The judgment of the Equality Court in Amaning, Liebman & Wellman v Ackerman recently dealt with communications that amount to hate speech and the Interpretation thereof, taking the Constitution and the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (Equality Act) into account.

Summary

Amazing and Wellman lodged a complaint against Ackerman, accusing him of using the K-word and making discriminatory remarks about black and Jewish people on four occasions between 2018 and 2021. These incidents stemmed from their business relationship. Ackerman denied most allegations but admitted sending a text containing the K-word following a traumatic robbery at his home, in which he stated, "I will alone kill every k... that cross my path." The court ruled that Ackerman's communications amounted to hate speech, racial discrimination, and harassment of Wellman. It determined that these communications were not protected by privacy laws as they did not fall within the ‘inner sanctum’ of personal communications.

Discussion

The court examined the definitions of discrimination, harassment, and hate speech under the Equality Act. Judge Wright reviewed the Constitutional Court's ruling in Qwelane v South African Human Rights Commission, focusing on the interpretation of ‘communicate’ in private contexts. The court concluded that Ackerman's communications, though not widely disseminated, were sufficiently public to be considered hate speech. It differentiated between communications within the ‘intimate personal sphere’ and those in business or social contexts, where personal privacy is more limited. 

The court emphasized the text message Ackerman sent after the robbery, where he used the k-word and admitted he might be perceived as racist. He also stated, "my k...s know their place." The court dismissed Ackerman's claim that he used the term to refer to non-believers due to his religious beliefs, finding it implausible and contrary to the evidence. The court found Amaning and Wellman credible and rejected Ackerman's claims that the complaints were made in bad faith or that the text messages were fabricated, noting Ackerman's evasiveness and inconsistencies during his testimony.

Order

The court declared Ackerman's speech unlawful hate speech, racial discrimination against black people, and harassment of Wellman. It ordered Ackerman to pay R500,000 to the Ahmed Kathrada Foundation, issue a public apology, and complete 50 hours of racial sensitisation training. Additionally, the court awarded costs against Ackerman on an attorney-and-client scale, including counsel's fees, due to his unrepentant and dishonest defence. 

Written by Msizi Mhlongo, Attorney, SchoemanLaw