Thembani v Swanepoel (217044) [2016] ZAECMHC 37; 2017 (3) SA 70 (ECM) (12 September 2016)

Thembani v Swanepoel (217044) [2016] ZAECMHC 37; 2017 (3) SA 70 (ECM) (12 September 2016)

The High Court confirmed the magistrate's finding that the respondent used the term 'kaffir' towards the complainant during a heated verbal exchange. The court held that the complainant discharged the burden of proof on a balance of probabilities, and the respondent's version was improbable and lacked detail. The use of the term 'kaffir' by a white person towards a black person is objectively derogatory, contemptuous, and constitutes hate speech under section 10 of PEPUDA. The magistrate's approach to the evidence, the burden of proof, and the relief granted was correct and in line with constitutional principles of dignity and equality.

Citation
[2016] ZAECMHC 37
Parties
Applicant: Bulelani Thembani; Respondent: Wayne Swanepoel
Court
Eastern Cape High Court, Mthatha
Jurisdiction
South Africa
Judgment Date
12 September 2016
Case Number
217044
Procedural Posture
Review Application / High Court Review of Equality Court Decision
Outcome
The judgment and order of the magistrate made on 19 October 2015 are confirmed.
Judges
RWN Brooks, B Majiki
Legal Topics
Hate Speech, Human Dignity, Burden of Proof, Promotion of Equality and Prevention of Unfair Discrimination Act
Constitutional Law Civil Procedure Hate Speech Human Dignity Burden of Proof Promotion of Equality and Prevention of Unfair Discrimination Act

Case Brief

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Parties

Bulelani Thembani

Applicant

Wayne Swanepoel

Respondent

Procedural Posture

Review Application / High Court Review of Equality Court Decision

Legal Issues

  1. 1 Whether the respondent used the term 'kaffir' towards the complainant.
  2. 2 Whether the use of the term constitutes hate speech under section 10 of PEPUDA.
  3. 3 What is the applicable burden of proof in hate speech cases under PEPUDA.

Ratio Decidendi

The High Court confirmed the magistrate's finding that the respondent used the term 'kaffir' towards the complainant during a heated verbal exchange. The court held that the complainant discharged the burden of proof on a balance of probabilities, and the respondent's version was improbable and lacked detail. The use of the term 'kaffir' by a white person towards a black person is objectively derogatory, contemptuous, and constitutes hate speech under section 10 of PEPUDA. The magistrate's approach to the evidence, the burden of proof, and the relief granted was correct and in line with constitutional principles of dignity and equality.

Court Disposition

The judgment and order of the magistrate made on 19 October 2015 are confirmed.

Orders

  • The order of the Equality Court is confirmed, including the finding of hate speech and the relief granted to the complainant.