IN THE MAGISTRATE'S COURT FOR THE DISTRICT OF RANDBURG

(HELD AT RANDBURG)
APP NO. 559/2014

In the matter between:

DANIEL FRANCOIS ROODT

Applicant

on behalf of
STEPHANUSJOHANNESHOFMEYR

Complainant

and
CONRAD KOCH t/a CHESTER MISSING

Respondent

OPPOSING AFFIDAVIT

I, the undersigned,
CONRAD KOCH

hereby state under oath as follows:

I am an adult male anthropologist and satirist, presently residing at

.

The facts contained in this affidavit fall within my personal knowledge, save
where the context indicates otherwise, and are to the best of my belief true and
correct.

from Harassment Act 17 of 2011 ("the Act") . I oppose the confirmation of the
order on the grounds set out in this affidavit.

AN OVERVIEW OF THIS MATTER AND MY RESPONSE

This application involves an attempt by the applicant ("Mr Roodt") and the
complainant ("Mr Hofmeyr") to prevent me from publically exposing, criticising
and contesting the racism inherent in Mr Hofmeyr's repeated public statements.

As I demonstrate below, Mr Hofmeyr is a prominent public figure and selfproclaimed political activist. He has made a series of public statements which
are quite extraordinary in their blatant racism.

All South Africans who disagree with these statements have a right and a duty
to criticise and contest these statements and to hold Mr Hofmeyr accountable
for them.

I am such a person who disagrees with these statements. I find them offensive
and unpalatable and utterly disrespectful of the millions of South Africans who
suffered under apartheid, who made extraordinary sacrifices to defeat it and
who continue to strive to combat its effects and racism in general today. It is for
that reason that I have strongly criticised Mr Hofmeyr's statements and urged
individual members of the public and companies to reject them .

The response of Mr Roodt and Mr Hofmeyr was to bring this application. It is

nothing more than a crude attempt to censor me, to stop me from speaking my
mind about Mr Hofmeyr's racist views and to prevent me from seeking to
persuade people to reject them.

I submit that this application is entirely without merit:

9.1

While the statements I have made about Mr Hofmeyr are indeed robust,
they do not constitute "harassment" as defined in the Act.

9.2

While I deal with that definition, and its implications for this case, below, it
suffices for now to emphasise that the definition makes expressly clear
that it is only "unreasonable" conduct that can constitute "harassment" .

9.3

In the present case, my conduct and the statements made by me cannot

possibly be regarded as "unreasonable" having regard to inter alia the
following considerations:
9.3.1

My statements were made in a public forum, in response to

equally public statements in the same or similar public forums
made by Mr Hofmeyr;

9.3.2

Mr Hofmeyr is not merely a public figure but a self-proclaimed

"activist" who actively seeks to court public attention and
controversy in relation to his views;

9.3.3

The

public

statements

made

by

Mr Hofmeyr are

extraordinary in their racism that they demanded a response;

so

9.3.4

My statements were made in the exercise of my right and duty

to criticise and contest Mr Hofmeyr's statements and to hold
him accountable for them; and

9.3.5

My statements - though at times certainly robustly phrased constituted protected expression in terms of section 16(1) of
the Constitution.

9.4

In all the circumstances, there is no basis for any order to be made under
the Act against me. Indeed, ! .submit that it is simply unacceptable and
impermissible for Mr Hofmeyr to use social media platforms to espouse
his racist views and then, when others seek to use the same platforms to
hold him to account, to contend that the Act entitles him to prevent them
from doing so. The present application accordingly constitutes an abuse
of process.

9.5

Moreover, and in any event, even if Mr Hofmeyr was entitled to some

order in terms of the Act (which he is not), the order he seeks and has
obtained on an interim basis is patently impermissible. It constitutes an
extraordinarily wide-ranging and overbroad order, a difficulty that is
exacerbated by the fact it is so vague that it is essentially impossible for
me to fully comply with it.

10

I therefore submit that the application should be dismissed with costs.

11

In what follows, I deal with the following issues in turn.

~4

11.1

First, I set out the relevant facts regarding each of the persons involved
in this matter - me and Chester Missing; Steve Hofmeyr; and Dan Roodt.

11.2 Second, I deal with how this case came about.

11.3 Third, I deal with the importance of public debate on racism in South
Africa and my right and duty to respond to Mr Hofmeyr's public advocacy
of racism.
11.4 Fourth, I deal with the effect of the interim protection order.
11.5 Fifth, I explain in brief why the application should be dismissed.

THE PARTIES INVOLVED IN THIS MATTER

Who is Conrad Koch?

12

I have been raised to have a strong social conscience, and to speak out,
wherever possible, against injustices, particularly those which have their roots
in apartheid.

13

I studied for a Bachelor of Arts degree in Social Science, majoring in Social

Anthropology at the University of Cape Town and went on to obtain my
Honours Degree at the same institution. During the 1990s, I closely watched
the proceedings at the Truth and Reconciliation Commission, and was heavily
influenced by the experiences of the people who testified at the commission,
and the human rights consciousness which developed as a result of the facts
which emerged at the commission.

14

I then attended the University of the Witwatersrand ("Wits"), where I obtained

my Master of Arts ("MA") degree (cum laude). My research focused on race,
class, gender and identity politics in corporate South Africa, and this has
continued to influence me in my work as a social commentator.

15

As a result of my MA research, I began experimenting with different ways to

convey my anti-racist message, and the larger dynamics of South African
political issues, in a manner which would make it more accessible to the
general public. It appeared to me that the easiest way to convey this message
to the larger audience was through the use of comedy and parody - much in
the same way that Zapiro uses cartoons, or Pieter-Dirk Uys used parody in his

~et

stand-up routines.

Both have been very influential in my career.

Pieter in

particular helped me to enter the market, and influenced my early thinking, as

did comedians like Loyiso Gola and Kagiso Lediga.

16

Parody and satire as a means of political commentary date back to Ancient

Greek times and, ever since then, have been acknowledged as a way to
convey a message within a message.

By being deliberately, outrageously

provocative, the commentator is able to engage the audience, first through

humour and then, once the laughter has subsided, through a subtle
introspection of what inspired the reaction.

Tools of this trade are ridicule,

insult and satirical irony.

Who is Chester Missing?

17

My skill as a ventriloquist fitted in perfectly with the need for cultural reflexivity
in my satire, the anthropological requirement to examine one's own cultural
peculiarities, as much as everyone else's.

I began to use a puppet, named

Chester Missing ("Chester"), in my stand-up routine. I have always enjoyed

the unique appeal of puppets to reach people in a fun and playful way.

18

As a puppet, Chester is able to make provocative and outrageous statements

which would be unacceptable coming from a human being.

He is able to

interact with white people, persons of colour, men and women, and is able to
ask them questions, and elicit responses, which are seemingly impossible for
"serious" reporters. The people Chester interviews do not feel as threatened as
they do when being interviewed by an ordinary analyst, and enter into the game
with Chester. Chester is not subject to the same social norms and rules as a

ot

human interviewer, and there is accordingly a particular degree of directness,

confrontation of difficult issues, and honesty in the interviews conducted by
Chester.

19

Chester has a regular column in the City Press newspaper, in which he

presents a balanced view of our political terrain, by critiquing politicians (of all
political ideologies and from all of the represented parties), civil society and
corporate South Africa. There are no sacred cows in Chester's world, and the
only requirement for admission is a sense of humour and a willingness to
engage. He is as cutting in his commentary of the far left as he is of members
of the far right, because being subject to parody and ridicule is not limited to
one ideological group.

20

Twitter is an extremely important component of my and particularly Chester's

work. Twitter has become a platform where people with a large following can
engage directly with their followers, and provide up-to-the-minute, blow-by-blow
accounts of what is happening, in real time. It is standard journalistic practice
to use Twitter's micro-blogging platform to update followers on the news as it
happens, often from the actual event.

21

Chester has done this satirically at events such as the ANC Mangaung
conference, the DA Gauteng Election Rally, the EFF Election Manifesto Launch
and the 2014 IEC vote counting centre. Both Chester and I also comment on a
daily basis about the general news as it happens, and as it is reported on
Twitter and in the general media.

