THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable
Case no: 163/2020

In the matter between:
SOLIDARITY

FIRST APPELLANT

BEREAVED FAMILIES
AS PER ANNEXURE A

SECOND APPELLANT

and

BLACK FIRST LAND FIRST

FIRST RESPONDENT

LINDSAY MAASDORP

SECOND RESPONDENT

ZWELAKHE DUBASI

THIRD RESPONDENT

Neutral citation: Solidarity and Another v Black First Land First and
Others
(163/2020)
[2021] ZASCA
(24 March 2021)
Coram:
PONNAN, MOLEMELA and NICHOLLS JJA and
GOOSEN and UNTERHALTER AJJA

Heard:
17 February 2021

Delivered: This judgment was handed down electronically by
circulation to the parties’ representatives via email, publication on the
Supreme Court of Appeal website and release to SAFLII. The date and
time for hand-down is deemed to be 12h00 on 24 March 2021.

Summary:
Promotion
of
Equality
and
Prevention
of
Unfair
Discrimination Act 4 of 2000 – whether the order granted by the Equality
Court declaring the proceedings a nullity is competent.

ORDER

On appeal from: Equality Court, Gauteng Division of the High Court,
Johannesburg (Makgoathleng J sitting as court of first instance):
The appeal is upheld.
The order of the court a quo is set aside.
The matter is remitted to the Equality Court to be finalised, either
by the presiding judge or in the event that the presiding judge is,
for whatever reason, unable to finalise the matter, any other judge
as the Judge President may direct.

JUDGMENT

Nicholls JA (Ponnan and Molemela JJA and Goosen and Unterhalter
AJJA concurring):

[1] On the morning of 1 February 2019 a walkway bridge collapsed at
Hoërskool Driehoek, in Vanderbijlpark, tragically causing the death of
four learners, aged between 13 and 17 years old. Twenty other learners
were injured. All were white.

[2] On the same day, and once the incident became public, a certain
Siyanda Gumede posted the following on his facebook page: ‘Don’t have
heart to feel pain for white kids. Minus 3 future problems’.
Black First Land First (BLF), a registered political party1 at the time, and
the first respondent, commented on this post. Lindsay Maasdorp, the

1 BLF was deregistered as a political party in November 2019 and re-registered a year later on
16 November 2020.

second respondent and the national spokesperson of the BLF,
immediately responded to Gumede’s statement on the official BLF twitter
account as follows: ‘Siyanda Gumede is correct! God is responding, why
should we frown on the ancestors petitions to punish the land thieves
including their offspring’. Zwelakhe Dubasi was the deputy secretary
general of the BLF and is the third respondent. He also commented on
Siyanda Gumede’s post on the official BLF twitter account stating:
‘Ancestors are with BLF, as we fight they fight too. They shake the land
and white buildings built on stolen land collapse. Keep fighting Zinyanya,
you are fighting a good fight. Camugu!’.

[3] These comments caused widespread outrage on various media
platforms. When approached for clarification by The Citizen newspaper,
Mr Maasdorp responded that he was ‘not certain’ whether the victims
were white and he would mourn them if they were black. He added: ‘If
our God has finally intervened and our ancestors have petitioned and
seen that these white land thieves have now died then I definitely
celebrate it. I celebrate the death of our enemies, their children, their cats
and dogs. That is our position’.

[4] This led to Solidarity, a registered trade union of predominantly
white members, launching an application in terms of s 20 of the
Promotion of Equality and Prevention of Unfair Discrimination Act 4 of
2000 (the Equality Act). Solidarity claimed to act in its own interests, on
behalf of bereaved family members and in the public interest. It sought an
order declaring that the comments constituted hate speech, as defined by
ss 7, 10 and 11 of the Equality Act and were an affront to human dignity
and white people in general. Further ancillary relief was sought, including
the payment of damages to the families of the children.

[5] The application was opposed by BLF. The president of the BLF,
Mr Andile Mngxitama, deposed to the answering affidavit and
represented the party in person when the matter was heard on
22 August 2019.

[6] After the hearing, the parties were informed that judgment would
be handed down on 3 December 2019. The events that took place on that
day, though not confirmed on affidavit, were, as recounted by counsel for
the appellants and confirmed by Mr Mngxitama, as follows.
Mokgoathleng J requested the parties to address him on the effect of this
Court’s judgment in Qwelane v SAHRC,2 which had been delivered on
29 November 2019 and which held that s 10 of the Equality Act was
unconstitutional. It should be noted that this matter was subsequently
appealed to the Constitutional Court and its judgment is awaited.

