This case has shown the Equality Court to be a vital tool to bring about social change and social justice, says Peter Williams.
Cape Town - When Rural Development and Land Reform Deputy Minister Mcebisi Skwatsha referred Gloria Kente to me, I felt a sense of outrage that such an incident could occur 20 years into democracy. Kente, a live-in domestic worker, complained that after her shift had ended, she requested her employer’s boyfriend to look after his baby while she took a shower. He was upset about this, grabbed her by her pyjamas, spat in her face and told her that she was “a pathetic k*****, that he hated k*****s and that he hated her”.
He continued by saying that “k*****s had stolen our land” and “I wish that that c*** Mandela can die in hospital”. This was during the time that Nelson Mandela was still in hospital and the entire country was praying for him. Kente complained that she had been subjected to racial abuse and harassment over a number of years and that she had previously lodged a case with the police, only to find out that the perpetrator had paid an acknowledgement of guilt fine of R150. He had previously indicated to her that he could not “breath in the same room as k*****s”.
Skwatsha made it clear that Kente could not afford the services of an attorney. Deputy President Cyril Ramaphosa has indicated that the trust deficit between racial groups is worrying and we felt that inter-racial violence could become the order of the day unless ordinary citizens are prepared to do something about it.
Our law firm decided to put its weight behind this case and I spent in excess of 100 hours working on it.
This case can be considered to be a trailblazer case. Magistrate Jerome Koeries found that the incidents had occurred as described by Kente and indicated that hate speech would not be tolerated by our courts and that violence against women would have dire consequences. The court found that the word “k*****“ constitutes hate speech. The judgment implies that where derogatory words such as k*****, or even H****t or C****e or other derogatory words are used, the court will not hesitate to deal with it harshly. The act provides for victims of hate speech to claim damages for the hurt, humiliation and degradation which they suffered, and in Kente’s case a substantial amount was awarded, relatively speaking.
The Supreme Court of Appeal held that: “The Equality Court was established in order to provide easy access to justice and to enable even the most disadvantaged individuals or communities to walk off the street into the portals of the Equality Court to seek speedy redress against unfair discrimination and hate speech, through less formal procedures.”
It stated furthermore: “Section 20(2) of the act provides that a person wishing to institute proceedings in terms of or under the act must… notify the clerk of the Equality Court of their intention to do so. Regulation 6 of the regulations governing proceedings in the Equality Court provides for a prescribed form to be completed in which the complaint is to be formulated.”
In a high court case, the following was said: “It is clear to me that the act creates an informal and inexpensive platform for adjudication of unfair discrimination and hate speech disputes.
“It creates a space for the victims of unfair discrimination to tell their stories so that systemic inequalities and unfair discrimination which… remain deeply embedded in social structures may be eradicated.” The court continued by referring to a Western Cape Equality Court decision where the following was said by Judge Nathan Erasmus: “An integral part of the Equality Act, then, is the focus on the creation of a user-friendly court environment where proceedings are conducted along inquisitorial lines, with an emphasis on informality, participation and the speedy processing of matters… The formal, adversarial, often expensive and potentially intimidating proceedings that prevail in an ordinary magistrate’s court or high court and which may act as a barrier to those seeking justice, have no place in an Equality Court.”
From these pronouncements, it is clear that the Equality Court was created as a specialist court where ordinary citizens can have speedy and easy access to justice.
The Equality Act is a product of the South African constitution, which has been described as a transformative constitution. This concept entails that the law can serve as a medium for social change and that through the enforcement of individual rights people can change not only their own lives, but also effect change in society. The Equality Court serves as an important tool to transform society from the vestiges of apartheid.
Kente has shown tremendous courage in pursuing this case and in the process exposed the intersecting nature of class, race and gender discrimination which many African women are subjected to.
