Cape Town – AfriForum have lost a court bid to have posts suggesting it supported rape taken off Facebook after a heated campus confrontation around a statue at Stellenbosch University earlier this year.
In a judgment handed down on Friday, Acting Judge Michael Donen also laid the blame at the door of AfriForum, saying that some of its own supporters who were there had sexually assaulted a rape survivor during the clash.
In the damning judgment dismissing the group's application for the removal of Facebook and Twitter posts by Johan Pienaar, Donen recalled the dramatic events of March 3.
Drawing from numerous affidavits following the application by AfriForum and its head of local government affairs, Marcus Pawson, against Pienaar, a member of the Protest Observers' Alliance (POA), he painted a picture of a confluence of political views.
He said Pienaar was a supporter of the Open Stellenbosch campaign (OS), which lobbied to have Afrikaans removed as the leading medium of instruction, and also wanted apartheid-area symbols and art removed.
OS is also supported by the Economic Freedom Fighters (EFF) and their Student Command, the Fees Must Fall campaign, the Stellenbosch Students Representative Council (SRC) and the SA Students Congress (Sasco).
On the other side was AfriForum, which, among other things, lobbies for the rights of Afrikaans-speaking students. On March 3, a group of its supporters gathered on campus to clean up after weeks of protests. This included washing the statue of Jan Marais, a founding funder of Stellenbosch University, and the Afrikaans language.
They had also allegedly circulated a pamphlet calling on people to gather at the statue, saying it was going to be burnt down.
On March 3, while the AfriForum supporters were at the statue, a group of EFF supporters stuck a 'Vote EFF' poster on the statue.
The EFF group included an activist from the End Rape Culture Campaign, which was launched at the university in February. She stood in front of the chalked 'End Rape Culture' message, while the AfriForum supporters were trying to remove the EFF poster and the chalked slogan.
Then chaos ensued.
Rape survivor in midst
Afterwards, Pienaar posted on Facebook: "I witnessed AfriForum supporters threaten to rape women today and then when they found out that the one protestor was a rape survivor mocked her by shouting 'Don't rape her again she's been done'. I will just leave this here for all you guys who told me about the good work AfriForum is doing."
AfriForum and Pawson alleged this was false and defamatory and wanted the posts removed. They denied AfriForum supporters had threatened to rape any women, or that they were aware there was a rape survivor in their midst while they allegedly made the comments. They also denied that any AfriForum supporters said what Pienaar claimed.
On March 6 Pienaar posted on Twitter: "Watch how @MarcusAfr of @AfriForum uses rape to intimidate a rape survivor."
In another post on March 7, Pienaar wrote: "Look at how Marcus Pawson from AfriForum uses rape to intimidate a rape survivor. This happened on Thursday and this is what AfriForum is desperately trying to cover up with spurious criminal charges and fake civil action."
On March 8 he tweeted, "Well @AfriForum supporters get to shout rape threats and the media focus on the mud on the statue."
On March 14 AfriForum and Pawson filed papers for an urgent order that Pienaar's Facebook posts and Tweets be removed, and that Pienaar be gagged from saying anything in future on his claims that they supported or incited rape.
The judge said there was no dispute that Pienaar posted the comments, the only dispute was about the events of the day.
Donen explained that Pawson said that Pienaar had arrived with a group of EFF and OS supporters who were protesting over the suspension of seven students, although Pienaar said he was there as an observer with the POA.
Pawson submitted that the two groups clashed and Pienaar "pretended" to shield a woman who was standing with her back to the statue. Pawson called this a publicity stunt, saying the woman was in no danger.
But in the ensuing commotion, Pienaar was pressed closer to the woman, and Pawson claims to have shouted that Pienaar was hurting her. He said there was a video to prove this, but Donen ruled it inadmissable because its authenticity was questioned.
According to Pienaar, the woman was groped and touched by the AfriForum supporters.
She yelled for them to stop, and this was when Pienaar said he put himself between her and the AfriForum group.
When people told the AfriForum supporters the woman was a rape survivor, some in the AfriForum group shouted, "Don't rape her, she's already been done" and one laughed when he heard the information.
Donen said the woman already had post traumatic stress disorder as a result of her rape and that it was triggered by sexually aggressive actions directed at her by men.
'Want to be raped'
Donen also noted the woman was a member of the 'Volksverraiers' (Betrayers of the People), which wants it known that AfriForum does not speak for all Afrikaners, and so tensions ran high.
The woman said during the confrontation someone tried to pull her off the statue. She was bumped several times into men around her. One pushed his leg into her buttocks and ignored her when she said she felt uncomfortable.
He carried on, which made her feel sexually vulnerable. Two other female protesters were also abused, she alleged, and charges have been laid with police.
She was spoken to aggressively, and touched on her torso and breast as a group of men pressed over her to carry on scrubbing the statue, sometimes washing her too.
Another man shouted in Afrikaans, "A person would think they want to be raped".
In the meantime Pienaar was dragged away and had a confrontation with Pawson, while the woman was being pushed against the statue. She eventually left in tears.
'Inflicted their rape culture'
Donen found that whether or not AfriForum supporters threatened to rape the woman in the literal sense of the word, "they nevertheless did inflict their rape culture on her and other women present".
"AfriForum's promotion of the interruption via a pamphlet led to the violence and the sexual assault, sexual violence and sexual aggression and intimidation and expressing of rape culture in an egregious form," he said.
Donen said that the rights relating to freedom of expression and freedom of the press and other media extended to social media such as Facebook and Twitter.
Previous judgments have shown that if the subject is political, it arouses strong emotions and bitterness and public discussion becomes more heated. So it was inevitable that this would happen at Stellenbosch University.
But freedom of speech does not extend to hate speech, and every person's dignity and reputation should be protected.
"In line with those judgments, Pienaar is entitled to some latitude in describing the confrontation because it was political, emotional, bitter and liable to be described in strong language," said Donen.
He believed a reasonable person would read Pienaar's statement in the context of the events.
He added that by thrusting themselves in the public eye, AfriForum had opened themselves to scrutiny. "It was AfriForum's promotion of the confrontation by pamphlet and its arrival on campus that led to the violence.
'Oppressive and unjustified"
"In accordance with these judgments Mr Pienaar is entitled to an amount of latitude in describing the confrontation between AfriForum and the groups.
"They must consequently display a greater degree of tolerance to criticism than ordinary individuals.
"According to the cases cited above Mr Pienaar's robust political riposte constitutes an exercise of freedom of expression which, in my view, does not involve defamatory statements concerning the applicants."
He said AfriForum and Pawson could have refuted or rebutted Pienaar's comments just as quickly as the court application through other public forums such as debates and meetings.
"They have not established a prima facie right to have the publication taken down."
He said the orders they wanted would have a "chilling" effect on free speech.
"The limits sought are oppressive and unjustified. There is no merit in the application for either the mandatory interdict or the interim interdict," he said.
The application was dismissed with costs.