Political movement Black First Land First (BLF) has been ordered to publicly apologise to all South Africans and pay R50,000 in damages to each of the families of four children who died when a walkway bridge collapsed at their school in February 2019.

The Johannesburg Equality Court ruled that BLF had “celebrated the tragic deaths” on social media and in other commentary, making utterances deemed to be hate speech and outlawed by the Promotion of Equality and Prevention of Unfair Discrimination Act.

Judge Ratha Mokgoatlheng noted that the Constitutional Court has effectively ruled that “hurtful” statements no longer constituted hate speech.

However, “there can be no greater advocacy of hatred than to rejoice and celebrate the deaths of innocent children because of the fate relating to the colour of their skin”. The children who died were white.

He ruled that the statements were offensive, based on racial bigotry, and did not amount to freedom of expression.

The complaint was lodged with the court by Solidarity and the bereaved families against BLF and its office bearers, Lindsay Maasdorp and Zwelakhe Dubasi, after they both responded to a social media comment posted minutes after the tragedy by Siyanda Dizzy Gumede, which read: “don’t have a heart to feel pain for white kids. Minus 3 future problems.”

The four pupils died and about 20 others were injured at the time, some critically, after the walkway collapsed at Hoërskool Driehoek in VanderbijlPark.

In response to Gumede’s post, Maasdorp posted that this was “correct” and that “God is responding why should we frown on the ancestors’ petition to punish the land thieves including their offspring”.

Asked for clarification by a newspaper, he again referred to the white land thieves who had died and he would definitely celebrate the “death of our enemies, their children, their cats and their dogs”.

Dubasi wrote that the ancestors were “with BLF” and “they shake the land, and their white buildings and white buildings built on stolen land collapse”.

Solidarity and the families accused BLF of celebrating the deaths. They said the messages conveyed that the four children had been deserving of death and punishment and were land thieves and the enemies of black people in general.

BLF raised freedom of speech as a defence. It said the postings needed to be seen in the context of the need for redress against the evils of colonialism which black people were still subjected to. The comments did not amount to an incitement to cause harm, they said.

Read the full judgment here.

The application was initially argued in September 2019. In December that year, Judge Mokgoatlheng ruled in favour of the applicants but declared his judgment a nullity because by then the Supreme Court of Appeal (SCA) had made a ruling regarding the constitutionality of the Equality Act, saying it was too vague.

Subsequently, in July 2021, the Constitutional Court made a final pronouncement on the act in the matter involving radio presenter Jon Qwelane, who had made anti-gay comments in a newspaper column. The apex court partly agreed with the SCA, ruled that the expression of “unpopular and even offensive beliefs” and “hurtful” comments did not necessarily amount to hate speech, but nevertheless found Qwelane guilty of hate speech.

In light of this, Judge Mokgoatlheng then asked for more submissions from the parties, but BLF did not participate any further.

The applicants argued that the crux of the matter was that the respondents had celebrated the death of white children and “it was hate speech back then and it is still hate speech”.

Judge Mokgoatlheng, in his recent ruling, said his previous judgment “fell on all fours with the Constitutional Court’s assessment of what constituted hate speech”.

“The exact purpose of the statements was to incite harm and promote hatred. They cannot dispute that they have vilified white people. They view themselves as being at war with white people. They were made at a time when parents had to mourn the death of their children. It is difficult to conceive a more egregious assault on the dignity of white people than to celebrate the death of their children and denounce their offspring as thieves worthy of death,” the judge said.

The judge said the harm was not only to a vulnerable targeted group (minor white children) but also to the country’s constitutional project which sought to create an inclusive society based on the values of equality, dignity and inclusiveness.

The apex court had confirmed that there was no need to establish a causal link between the expression and actual harm committed.

“The respondents turned a tragic accident into a racial victory, vilified their beloved children and rejoiced in their anguish and celebrated that death. It should be visited with rigorous sanction,” the judge said.

An interdict was granted preventing BLF and the office bearers from posting or publishing the same comments and ordered that they remove them from social media or any other public platform. The office bearers Maasdorp and Dubasi must, within 30 days, apologise to all South Africans and pay R50,000 to each of the four families. DM

First published by GroundUp.