[7] After hearing oral submissions, the judge adjourned the matter to
consider the submissions. What occurred thereafter we simply do not
know. What we do know is that across the front page of what appears to
have been the written ‘judgment’ prepared by the judge, he had written
by hand, ‘[t]he judgment is a nullity in view of the SCA judgment of
Jonathan Dubula Qwelane case No 686/2108’. The order that was
subsequently issued by the registrar recorded: ‘The proceedings in case
EQ2/2019 are declared a nullity’.

[8] Whether the court a quo considered the entire proceedings or
merely the judgment to be a nullity is, on the papers before us, unclear.

2 Qwelane v South African Human Rights Commission and Another [2019] ZASCA 167; 2020 (2) SA
124 (SCA).

However, what is apparent is that the judge had prepared a written
‘judgment’ in the matter before the Qwelane judgment was delivered by
this court. In it the judge found in favour of the applicants. The offending
comments were declared to amount to hate speech in terms of s 10(1) of
the Equality Act. The second and third respondents were interdicted from
repeating the comments and were ordered to publish an apology within
30 days, directed to all South Africans, and to be disseminated by the
South African Human Rights Commission, in which they acknowledged
that their comments were hate speech and that they were wrong to publish
them. In addition, the second and third respondents were ordered,
jointly and severally, to pay R50 000 damages, arising out of
emotional and psychological pain, and humiliation to each of the families
of the deceased within 30 days.

[9] The Qwelane judgment dealt with a newspaper article written by
the late journalist Jonathan Dubula Qwelane in which he criticised
homosexual relationships and gay marriages. After a detailed exposition
of the interplay between hate speech and s 16 of the Constitution, which
guarantees freedom of speech, this Court held that s 10 of the
Equality Act unnecessarily limited freedom of speech and was therefore
unconstitutional.

[10] One of the primary functions of a court is to bring to finality the
dispute with which it is seized. It does so by making an order that is clear,
exacts compliance, and is capable of being enforced in the event of non-
compliance.3 The court order in this matter did not achieve finality nor
was it capable of being enforced. As it was put by Nugent JA in
Makhanya v University of Zululand:

3 Eke v Parsons [2015] ZACC 30; 2016 (3) SA 37 (CC) paras 73-74.

‘The power of a court to entertain a claim derives from the power that all organised
states assume to themselves to bring to an end disputes amongst their inhabitants that
are capable of being resolved by resort to law. Disputes of that kind are brought to an
end either by upholding a claim that is brought before it by a claimant or by
dismissing the claim. By so doing the order either permits or denies to the claimant
the right to call into play the apparatus of the state to enforce the claim.’4

[11] The high court simply failed to discharge its primary function. The
order that it issued declared the proceedings a nullity, and hence declined
to determine the dispute before the court. To like effect, the court, by
rendering its own ‘judgment’ a nullity, left the parties without a binding
decision. A court does not enjoy the power not to decide a case that is
properly brought before it. Nor may a court declare its own proceedings
to be a nullity.

[12] A court may lack jurisdiction or suffer from some other limitation
of its powers. But a court, pronouncing on these matters nevertheless
renders a decision that is dispositive of the case before it. But that is not
what happened before the high court in this matter. The decision of this
Court in Qwelane plainly had relevance for the decision that the high
court was required to make. The high court should have taken time to
consider Qwelane, and the parties’ submissions, and then rendered its
judgment so as to decide the case. More incautiously, the high court
might have handed down the written judgment that it had prepared,
without regard to Qwelane. In either event, an order would have been
issued that determined the dispute before the court.

4Makhanya v University of Zululand [2009] ZASCA 69; 2010 (1) SA 62 (SCA) para 22.

[13] The high court took neither course of action. Instead, it pronounced
its own ‘judgment’ to be a nullity or indeed the proceedings to be a
nullity. It simply declined to resolve a dispute that was properly before it
and left the parties with no decision. That state of affairs cannot be left
undisturbed by this Court.

[14] Once that is so, the matter must be remitted to the court a quo to
enable the dispute that was properly before it, to be finally resolved. The
proceedings had reached an advanced stage. The judge had been
addressed in argument by both parties, whereafter judgment had been
reserved. All that remained was for the judge to deliver his judgment.
That is where the proceedings must recommence. On that there seemed to
be agreement before us. There was some concern that the presiding judge
may have since retired. In that event, the parties appeared to accept that
the matter could recommence before another judge, as directed by the
Judge President of the division. Should another judge come into the
matter, he or she would obviously be free to issue such directives as to
the further conduct of the matter as appears meet, including but not
limited to requiring further argument in the matter.