22

Twitter is a central marketing platform for Chester's live events, TV

appearances, radio interviews, newspaper articles, etc. It is also hqw Chester
engages directly, often very robustly, with various political/media players,
including the likes of Fikile Mbalula, Buti Manamela, Helen Zille, Mmusi
Maimane, Malusi Gigaba, Zwelinzima Vavi, Julius Malema, Derek Hanekom,
AfriForum, Shaka Sisulu, The Social Justice Coalition, Ernst Roets, Dan Roodt,
David Makhura, Ferial Haffajee, Keith Khoza, Gareth Cliff, Redi Tlhabi, Stephen
Grootes, Eusebius McKasier, Mbhazima Shilowa, Ebrahim Fakir, Aubrey
Mashiqi, Jeremy Maggs, Hajra Omarjee, Bantu Holomisa, Thuli Madonsela,
Dali Mpofu , Zackie Achmat and political parties, NGOs and corporations
themselves. I see Twitter as a no-holds barred negotiation of the South African
cultural space.

My work

23

Through my work as a political satirist, I have become a public figure and

commentator. I am often asked by newspapers and/or online news outlets to
write Opinion Editorials on current affairs, either in my own name, or under the
Chester Missing persona.

24

I maintain a blog, conradkoch.blogspot.com, where I make contributions to

discussions dealing with issues of race, class, culture and politics, with a
particular focus on power relations. One of the major themes of my blog posts
is white privilege and its prevalence in South African culture, where it continues
to influence policy and inter-personal relations.

25

The weekly television series, Late Nite News with Loyiso Gala ("LNN"),
regularly features Chester.

LNN is an award winning, International Emmy-

nominated television show on eNCA and e-tv, now in its 11th season. On that
show, Chester is featured interviewing prominent political, social and corporate
figures.

He appears once a month on Talk Radio 702 I Cape Talk in the

political comment feature on Redi Tlhabi's The Week That Wasn't.

26

I make guest appearances, both as myself and with Chester on other TV

shows, radio shows and in print media, relating to social and political
commentary, particularly on

is~ues

of race and identity in SA (recently, for

example, on Kaya FM, SAfm, Power FM, Cape Talk, 702).

27

I am frequently booked, usually with Chester, to do work relating to culture and

diversity in companies as a comedian I trainer. In the course of this work, I
helped run FNB's Employment Equity intervention programme, using cartoons
and puppets. I have also helped with culture transition programmes with SAA,
Goldfields and lnvestec.

28

Because of this work, I (both personally and in my Chester Missing persona)

have credibility with the general public and with corporations.

I believe that

corporations regard me as a legitimate voice, giving expression to the current

issues regarding

racial discourse, and

representing those most often

overlooked in that dialogue. This is evidenced by the reaction of the sponsors

of the Afrikaans Is Groot concert, when I contacted them via Twitter.

29

By contacting corporations to question their association with brands which are

closely linked with inherently racist statements, I am simply continuing the work
which corporations and the media frequently call upon me to do: namely to
point out instances where their corporate image is negatively impacted by racist
or sexist associations.

30

My interviews with the aforesaid persons are usually humorous, because

humour is used to take the edge off some of the hard-hitting commentary
uttered by Chester.

For example, he asked the new Minister of Police,

Nkosinathi Nhleko, if President Zuma must pay back the Nkandla money; he
told ANC Secretary General Gwede Mantashe that Luthuli House is 'an old age
home for corrupt guys'; and he asked DA leader Helen Zille how many hours a
day she practises being black.

31

Chester also supported the march to support the Marikana victims, in which he
protested and questioned the manner in which Lonmin workers had been shot
down, and presented it on LNN.

During the course of this march, and the

television coverage thereof, he was disparaging of, inter alia, Cyril Ramaphosa,
the SA Police Services, and the ruling party's response to the crisis. He has
done similar work with regard to portaloo toilets in the Western Cape.

32

Chester and I are not investigative reporters. We do not break stories that
would otherwise be untold. We do not put things into the public eye that were
previously not there.

What we do is take issues which are already being

discussed in the press, and in social media, and we comment on them in a

particular way. We discuss public figures and parody them, to draw attention}

t1v

those aspects of their public conduct which are most open to ridicule and
parody, because, in doing so, we make the public think about the issues on a
different level.

33

Aside from my satirical work in the Chester Missing persona, I have been
involved in serious debates, both through social media and in mainstream
media (as an opinionist) on many issues plaguing post-apartheid South Africa.

34

The reason that these debates continue to be relevant to our social dialogue is
that race, power and privilege continue to be prevalent.

The mantras that

"apartheid is over" and "race no longer matters" ignore the fact that apartheid
has left us with a legacy of inequality which cannot be resolved until we
address the prevailing hegemony. I use what I have learned as an academic,
as well as my experiences on social media and in real life, to point out
instances where racism has become so institutionalised that it is almost
invisible to those who perpetuate it, and in particular to point out the more
subtle, but arguably more pernicious system of "white privilegeh as it exists in
South Africa.

35

Chester plays an important role in facilitating and creating debate on issues of

public interest. For example, during 2010, Chester engaged in a "twar" (social
media term for a "twitter war") with well-known radio personality Gareth Cliff,
regarding a series of tweets which Cliff posted about women and Islam, which
tweets showed a misogynistic and lslamophobic world view of that religion and
its relationship with women. These tweets were shared widely, and became

the subject of reporting in the mainstream media, at a time when sexism within
Islam was the subject of widespread speculation and comment.
Who is Steve Hofmeyr?

36

The complainant in this matter is Stephanus Johannes Hofmeyr ("Mr

Hofmeyr").

and activist.

He is a prominent South African singer, songwriter, actor, writer

This is confirmed by his Twitter profile in which he describes

himself as "Author, artist, actor, activist, talk show host, bookworm, ageing
rocker, daddy, 3xSAMA award winner with 2 million COs sold". Mr Hofmeyr
has in excess of 122 000 followers on Twitter.

37

Mr Hofmeyr is a well-known and polarising figure in South Africa. He has a

longstanding history of making controversial statements.

38

Mr Hofmeyr has publically supported right-wing Afrikaner politics. In 2011 he

joined the advocacy group, Onafhanklike Afrikaner Selfbeskikkingsekspedisie
or "Expedition for Afrikaner Self-determination" ("OASE"). He is also a member
of Front Nasionaal, a right-wing political party formed in late 2013 as a
successor to the Federale Vryheidsparty. The Party promotes separatism and
Afrikaner self-determination and has called for the restitution of the "Republic of
Stellaland", a separate Afrikaner republic.

Their mission statement asserts

that:
Die Front Nasionaal sit die eeue oue tradisie van ons
Afrikanervryheidstrewe
voort
deur
onmiddellike
kulturele
selfbeskikking vir die Afrikaner te eis, asook 'n herstel van ons
soewereiniteit deur eksterne selfbeskikking binne die afsienbare
toekoms.

[The Front Nasionaal continues the centuries old tradition of our

Afrikaner Freedom by claiming immediate cultural self-determination
for the Afrikaners, as well as the restoration of our sovereignty in the
future.]
39

It is clear that the complainant and Mr Roodt (who brought the application on
his behalf) share the view that the Afrikaner race is superior to other races and
their shared calling for the establishment of a separate Afrikaner "Volkstaat" is
a denial of the atrocities of Apartheid. The fact that the complainant is a racist
and Apartheid denialist is manifest in his past actions:

40

In 2010, Mr Hofmeyr made racist statements on Face book in response to the

murder of the Potgieter family in the Free State. Writing in Afrikaans, Hofmeyr
commented that "Blacks (God knows, probably not all of them, but most of
those I observe) feel justified and 'entitled' in everything, from quotas/low matric
marks to land rights/brutality".

In response to criticism of his comments, Mr

Hofmeyr replied that while he was sorry to emphasise colour, he was

"struggling to spot the terrible whites who climb over blacks' walls to do that to
their children."

41

In 2011 , Hofmeyr publicly announced that, if the Equality Court upheld Julius
Malema's right to sign the struggle song Dubhul'iBhunu, then Hofmeyr would
sing a song with the word "k*ffir' in it. For this, Hofmeyr was widely denounced
as a racist, including by the {Afrikaans) head of the Institute for Race Relations,
Frans Cronje, who described the threat as "racist in the worst traditions of racial
nationalism".

42

In October 2013 Mr Hofmeyr led the "Red October" marches held across South
Africa. The Red October group called for the protection of white people as an
ethnic minority.

Mr Hofmeyr made a number of statements in the media

relating to the statistics of murders of white people in South Africa which at the
time were severely criticised for being incorrect and grossly exaggerated. Such
misinformation creates and entrenches existing racial divisions and perpetuates
an unfounded fear and hatred of other races.

