SCA upholds R500,000 penalty against businessman over repeated use of K-word

A businessman who repeatedly used the K-word in communications with a business associate has lost his appeal after the Supreme Court of Appeal (SCA) upheld a finding that his conduct amounted to hate speech.

Willem Hendrik Ackerman must pay R500,000 to the Ahmed Kathrada Foundation, issue a public apology and complete 50 hours of racial sensitisation training.

The SCA also upheld the order that he pay the legal costs of Emmanuel Amaning and Garth Wellman, including the costs associated with legal counsel.

The judgment provides another reminder that private conversations are not automatically protected from scrutiny when they involve racial harassment or hate speech.

Racial slurs used over several years

The case arose from a series of statements Ackerman made between January 2018 and October 2021.

Ackerman was previously a client of Caleo Capital, an investment management company owned by Amaning and Wellman.

During a business meeting in January 2018, he allegedly made a racist comment about black people running South Africa.

Later that year, he referred to Nicholas Liebmann, a white South African of Jewish descent and Caleo partner, using an antisemitic slur while discussing a business deal.

In August 2019, after his home was robbed, Ackerman sent Wellman a WhatsApp message threatening to kill any black person who crossed his path.

Ackerman later said he had deleted the message because he had been in an extremely emotional state at the time.

Then, in October 2021, while discussing the potential impact of a NUMSA strike on his business, Ackerman allegedly said: “My k*ffirs know their place”.

The Equality Court found that Ackerman had made the communications and that his conduct amounted to hate speech.

SCA rejects argument that the K-word was not racial

Ackerman challenged the Equality Court’s findings on several grounds.

Among his arguments was that the WhatsApp communications had not been properly authenticated. He also claimed that the K-word could be used in a religious context to refer to a non-believer.

He further relied on his rights to privacy and freedom of expression.

The SCA rejected these arguments.

The court found that the K-word is inherently connected to race and is directed at black or African people. It described the term as “inescapably racist” and recognised its established character as a derogatory and harmful racial slur.

The court therefore found no basis for Ackerman’s argument that the particular context changed the meaning of the word.

Private messages can still amount to hate speech

One of the important issues considered by the SCA was whether Ackerman’s comments were protected because some were made during private communications.

The court rejected that argument.

It explained that privacy is not an absolute, all-or-nothing right. Instead, there are different levels of privacy depending on the nature and context of the information involved.

In this case, the communications took place within a business relationship rather than the private sphere of family or personal life.

The fact that the comments were not made publicly therefore did not automatically protect them from the provisions of the Equality Act.

The court also found that whether the person hearing a racial slur is black or white does not determine whether the conduct can constitute hate speech.

In other words, the racial character of the language does not disappear simply because it is directed at another white person.

Court finds conduct amounted to harassment

The SCA also upheld the finding that Ackerman’s behaviour amounted to harassment.

The court considered the repeated nature of the comments and their seriousness, finding that the conduct was unwanted and persistent.

It rejected the suggestion that the private nature of the communications placed them outside the scope of South Africa’s equality laws.

The judgment also noted the broader context in which the comments were made, including the apparent assumption that the recipient would accept or understand casual racist language directed at black South Africans.

R500,000 penalty and training order remain

The SCA found no reason to interfere with the remedies imposed by the Equality Court.

Ackerman must therefore pay R500,000 to the Ahmed Kathrada Foundation, publish a public apology and complete 50 hours of racial sensitisation training.

The court found the training particularly appropriate given the length of time over which the comments were made and what it described as Ackerman’s apparent lack of understanding of the harm caused by racial prejudice.

His appeal was dismissed with costs.

The ruling reinforces an important point in South African equality law: a conversation does not necessarily fall outside the law simply because it happens privately.

Where racial harassment or hate speech is alleged, courts can consider the content, context, repetition and impact of the conduct when determining whether it crosses the legal threshold.

Follow Joburg ETC on Facebook, Twitter, TikTok and Instagram

For more News in Johannesburg, visit joburgetc.com

Source: iol.co.za