[15] As regards costs, it is not the fault of either party that they had to
appear before this Court. The attorney representing the respondents
withdrew shortly before the hearing of the matter. In those circumstances,
Mr Mngxitama appeared before us, for the purposes, so he indicated, of
applying for the appeal to be adjourned. Given that counsel for the
appellants accepted in debate with him that: (a) the order could not stand;
(b) there was no substantive order on the merits and that we therefore
could not enter into the merits of the appeal; and (c) the matter
consequently had to be remitted to the court below, Mr Mngxitama did

not persist in that application. It was thus not necessary to consider
whether he could indeed represent the appellants in the appeal.5

[16] The appeal is with the leave of the court below. No reasons were
given for the order. What prompted the grant of leave and in respect of
what order, since there did not appear to be a judgment on the substantive
merits, we simply do not know. However, both parties were compelled to
appear to correct an obviously incompetent order. It thus seems unfair to
mulct either party with costs. Consequently, there shall be no order as to
costs.

[17] In the result the following order is made:
The appeal is upheld.
The order of the court a quo is set aside.
The matter is remitted to the Equality Court to be finalised, either
by the presiding judge or in the event that the presiding judge is,
for whatever reason, unable to finalise the matter, any other judge
as the Judge President may direct.

5 Manong and Associates (Pty) Ltd v Minister of Public Works and Another [2009] ZASCA 110; 2010
(2) SA 167 (SCA).

____________________
C NICHOLLS
JUDGE OF APPEAL

APPEARANCES
For Appellants:

D J Groenwald

Instructed by:
Hunter Spies Inc., Centurion.
Rossouw & Conradie Inc., Bloemfontein.

For First Respondent:
A Mngxitama

Instructed by:

Black First Land First, Johannesburg.

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:

24 March 2021
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and does not form part of
the judgments of the Supreme Court of Appeal
Solidarity and Another v Black First Land First and Others (163/2020) [2021] ZASCA 26 (24 March 2021)

Today the Supreme Court of Appeal (SCA) handed down judgment upholding the appeal against an order of the
Equality Court, Gauteng Division of the High Court, Johannesburg; and ordered the matter to be remitted to the
court a quo to be finalised.
The issue for determination by the court was whether the order granted by the Equality Court declaring the
proceedings a nullity was competent.
On the morning of 1 February 2019 a walkway bridge collapsed at Hoërskool Driehoek, in Vanderbijlpark,
tragically causing the death of four learners, aged between 13 and 17 years old. Twenty other learners were injured.
All were white. Pursuant thereto, comments emanating from the facebook account of one Siyanda Gumede, the
twitter account of the first respondent, a registered political party at the time, and the second respondent, the
national spokesperson of the first respondent, were made. These comments were to the effect that the deceased
and the injured learners, because they were white and the offspring of ‘land thieves’, were deserving of
punishment.
These comments caused widespread outrage on various media platforms. When approached for clarification by
The Citizen newspaper, the second respondent responded that he was ‘not certain’ whether the victims were white
and he would mourn them if they were black. This led to Solidarity, a registered trade union of predominantly
white members, launching an application in terms of s 20 of the Promotion of Equality and Prevention of Unfair
Discrimination Act 4 of 2000 (the Equality Act).
Solidarity sought an order declaring that the comments constituted hate speech, as defined by ss 7, 10 and 11 of
the Equality Act and were an affront to human dignity and white people in general. Further ancillary relief was
sought, including the payment of damages to the families of the children. The application was opposed by the
first respondent.
Judgment was reserved for hand down on 3 December 2019. On that day, the judge requested the parties to address
him on the effect of the Supreme Court of Appeal’s judgment in Qwelane v SAHRC, which had been delivered on
29 November 2019 and which held that s 10 of the Equality Act was unconstitutional. This matter was
subsequently appealed to the Constitutional Court and its judgment is awaited.

After hearing oral submissions, the judge adjourned the matter to consider the submissions. He then wrote by
hand, on the written ‘judgment’ that he had prepared, ‘The judgment is a nullity in view of the SCA judgment of
Jonathan Dubula Qwelane case No 686/2108’. The order that was subsequently issued by the registrar recorded:
‘The proceedings in case EQ2/2019 are declared a nullity’. The written judgment prepared by the judge had found
in favour of the applicants.
The court held that the court a quo order did not achieve finality nor was it capable of being enforced. The
high court had failed to discharge its primary function. The order that it issued declined to determine the dispute
before the court. The court, by rendering its own ‘judgment’ a nullity, left the parties without a binding decision.
Further it was held that a court does not enjoy the power not to decide a case that is properly brought before it.
Nor may a court declare its own proceedings to be a nullity.
The Supreme Court of Appeal upheld the appeal and remitted the matter to the court a quo to enable the dispute
to be finally resolved.

________________________________________