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Daily Maverick
03-08-2025
- Politics
- Daily Maverick
Can hate speech be defended as freedom of religion? Court to decide in LGBTQ discrimination case
A Gqeberha shop owner who put up a sign banning LGBTQIA+ patrons and ran an anti-LGBTQ WhatsApp group is at the centre of a landmark hate speech case. While he claims religious freedom, the Human Rights Commission argues that his conduct incites violence and violates the Promotion of Equality and Prevention of Unfair Discrimination Act. The High Court has called for further submissions. The court battle between the South African Human Rights Commission (SAHRC) and Gqeberha businessman Dawood Lagardien, accused of promoting hate speech by refusing to serve members of the LGBTQIA+ community, continues in the city's high court, where the presiding officer has called for supplementary submissions from both sides. While the latest court appearance took place last week, the matter dates back to mid-2023 when photographs started circulating of a chalkboard outside La Gardi Catering Plastics in Parkside. Shop owner Dawood Lagardien wrote: 'LGBTQ not welcome at La Gardi – Save our children'. Shortly thereafter it came to light that Lagardien was also the administrator of a WhatsApp chat group called Our rights – antiLGBTQ+. The SAHRC took the matter to court, claiming that Lagardien was in violation of the Promotion of Equality and Prevention of Unfair Discrimination Act (Pepuda) and actively promoting hate speech and discrimination against people based on their sexual orientation. 'The commission submits that the impugned conduct – the establishment of a WhatsApp group and putting up of the sign outside the shop – constitutes hate speech. In this regard it must be recalled that the respondent has admitted to putting up the sign and establishing the WhatsApp group, so it is common cause that impugned conduct is attributable to him,' the SAHRC's heads of argument read. It further argued that Lagardien's sign offered no reasons for banning people from his shop and simply promoted discrimination. The commission also quoted messages shared on Lagardien's WhatsApp group, claiming clear Pepuda violations, hate speech and incitement to violence. One message read: 'LGBTQ is a blatant attack on Islam. Force is the only option… If only I had a powerful group to crush these sodomists […] and crush these evil vermin from.' As part of its claim, the SAHRC calls on Lagardien to issue a public apology to the LGBTQIA+ community and damages in the amount of R500,000 be paid to an NGO yet to be identified. In his responding documents, Lagardien does not deny putting up the sign or starting the chat group, but argues that he did not violate Pepuda, and rather that he was exercising his right to religious freedom as a devout Muslim. 'As part of his beliefs regarding Islam, he believes that same-sex relationships are un-Islamic and amoral. He also holds the belief that, under his faith, he is obliged to take steps to prevent children from being exposed to what his faith and spiritual beliefs dictate is amoral behaviour,' his responding heads of argument read. In addition to opposing the SAHRC application, Lagardien also brought a counter-application, alleging that the commission's investigation was defective and it failed to discharge its duties under the South African Human Rights Commissions Act. He recounted an incident in June 2023 where two homosexual men allegedly entered his store and engaged in 'sexually inappropriate behaviour' by kissing and touching each other's genitals in front of Muslim customers and their young children. When asked to leave the store, the men allegedly told Lagardien they could do as they pleased during Pride Month. He alleged that the following day his daughter was threatened by two men from the LGBTQ+ community inside the store, and further threats of violence followed when Lagardien requested that they leave the store. This incident prompted him to post the disputed sign outside his store. Days later he found the sign had been destroyed. He stated that the WhatsApp group was created to 'alert members of his community to the threats and intimidation from the LGBTQ community'and to communicate Islamic teachings on homosexuality. While he claimed no messages to incite violence were ever sent on the group, he also stated that none of the screenshots of messages contained in the SAHRC's documents were linked to his phone number or WhatsApp account. The group has since been closed, and Lagardien reiterated that the sign outside his shop had been destroyed in response to claims that he refused to remove it. Lagardien argues the SAHRC's claim against him violates his right to freedom of religion, while the SAHRC states that his conduct goes far beyond the Islamic stance against homosexuality. The matter returned to the Gqeberha High Court last Monday, 28 July 2025. The court determined that SAHRC, represented by Advocate Siphelo Mbeki, and Lagardien, represented by Advocate Feroze Boda, must submit supplementary heads of argument in the next few weeks before a final judgment can be made. DM
