Automated Summary
Key Facts
On 19 February 2024 at Mediclinic Cape Town, Mark Preyer communicated the word 'Kaffir' and used offensive terms including 'poes,' 'your mothers poes,' and 'fucking bitch' toward nurse Agreement Funeka Mayongo during a triage assessment. The court found this conduct violated section 10(1) of the PEPUDA (prohibition of hate speech) and section 11 (prohibition of harassment). The incident occurred after Preyer, a patient with a minor wound, became agitated over waiting times and felt his treatment was racially prejudiced. The Equality Court ruled Preyer's actions constituted hate speech based on race and harassment, leading to an order for him to pay costs and attend a remedy determination.
Issues
- The court addressed whether the respondent's use of the racial slur 'Kaffir' during an altercation with the applicant nurse constituted hate speech in violation of section 10(1) of the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA).
- The court examined whether the respondent's use of terms like 'poes', 'your mother's poes', and 'fucking bitch' created a hostile environment and constituted harassment as defined under section 11 of PEPUDA.
- The court determined that the respondent must cover the wasted costs associated with the postponed hearing on 3 June 2025, as his legal team's failure to properly apply for a postponement prior to the date resulted in unnecessary expenses.
Holdings
- Mark Preyer is ordered to pay the wasted costs occasioned by the postponement of 3 June 2025.
- Mark Preyer is ordered to pay the costs of the case.
- Mark Preyer communicated the word 'Kaffir' to Agreement Funeka Mayongo on 19 February 2024 at Mediclinic Cape Town in contravention of the prohibition of hate speech as envisaged in section 10(1) of the PEPUDA.
- Mark Preyer communicated the words 'poes', 'your mothers poes', and 'fucking bitch' to Agreement Funeka Mayongo in contravention of the prohibition of harassment as envisaged in section 11 of the PEPUDA.
Remedies
- Mark Preyer is ordered to pay the wasted costs resulting from the postponement of the hearing on 3 June 2025.
- Mark Preyer is ordered to pay the costs incurred in this legal proceeding.
Legal Principles
- The court applied costs principles related to Equality Court postponements, ordering the respondent to pay wasted costs incurred from an unapproved postponement of the 3 June 2025 hearing. The judgment emphasized that parties must formally apply for postponements with cogent reasons.
- The admissibility of the respondent's statement to the security officer (Skitasi) was analyzed under principles from Makhala v S, which emphasized that statements not obtained through coercion or improper means are admissible. The court found the statement reliable and consistent with observed evidence.
- The court applied sections 10(1) (prohibition of hate speech) and 11 (prohibition of harassment) of the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA). Section 10(1) was used to determine whether the respondent's use of the term 'kaffir' constituted hate speech based on race, while section 11 addressed the use of derogatory terms like 'fucking bitch' as harassment. The court also referenced the objective test for hate speech (South African Human Rights Commission v Masuku) and evaluated the admissibility of the respondent's statement to security (citing Makhala v S).
- The court applied the balance of probabilities standard of proof to evaluate the credibility of witness statements and the reliability of the respondent's claims. This included determining whether the respondent's injury was fresh and required urgent attention, and whether his allegations of racial discrimination were truthful.
Precedent Name
- Afriforum NPC v Neslon Mandela Foundation Trust and Others
- Stevens v S
- Makhala & Another v S
- Rice v Connolly
- South African Human Rights Commission obo South African Jewish Board of Deputies v Masuku and Another
Cited Statute
Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (Act No. 4 of 2000)
Judge Name
DM Thulare
Passage Text
- When a White person called an African person a kaffir, it propounds the racial superiority of the White and the inferiority of the African. I find that a reasonable person would regard Preyer calling Mayongo a kaffir was a remark based on the prohibited ground of race and intended to incite harm and propagate hatred and in contravention of section 10(1) of the Act.
- The gratuitous use of the words poes directed to Mayongo and her mother in the mother's absence, and the use of the word fucking bitch on Mayongo were meant to and in fact demeaned and humiliated her. They were meant to create a hostile and intimidating environment for an African as a victim of White supremacy. It constituted harassment as envisaged in section 11 of the Act.