Equality Court rejects privacy defence in hate speech case

The Equality Court has found that communications between two white business associates – one of whom referred to black people using a racist word – were “sufficiently public” to fall within the Equality Act’s definition of hate speech.

The High Court in Johannesburg, sitting as an Equality Court, was called upon to consider the respondent’s defence that the communications in question were private and therefore could not amount to hate speech as envisaged by section 10(1) of the Equality Act.

The respondent was Willem Ackerman, a former shareholder and a client of Caleo Capital, a Johannesburg-based FSP that provides wealth management and corporate advisory services.

The complainants were three senior staff members of Caleo: Emmanuel Amaning, a director; Nicholas Liebmann, the firm’s co-founder and head of strategic partnerships; and Garth Wellman, also a co-founder and Caleo’s chief executive.

For the purposes of the case, it is relevant that Amaning is black (born in Ghana but grew up in South Africa) and Liebmann is Jewish. Ackerman and Wellman were described as white and not Jewish.

Litigation is pending between the complainants and the respondent in respect of their business dealings. The court did not address the pending litigation.

Four alleged incidents

In their pleadings, the complainants alleged Ackerman engaged in hate speech against black people on three occasions and used anti-Semitic language on one occasion:

• In January 2018, during a conversation at Ackerman’s business premises, he told Wellman that “the k…..s running this country will just keep f…ing it up as they have done in the rest of Africa”. It was pleaded that these words constituted hate speech under section 10(1) of the Equality Act, unfair discrimination on the ground of race under section 7(a) of the Act, and harassment under section 11 of the Act. The harassment is alleged to have consisted in Ackerman inviting Wellman to enjoy or endorse the words, and thereby created a hostile or intimidating environment.
• In October 2018, also during a conversation at Ackerman’s business premises, he said to Wellman that Liebmann was “that f…ing Jew who only wants to enrich himself in every deal”, or words to that effect. It was pleaded that these words were hate speech and harassment, the latter because Ackerman invited Wellman to endorse the words, and thereby created a hostile or intimidating environment. Liebmann was allegedly informed of the incident on the day it occurred.
• In August 2019, Ackerman sent a text message to Wellman with the words: “Garth after today I might be seen as racist but I will man alone kill every k….r that cross my path. So God help me.” It was pleaded that his text amounted to hate speech, unfair discrimination on the ground of race, and harassment because, by inviting Wellman to enjoy or endorse the words or by communicating the assumption that Wellman would enjoy or endorse the words, Ackerman demeaned Wellman or created a hostile and intimidating environment for Wellman.
• During a telephone call in October 2021, Ackerman said to Wellman: “my k…..s know their place”. It was pleaded that these words amounted to hate speech, unfair discrimination on the ground of race, and harassment.

Amaning was allegedly informed of the first, third, and fourth incidents in October 2022.

Ackerman’s assertions

In his defence, Ackerman made, inter alia, the following assertions:

• The accusations were a bad faith attempt to defame his good name and an attempt to leverage him into halting the pending litigation.
• Wellman asked him for bridging finance for one of Wellman’s companies after the alleged first incident. The complaints do make sense in light of this request.
• Ackerman donated to a charity of Wellman’s choice.
• The delay in raising the complaints and the requests for a donation and a loan were evidence of the falsity of the complaints.
• A company in which he has a 40% shareholding employs “75 people, of whom 49 are people of colour”.
• He has donated to bursaries for black people and to charity.

Ackerman alleged as follows with respect to the four pleaded incidents:

• He denied the first (January 2018) and fourth incidents (October 2021).
• He admitted saying (in October 2018) that Liebmann “only wants to enrich himself in every deal” but denied using the words “f…ing Jew”.
• He denied knowledge of the August 2019 text message. He stated further that, on the day in question, his wife, daughter, and domestic worker were robbed at gunpoint at his residence. His daughter was threatened with gang rape, and his domestic worker was viciously beaten. He claimed he was very upset, and his hatred was directed only at the perpetrators.

Meaning of the term ‘communicate’

Ackerman’s private communication defence relied on the Constitutional Court’s judgment in Qwelane v South African Human Rights Commission and Another (2021) and the decision by the Supreme Court of Appeal (SCA) in Afriforum NPC v Nelson Mandela Foundation Trust and Others (2023).

In Qwelane, Justice Steven Majiedt drew a distinction between public and private communications. The term “communicate” in section 10(1) of the Equality Act requires that the speaker transmits words to a third party. Hate speech prohibitions should not extend to private communications. True hate speech presupposes a public dissemination of some sort, and private communications, by their nature, do not have the same impact on the public good as public expressions of hate speech.

