South African Human Rights Commision v Qwulane (44/EQJHB) [2011] ZAEQC 3 (31 May 2011)
- Citation
- [2011] ZAEQC 3
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- Equality Court
- Posture
- Default Judgment Application / Judgment
- Case number
- 44/EQJHB
More details
- Court
- Equality Court
- Posture
- Default Judgment Application / Judgment
- Case number
- 44/EQJHB
On this page
Professional case brief
Research organized from the available case record
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
ApplicantJon Qwulane
RespondentAmounts and remedies
- Damages Awarded: ZAR 100,000
03
Procedural history
Posture
Default Judgment Application / Judgment
04
Questions and positions
Legal issues
- 01
Whether the article and cartoon published by the respondent constitute hate speech under South African law.
- 02
Whether the complainant has the necessary standing to institute proceedings in the Equality Court.
- 03
Whether the Equality Court has jurisdiction to adjudicate the matter.
- 04
Whether damages and an apology are appropriate remedies for the harm suffered by the gay and lesbian community.
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
Legal principles
- 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.
- 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.
- 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
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Equality Court
Judgment
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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