43

In 2014, Mr Hofmeyr participated in a "Free Clive Derby-Lewis" protest march

organised by Front Nasionaal, during which he carried a portrait of Clive DerbyLewis' face and walked alongside a poster saying "Hani en Zuma se moer', in
reference to leading politician Chris Hani, whom Derby-Lewis murdered in 1993
in order to derail South Africa's peaceful dissolution of apartheid.

44

Mr Hofmeyr also recently sang the Afrikaans anthem, Die Stem, at a concert in
Australia and again at the Afrikaans cultural festival lnnibos in Mbombela .
Shortly afterwards he posted the video and his views of the event on his
Facebook page saying, "I will sing it more and I ask that the ban on our sacred
traditional song be lifted and all may be free to sing what they want, where they
want, as long as it is not hate speech or preaches violence."

45

Most recently, Mr Hofmeyr has compared his political activism to that of Steve
Biko . He has publically stated that Apartheid was not just a form of oppression,
but was also "the crown of the achievements of a minority group that a country
has made not only the jewel of Africa but the jewel of the world."

46

That Mr Hofmeyr publically and proudly endorses racist views admits of no

doubt. This is demonstrated by the fact that on the evening of 12 November
2014, Mr Hofmeyr tweeted the following:
Steve Hofmeyr
_
A reminder of why we do what we do.
http://i n.is/praag.org/QirnVM

.' ....... '':..

46.1 The last part of this tweet is a link to an article on the Praag website,
which is run by Mr Roodt, who applied for the order on Mr Hofmeyr's
behalf.
46.2 Mr Hofmeyr's tweet of the link, together with the words "A reminder of

why we do what we do" constitutes an unequivocal endorsement of the

content of the article.
46.3 The article is a response to an open letter written by Virginia Keppler to
the applicant. I attach a copy of Ms Keppler's open letter to the applicant
as"CK1 ". It is a heartfelt plea to Mr Hofmeyr to cease his racism and to
stop denigrating black people's experience of apartheid .
46.4 Ms Keppler is a veteran professional journalist and news editor at the
Beeld newspapers. She is a coloured woman, who experiences racism
daily. I attach, marked "CK2", a copy of an article by Adriaan Basson,
editor of the Beeld, dated 31 January 2014, profiling Ms Keppler and
describing some of the racism she has encountered .
46.5 The article that Mr Hofmeyr tweeted a link to contains an "answer" to Ms
Keppler's open letter. I attach a copy of the article as "CK3". The article

is an astonishingly vile racist attack on Ms Keppler and black people

generally. Inter alia, it:
46.5.1

denies that Ms Keppler is free, and states that "your white baas
gave you your job";

46.5.2

insults and denigrates African history and culture as uncivilised

and backward;

46.5.3

defends colonialism and apartheid as beneficial to black

people;

46.5.4

states that "There is no proof whatsoever that these Africans

would have advanced one inch without white influence.
Otherwise why didn't they create a civilization of their own?
They had the territory, they had the sun, the rain, the rivers, the
green pastures. Oppressed? Give me a break! I would think
they should go on their knees every day that the whites came
to South Africa first."

46.5.5

alleges that Ms Keppler's letter is not backed up by facts

because her "white baas" told her she can say what she likes
because she is previously disadvantaged";

46.5.6

asks rhetorically "And by the way, why can't Africa look after
the Ebola outbreak itself? Why must the white people (and
others)

of this

world rescue

them

from

their cultural

backwardness of not knowing how to wash their hands

properly?";

46 .5.7

reiterates the claim that apartheid was beneficial to the black

people of this country;

46.5.8

claims that:
"Like so many of your ilk, you call the truth racial hatred.
Well, the whole world must be practising racial hatred
because they do all in their power to keep blacks from
Africa out of their countries. Why do you think the
Australians won 't let aliens even touch their shores? Why
are the Italians and the French and the Greeks
complaining about too many blacks in their countries?
Check out Israel's policy towards blacks: they are
deported en masse and attacked in the streets of Tel
Aviv. Why is this?
There are reasons, Virginia and they can be found in the
streets of our once pristine South African cities. The fact
is that when the blacks move in, the whites move out and
this happens all over the world."

46.5.9

claims that crime in South Africa is entirely attributable to black

South Africans, and alleges that all of the challenges South
Africa is facing are attributable to black South Africans; and

46.5.10 concludes that "The sins of apartheid are pisswilly compared to

the wholesale pillaging of our country by the charlatans calling
themselves the government of South Africa."

47

Mr Hofmeyr's public and enthusiastic endorsement of the contents of this article

is merely the latest evidence of his conscious and deliberate use of public
platforms to support and advance the most radical racist views.

48

Moreover, the article illustrates precisely how Mr Hofmeyr's views, preeminently disseminated on Twitter, have emboldened extreme racism to

resurface in the public domain .

This is largely due to the persistence,

confidence and fame with which the Mr Hofmeyr asserts them. It thus also
demonstrates how democratically crucial it is for me and others to be allowed to
confront those views robustly in the same public space.

49

It would simply be extraordinary, and indeed unlawful and unconstitutional, if Mr

Hofmeyr was permitted to advance such views and statements on public
platforms such as Twitter, while those who disagree with him are precluded
from responding and drawing attention to his conduct because doing so
constitutes harassment under the Act.

Who is Dan Roodt?

50

The applicant in this matter, Mr Daniel Francois Roodt ("Mr Roodt"), describes
himself as a South African Afrikaner activist and is the co-founder of the ProAfrikaanse Aksiegroep, or Pro-Afrikaans Action Group ("PRAAG"). Mr Roodt is
also a writer and has been branded as a right-wing reactionary for his
vehement anti-ANC writings. Mr Roodt brought the application of Mr Hofmeyr's
behalf in his capacity as "friend'', on the basis that he was more familiar with the
process than Mr Hofmeyr.

51

PRAAG describes itself as an extra-parliamentary movement devoted to the

rights of Afrikaners.

Mr Roodt holds strong views on the preservation of

Afrikaner culture and has written numerous letters and articles regarding

political issues. These articles are published by Afrikaans newspapers, online

or through PRAAG's own publishing division .

52

In 2010, Mr Roodt conducted an interview with journalist John Oliver for "The
Daily Show" hosted by Jon Stewart. The interview was voluntarily agreed to by
Mr Roodt and he made the most deplorable racist statements, believing the
interviewer was receptive to his standpoint, and not realising he was making a
fool of himself.

53

Journalist Rebecca Davis recently shared a link to the television interview

between Mr Roodt and John Oliver. Mr Roodt is now intent on suing the Daily
Show for "R1 billion" and Davis personally for R1 million as a result of this
damage to his reputation. This is because he, like Mr Hofmeyr in the present
application:
53.1 cannot appreciate that the damage to his reputation, if any, comes as a
result of the fact that he holds views which the majority of people find
repugnant; and
53.2 seeks to prevent people from criticising those views and demonstrating
them to be absurd, whether by means of satire or otherwise.

20

HOW THIS CASE CAME ABOUT

54

The present case arises primarily from events in late October and early
November 2014, as well as certain earlier events. I set these out as concisely
as possible.

55

In so doing , it is necessary for me to correct the applicant's grossly inaccurate

account of these events.
55. 1 The applicant's affidavit is not separated into headings or numbered
paragraphs, so my traversal of his allegations corresponds broadly to his
various themes. Moreover, some of the allegations are so vague that a
meaningful response is not possible.
55.2 To the extent that I do not specifically deny any allegation by the
applicant, this is not to be construed as an admission of such allegation ,
but rather as a denial of such allegation .

The origin of the dispute

56

The applicant alleges, firstly, as follows:

"During the week from 19 to 25 October (limited period), Mr Conrad

Koch started his campaign against Mr Steve Hofmeyr by publishing,
inter alia, the number of motor dealer Williams Hunt on his Twitter
account and inciting his followers to threaten the dealer with boycotts
and other actions if they should continue to sponsor a vehicle for
Hofmeyr. By the end of the week, Williams Hunt did indeed
succumb to the pressure and took back their vehicle. Hereby Koch
started to harm Hofmeyr financially. "
57

The alleged period "from 19 to 25 October [2014]' does not, however,

accurate ly reflect the origin of my engagement with Mr Hofmeyr.

