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South Africa Judgment

Equality Court

South African Human Rights Commision v Qwulane (44/EQJHB) [2011] ZAEQC 3 (31 May 2011)

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01

Holding and result

The court found that the complainant had standing and that the Equality Court had jurisdiction. The respondent's article and cartoon constituted hate speech, propagating hatred and harm against homosexuals. The complainant's version was accepted as the matter was undefended. The court granted judgment in favour of the complainant, ordering an unconditional apology and awarding damages to be used for promoting awareness of gay and lesbian rights.

Court disposition

Judgment granted in favour of the complainant.

Orders

  • The respondent is ordered to make an unconditional apology to the gay and lesbian community, to be published in the Sunday Sun and one other national newspaper.
  • Damages in the amount of R100,000.00 are awarded to the complainant, to be used to promote and raise awareness regarding the rights of gays and lesbians.
  • No costs are ordered.

02

Material facts

Parties

South African Human Rights Commision

Applicant

Jon Qwulane

Respondent

Amounts and remedies

  • Damages Awarded: ZAR 100,000

03

Procedural history

  1. Posture

    Default Judgment Application / Judgment

04

Questions and positions

Legal issues

Party arguments

Applicant
The applicant argued that the respondent's article and cartoon amounted to hate speech, propagating hatred and harm against homosexuals. The applicant asserted standing to bring the complaint and submitted that the Equality Court had jurisdiction. The applicant sought an apology and damages to promote awareness of gay and lesbian rights.
Respondent
The respondent did not file any papers and was not present in court. No argument was presented on behalf of the respondent.

05

Court’s reasoning

  1. 01

    Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000

    Hate speech is prohibited under South African law and includes any publication that propagates hatred and harm against a protected group.

  2. 02

    Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000

    The Equality Court has jurisdiction to adjudicate matters involving allegations of hate speech and discrimination.

  3. 03

    Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000

    A complainant with a direct and substantial interest in the matter has standing to institute proceedings in the Equality Court.

06

Ratio, limits and disposition

Ratio decidendi

The court found that the complainant had standing and that the Equality Court had jurisdiction. The respondent's article and cartoon constituted hate speech, propagating hatred and harm against homosexuals. The complainant's version was accepted as the matter was undefended. The court granted judgment in favour of the complainant, ordering an unconditional apology and awarding damages to be used for promoting awareness of gay and lesbian rights.

Obiter and limits

  • The emotional pain and suffering experienced by the gay and lesbian community as a result of the respondent's actions was noted by the court.
  • The court emphasized the importance of promoting awareness regarding the rights of gays and lesbians.

Court disposition

Judgment granted in favour of the complainant.

  • The respondent is ordered to make an unconditional apology to the gay and lesbian community, to be published in the Sunday Sun and one other national newspaper.
  • Damages in the amount of R100,000.00 are awarded to the complainant, to be used to promote and raise awareness regarding the rights of gays and lesbians.
  • No costs are ordered.

Source and reliance status

Equality Court

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Judgment text

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Source document

Equality Court

Judgment

[2011] ZAEQC 3

IN

THE EQUALITY COURT OF JOHANNESBURG

HELD AT THE JOHANNESBURG MAGISTRATE'S COURT

CASE NUMBER: 44/EQJHB

DATE:31/05/2011

IN THE MATTER BETWEEN:

SOUTH

AFRICAN HUMAN RIGHTS COMMISION..........................................

COMPLAINANT

AND

JON QWULANE.................................................................................................

RESPONDENT

JUDGMENT

1.This is an application for judgment by default in terms of Rule 32 of Act 32 of 1944. The court finds that there has been proper service on the respondent. The respondent was not in attendance at court. The complainant relied on the founding affidavit and argued the matter.

2.The complaint is undefended. The respondent has filed no papers. In the circumstances there is only one version before court. It is that of the complainant. The court is not going to repeat the argument presented as it already forms part of the record. This argument is accepted.

3. In the totality of the submissions tendered by the complainant the court finds the following:

3.1 The complainant has the necessary hens standi to institute these proceedings.

3.2 This court has the necessary jurisdiction to adjudicate this matter.

3.3The contents of the article and cartoon amount to hate speech.

3.4The article and cartoon propagates hatred and harm against homosexuals. Homosexuals as represented by the complainant have suffered emotional pain and suffering as a result of the action of the respondent.

4. The court therefore grants judgment in favour of the complainant as follows:

4.1 The respondent is ordered to make an unconditional apology to the gay and lesbian community. Such apology is to be published in the Sunday Sun as well as one other national newspaper.

4.2 Damages in an amount of Rl 00 000-00 is granted. Such amount is to be paid to the complainant and to be used to promote and raise awareness regarding the rights of gays and lesbians.

4.3 No costs are ordered.

DATED AT JOHANNESBURG THIS THE 31st DAY OF MAY 2011.

ADDITIONAL MAGISTRATE (EQUALITY COURT) JOHANNESBUG

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000

Legislation

Legislation referenced in the available case record.

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