Daily Maverick
18-05-2025
- Politics
- Daily Maverick
Employers and schools can no longer claim ignorance of cyberbullying
South Africa has a robust set of laws to tackle cyberbullying in schools and workplaces. However, in classrooms, offices and online chats, the updating and enforcement of these policies remain deficient. In 2021, a video of 15-year-old Limpopo schoolgirl Lufuno Mavhunga's violent assault at the hands of a fellow learner went viral. Following the assault, Mavhunga took her own life. An investigation by the South African Human Rights Commission found that the school had failed in its duty of care, ignoring pleas from her family and failing to act when alerted. 'We have very good laws,' said Dr Sershiv Reddy, senior lecturer in the department of mercantile law at the University of Johannesburg. 'But sometimes we are impeded by enforcement, maybe due to the lack of funding or other resources.' South Africa's legislative toolkit, including the Protection from Harassment Act (2011) and the Promotion of Equality and Prevention of Unfair Discrimination Act (Pepuda, 2000), offers remedies for victims of harassment and discrimination. These protections often vanish in the policy void between written laws and day-to-day practice. No adults in the room 'More than 95% of our children have access to the internet,' Reddy said 'The keyword is access. It doesn't mean that they may have a mobile device at home, but it means they have access via other means. That could be through a school computer, through the library, [or] an internet café.' Seventy percent of children access the internet without their parents knowing, and more than half of South African schoolchildren have been victims of cyberbullying, Reddy said. In 2018, the Ipsos Research Institute ranked South Africa fifth in a global survey of 28 countries measuring cyberbullying rates. And it's not just children. Anli Bezuidenhout, employment law director at Cliffe Dekker Hofmeyr, pointed out that teachers and employees are also victims of online harassment. WhatsApp and HR While bullies have migrated to WhatsApp groups, Instagram direct messages (DMs) and Zoom calls, schools and workplaces seem stuck in a pre-digital era, failing to proactively update policies. 'Where in the past we may have had policies relating to sexual harassment, we now often see those policies haven't been broadened to also deal with issues such as cyberbullying,' Bezuidenhout said. This is despite the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace, which came into effect four years ago. It states that employers (including schools) should have anti-harassment policies that also cover digital spaces. Bezuidenhout explained that the code introduces the requirement to review other policies, such as a company or school's social media policy. Off the clock, still on the hook Tim Fletcher, director and chair of dispute resolution at Cliffe Dekker Hofmeyr, describes the Protection from Harassment Act as 'a fairly draconian remedy', but one that is easily obtainable. Victims can approach the magistrate's court, whether in their area, the perpetrator's, or where the incident happened, to secure an interim protection order, Fletcher said. This order becomes effective the moment it is served, and if unchallenged, it converts into a final order with an attached warrant of arrest. Pepuda, meanwhile, offers even broader powers through the Equality Court, allowing action on virtually any ground undermining dignity. And critically, cyberbullying outside of working hours is still grounds for disciplinary action. 'It's off-duty misconduct, you're against the school conduct, against the company's conduct, bringing the company into disrepute. I would still be able to discipline such an individual,' Aadil Patel, head of employment law at Cliffe Dekker Hofmeyr, said. How does this affect you? The boundaries between public and private, workplace and home, have blurred. WhatsApp groups, private DMs and social media posts are not outside the law's reach. Cyberbullying at school or at work is not something you have to endure quietly. The legal system offers tools for protection. But those tools only work if victims and communities know they exist, and use them.