21

58

My history of robust online debate with Mr Hofmeyr began at least a year

earlier, most prominently in October 2013 during Mr Hofmeyr's "Red October'
campaign, described at paragraph 42 above. In the context of a wide public
conversation about the inaccuracy and insensitivity of the racial assumptions of
the campaign (i.e. that white people, as an ethnic group, are disproportionately
the victims of violent crime committed only or mainly by black people, as an
ethnic group), an exchange erupted on Twitter between Mr Hofmeyr and
Chester, as recorded in the eNCA article attached hereto marked "CK4". It is
notable that the exchange was initiated by Mr Hofmeyr, who addressed Chester
in vulgar terms typical of such a twar, to which Chester responded with
characteristic sarcasm.

59

In December 2013, shortly after the passing of former President Nelson

Mandela, Chester authored a satirical column in the City Press, principally
lampooning incumbent President Jacob Zuma. In this column, attached hereto
marked "CK5", Chester commented as follows: "Look on the bright side.
Madiba passed away more than a week ago and there is still no white
genocide. This is not good for the Steve Hofmeyr marketing campaign. I think
we need more Madiba vibes."

60

During 2014, as Mr Hofmeyr's extremism manifested more prominently, as set

out at paragraphs 43 to 45 above, Chester (among many others) commented
frequently about his offensive views on Twitter and other platforms.

61

Most importantly and most recently, Chester and I confronted Mr Hofmeyr

about the following profoundly offensive statement h; ed ~er ::

23 October 2014: "Sorry to offend but in my books Blacks were the architects

of Apartheid. Go figure."

62

My recent confrontation with Mr Hofmeyr, which has given rise to this case, was
ignited by this tweet, as -Mr Roodt and Mr Hofmeyr were both well aware at the
time of bringing the application against me. Their omission to confide in the
Court (particularly in ex parte proceedings) that Mr Hofmeyr had published this
tweet was extremely misleading and mala fide.

The allegation that my

"campaign" started on 19 October 2014 is likewise misleading and seems

calculated to conceal Mr Hofmeyr's offensive tweet as the cause of this

"campaign".

63

In response to this offensive tweet, Chester and I began robustly denouncing

Mr Hofmeyr's views on Twitter and other public platforms, such as print and
broadcast media.

Chester and I, among many others, argued that Mr

Hofmeyr's comment was racist, and that, if Mr Hofmeyr stood by the comment,
then he himself was racist.

Despite increasing criticism from me and many

others, Mr Hofmeyr defended his statement and refused to retract it. Copies of
some of Chester's tweets to Mr Hofmeyr in this regard are attached hereto
marked "CK6".

64

Hofmeyr has repeatedly attempted to defend and explain this tweet. Far from
diminishing the racism of the tweet, his explanations have simply reaffirmed
and aggravated the unacceptable racism that he advocates:

6(

23

64.1

On 28 October 2014, Mr Hofmeyr explained his position on Facebook. I

attach a copy of this post marked "CK7". The thrust of Mr Hofmeyr's
argument is that black people (for whom he uses the collective noun

"blacks") brought apartheid on themselves by inspiring whites to want to

keep them at a distance. As translated where necessary, he states, inter
alia, that:
"But if other kids don 't want to play with you, it isn't always their fault
If nobody wanted to invite you in as partner, it wasn 't always their
fault
If nobody wanted to assimilate to your collective habits, it wasn 't
a/ways their fault
If folk did not want to share a country with you, why is it always their
fault?
If governments send you home on trains and trucks back to your
continent, it isn 't always their fault
If other governments tighten immigration laws against you, it isn 't
always their fault
If the world doesn 't buy into African systems, mentality and
reputation, it isn't always their fault
If there has hardly been a prosperous black-led country, it isn't
always other people's fault
If international investors flee the country, it isn't always their fault
If women, toddlers and grannies complain about your contribution to
the rape rate, it isn't always their fault
If horrified citizens complain about your contribution to the murder
rate, it isn't always their fault
If, back then, a sovereignty legislated you out of their lives, it wasn't
always their fault
If nobody is envious of pre- or post colonial African achievement, it
isn 't always their fault
DOES ANYBODY GET THE METAPHOR NOW? Apartheid was
cruel, unfortunate and unsustainable, but WHAT inspired that
maddening segregation?"

64.2 More recently, on 8 November 2014, Mr Hofmeyr gave an interview on

netwerk24 in which he compared himself to Steve Biko while defending

cf/_24

the tweet concerned. I attach a copy marked "CKS". A rough translation

of the article is the following:
Black people are "looking for a new Verwoerd they can strangle and
have made me the scapegoat."
Steve Hofmeyr said this to Niekie van den Berg in an interview on
Netwerk24's internet radio program Nuusdag met Niekie.
He believes this is why a lot of fuss erupted around his head after he
tweeted last week that blacks were the true architects of apartheid.
Hofmeyr said the tweet was an observation about the past: Black
people were not at that stage not on the same economic, military or
educational standard as white people.
"If there were two groups and one group wrote legislation to keep
itself away from the other group, both groups have a certain
complicity. "

Hofmeyr said there is no unity in South Africa. He believes there are

people who force whites to build a nation with one flag, one anthem,
one currency and one history - a facade of unity.
Steve describes himself as a friend of all races, peoples and nations.
He only has a problem with black South Africans. The singer thinks
black people in South Africa have a "syndrome" where they want to
appropriate for themselves everything they see around them.
Therefore, white people are killed, they end up in white squatter
camps or they immigrate.
Hofmeyr said apartheid was not just a form of oppression. "It was for
me the crown of the achievements of a minority group that made a
country not only the jewel of Africa, but the jewel of the world. "
Van der Berg asked him how he would feel if he was on the
receiving end of apartheid.
Hofmeyr said he would have done the same as black South Africans
to put an end to apartheid. "I would have been a kind of Steve Biko.
He made a lot of sense. "
Nowadays Steve longs for the euphoria of 1992 when "I was proud
to say I vote 'yes'."

The civil campaign is against racism

65

In my view and in my anthropological assessment, Mr Hofmeyr's tweet was

undoubtedly racist and Mr Hofmeyr himself clearly harbours and propagates
racist views.

I consider it my binding moral, social, legal, constitutiona

~I

25

professional duty to confront and combat racism and other prejudice in all its
forms and by all lawful means, including by:
65.1

publicly denouncing prejudicial views;

65.2 publicly distancing myself from such views; and

65.3 publicly encouraging other citizens (including corporate citizens) to
denounce and distance themselves from such views.

66

In adherence to this duty, on 24 October 2014, I and Chester began contacting

(and encouraging others to contact) the car dealership Williams Hunt in Port
Elizabeth, which had provided Mr Hofmeyr with a complementary bakkie. We
asked Williams Hunt whether they supported Mr Hofmeyr's views, and if not,
why they were sponsoring a bakkie for him. A sample of tweets to this effect is
attached hereto marked "CK9A". As it happened, Williams Hunt did indeed
denounce Mr Hofmeyr's views and distanced their brand from him by recalling
the bakkie. Copies of their tweets to this effect are attached hereto marked

"CK9B".

67

Contrary to the allegation in these papers, neither I nor Chester ever

"threatened' Williams Hunt with "boycotts and [unspecified} other actions". On
the contrary, when boycotts of sponsors were proposed by other Twitter users,
we contradicted them, stating clearly that the call to civic action extended only
to making enquiries from Williams Hunt as to whether they supported Mr
Hofmeyr's views.

~6

68

I deny that Williams Hunt's decision can be fairly characterised as "succumbing

to the pressure" exerted by me or anybody else. It is clear from Will iams Hunt's
statement that their decision was their own, and was ultimately motivated by
their own rejection of Mr Hofmeyr's views.

69

Moreover, I point out that while these papers allege that it was "hereby [that]

Koch started to harm Hofmeyr financially', the allegation of financial harm is in

no way consistent with what Mr Hofmeyr himself has stated publicly. Instead ,
on 28 October 2014, he tweeted that "I'm flooded with vehicle sponsors today.

Thank you so much. (Williams Hunt was only a 48hr sponsor and I do own a
cute tjorrie)" . In any event, any financial or other harm Mr Hofmeyr may have
suffered was caused by his own racist statements.

