An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
IN THE EQUALITY COURT OF JOHANNESBURG
HELD AT THE JOHANNESBURG MAGISTRATE’S COURT
CASE NUMBER: 44/EQ JHB
IN THE MATTER BETWEEN:
SOUTH AFRICAN HUMAN RIGHTS COMMISION COMPLAINANT
JON QWULANE RESPONDENT
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 locus standi to institute these proceedings.
3.2 This court has the necessary jurisdiction to adjudicate this matter.
3.3 The contents of the article and cartoon amount to hate speech (see here).
3.4 The 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 RI 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.
NM KARIKAN ADDITIONAL MAGISTRATE (EQUALITY COURT) JOHANNESBIRGBACK TO TOP