Case Summary and Outcome

The South African Supreme Court of Appeal reinstated a harassment protection order against a parent who had used a racial slur against his child’s school principal. The principal had obtained a protection order from a magistrate’s court, arguing that – along with persistent phone calls – the racial slur made her feel threatened, racially attacked and that her dignity was damaged. The High Court overturned the magistrate’s order, on a technicality related to the introduction of new evidence. The Supreme Court of Appeal accepted that the principal had felt vulnerable and that the racial slur caused emotional trauma.

Facts

On June 1, 2021, Joseph Mailula, a parent of a child at Eenheid Primary School in Modimolle, South Africa, was suspended from the school’s governing body (SGB). He was not happy with the decision to suspend him and pointed at three white members of the SGB and said “I will deal with Verwoerd’s kids”. [para. 3] “Verwoerd” refers to the Hendrik Verwoerd, a former apartheid-era South African Prime Minister.

Mailula had been elected as a parent representative on the SGB earlier in 2021, and in May had sent the school’s principal – Gerda Ruth Pringle – an email threatening to file a complaint with her “employer regarding [her] unprofessional conduct as the principal of the school”. [para. 2] Pringle, as principal, was also a member of the SGB and was one of the white members to whom Mailula directed his statement about “Verwoerd’s kids”.

Pringle believed that the remark “I will deal with Verwoerd’s kids” was “defamatory, racist and a threat” and she removed Mailula from the SGB WhatsApp group and blocked his personal mobile phone number. [para. 4] After Mailula used a different number in an attempt to contact Pringle, she approached a Magistrates Court to obtain a harassment order under the Protection from Harassment Act. She said that when he described her and the other white SGB members as “Verwoerd’s kids” she “felt threatened and afraid and racially attacked and offended and [her] dignity was severely attacked and damaged”. [para. 29]

On June 3, 2021, the Magistrates Court granted an interim order prohibiting Mailula from communicating with Pringle or her children, from being near her house and from threatening Pringle directly or indirectly. Mailula was also prohibited from attending any SGB meetings. On June 14, the magistrate removed the prohibition on Mailula attending SGB meetings and the matter was postponed to allow him to obtain legal representation. Mailula maintained that his conduct had been “at best, ‘unattractive’,” not “oppressive or unreasonable”. [para. 7] Pringle obtained a victim impact assessment from a clinical social worker and criminologist who described Mailula’s conduct as resulting in “an increasing fear” for Pringle. [para. 9]

At the Magistrates Court hearing on August 18, 2021, the chairperson of the SGB, Mr Chisi, described Mailula as being “aggressive” and confirmed Pringle’s description of Mailula pointing to the three white members of the SGB and calling them “children of Verwoerd”. [para. 12] He said that Mailula had also “bombarded” him with emails and that his suspension from the SGB was “necessary to protect members of the SGB”. [para. 13] The magistrate made the interim order final.

Mailula appealed the magistrate’s decision to the High Court. The High Court set aside the Magistrates Court order, finding that Mailula’s right to a fair trial had been violated on the grounds that the magistrate had improperly admitted new evidence.

Pringle appealed the decision to the Supreme Court of Appeal.

Decision Overview

Acting Judge Baartman delivered the Court’s unanimous decision.  The main issue for the Court’s determination was whether Pringle met the requirements for a protection order.

Mailula denied that he called Pringle and the other white SGB members “Verwoerd’s kids” and submitted that, even if he had, that “could not be construed negatively as there are streets and a town bearing the name [Verwoerd].” [para. 27]

The Court confirmed that the Magistrates Court was entitled to adduce further evidence after the interim order had been issued; in fact, as the Protection from Harassment Act is designed to protect vulnerable people who very often will not be legally represented, the Court explained that “insistence on the ordinary civil process would frustrate the purpose of the Act”. [para. 19]

In determining whether Mailula’s conduct constituted harassment, the Court examined the nature of the insult and threat “Verwoerd’s kids”. The Court accepted that in South Africa “reference to Verwoerd’s kids carries a racial connotation associated with [Verwoerd] and what he stood for”. [para. 27] It referred to the case, City of Cape Town v. Freddie,which had also addressed the use of “Verwoerd” as a racial slur and had commented that “one should expect to see all right-minded and peace-loving people not to dare to be even perceived as associating themselves with anything to do with Verwoerd and his lieutenants, as well as his similarly-minded successors”. [para. 27]

The Court held that, in saying “Verwoerd’s kids”, Mailula had “used a racial slur while threatening to deal with” Pringle, and then considered whether that – along with his other conduct – constituted harassment. [para. 28] It found that Pringle had felt “emotional” and was “vulnerable” and that “the racial slur coupled with the threat caused further emotional trauma”. [para. 31]

The Court overturned the High Court’s decision and reinstated the Magistrates Court decision to confirm a final harassment order.