70

On 29 October 2014, I published a post on my blog , entitled "Dear white

supremacists", attached hereto marked "CK10", in which I called on people to

encourage corporate citizens to denounce and distance themselves from Mr
Hofmeyr's racist views. The thrust of my argument was as follows:

"Steve Hofmeyr is one amongst many cultural pillars in the

architecture of how white South Africans maintain the spoils
apartheid gave us. This last one, "Blacks were the architects of
apartheid", is full blown apartheid denial, no matter how you spin it.
He, of course, has the right to express his opinion, however if he is
maintaining a bigoted status quo this should come with social
consequences, severe ones. The normalization effects of this
thinking are let off the hook by our society getting enraged but
effectively doing nothing.
He can say what he wants, but companies and sponsors should be
taken to task for their tacit support. For example, in a few weeks
Steve will be appearing at the Afrikaans is Groot festival sponsored
by Land Rover and Pick n Pay. Are these brands cool with being
associated with an apartheid denialist and white supremacist? Would
they be cool with paying for a Holocaust denialist to perform?
Corporate South Africa never had to explain their collusion with

27

apartheid, so the very, very least they can do is refuse a platform to

its most prominent denialist. "

71

In this regard, Mr Hofmeyr alleges that I was "trying to persuade, by means of

threats and intimidation, the sponsors of the Afrikaans is Groot concerts, Pick n
Pay and Land Rover, to cancel their sponsorships". This is patently untrue.

Chester and I never engaged in any threatening or intimidating behaviour

towards anybody, let alone Pick n Pay and Land Rover. We only ever enquired
from Pick n Pay and Land Rover whether they supported Mr Hofmeyr's racist
views, or were prepared to denounce and distance themselves from those
views.

72

Moreover, we never aimed to persuade Pick n Pay and Land Rover to cancel
their sponsorships of the concerts, but only their tacit support for Mr Hofmeyr.
The aim was that the concerts should continue, but that Mr Hofmeyr should be
compelled to withdraw from them (or to retract his comments). Mr Hofmeyr
alleges that, as a result of my actions, "the entire Afrikaans music industry will
lose credibility". This is also denied. If the Afrikaans music industry loses any

credibility, it will not be as a result of my conduct but rather the industry's

continued failure to denounce and distance itself from Mr Hofmeyr and his
views.

73

As it happens, the concerts are proceeding (with Mr Hofmeyr), and neither Pick
n Pay nor Land Rover have withdrawn their support.

Both, however, have

denounced Mr Hofmeyr's views. They have not defended Mr Hofmeyr's views,

which they undoubtedly would have done if those views were objectively
defensible. Instead, while maintaining their support for Afrikaans music, they

r/28

have firmly denounced Mr Hofmeyr and his views. Pick n Pay's statement to
this effect is attached hereto marked "CK11", while Land Rover's is attached
hereto marked "CK12". It is worth noting from Land Rover's press release that
they are expressly not in agreement with Chester's approach, calling it
"misdirected'', but nevertheless of their own faculties are firmly opposed to Mr
Hofmeyr's views: "The well-publicised personal opinions of the popular South
African artist have jeopardised the Afrikaans music industry at large, the
reputations of his music colleagues, and those of the sponsors that enable the
cultural festival to happen."
The campaign is not against Afrikaans or Afrikaners
74

Mr Roodt also alleges that 1:

74.1

use Twitter in my "intensely personal and obsessive campaign against

Steve Hofmeyr';

74.2 have directed "threats, obscene insults, swearing and gross defamation"

against Mr Hofmeyr on Twitter;

74.3 conduct "interviews with the printed media and radio stations to incite

ethnic hatred ('Boerehaatj against Steve Hofmeyr, Afrikaans and

Afrikaners";
74.4 harbour an "animus against Steve Hofmeyr because he is Afrikaans".

75

I strongly deny these allegations.

I deny that my "campaign" against Mr

Hofmeyr's racist views is at all "obsessive and personaf'. Mr Roodt well knows
(as he too has his views challenged by Chester on Twitter), I and Chester

denounce racism (and other prejudices) from any source, of which Mr Hofmeyr
is but one.

76

Chester and I devote our attention to topical issues of public importance and
interest.

Our time is spent overwhelmingly on figures of far greater political

significance than Mr Hofmeyr, such as the leaders of political parties. A review

of my and Chester's writings over the past two years will show that Mr Hofmeyr
has featured infrequently in our work, and only on such occasions as he has
provoked public concern with particularly offensive or insensitive statements.

77

I further firmly deny that I have ever incited or harboured any hatred against the
Afrikaans language, Afrikaners generally, nor any Afrikaner in particular. On
the contrary, I consider Afrikaners, such as Beyers Naude, Bram Fischer and
Gerald Kraak, to have made invaluable contributions to South Africa's progress
towards a better society. I do not hate Afrikaners and have never expressed
any hatred towards Afrikaners as a group. I have only ever expressed protest
against racist, sexist and other prejudicial views, whether they are held by a
person who happens to be Afrikaans or by anybody else.

78

It is also apparent that Mr Roodt and Mr Hofmeyr are not at all representative of
Afrikaners as an ethnic group. On the contrary, multitudes of Afrikaners have
actively denounced and distanced themselves from the racist views of Mr
Roodt and Mr Hofmeyr. The most prominent example of this is AfriForum arguably the most popular Afrikaner advocacy group in South Africa today.

78 .1 Afriforum

recently distanced

itself from

Mr Hofmeyr's polarising

comments in the official statement attached hereto marked "CK13",

stating that although they sympathise with him and regard him as a
friend , they do not share his views.
78.2 In another official statement attached hereto marked "CK14", AfriForum
robustly denounced the views of Mr Roodt and Front Nasionaal (of which
Mr Hofmeyr is a prominent figure), saying that "AfriForum will not stand
for racist statements by white fringe figures", and noting that Mr Roodt's
status as a fringe figure "is confirmed by the fact that Roodt's political
party, Front Nasionaal, barely received more than 5 000 votes in this
year's South African general election".

79

For these reasons, I deny the applicant's further allegation that my "actions are
not only directed against Steve Hofmeyr but also against Afrikaans signers in
general. Like during Julius Materna's 'Kill a Boer, kill a farmer' campaign, Koch
is creating the risk of ethnic polarisation between groups in South Africa [which]
may eventually lead to violence". These allegations are false and unfounded.
Nothing in my history, and nothing in the evidence, suggests any animosity
against Afrikaans singers in general.

The "ethnic polarisation" allegation is

thoroughly ironic, as Mr Hofmeyr himself is widely considered to be one of the

most prominent polarising figures in South African civil society. He has been
described, and to some extent has styled himself, as the mirror image of Julius
Malema in the extremity, intensity and brashness of his racial nationalism. See,
for example, the instructive article and cartoon attached hereto marked "CK15"
and "CK16" respectively.

dL

31

The contest of free speech

80

The applicant also complains that I have "accused [Hofmeyr] of being a 'racist'
(in itself a libellous and therefore harmful allegation) because he holds another
view of South African history''.

I admit that I have repeatedly stated that Mr

Hofmeyr is racist, but I deny that this is an "accusation" and that it is based on
Mr Hofmeyr holding "another view of South African history".

Mr Hofmeyr is

indeed racist. That is not an accusation but a statement of objective truth, or at

the very least a protected comment, consistent with all of Mr Hofmeyr's conduct
described above.

81

By "another view of South African history" it appears that the applicant is

euphemistically alluding to Mr Hofmeyr's tweet that "Blacks were the architects
of apartheid'' (which he failed to disclose to the Court). However, this "other
view" of history is patently a denial, diminution or diversion of responsibility for
the harm suffered by victims of apartheid, which was a crime against humanity
under international law. I am advised that the propagation of that "other view''
constitutes hate speech under international law, and harmful speech under our
national law.

I accordingly deny the applicant's allegation that "Hofmeyr's

interpretation of South African history .. . fall[s] within his constitutional rights to

free speech and academic freedom". In any event, even if it did, my response
to that "interpretation" - calling on people to denounce it -falls well within my
own constitutionally-protected freedom of expression and academic freedom
(considering that, unlike Mr Hofmeyr, I am indeed a practising academic).

tJ(

32

82

The applicant even concedes that I am "free to criticise [Hofmeyr's views] in a

civilised way or to refute them". That is precisely what I have done, both in my
blog post ("CK10") and in my and Chester's tweets. The applicant alleges that,
by doing so, I am "taking the law into [my] own hands, playing prosecutor,
judge and executioner by finding Hofmeyr guilty and punishing him by impeding
his participation in the music industry''.

This alleg~tion is preposterous and

denied . Neither I nor Chester wields any state power, and our social power is
limited to public statements of our own views, with which others are free to
agree or disagree according to the dictates of their own faculties.

