Zelda Venter
A married couple, who ran a canteen on the premises of Medipost Pharmacy, turned to the Equality Court after a patron found a cockroach in their stew purchased at the canteen, and they were called “sif,” the Afrikaans slang for dirty or disgusting, by the landlord.
Louis and Johannes Arpin-Scholtz turned to the court, sitting at the Gauteng High Court, Pretoria where they instituted proceedings in terms of the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) for a declaration that the utterances constitute unfair discrimination, hate speech, and harassment.
In terms of a written agreement, Atlast Kenako Chemicals (Atlast), to which the couple were affiliated, operated the canteen on the premises of Medipost Pharmacy.
In March 2022, there were complaints about the lack of hygiene and cleanliness of the canteen when a patron found a cockroach in their stew. The contract to run the canteen was meanwhile also up for renewal.
Louis Scheepers of Medipost subsequently requested a meeting with the Arpin-Scholtz couple in the boardroom. During that meeting, when Louis Arpin-Scholtz questioned the decision of Medipost not to extend the contract of Atlast, Scheepers responded that “julle is sif” (you are dirty).
The complainants contend that the words constitute hate speech, as according to them, the word “sif” is South African slang for disgusting, sickening, or nasty. The complainants allege that it also refers to the syphilis disease, which is claimed to be “a sickness between homosexual men” such as them.
The complainants state that, reasonably understood, the word “sif” is an insult ‘directly targeting them for being homosexual in a similar fashion as words, for example, “moffie” or “queer” would be regarded.
They allege that Scheepers uttered these words in the presence of at least one other person - a secretary - who was seated in the adjoining office to the boardroom while the door was open.
The complainants seek payment from Medipost and Scheepers (jointly and severally) in an amount of R150 000 representing the damages they had suffered as a result of the alleged hurtful words.
They also contend that, as a consequence of the alleged hate speech, Atlast could not successfully negotiate the conclusion of a further contract with Medipost and that as a result, they suffered damages in the amount of R5.5 million.
The complainants also seek payment of R500 000 representing damages they suffered as a result of Medipost’s alleged breach of contract during the period March 2022 to June 2022.
Scheepers and Medipost argued that the uttered words bear no connotation to the slang associating being homosexual with being “sif,” but were used to refer to the manner in which the complainants operated the canteen.
They asked that the claims be dismissed with costs, and in a counterclaim, claimed R92 974.26 which Medipost contends is owing to it in terms of certain unpaid invoices.
Louis Arpin-Scholtz testified that Scheepers told him three times, “julle is sif.” According to Louis Arpin-Scholtz, when these utterances were conveyed to him, this left him traumatised. He felt as if Scheepers was telling him he should not be there, that he has syphilis, and that, even though he is a married man, he sleeps around.
In his view, these are attributes attached to homosexual men in a derogatory manner. He felt it was an insult directed at him and his husband.
He, however, conceded that the word “sif” may be used to describe the physical status of an object as filthy or disgusting but denied that Scheepers used the word in that sense.
He told the court that although they needed the new contract, he could not see how they could continue where there was no mutual respect. He felt that it would be futile to pursue the extension of the contract “when Scheepers had already decided that it would not be granted to filthy homosexuals.”
In analysing the evidence, Judge Gcina Malindi noted that the secretary said she did not hear the dreaded words, as the door to the boardroom was closed. The judge said Louis Arpin-Scholtz was also not sure during his evidence whether the secretary indeed heard the words.
In turning down the complaint and damages claims of the complainants, the judge said the utterances were not aimed at driving them out through hostility or intimidation. Their contract had already expired, and they were in the process of renewing it.
“It would be hard for the complainants to show that their contract was not being extended or renewed on the grounds of discrimination. They had already enjoyed a business relationship with Medipost for a few years and did not complain of discrimination in those years.”
The judge added that there is no evidence that Medipost or Scheepers did anything by his utterances that imposed burdens, obligations, or disadvantages on the complainants on the basis of their sexual orientation.
While dismissing their complaint and claims, he granted the counterclaim regarding the outstanding invoices.