Kohler Barnard discrimination case stalls due to administrative delays

10 June 2019 - 15:18 By ANDISIWE MAKINANA
Dianne Kohler Barnard pictured leaving a DA disciplinary hearing in parliament in October 2015. She is fighting new allegations in the Equality Court.
Dianne Kohler Barnard pictured leaving a DA disciplinary hearing in parliament in October 2015. She is fighting new allegations in the Equality Court.
Image: Jaco Marais

An unfair-discrimination case against DA MP Dianne Kohler Barnard was postponed on Monday for a hearing in July.

Kohler Barnard’s lawyer, Michael Tsele, requested the postponement, saying he had not had a proper opportunity to prepare as witness statements which were supposed to be filed last month had not been filed.

Tsele said he was severely incapacitated and had no clue what he was going to cross-examine the witnesses on. "We are here, I don't have any witness statements. I don't know what they are going to say," he told the Equality Court sitting in Cape Town.

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The DA's former director of parliamentary operations, Louw Nel, approached the court earlier this year accusing Kohler Barnard of making "discriminatory utterances" during a workshop attended by DA staff members in parliament to discuss a safety and security strategy.

Nel said he had found Kohler Barnard's comments to be racist, sexist and xenophobic in nature.

While Kohler Barnard does not deny making the statements, she argued in her responding affidavit that Nel omitted the context in which her comments were made, that she merely relayed information gathered during a work-related trip and that her comments did not constitute unfair discrimination. She also claims that Nel misquoted her actual utterances and that in some instances, his accusations were simply contrived.

At the court's last sitting on May 3, presiding magistrate Daniel Thulare instructed the clerk of the court to issue subpoenas to DA chief whip John Steenhuisen, DA MP Zak Mbhele and two former staff members, Grant Caswell and Kabelo Mhlohlo, to appear before the court this week. Police were to ensure they submitted affidavits by May 17 in relation to Nel's complaint.

But due to administrative hiccups, the subpoenas were issued late and the sworn statements were not filed.

Three of the four men, including Steenhuisen, were in court, while one, Mhlohlo, lodged an affidavit indicating his unwillingness to be a witness.

Kohler Barnard also appeared for the first time since the matter was brought to the court in February.

Steenhuisen's lawyer, Piet Olivier, tried to get the DA chief whip – to whom Nel reported the alleged discriminatory remarks - removed as a witness, saying his evidence "is not the best evidence that can be given on the matter".  He argued that a written affidavit by Steenhuisen would be sufficient.

"What is at issue here is what Ms Kohler Barnard said at the meeting with Mr Nel and various other parties. My client wasn't at that meeting so he can't give testimony as to what happened in that meeting," he said.

Thulare wasn't completely sold. But he struck a compromise and agreed that Steenhuisen and other witnesses did not have to be in court throughout proceedings but could be available when needed at two hours' notice.