83

Chester and I have no power to "punish" Mr Hofmeyr and have never done so.
We have criticised him, as we are entitled to do, and we have never misquoted
or misrepresented his comments. If anybody has agreed with our criticisms, in
whole or in part, that is not in subservience or submission to us as a figure of
state authority or power, but purely in recognition of the validity of our criticisms.
We have not sought to engage the power of the state to impose any prohibition
or punishment on Mr Hofmeyr for his racist views. We have only sought to
distance good citizens (including Afrikaners) from the views of an increasingly
divisive and destructive individual, whose considerable fame positions him to
pollute mainstream thinking more than other fringe figures (like Mr Roodt) ever
could.

The non-violent nature of the campaign

84

The applicant also baldly alleges that I have "incite[d] others to inflict physical
harm against [Hofmeyr]' and that "Hofmeyr has already received 50 death
threats" as a result. This is denied .

84.1 I have never incited or endorsed violence against any person, including
Mr Hofmeyr, and nothing in the application and its annexures discloses
any such incitement.
84.2 The allegation of "50 death threats" is moreover, wholly unsubstantiated,
apart from one message left on Mr Hofmeyr's website by one Ahmed
Zellick (Aanhangsel E), which reveals no relation to me or Chester or
anything we have said about Mr Hofmeyr.
84.3 Moreover, attached hereto marked "CK17" is an interview with Mr
Hofmeyr dated 4 October 2014 (weeks the present dispute arose) in
which he complains of having received death threats as a result of his
activism.
84.4 Similarly, I note that at 8:04am on 28 October 2014, Mr Hofmeyr posted
on his Facebook page that in response to his "architects of apartheid"
tweet, that he had received "letterlik honderde doodsdreigemente op my
en my familie" (literally hundreds of death threats in respect of him and
his family). Yet again there is no mention of me or Chester.
84.5 This demonstrates that, if indeed Mr Hofmeyr has received death threats,
these would undoubtedly have been inspired by his extremely offensive
and destructive statements about black people over the years - not my
conduct.

85

It is noteworthy too that Mr Hofmeyr himself made widely-reported death

threats against John Vlismas, a comedian who lampooned Mr Hofmeyr for a

34

charity event, the Comedy Central Roast, to which Mr Hofmeyr had voluntarily
submitted.

86

Moreover, critics of Hofmeyr have in the past been the targets of retaliatory
threats from Mr Hofmeyr's supporters.

Mr Hofmeyr did not discourage his

supporters from such threats and even seemed to tacitly endorse them.
86.1

For example, in June 2013, Nechama Brad ie took issue with Mr

Hofmeyr's claims that Afrikaners were being "killed like flies" under the
ANC government. In response Hofmeyr, together with Sunnette Bridges
and a member of the Freedom Front Plus, laid a charge against Brodie
with the South African Human Rights Commission. The charge was
dismissed.

86.2 However, certain people who sided with Mr Hofmeyr viciously attacked
Brodie, including by threatening her with sexual assault.
86.3 On 10 July 2014, Nechama Brodie tweeted: "and @steve hofmevr: if

you're such a man, why don't you call out your followers & fans for
threatening women with violence or sexual assault".
86.4 Mr Hofmeyr's response was half-hearted and sarcastic. On 11 July he
tweeted: "Hi everyone. Plz stop threatening @brodiegal with assault. Or

at least try."; and "@brodiegal Comes from you defending the most
violent status quo ever'.

J(35

86 .5 Eric West a perennial supporter of Mr Hofmeyr on Twitter, then tweeted:

".@steve hofmeyr EEEW! I wouldn't "assault" her with a barge pole over

a broken telephone line!;) @brodiegal."

86.6 Mr Hofmeyr responded as follows: "@EricJWest Hehe! Jy darem."

87

In his argument for urgency, the applicant alleges that by continuing with my
"hate campaign and defamation against Hofmeyr, who has a wife and small
children, he is not only creating risks for Hofmeyr himself, but also for the
innocents around him". This allegation is preposterous. It simply cannot be the
case that a controversial public figure , who regularly and deliberately makes
provocative political statements on public platforms, must be immunised from
public criticism simply because he has a family. This would preclude me and
all other social commentators (including Mr Hofmeyr himself) from criticising the
conduct and views even of the President of the country, no matter how extreme
or offensive those views may be.

tk_36

MY RIGHT AND DUTY TO RESPOND TO MR HOFMEYR'S PUBLIC ADVOCACY

OF RACISM

89

Both Mr Hofmeyr and Mr Roodt use Twitter in order to promote their ideological
message.

The platform itself is a broad-based one, and far-reaching.

Statements on Twitter are made in public, and it is commonplace for those

statements to be retweeted, usually with comment, so that they are brought to
the attention of others.

90

Where people make statements on a public platform that are racist and
provocative, they must expect that others will respond and contest these views.
It is hypocritical and improper to promote openly racist statements in public,
and then to cry foul when people use that same platform to expose that racism.

91

As I have said demonstrated in this affidavit, Mr Hofmeyr publicly endorses and

advances racist views and arguments. I regard myself and others as having a
duty to respond to those views, to discredit them, and sometimes to ridicule
them, whether through reasoned argument, or through humour and parody. I
regard this as a moral and a legal duty.

92

In this regard , the Promotion of Equality and Prevention of Unfair Discrimination

Act, 2000, provides inter alia as follows:

"All persons have a duty and responsibility to promote equality. "

(section 24(2))
".. . all persons have a duty and responsibility, in particular to - (i)
eliminate discrimination on the grounds of race, gender and
disability; (ii) promote equality in respect of race, gender and
disability." (section 28(3)(a))

37

93

Though the sections have not yet been brought into effect, they demonstrate
the views of Parliament and indeed the community as to the duties that rest on
all persons.

94

I consider that confronting and exposing racism in the public domain constitutes
the promotion of equality.

95

I do not lightly accuse a person of being a racist.

However, Mr Hofmeyr's

public statements constitute a deliberate and conscious endorsement of

advocacy for racist beliefs and statements.

He is, beyond any doubt, an

advocate for racism and this is made clear by the various examples I have
given above.

96

Mr Hofmeyr's public statements, pre-eminently disseminated on Twitter, have

emboldened extreme racism to resurface in the public domain. What is more,
he is treated as a mascot and martyr of the right-wing fringe for his efforts. This
is largely due to the persistence, confidence and fame with which Mr Hofmeyr
asserts these views. It thus also demonstrates how democratically crucial it is
for me and others to be allowed to confront those views robustly in the same
public space.

The importance of public debate on racism In South Africa

97

It is undeniable that the issue of racism in South Africa requires robust, frank
and open discussion and debate.

38

98

The malign effect of racism on our country is well-known. South African history
is largely a story of the domination and oppression of black South Africans by
white people (when I refer to "black South Africans", I include all South Africans
who have been previously disadvantaged on the ground of their race, but
especially Africans).

Europeans colonised this country and its indigenous

inhabitants by force. There followed three centuries of race-based domination

and oppression and eventually, starting in 1948, formal institutionalised racebased oppression in the form of apartheid, which lasted for almost 50 years.

99

Throughout the history of this country, and particularly under apartheid, white
South Africans have been privileged at the expense of black South Africans.
Black South Africans were stripped of their dignity, freedom and equality, in law
and in fact. Under apartheid:
99.1

People were forced to be registered according to their racial group, and

were accorded differential treatment depending on which group they fell
into;

99.2 The Group Areas Act required physical separation among the races, and
forced black South Africans into areas set aside for them;
99.3 The Bantu Education Act created a separate, inferior education system
for black South Africans; and
99.4 The Immorality Amendment Act prohibited sexual relationships among
people of different races.

39

100 All of these laws, and many others, were racist in their intent and effect. They
mirrored widespread structural and inter-personal racism in society, and
entrenched the centuries-old oppression and dominance of black by white.

101 Apartheid was dismantled in the early 1990s, as Nelson Mandela and other
political

prisoners were released from

prison and a new democratic

dispensation was negotiated. South Africa now has a Constitution that sets its
face against the racial injustice and indignity of our past. This is clear, inter alia
from the following:
101.1 The Preamble to the Constitution begins by recognising the injustices of
our past.
101.2 The founding values of our new democratic state include "human dignity,
the achievement of equality and the advancement of human rights and
freedoms" and "non-racialism and non-sexism".
101.3 Section 9 of the Constitution enshrines the right to equality and prohibits
discrimination.
101 .4 Section 10 of the Constitution provides that everyone has inherent dignity
and the right to have their dignity respected and protected.

