BLF hate speech case referred to Equality Court for the dispute to be resolved

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Andile Mngxitama of Black First Land First (BLF). Photo: Felix Dlangamandla
Andile Mngxitama of Black First Land First (BLF). Photo: Felix Dlangamandla
  • The SCA set aside a decision by the Equality Court, in which it declared a judgment in Solidarity's favour null.
  • The SCA remitted the matter to the Equality Court, to enable the dispute to be resolved.
  • It said the court, by rendering its own judgment a nullity, left the parties without a binding decision. 

The Supreme Court of Appeal (SCA) has set aside an order made by the Equality Court in Johannesburg, in which it declared a judgment null in the case involving trade union Solidarity and Black First Land First (BLF).

The judgment was in favour of the trade union after the court heard a complaint against BLF members over racial remarks, following the death of four pupils at Driehoek Hoërskool in Vanderbijlpark in February 2019.

The pupils were killed and 26 others injured when a concrete slab, linking two buildings at the school, fell on them, News24 reported.

Three died at the scene, while the other succumbed to his injuries in hospital. They were on their way to class when the incident occurred.

At the time, BLF spokesperson Lindsay Maasdorp said their deaths meant future problems had been eliminated, adding the incident was God responding.

"Why should we frown on the ancestors' petitions to punish the land thieves, including their offspring," Maasdorp said.

READ | 4th learner dies in Hoërskool Driehoek disaster

Solidarity took the matter to court.  

But due to a SCA ruling in Qwelane v SAHRC, which found the definition of hate speech was unconstitutional and invalid, Judge Ratha Mokgoatlheng was forced to nullify his ruling.

The SCA has now referred the matter to the Equality Court to be finalised.

In a judgment penned by Appeal Court Judge Caroline Nicholls, which was delivered this week, she said: "The high court simply failed to discharge its primary function.

"The order that it issued declared the proceedings a nullity, and hence declined to determine the dispute before the court."

She added: 

To like effect, the court, by rendering its own 'judgment' a nullity, left the parties without a binding decision. A court does not enjoy the power not to decide a case that is properly brought before it. Nor may a court declare its own proceedings to be a nullity.

Nicholls also said a court "may lack jurisdiction or suffer from some other limitation of its powers, but a court pronouncing on these matters nevertheless renders a decision that is dispositive of the case before it. But that is not what happened before the high court in this matter". She said the decision of the SCA in the Qwelane matter had relevance for the decision the court was required to make. 

"The high court should have taken time to consider Qwelane, and the parties' submissions, and then rendered its judgment so as to decide the case. More incautiously, the high court might have handed down the written judgment that it has prepared without regard to Qwelane. In any regard, an order would have been issued that determined the dispute before the court," Nicholls said. 

READ | BLF leaders in the clear after judge makes U-turn over racial remarks aimed at dead Hoërskool Driehoek pupils

"The high court took neither course of action. Instead, it pronounced its own 'judgment' to be a nullity or indeed the proceedings to be a nullity. It simply declined to resolve a dispute that was properly before it and left the parties with no decision. That state of affairs cannot be left undisturbed by this court." 

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