After a five-year legal battle, the Chinese Association on Thursday won a landmark victory in the equality court, which ordered 10 people to apologise and pay damages for hate speech — for comments posted on Facebook directed at the Chinese community.
The Facebook comments followed a January 2017 Carte Blanche programme on animal abuse and the trade in donkey skins, which showed the inhumane slaughter of donkeys.
Comments included: “Why don’t these Chinese get the f**k away from our country seriously go skin your own people leave our donkeys alone you mfs,” “Can we stop these slant eyes freaks from coming into the country,” and “We need to get rid of Chinese in sa ... they not welcome, they steal our economy, dogs, Rhino and now donkeys.”
In his judgment, judge Motsamai Makume described at length how each of the respondents had responded to the claim of hate speech, with some not bothering to show up to court, some immediately apologising and taking responsibility, some taking a bit longer but eventually also apologising; and Mariette van der Linde de Klerk, who fought the case to the end. In making orders against them, he took these positions into account, he said.
Makume described the evidence of Erwin Ming Pon, who testified and was cross-examined for seven days. Pon was born in SA, his grandparents having fled here after wars in China. “His grandmother, now 106 years old, was in court on the day Mr Pon testified,” said Makume.
Speech is powerful — it has the ability to build, promote and nurture, but it can also denigrate, humiliate and destroy.
— Constitutional Court
At a stage they lived in Sophiatown until being forcibly removed to a place called “Malay camp” — at the end of Commissioner Street, he said. Eventually his family managed to buy a house in Parkhurst via a white front person, as Chinese people were not allowed to own property, he testified. At Parkhurst Baptist, he was the only Chinese child. “Because he could not at that stage speak English, he was teased by the white school kids who called him ‘Ching Chong Chinaman’,” said the judgment.
Makume said Pon testified that in 1994 he had queued up to vote and “had high hopes that all the bad things were done”. But the Facebook comments “made him feel they were attacking his family ... In his view the comments were violent”, said the judge.
Makume then described how Pon was subjected to cross-examination by a representative for David Horne — who was the only one who had posted comments but was ultimately found to not have committed hate speech — because his comments were found to not be directed at Chinese people.
But Makume was nonetheless critical of his representative in court who suggested “this case was a minor issue compared with what is happening elsewhere”. The judge also described how Collin Garvey, counsel for Horne and Van der Linde de Klerk had questioned Pon’s proficiency in English — “which question was correctly objected to” and had applied for Makume’s recusal, which he dismissed.
Makume quoted the Constitutional Court, saying: “Speech is powerful — it has the ability to build, promote and nurture, but it can also denigrate, humiliate and destroy. Hate speech is one of the most devastating modes of subverting the dignity and self-worth of human beings.”
He then went through each one of the statements that had been posted and assessed them against the law. Other than Horne’s, he determined each amounted to hate speech. Alice Henning, Anja Lock, Dawn Reeve, Joy Termorshuizen, Lana Berger, Van Der Linde De Klerk, Regina Richardson, Ryan van der Walt, Shana Markram and Tracy Terink were all ordered to apologise and pay R50,000 to the Hong Ning Chinese Aged Home. In Van der Linde de Klerk’s case, the amount was R150,000.
If they were unable to pay, they could perform an alternative course of community service according to the court order.