102 Despite the fact that our nation has turned its back on its racist past, we remain
a society racked by endemic racism.

Much could be said about this issue.

However, for the limited purposes of this affidavit, I will discuss two basic kinds
of racism: structural racism and inter-personal racism.

rbc

40

Structural racism
103 The Aspen Institute, a non~partisan non~profit organisation, provides the
following helpful definition of structural racism (I attach a copy of the Aspen
Institute's glossary as "CK18"):
~

system in which public policies, institutional practices, cultural

representations, and other norms work in various, often reinforcing
ways to perpetuate racial group inequity. It identifies dimensions of
our history and culture that have allowed privileges associated with
'whiteness' and disadvantages associated with 'colour' to endure
and adapt over time. Structural racism is not something that a few
people or institutions choose to practice. Instead it has been a
feature of the social, economic and political systems in which we all
exist."
104 The Aspen Institute explains white privilege as "whites' historical and

contemporary advantages in access to quality education, decent jobs and

liveable wages, homeownership, retirement benefits, wealth and so on."

105 Structural racism is pervasive in South African society. Despite being in the
numerical majority, black South Africans are marginalised and excluded from
privilege and power. To be white in South Africa is to be the beneficiary of
systems and norms that have always privileged whiteness. To be black in
South Africa is to have to overcome these structural disadvantages in order to
succeed.

41

106 The existence of structural racism in our society has recently been recognised
by the Constitutional Court. In South African Police Service v Solidarity obo
Barnard 1 the Court held that:
"At the point of.transition, two decades ago, our society was divided
and unequal along the adamant lines of race, gender and
class. Beyond these plain strictures there were indeed other
markers of exclusion and oppression, some of which our Constitution
lists. So, plainly, it has a transformative mission. It hopes to have us
re-imagine power relations within society. In so many words, it
enjoins us to take active steps to achieve substantive equality,
particularly for those who were disadvantaged by past unfair
discrimination. This was and continues to be necessary because,
whilst our society has done well to equalise opportunities for social
progress, past disadvantage still abounds. r2
"The appropriate assumption under our constitutional framework is
that restitutionary or affirmative measures should be welcomed
rather than viewed with suspicion. They must be understood as
equality-driven mechanisms in their own right, rather than carve-outs
from what is discriminatory. In Sloman it was held that"the recognition of substantive equality means . . . that equality
is more than mere non discrimination. When a society, and
perhaps the particular role players in a certain situation, come
from a long history of discrimination, which took place
individually, systemically and systematically, it cannot simply be
assumed that people are in equal positions and that measures
distinguishing between them amount to unfair discrimination."
[Sloman v Minister of Safety and Security and Others 2002 (3)
SA 468 (T) at 477F-H]. "3

107 It is in part to address the structural racism in our society that the government
has adopted affirmative action and black economic empowerment, which have
been affirmed by the Courts as legitimate and necessary measures to correct

South African Police Service v Solidarity obo Barnard (CCT 01/14) [2014] ZACC 23 (2 September
2014).
Barnard supra at para 29.
Barnard supra at para 137.

the injustices of the past. Despite these measures, structural racism remains
pervasive in our society. In demonstration of this fact:
107.1 I attach a printout of the National Planning Commission's website dealing
with the issue of institutionalised racism as "CK19". It makes clear that:
107.1 .1 The

proport~on

of black people with a tertiary education stands

at about 5 percent against 29 percent of whites having a

university degree;
107.1.2

In 2005, white households earned on average R69 680 per

year, compared to R6 979 for Africans, R13 213 for Coloureds
and R24 707 for Asians;

107.1.3 The unemployment rate in 2010 for white people was

5.1 percent,

29.8 percent

for

Africans,

22.3 percent

for

Coloureds and 8.6 percent for Asians;

107.1.4 In 2010, depending on the data source, between 26 and
32 percent of managers were black;
107.1 .5 There is a large gap in basic household infrastructure
determined by race, and Africans are by far the worst off; and
107.1.6 Black South Africans have significantly shorter life expectancy
than white South Africans.
107.2 I attach the relevant pages of the Employment Equity Commission's
2013/2014 report as "CK20". They show that white people constituted

#(

43

62 .7% of top management positions in the country in 2013, while black

people occupied 19.8% of top management positions.
107.3 Moreover, poverty levels remain extraordinarily skewed along racial
lines. According to a report by Statistics South Africa in March 2014, the
percentage persons within each racial group living in poverty, by 201 1,
was as follows:
107.3.1 Black African- 54% living in poverty;
107.3.2 Coloured- 27.6% living in poverty;
107.3.3 Indian/Asian- 3.4% living in poverty;
107.3.4 White- 0 .8% living in poverty.

108 It is clear that, 20 years after the advent of democracy, the structural
consequences of institutionalised racism remain -

blacks are relatively

economically disempowered, less likely to have access to decent social

services, healthcare, adequate food and water, and housing.

Black South

Africans are systemically disadvantaged on a number of indicators of wellbeing. Black South Africans have less access to opportunity.

109 In short, race is one of the most important determinants of the possibility of a
successful life in this country. Ironically, whites have benefited from the advent
of democracy, while the lives of the majority of black South Africans remain
encumbered by poverty and inequality. I attach , in this regard, an article by

Frans Cronje of the Institute of Race Relations, published in the City Press on
19 May 2013, as "CK21".

Interpersonal racism
110 I understand interpersonal racism as the expression of prejudice, hate or bias

against a person on the ground of their race.

111 Despite the ideal of non-racialism, equality and dignity enshrined in our

Constitution, inter-personal racism is rife in this country. Many South Africans

have not embraced the principles of equality, human dignity, and freedom.
Many South Africans do not accept that each person in South Africa is equal
and that all deserve to be treated with dignity regardless of their race . Racist
discourse and conduct remains endemic in our society, both in private and in
public. Black South Africans continue to be treated with disrespect and indignity
on the ground of race.

112 Every South African can see examples of individual racism all around us in
everyday life. Mr Hofmeyr and many of those who support him provide
examples of this in their very public discourse on issues of race.

113 It is accordingly clear that both structural and interpersonal racism are issues of
enormous public significance in this country. Against this background, it is
hardly surprising that issues of racism and racial discrimination remain among
the most controversial and pressing political, social and ideological issues
facing our country. The extent to which we address the ills of racism as a
society will, in significant part, determine whether our country succeeds or: fails

114 I submit that it is therefore absolutely essential for South Africans to be able to
engage one another in open and robust debate on issues of race and racism.
Such debate is necessary to:
114.1 publicly challenge and discredit racist views;
114.2 educate and persuade all South Africans that racist beliefs are without
scientific or moral foundation and should be rejected;
114.3 demonstrate that it is not acceptable in South African society to treat
people with disrespect on the ground of race;
114.4 inform racists that their views and beliefs are not acceptable to the
values of South African society; and
114.5 raise consciousness about racism, which empowers others to oppose it.

115 The ability to openly debate, confront and oppose racism therefore lies at the
very heart of the right to freedom of expression enshrined in section 16 of the
Constitution. I submit that:
115.1 South Africans who oppose racism must be able to do so robustly, and
must be permitted by law to do so using all the tools at their disposal.
115.2 This includes, in particular, comedy in the form of satire and parody.
Satire is the use of humour to expose, criticise, and ridicule. Comedy,
and especially satire, has a long history as a form of expression which
can effectively subvert dominant power relations.

46

115.3 It is no accident that in many of the world's most repressive societies,

satire and parody are outlawed and comedians have often been
imprisoned, tortured, or executed in authoritarian states. 4
115.4 By contrast, in a democracy such as ours, comedy is an essential
medium for addressing and confronting social and political ills.
115.5 For this reason , I submit that even crude and distasteful language, such
as that used in some of Chester's tweets complained of, are protected
and permissible as political speech.