Kente has become a symbol and an inspiration to many workers in South Africa and elsewhere of how the most vulnerable and oppressed can take a strong stand against abuse. The SA Domestic Services and Allied Workers Union reported an increase in domestic workers who reported abuse as a direct result of this case. It has therefore succeeded in highlighting the plight of domestic workers. This case was widely reported in South Africa, in the Netherlands as well as certain parts of Africa. Well-known columnist Max du Preez tweeted that Gloria Kente is a hero and an example to all of us.
Kente pursued this case at immense personal sacrifice. She was subjected to cross-examination in both the criminal and Equality courts, and the perpetrator and his witness tried to portray her as a liar. This is exactly why workers in general are reluctant to speak out, as it is often their word against an employer who is more educated, articulate and well-off. Pursuing matters through the courts can be emotionally draining and there were times that she felt like giving up, especially after multiple court postponements, but she persevered.
This case, like other prominent cases, has succeeded in promoting the Equality Court as an instrument which can bring about social change and social justice. Subsequent to this case, the regional head of Justice complained that too few people made use of the Equality Court and he cited Kente as an example of how the Equality Court can make a difference in a person’s life.
Kente previously laid a case against the same perpetrator in 2008 and how that incident was treated provides some chilling insight into how the police are treating hate speech in the new South Africa: “Just pay R150 admission of guilt fine to ‘make this thing go away’.” The question is, how widespread is this practice? Through Kente’s bold stance, she has shown that there is a potential deterrent and that people should use it.
This case has promoted the concept of racial abuse in South Africa. This concept is widely used in the UK and other jurisdictions, but, before this case, this concept was not widely used in South Africa. While doing research on how other jurisdictions treat hate speech, we came across the fact that the words racial abuse are widely used in certain jurisdictions and we referred to this concept. The media seized upon it and used it widely as a result thereof. Although it is not the first time that the local media used these terms, this concept became more widely known in South Africa as a result of this case.
The issue of violence against women is endemic in our society. South Africa participates annually in the global “16 Days of Activism for No Violence Against Women and Children Campaign”. We argued that a strong judgment by the Equality Court would serve as a major boost to this campaign. In his judgment, magistrate Koeries made it clear that violence against women would be dealt with firmly and would have severe consequences.
Our Constitutional Court has long since emphasised that it is in the interest of the state to regulate hate speech in our land, as hate speech may pose harm to the constitutionally mandated objective of a non-racist and non-sexist society. Our courts have held that the purpose and objectives of the Equality Act are aimed at giving Equality courts wide powers to redress inequality and discrimination. We urged the Equality Court to use its “wide powers”.
The Women’s Legal Centre joined as an amicus curiae (friend of the court) and indicated that the judgment may have a far-reaching effect and may potentially affect 1 million domestic workers as well as millions of other people. The court heard that domestic workers are at the bottom of the apartheid ladder and its legacy is still with us, and our transformative constitution had not found its way yet to domestic workers. It was argued that the decision of this court would have a broad effect, and that the court therefore had an opportunity to send a strong message.
It should be borne in mind that the hate speech and harassment in this case occurred during and outside working hours, and that the claim was against her employer’s boyfriend and not the employer per se. The reason why this is important is because where a workplace dispute is against the employer, the employee can pursue relief in the Labour Court or CCMA under the Employment Equity Act and not the Equality Court. In this case, the employer was initially sympathetic towards Kente, but as the case generated more publicity the employer became hostile and testified on behalf of her boyfriend. If this was her stance at the outset, we would have pursued a case against her as well for failing to provide a safe working environment.
There is case law to the effect that the Labour Court awarded what it termed “constitutional damages” against an employer for failing to provide a safe working environment.
In conclusion, it is my respectful view that Equality courts will be effective only if presiding officers understand the role and function of this court. It is important that they have a progressive and transformative outlook, otherwise they would discourage potential litigants from asserting their rights through the Equality Court.
* Peter Williams is a Practising Consultant at the law firm Robert Charles & Associates.
** The views expressed here are not necessarily those of Independent Media.