subjective intention of the utterer. The court found that the appellant's utterances amounted...