M v R (09/2004) [2004] ZAEQC 2 (1 June 2004)

M v R (09/2004) [2004] ZAEQC 2 (1 June 2004)

The court found that the respondent's utterances, even in the limited form admitted, constituted hate speech under section 10 of the Act. The impact on the complainant and the group addressed was hurtful and denigrating, fulfilling the statutory requirements. The respondent's subjective intention was irrelevant; the objective effect and intended innuendo were decisive. The apology offered was inadequate, lacking the necessary elements of withdrawal and regret as required by law. The respondent failed to discharge the onus of disproving the offence and was ordered to furnish an unconditional written apology.

Citation
[2004] ZAEQC 2
Parties
Applicant: E. N. M.; Respondent: K. R.
Court
Equality Court
Jurisdiction
South Africa
Judgment Date
1 June 2004
Case Number
09/2004
Procedural Posture
Civil Application / Final Judgment
Outcome
Complaint upheld; respondent found liable for hate speech and ordered to furnish an unconditional written apology.
Judges
G L Abarahams
Legal Topics
Hate Speech, Promotion of Equality and Prohibition of Unfair Discrimination Act, Apology Order
Constitutional Law Civil Procedure Hate Speech Promotion of Equality and Prohibition of Unfair Discrimination Act Apology Order

Case Brief

Summary, issues, holding and outcome

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Parties

E. N. M.

Applicant

K. R.

Respondent

Procedural Posture

Civil Application / Final Judgment

Legal Issues

  1. 1 Whether the respondent's utterances constituted hate speech under section 10 of the Promotion of Equality and Prohibition of Unfair Discrimination Act.
  2. 2 Whether the respondent's intention or the impact on the complainant is decisive for liability.
  3. 3 Whether the apology offered by the respondent met the legal requirements.

Ratio Decidendi

The court found that the respondent's utterances, even in the limited form admitted, constituted hate speech under section 10 of the Act. The impact on the complainant and the group addressed was hurtful and denigrating, fulfilling the statutory requirements. The respondent's subjective intention was irrelevant; the objective effect and intended innuendo were decisive. The apology offered was inadequate, lacking the necessary elements of withdrawal and regret as required by law. The respondent failed to discharge the onus of disproving the offence and was ordered to furnish an unconditional written apology.

Court Disposition

Complaint upheld; respondent found liable for hate speech and ordered to furnish an unconditional written apology.

Orders

  • The respondent is ordered to furnish an unconditional written apology addressed to the complainant, conforming to the requirements set out in Ward Jackson v Cape Times Ltd.
  • The apology must be handed to the clerk of the court within seven days of receipt of this order.