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Justice cleared of hate speech

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The complaints against Justice Bekebeke and former premier Sylvia Lucas were dismissed.

The Director General Advocate Justice Bekebeke and former Northern Cape Premier Sylvia Lucas, have been cleared of discrimination, hate speech and harassment charges in the Equality Court. Picture: Danie van der Lith

NORTHERN Cape Director-General Justice Bekebeke and former premier Sylvia Lucas have been cleared of discrimination, hate speech and harassment charges in the Equality Court.

Chief magistrate Oswald Krieling dismissed the complaint with costs this week and removed the matter from the court roll.

A R100 000 claim for damages for the “pigs and panties” comments Bekebeke made and the counterclaim lodged for the defamation of Bekebeke’s character, for an amount of R200 000, were both dismissed.

The incident relates to remarks made by Bekebeke during a strategic management meeting where he addressed senior managers at the Protea Hotel in Kimberley in 2017.

During his closing speech, to motivate senior managers on work performance, he had indicated that “ek meng nie met semels en varke” (I do not mix or waste my time with chaff and pigs). “I have better things to do with my life than to descend to that level. I can assure you that, that level is lower than pigs”.

“Ek sal nie skrik gemaak word van mense/aunties wat werk toe kom met hulle groot, groen panties om mense ongelukkig te maak nie.” (I am not afraid of people/aunties who come to work with their big, green panties to make other people unhappy).

The court found that his speech, which he made to compare high-performance workers, who went beyond their scope of duty, to those who only reported to work to create havoc, did not amount to unfair discrimination based on sex or gender.

According to the complainant, Edith Mocwaledi, who retired from public service in January, she felt humiliated and discriminated against when she said Bekebeke had indicated that “vandag gaan gee ek iemand hel. Vandag sal hulle my sien. Ek gaan my groen panties vandag aantrek, ek sal my groen onderbroek vandag aantrek, dan gaan ek hulle wys.” (I will wake up in the morning and give them [my colleagues] hell. I will show them, I will put on my green panties, I will wear my green underpants today).

She pointed out that it was inappropriate for Bekebeke to make a comparison between “a mother, grandmother or a woman”, such as herself, and pigs that are considered to be “dirty animals”.

Mocwaledi also deemed the reference made to “green panties” as offensive.

She added that none of the managers present replied or complained because the director-general occupied a position of power.

Mocwaledi wanted Bekebeke to make an unconditional apology along with R100 000 in damages to compensate for the hurt caused.

She also took Lucas to task for not taking any remedial steps to prevent the violation of her dignity.

Another complaint, from the Office of the Premier, Mary Seleke, stated that Bekebeke’s comments regarding people who came to work with “big, green panties” and “semels” (chaff) left her, in her capacity as a woman, feeling “uncomfortable and hurt”.

She felt that his choice of words was disrespectful.

The third complainant, Lorrianne Bitterbos, testified that she also felt hurt and discriminated against.

She asked the court how someone could refer to her as “semel – a nothing”.

Bekebeke explained that he was making use of an accepted and commonly used Afrikaans idiom.

He testified that he was referring to an Afrikaans language idiom, “Meng jou met die semels dan vreet die varke jou op (direct translation in English – mix with the bran and the pigs will eat you).”

He further explained that his reference to “groen panties” and “groen onderbroeke” was a reference to the use of the colour ‘green’ in the play Othello by William Shakespeare when the character, lago, said: “Beware of jealousy, my lord! It’s a green-eyed monster that makes fun of the victims it devours …”

Bekebeke indicated that he ultimately wanted to encourage employees to do justice to the jobs that they are employed to do, where he had no intention of harassing, demeaning or hurting anyone.

He added that he felt “very hurt and aggrieved” about the allegations made against him.

He explained that he has a “Struggle … history”. He was on death row and fought for the country and our constitution.

Bekebeke also instituted a counterclaim of R200 000 for defamation of his character.

Senior manager at the Office of the Premier and chief State law adviser Gladys Botha, who was chairing the meeting, told the court that she was amused and not in any way offended by Bekebeke’s use of the Afrikaans idiom.

Chief magistrate Oswald Krieling, in his judgment, pointed out that the unwanted conduct relating to the harassment charge was only used at the time of the speech. “It is therefore clear that the alleged unwanted conduct was not persistent.

“As indicated, the complainant testified that she is a mother, a grandmother, a woman and it was inappropriate for the director-general to refer to ‘groen panties/green panties’. She also indicated that ‘varke/pigs’ are a dirty thing and dirty animal and “semels” is a reference to a very low level. She also indicated that the remarks were hurtful and demeaning and she felt dehumanised, a lesser person and lesser employee.”

He indicated that Mocwaledi had acknowledged during cross-examination that Bekebeke was addressing all the managers and had not made any specific reference to her in his speech.

“She was part of the group who were addressed by him. She is of the opinion that it was not right for him to use the said words and that although she did not respond immediately, she was depressed. Her evidence was confirmed by her two witnesses.”

Krieling accepted Bekebeke’s explanation that he was innocently referring to an Afrikaans idiom and Shakespearean analogy when he referred to pigs, chaff and green panties.

“No evidence to the contrary has been given. The court therefore accepts the explanation that this was used as an idiom or phrase. The figurative meaning . . . should not be interpreted and understood separately from the whole phrase.

“Based on the evidence, the court cannot find that the conduct of Bekebeke was serious or amounted to harassment . . . there was no unwanted conduct that was persistent or serious.”

He pointed out that while the complainants were aggrieved by the choice of words used and Bekebeke had admitted to using the words “semels en varke” (chaff and pigs), he was convinced that it was “an innocent use of language.”

“It is well known that the meaning of this Afrikaans idiom is that one should not associate with bad company otherwise you will also become bad.”

He added that while “green panties” could be associated with a woman, he questioned whether it was “uncommon for males to wear panties”.

“It is important for the court to consider if a reasonable person would consider the words used, had the intention to hurt, harm or incite hatred.”

Krieling indicated that the director-general was expected to create a vision for the Northern Cape and motivate senior managers to render quality services to communities.

“When he used the words he was clearly requesting the senior managers to rise above the occasion and to let nothing stand in their way to deliver this quality service – thus motivating them to only do their best.”

He pointed out that the laughter that was heard in the room after the remarks were made, although it was not heard by the complainants, was an indication that some of the senior managers “recognised the metaphorical meaning”.

“Thus the court finds that objectively considered the reasonable person (a fictional person with an ordinary degree of reason) would not consider the words ‘groen pantie’ and ‘groen onderbroek’ to have the intention to hurt, harm or incite hatred.

“The speech intended to motivate the senior managers in provincial government to return to their different responsibilities with a new vision and new energy. Bekebeke made reference to an idiom and also quoted from Othello of William Shakespeare. He was therefore attempting to inspire his staff with creative and inspiring language.”

Krieling ruled that the Promotion of Equality and Prevention of Unfair Discrimination Act did not deal with defamation claims and therefore could not consider Bekebeke’s counterclaim for damages.

The complainants were represented by Tsietsie Shuping, legal officer for the Commission for Gender Equality in the Northern Cape, while Lulama Lobi acted on behalf of Bekebeke and Lucas.