As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
When Ms Liz Hleza went to her spinning class at the Morningside Virgin Active in Sandton on 31 December last year, she reportedly got far more than she bargained for. Instead of an enjoyable spinning class, Hleza reportedly had to face the racial abuse of a fellow spinner because she did not wish to behave as the fellow spinner thought his white skin gave him the right to expect from her.
Hleza says that she was enjoying the music and kept shouting “yebo” as the instructor put them through the gruelling exercise. However, a man in front of her (who has as yet not been named, but is reportedly a lawyer), was so upset that Hleza was enjoying herself differently than he would have, that he got off his bicycle and confronted her.
I was so scared and thought he was going to hit me, he was very angry. He said I should keep quiet and kept saying this bloody k*****, you k*****. He was pointing fingers at me. He said ‘bloody c**** and that I was a selfish bitch. He also told me that I was born walking on four legs with a tail, and I should go back to the bushes where I belong and make that noise there.
Hleza says that she did not return the insult. After the class, Hleza went to the manager on duty to complain and when that manager called the two men to her office, they refused to go. The man, she said, swore at her again. “He said ‘You bloody k*****, you are a cockroach and next time I come to the gym I will bring Doom to spray you with’.” Virgin Active did not seem to take the incident particularly seriously (perhaps not wanting to upset a rich white client, or perhaps blaming the victim for not behaving like an upper middle class white person) and only reopened the case when it was reported on in the newspapers this week.
Predictably, some people dismissed the story, either by questioning the accuracy of Liz Hleza’s version of events (as if a different version of events would justify the use of any of the racist words uttered) or by arguing in one way or another that she was to blame for this racist attack on her because she behaved “inappropriately”. What has not been addressed is the question of whether Liz Hleza would be successful if she took the reported abuser (or Virgin Active, for that matter) to the Equality Court.
The Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) was adopted in 2000 to give effect to the constitutional prohibition against unfair discrimination and to protect citizen from abuse and discrimination based on the race, sex, sexual orientation, religion, disability and a variety of other characteristics of the victim. PEPUDA also aims to make it easier for a private individual to take the state or another private individual or institution to court to challenge unfair discrimination or abuse.
It is important to note that PEPUDA does not outlaw racism per se and it does not turn every racist in South Africa into an instant criminal. (If it did, our courts would have been flooded with PEPUDA cases.) This means that if the lawyer who reportedly abused Hleza because of her race, made racists remarks during a dinner party, PEPUDA would almost certainly not have applied to him. In any case, even when a person contravenes PEPUDA, he or she does not commit a crime and does not get a criminal record if found guilty of racial discrimination or hate speech in terms of the Act. The court will make a finding that a person has acted unlawfully and will impose a relevant punishment (ordering the payment of a fine, the issuing of an apology or another appropriate corrective action).
The Act does prohibit unfair discrimination, harassment and hate speech.
It is clear that the lawyer could be found guilty of hate speech in terms of section 10 of PEPUDA if he had used even one of the racist words ascribed to him. This is because hate speech is defined rather broadly as including any verbal racial attack that could reasonably be construed to demonstrate a clear intention to be hurtful to another person. When a person calls someone else the k-word and hurls other racial abuse at the victim, it would be rather difficult to argue that this would not reasonably be capable of being construed as having the intention to be hurtful to the victim. The lawyer would therefore almost certainly be guilty of hate speech.
As I have written before (in the context of the Julius Malema’s hate speech case), I believe that this section is unconstitutional as it draws the net far too wide and infringes on the right of freedom of expression in a manner that is not justifiable by the limitation clause. Nevertheless, until the Constitutional Court confirms (or rejects) this view, one would be able to rely on section 10 of PEPUDA to bring a case against the lawyer.
Section 11 of PEPUDA also prohibits any person from subjecting another person to harassment. Harassment is defined as unwanted conduct “which is persistent or serious and demeans, humiliates or creates a hostile or intimidating environment or is calculated to induce submission by actual or threatened adverse consequences and which is related to sex, gender or sexual orientation” or any other ground such as race.
