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While Black First Land First (BLF) leaders have been saved from punishment in the Equality Court over remarks made about the Hoërskool Driehoek tragedy, the court's judgment has laid the foundation for a criminal case, labour union Solidarity said.
In February this year, four Driehoek pupils were killed and 26 others injured when a concrete slab linking two buildings at the school fell on them.
Roydon Olckers, Jandré Steyn and Marli Currie died on the scene, while Marnus Nagel succumbed to his injuries in hospital. The pupils were on their way to class after assembly when the incident occurred.
In the wake of the incident, BLF spokesperson Lindsay Maasdorp said their deaths meant future problems had been eliminated, adding the incident was God responding.
"Why should we frown on the ancestors' petitions to punish the land thieves including their offspring," Maasdorp said.
Judge Ratha Mokgoatlheng found Maasdorp guilty of hate speech and ordered him and the BLF's deputy secretary-general, Zwelakhe Dubasi, to pay R50 000 in damages to each of the affected families of the dead children, which would have amounted to R200 000, News24 reported.
However, due to a recent ruling by the Supreme Court of Appeal (SCA), which found the current definition of hate speech was unconstitutional and invalid, Judge Mokgoatlheng was forced to nullify his ruling.
While the SCA ruled part of the Promotion of Equality and Prevention of Unfair Discrimination Act was unconstitutional, meaning Maasdorp and Dubasi could not be punished using this legislation, Solidarity announced a criminal case could still be pursued.
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Solidarity head of legal services Anton van der Bijl said had the act not been declared unconstitutional, the BLF leaders would have been "harshly punished for their disgusting remarks".
"As per the judgment [which was nullified by the SCA ruling], these comments were indeed racist, crude, insensitive, barbaric, and made with the intention to cause hurt, harm and cause incitement to propagate racial hatred," Van der Bijl said.
"The judge was correct in noting that the comments amounted to the advocacy of racial hatred. In fact, the judge found there could be no greater advocacy of hatred than to rejoice in and celebrate the death of innocent children simply because of the colour of their skin."
Van der Bijl said the Equality Court judgment was the perfect platform to launch a criminal case to ensure justice was served.
"Particularly for the bereaved families who had to endure not only the death of their beloved children, but also the celebration thereof by mongers of hatred and bigotry."