In the Equality Court’s decision, Judge Gregory Wright said the statements made in Qwelane about private communications were said in passing. Qwelane concerned a widely disseminated newspaper publication, and therefore the passages quoted from the judgment did not assist Ackerman’s case.

Turning to the judgment in Afriforum, he said the SCA stated that Afriform’s reliance on the statements made by the Constitutional Court in Qwelane underscored the inappropriateness of deciding, in the matter before the SCA, whether private displays of the old South African flag contravened the Equality Act.

Yet, Judge Wright went on to emphasise that the SCA also said: “This, however, is not to say that a private display of the old flag can never breach the provisions of the Equality Act. It is hard to see how a display of the old flag in the privacy of a home to which, for example, family members, children, or young people are invited and indoctrinated in racism and white supremacy, would not entitle a person to institute proceedings in the Equality Court for an order that there has been a breach of the Act.”

Justice Majiedt said in Qwelane that “communicate” in terms of section 10(1) of the Equality Act “plainly requires that the speaker transmits words to a third party”. Judge Wright said there is no requirement inherent in the verb “communicate” that the offensive words be communicated widely. It is sufficient that one person be addressed. A person intent on promoting hate speech might address one person at a time.

According to Justice Majiedt’s statements in Qwelane, it was improbable that “most private conversations” would expose a group to hatred and be likely to perpetuate negative stereotyping and unfair discrimination. Judge Wright said the use of the word “most” allows that in some cases, conversations or communications otherwise considered private would indeed have this effect.

He held that the communications in the present case were sufficiently public “communications” for the purposes of section 10(1).

“I would find it difficult to hold that the legislature, the Constitutional Court in Qwelane, and the Supreme Court of Appeal in Afriforum all meant to exclude from the ambit of section 10(1) of the Equality Act communications, such as those in context here, between two white business associates, one gratuitously using the k word. I would have thought that one of the purposes of the Constitution and the Equality Act would be to move any white persons who may still be in an apartheid comfort zone out of such a space. In effect, Mr Ackerman relied on what he assumed would be the like-mindedness of Mr Wellman. This is precisely one of the assumptions that the Constitution and the Equality Act seek to displace,” he said.

Degrees of privacy

Judge Wright said it is necessary to differentiate between degrees of privacy, or to put it another way, “where along a continuum an alleged right in a particular case sits”.

He cited the Constitutional Court’s judgment in AmaBhungane Centre for Investigative Journalism NPC and Another v Minister of Justice and Correctional Services and Others; Minister of Police v AmaBhungane Centre for Investigative Journalism NPC and Others (2021). The apex court said, “privacy is a right which becomes more intense the closer it moves to the intimate personal sphere of the life of human beings and less intense as it moves away from that core” (quoting from Hyundai Investigating Directorate: Serious Economic Offences v Hyundai Motor Distributors (Pty) Ltd In re: Hyundai Motor Distributors (Pty) Ltd v Smit NO and Others (2020).)

Judge Wright said Ackerman’s communications to Wellman could not be said to be in the “intimate personal sphere” for the purposes of section 10(1).

He emphasised the following from the Constitutional Court’s judgment in Bernstein and Others v Bester NO and Others (1996): “Privacy is acknowledged in the truly personal realm, but as a person moves into communal relations and activities such as business and social interaction, the scope of personal space shrinks accordingly.”

It was possible that Ackerman’s words did not fall within the meaning of “publish, propagate, or advocate” under section 10(1). But Judge Wright found that they did not enjoy protected privacy under section 14(d) of the Constitution and were not communicated from the “inner sanctum of the person”.

Findings and orders

The Equality Court found that that Ackerman used the k word when speaking to or texting Wellman in the incidents of January 2018, August 2019, and October 2021. It declared this speech to be unlawful hate speech, amounting to unlawful discrimination against black people, including Amaning, and constituting the unlawful harassment of Wellman.

The court did not address the incident relating to Liebmann because Liebmann withdrew his claim.

The court ordered Ackerman to:

• pay R500 000 to the Ahmed Kathrada Foundation;
• make a public apology to Amaning and Wellman within five calendar days of the date of the judgment;
• undergo 50 hours of racial sensitisation training conducted by the South African Human Rights Commission or an institution or person nominated by it; and
• pay Amaning’s and Wellman’s costs on the attorney and client scale, including those of counsel.

According to News24, Ackerman’s lawyer said the judgment will be appealed.

Click here to download the judgment.