Lesufi: 'Race baiting' not a human rights violation - SAHRC

Commission rejects complaint over MEC's conduct in Koeitjies & Kalfies case

Ref: GP/1617/0225/KC/MDP

2 February 2018

Dear Sir,


1. Your complaint received on 13 July 2016 refers.

2. In your complaint, you allege the following:

a) In June 2016, the MEC for Basic Education, Gauteng, investigated allegations of racism at the Koekies and Kalfies Creche in Centurion;

b) The MEC, in numerous social media posts, alleged strongly that the Creche was racist in its apparent treatment of a black child who attended there;

c) The MEC's allegations were based on a picture, disseminated on social media by the mother of the child in question, showing the child sitting separately from white children at a table;

d) The DOG, Mr Tshwete, further posted a picture of a man being beaten, using this as an analogy for what the MEC planned on doing to perceived racists at the Creche;

e) The MEC, in another "tweet", indicated his "disgust" that the main caregivers and children in this Creche were white. You believe this is based on his disgust for the racial group to which these people belong, and not their actions.

f) The allegations of racism at the Creche, it transpired, were inaccurate and the picture in question had been taken out of context. The GDE's investigation of racism at the Creche therefore ended.

3. You are of the view that the above actions of the MEC and DOG constituted "race baiting" and were injurious to the Creche and its staff.

4. The Principal of the Creche furthermore stated in an article on that the actions of the child 's mother have led to her and the Creche receiving numerous threats. The Commission notes however , that the article does not refer to the actions of any official of the Gauteng Department of Basic Education, and appears to lay the blame on the child's mother for misleadingthe public. However, in your complaint, you do not bring an indictment against the mother of the child and neither will the Commission.

5. The Commission has considered you complaint and found as follows:

6. The actions of the MEC and DDG, while based on what transpired to be an incorrect interpretation of the situation, do not in themselves constitute any form of racial discrimination. "Race baiting", as you put it, is not a constitutionally recognised tern, or concept, and while in practice this may be undesirable, it is not in itself a human rights violation.

7. The Commission furthermore does not find that the MEC's "disgust" at the fact that the Creche's main caregivers and children were all white, is based on racial discrimination, hatred, stereotyping, or any other constitutionally prohibited ground.

The Commission is of the view that the MEC's concern at the overwhelmingly white composition of the Creche's staff and children does not arise from a dislike of white individuals, but rather from a widely-held concern that the staff and learner composition of educational facilities in South Africa is grossly unrepresentative of our country's demographics, which is one of the reasons that millions of poor black South Africans remain oppressed by poverty, lack of employment and lack of education.

8. In addition, the right to freedom of expression, as contained in section 16 of the Constitution, protects all people and allows them to express their views. This is particularyl important where one wishes to express their view that someone else has violated the Constitution, even if their allegations are wrong. People cannot be afraid to call out unconstitutional behaviour for fear that doing so would in itself be unconstitutional - this would undemiine the very fabric of constitutional democrac y. It is this very principle that allows you to lay a complaint with a public body such as the Commission and bring strong allegations of racial discrimination and unlawful exercises of power against the Respondents. While the Commission appreciates your complaint, we do not need to find merit in it, nor would you stand to be constitutionally chastised should your allegations be dismissed.

9. The above forms an integral part of the right to freedom of expression. Nevertheless, the right to freedom of expression may be limited and as such, section 16(2) of the Constitution states that freedom of expression does not extend to

a) Propaganda for war

b) Incitement of imminent violence; or

c) Advocacy of hatred based on race, gender, ethnicity or religion that constitutes incitement to cause harm.

10. The Commission does not find that the Respondents ' statements constitute any form of expression that falls within the prohibitive ambit of section 16(2) above, as it was not intended to incite war, imminent violence, hatred or harm against any person.

11. In addition to section 16(2) of the Constitution, the right to freedom of expression may also be limited by section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 ("the Equality Act"), which states that:

"No one may publish, propagate, advocate or communicate words based on one or more of the prohibited grounds, against any person, that could reasonably be construed to demonstrate a clear intention to -

(a) be hurtful;

(b) be harmful or to incite harm;

(c) promote or propagate hatred.

12. . While perhaps misguided and factually incorrect, the MEC and DDG's statements are not those from which one can one construe a clear intention to hurt, harm or incite harm, or promote or propagate hatred against any particular race, gender, religion or other group of persons. The intention of the MEC and DDG was to root out racism and help a child they felt was in need.

13. It is the Commission's view that the MEC and DDG's right to freedom of express ion under section 16 of the Constitution of the Republic of South Africa, 1996, protects the comp lained-of social media posts and the manner in which they investigated the Creche.

14. The Commission has therefore been unable to determine that the MEC and DDG's actions or statements violate a fundamental right or violate any section of the Constitution or the Equality Act.

15. Article 28(c)(i) of the Commission's Complaints Handling Procedure states that " [a] complaint is concluded" where, " after the conclusion of an investigation ... it is found that there was no violation of a fundamental right."

16. Any violations that may have arisen from the MEC and DDG's actions and comments, such as intimidation of staff and defamation of the Creche and its employees, do not fall within the Commission's jurisdiction.

17. Should the Creche or its staff feel aggrieved, or that their dignity and reputation was unlawfully damaged by the MEC and DDG's actions, these persons have the right to approach the civil courts and sue for defamation. These persons furthermore have the right to report the MEC and the DDG to the police for crimen injuria. However, these forms of relief are not within the Commission's jurisdiction to provide or consider and the Commission has not received any complaint from the Creche or its staff.

18. In light of the above, the Commission will proceed to close its file herein.

19. Should you not be satisfied with this decision, you may lodge an appeal, in writing within 45 days of receipt of this letter. A copy of the appeal form is available at any office of the Commission. The appeal should be lodged with the Head Office of the Commission - contact details are as follows:

Physical Address: Appeals Section, 33 Hoofd Street, 4th Floor, Forum 3, Braampark, Braamfontein, 2017.

Postal Address: Appeals Section, Private Bag X2700, Houghton, 2041.

Fax number: 011 403 0567 (Attention -Appeals Section,)Telephone number: 011 877 3654 / 3653.

20. We thank you for bringing your complaint to the attention of the Commission and trust the above information is of some assistance to you.

Yours faithfully,

Matthew du Plessis

Senior Legal Officer

Gauteng Province

South African Human Rights Commission