The reported conduct of the lawyer may arguably be viewed by a court as sufficiently serious to amount to harassment based on race as it would have demeaned and humiliated the victim based on her race. Whether a court will find this, is not clear.
The definition of harassment can be given either a narrow interpretation (which would exclude a once-off racial attack like the one under discussion), or it could be given a wider interpretation that would include once-off verbal attacks of a racist nature – as long as the verbal attack is of a serious nature. If the latter interpretation is preferred, it would mean that as long as the abuse was serious and as long as it could be shown to have humiliated or demeaned the other person (based on race, sex, gender, sexual orientation or another ground listed in the Constitution), the court would find that harassment occurred.
PEPUDA also prohibits unfair discrimination, stating that “discrimination” means any act or omission, including a policy, law, rule, practice, condition or situation which directly or indirectly imposes burdens, obligations or disadvantage on; or withholds benefits, opportunities or advantages from, any person on one or more of the prohibited grounds.
If one has demonstrated that one has been treated differently from somebody else based on one’s race, say, it will then be assumed by the court that one has been unfairly discriminated against. The other party can then try to rebut this presumption of unfair discrimination. The definition of discrimination provided in PEPUDA suggests that “mere” words would seldom amount to unfair discrimination, because one would have to show that the words had the result of imposing a burden or withholding an advantage from someone based on his or her race.
However, as PEPUDA is not a particularly well drafted Act, there seems to be a contradiction between this definition of discrimination (contained in section 1 of the Act) and the provisions of section 7 of PEPUDA which purports to provide illustrations of the kinds of actions that would constitute discrimination. Section 7 states that:
no person may unfairly discriminate against any person on the ground of race, including: (a) the dissemination of any propaganda or idea, which propounds the racial superiority or inferiority of any person, including incitement to, or participation in, any form of racial violence; (b) the engagement in any activity which is intended to promote, or has the effect of promoting, exclusivity, based on race; (c) the exclusion of persons of a particular race group under any rule or practice that appears to be legitimate but which is actually aimed at maintaining exclusive control by a particular race group; (d) the provision or continued provision of inferior services to any racial group, compared to those of another racial group; (e) the denial of access to opportunities, including access to services or contractual opportunities for rendering services for consideration, or failing to take steps to reasonably accommodate the needs of such persons.
While the reported abuse of Hleza by the lawyer would probably not fall within the general definition of unfair discrimination in PEPUDA, his reported actions may well fall within the ambit of the examples provided for in section 7 of the Act. This is because he expressed views that promote the idea of the racial inferiority of black people. Given the fact that hate speech is already outlawed by section 10 of PEPUDA, I am not sure whether a court will interpret the unfair discrimination provisions in such a broad manner to include racial abuse. If I am correct, this would mean that the lawyer may well not be found guilty of unfair discrimination if brought before an Equality Court.
However, regardless of whether one follows the stricter definition of discrimination provided in the definitions section of PEPUDA or whether one follows the provisions of section 7, the Virgin Active gym might well be found guilty of unfair discrimination.
If Virgin Active did not protect Ms Hleza from the reported racial invective of the lawyer and if it had failed to deal decisively with the matter (by, for example, suspending the lawyers membership and banning him from their gyms), this omission on the part of Virgin Active may well be viewed as constituting unfair discrimination as its inaction would have assisted in creating an environment in which Ms Hleza would have felt that she could not attend the gym or at least not the spinning class at times when she felt like it.
Such an interpretation would make sense as it would place a special burden on businesses to protect individuals against the racism of other clients. Such a burden would attack the problem of racial discrimination in a more systematic and comprehensive manner. Instead of “merely” punishing the individual racist, the Act (interpreted as proposed) would place a positive duty on powerful corporations and businesses to deal with racism amongst its clients. As businesses have far more power to deal with such matters effectively than individual clients who suffer racist abuse, this interpretation might well make the provisions of the Act more effective.
Meanwhile we await word from Virgin Active to see whether the publicity might have shamed it into taking this reported incident as seriously as it deserves. If it does not, Hleza might well want to take both the abuser and Virgin Active to the Equality Court.BACK TO TOP