Black First Land First (BLF) and two of its members appear to have had a very close shave with a hate speech judgment that would have cost their spokesperson, Lindsay Maasdorp, and deputy secretary-general, Zwelakhe Dubasi, R200,000, in addition to legal fees.
The BLF had been dragged to the Equality Court by labour union Solidarity following social media utterances from Maasdorp about the deaths of four pupils at Hoërskool Driehoek in Vanderbijlpark in February.
Pupils Roydon Olckers, 17, Jandré Steyn, 13, Marli Currie, 14, and Marnus Nagel, 16, were killed and 22 others injured after a concrete walkway linking two school buildings collapsed.
Maasdorp then responded to a post by Facebook user Siyanda Gumede in which he said he was unmoved by the pupils’ deaths as they would eliminate “three future problems” from the world. According to the Facebook post, Gumede said Maasdorp was “correct” in posting his comment, adding “God is responding”.
“Why should we frown on the ancestors’ petitions to punish the land thieves including their offspring,” Gumede continued.
Solidarity was acting on behalf of Jandré and Marnus’ parents as well as the parents of Stefanus Olivier, 15, who was a witness to the incident, and survivor Jennifer Delport, 14.
The union wanted damages of R150,000 payable to each complainant for the impairment of their dignity as well as emotional and psychological suffering caused.
The ruling was meant to be handed down on Tuesday and Judge Ratha Mokgoatlheng had evidently already penned a ruling (see below) that found Maasdorp guilty of hate speech along with ordering that he and the BLF’s deputy secretary-general should pay R50,000 in damages to each of the affected families of the deceased children, which would have amounted to R200,000.
They were also due to be slapped with a costs order, which could have cost even more, along with an order to apologise.
However, in a dramatic turn, the judge on Tuesday reportedly opted to nullify his verdict in light of the Supreme Court of Appeal ruling in favour of anti-gay rights columnist Jon Qwelane last week, which found that some of the wording around hate speech laws in South Africa were unconstitutional.
The judgment in the Qwelane case removed the concept of “hurt” from South Africa’s hate speech laws and affirmed freedom of expression.
The SA Human Rights Commission had taken action against Qwelane, relying on section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act (Pepuda), which was the same section being used against the BLF.
BLF leader Andile Mngxitama described the dramatic playing out of the non-verdict on Tuesday, claiming that the judge had been ready to hand down his damning finding against the BLF. Mngxitama apparently then challenged him to ensure that his ruling would be completely in line with the precedent set by the SCA last week.
“Today I stood up in my BLF T-shirt and demanded Judge Mokgoatle stop protecting land thieves [what the BLF calls white people]. I told him even as a layman I know he can’t use a provision that has been declared unconstitutional against us.
“He wanted to ridicule me.”
Mngxitama said that the judge nevertheless went to his chambers “for like two hours to [do] ‘research'” after Mngxitama was “literally screaming” at him.
“He came back and agreed with me … grudgingly of course. He then declared he was going to give ‘a nullity’ on the verdict. It means we won!”
Photographs of the supposedly nullified court judgment were sent to The Citizen, with a handwritten scrawl about the “nullity” at the top, and which references the Qwelane judgment.
“This judgement is a nullity in view of the SCA judgment in Jon Qwelane case,” it appears to declare.
Attempts to get comment from Solidarity were not immediately successful.
In a statement, the BLF later said: “The judge instead of handing down judgment asked the both the applicants and the respondents to address him on the judgment of the SCA. Solidarity reasoned that the judge must disregard that judgment because it doesn’t apply retrospectively.
“BLF argued that the court was compelled by the decision of the SCA and therefore couldn’t rely on section 10 of the Equality Act.”