Human rights commission welcomes "baboon case" outcome

01 Feb 2016 | Admin Author

The SA Human Rights Commission says its pleased with the outcome of a hate speech case against a Port Elizabeth magistrate who called a court cleaner a baboon.

On Tuesday magistrate Johan Herselman, abandoned his application to the Supreme Court of Appeal to overturn an Equality Court finding in favour of 43-year-old Kayalethu Geleba.

Judge Mohammad Navsa reportedly advised Herselman and his counsel that pursuing the appeal would have adverse implications to his credibility as a High Court judge, and may lead to him losing his job.

The head of legal services at the Human Rights Commissin, Pandelis Georgiou, said they were looking forward to the full unreserved apology and the payment of the amount ordered by the Equality Court.

" We were also of the view together with the LRC who assisted us in the matter wanted to pursue the issue at the Supreme Court of appeal in terms of providing and obtaining a presedent but unfortunately that is not the case, but obviously we will allow the process to run in terms of the order that was granted by the Equality Court and we will pursue the matter to that end" Georgiou said.

In his appeal Herselman, who uttered the words "moenie soos 'n bobbejaan wees nie", proposed that his words did not constitute hate speech as they did not contradict section 10 of the Equality Act because he claims that he did not intend to hurt or harm. In his defence, he further claimed that section 10 of the Equality Act ought to be read to include "incitement to cause harm" as provided for in section 16 of the Constitution. Moreover, he claimed that paragraphs (a), (b) and (c) of section 10 of the Equality Act should be read conjunctively and not disjunctively.

Contrastingly, Geleba's counsel rejected Herselman's claims stating that they were fundamentally unsound. He further stated that Herselman intended to tell Geleba that he was being stupid and that the choice of words, when understood in the South African social and legal context, demonstrates an intention to hurt.

Constitutionally, Geleba's counsel retorted that Herselman's claims are not warranted and that section 10 (a), (b) and (c) are to be read disjunctively.

Sarah Sephton, the regional director of the LRC in Grahamstown said: "The LRC is extremely disappointed that there is no precedent setting judgment which would send a strong message to the public at large that racist speech in our constitutional dispensation."

The Commission, furthermore, commits to ensure that Herselman carries out the Equality Court's order of awarding Geleba a compensatory amount of R4 500 and for him to issue an unconditional apology to Geleba.