116 Supporters of Mr Hofmeyr have accused me of hypocrisy in relying on the right

of freedom of expression, since it appears to them that Chester's comments
about Mr Hofmeyr amount to an attempt to silence him. This argument is
fundamentally misconceived . I say so for the following reasons:
116.1 I do not wish to silence Mr Hofmeyr or prevent him from expressing his
beliefs and opinions. I have never attempted to do so, for example by
approaching a court for an order against him, despite the fact that
believe many of his utterances may constitute unlawful hate speech.
116.2 Rather, I have chosen to engage with and publicly dispute the racist
views he expresses, and have done so vociferously and robustly. I have
sought to undermine the arguments he advances, not by stopping him
from expressing them, but by critiquing and ridiculing them in public.

http://www.dw. de/courageous-comedians-challenge-d ictators-with-punc h-1 ines/a-16844983

47

116.3 I have called on corporate South Africa to account for its continued
association with Mr Hofmeyr, notwithstanding his public racism and
apartheid denialism. This does not amount to censorship or silencing. It
is a legitimate response to the hateful and offensive racist public
statements of Mr Hofmeyr.
116.4 The right to freedom of expression does not entitle Mr Hofmeyr to
express racism without suffering any social consequence. If the result of
Mr Hofmeyr's racist statements is that someone publicly disagrees with
him, calls him a racist, and persuades corporate South Africa that it
should no longer be associated with him due to his racism, that is not an
infringement of his right to expression. No-one has silenced him. All that
has happened is that, as a result of his racism, he has rendered it
untenable for corporations to be associated with his name and brand. Mr
Hofmeyr does not have a right to be free from criticism. Nor does he
have a right to profit from sponsorship deals despite making offensive
and racist statements.
116.5 By contrast, the protection order which this Court granted against me
does infringe my freedom of expression. The order prohibits me from
saying certain things to certain people, as a matter of law, under pain of
arrest. I (and Chester) have been silenced by the interim order which Mr
Hofmeyr obtained. We are prohibited from criticising the racism of Mr
Hofmeyr, and from calling on his sponsors to consider whether they wish
to endorse his racism by continuing to be associated with him.

48

116.6 I do not contend that freedom of expression protects only those who
criticise racists and racist views.

I accept that Mr Hofmeyr and other

racists also have the right to freedom of expression, and that they are
entitled to express their views publicly, provided they do not contravene
the law in doing so (for example, provided that their views do not
constitute hate speech or incitement to imminent violence). I accept that
both sides of the debate are protected by to freedom of expression. That
is the healthy and necessary contestation of ideas contemplated and
protected by our Constitution.
116.7 However, freedom of speech does not extend to the right to expression
without criticism or consequence.

Living in a democracy entails that,

when you engage in public discussion, especially on political and

ideological matters, your views may be subjected to criticism and even
satire and ridicule, including in robust and crude terms. It means that, if
you express views which are not consistent with the values of democratic
society, others may publicise your views and call on South Africa to shun
you , including through boycotts of your economic activity. This is a
legitimate form of criticism of racist views. It does not amount to
censorship or silencing. Censorship occurs only when, as has occurred
here, a Court or some other arm of government prohibits someone from
expressing a position .
116.8 One of the strongest weapons in the anti-apartheid movement's arsenal
was economic sanctions against apartheid South Africa. Despite the fact
that apartheid as a legal institution is now over, there is still, in my

49

opinion, a place for consumer boycotts of companies which support

countries and/or persons who promote ideologies or cultures which have
poor human rights records.

This has been seen most recently in the

boycott of companies which invest in Israel.

116.9 The legitimacy of my calling on Mr Hofmeyr's sponsors to reconsider
their relationship with him is demonstrated, ironically, by the fact that
Front Nasionaal has done precisely the same thing to me. I attach a
copy of Front Nasionaal's Facebook post as "CK22".

It is noteworthy

that Dan Roodt, who brought the application on behalf of Mr Hofmeyr is

the "adjunkleier" or deputy leader of Front Nasionaal. Front Nasionaal
sent the following letter to all of the sponsors and hosts of my
performances:
"Dear Sirls
We are sure that you have taken note of the media hype surrounding
Steve Hofmeyr and Conrad Koch.
To refresh your memory: Koch wrote letters to the sponsors of
Hofmeyr, threatening a boycott if they did not withdraw their support
to the singer. This he followed up with letters to the press in which he
clearly vilified Hofmeyr to such an extent that Hofmeyr had to seek a
restraining order in the Randburg Court to stop the libel. In the
process Koch put Pick and Pay and Landrover, the sponsors, in a
very tight corner.
At Front National we cannot condone Conrad Koch 's behaviour. He
showed absolutely no respect for a fellow entertainer, which is
unacceptable in a small, close-knit industry. He put sponsors that are
keeping the industry alive in a tight spot with pettiness. He arrogantly
used politics to smear Hofmeyr's politics, making him guilty of double
standards. He boasted his actions on the social media in a
despicable manner.
As members of a political party, but also as your firm 's customers,
we want to enquire whether you can associate yourself with Conrad
Koch 's actions?"

50

116.10 It is therefore clear that Mr Roodt, and the other supporters of Mr

Hofmeyr themselves believe that it is permissible to contact sponsors
and try to persuade them to disown me. I accept that their right to
freedom of expression entitles them to do so (though I deny there are
cogent reasons for my sponsors to agree). That is a consequence of the
right of freedom of expression of Front Nasionaal.

But they cannot

exercise that right, while at the same time seeking to prevent me from
doing exercising mine by using the Act.
116.11 Mr Hofmeyr himself has also in the past played a leading role in
consumer boycotts of companies with whom he disagrees for political
reasons. In 2012, Mr Hofmeyr advocated a boycott of Woolworths after it
confirmed that it would apply affirmative action in its hiring practices.
This campaign was led by Mr Roodt, who stated as follows in a PRAAG
press release dated 4 September 2012:

"For a number of years now we have been trying to speak to

Woolworths about its anti-Afrikaans policy, to no avail. This latest
manifestation of antiwhite racism is the final straw. We are calling
upon all our members and the general public, especially Afrikaners
but all white South Africans and non-racist people of other population
groups to boycott Woolworths .. .
During an emergency meeting of PRAAG's Human Rights
Committee, Woolworths was classified as a hate group.
"Accordingly, we will communicate this classification to human rights
groups worldwide, especially in countries with large European
populations. We will also contact the Council of Europe and the
European Human Rights Commission, requesting them to ban
employees of Woolworths from obtaining Schengen visas. In this
respect, Mr. Simon Susamn and his fellow managers must be
treated the same way as Robert Mugabe and his henchmen. If
Woolworths receives any funding from investors or banks, we will
a/so target those, requesting thern to disinvest from Woo/worths, "...

51

116.12 In July 2013, Mr Hofmeyr and Mr Roodt led a boycott of all publications
owned by Naspers Limited, after the Beeld published criticism of Mr
Hofmeyr's claim about white people being killed by black people. Thus, it
is inconceivable that they should now seek to argue that boycotts may
not be sought against Mr Hofmeyr.

117 I accordingly submit that it is of the utmost importance that a robust, open and
frank debate on the issue of racism be permitted to occur in South Africa. The
Courts cannot intervene to silence one side of such debates under the guise of
preventing harassment.

118 The debate may be painful, offensive, and difficult for its participants. However,
it must be allowed to take place, or we will never deal with the injustices of the
past. The use of the Harassment Act to silence parties on one side or another
of that debate cannot be sustained.

THE EFFECT OF THE INTERIM ORDER

119 On 5 November 2014, the order was granted against me. Mr Roodt purported
to inform me of this fact by directing a tweet to Chester, a copy of which is
attached hereto marked "CK23".

120 I also received an email from Mr Roodt on 5 November 2014 informing me of

the order and stating that l would receive a copy of the order in PDF format

52

shortly. I attach a copy of this first email as "CK24". On 7 November 2014, I

received another email from Mr Roodt, attaching a PDF copy of the order.
attach a copy of this second email as "CK25".

121 A certified copy of the order was only formally served on me on 11 November
2014, after the South African Police Service contacted me and I collected the
order from them at Sea Point police station.

A photograph and tweet

evidencing this collection is attached hereto marked "CK26".

122 Although I am advised that the order was not legally binding until it was served
on me on 11 November 2014, I nevertheless conducted myself in obedience to
the terms of the order from the moment such terms came to my attention, i.e.
on 7 November 2014 when I received a PDF copy from Mr Roodt.

123 The order prohibits me from :

123.1 engaging in or attempting to engage in harassment of the complainant;
123.2 enlisting the help of another person to do so;
123.3 committing any of the following acts:
123.3.1 harassing, intimidating or threatening the "applicant!' (which
am advised must have been intended to refer to the
complainant, Mr Hofmeyr, not Mr Roodt);
123.3.2 publishing defamatory threats (which I am advised must also
have been intended to refer to threats against Mr Hofmeyr);

53

123.3.3 contacting

the applicant (read:

the complainant) or his

"sponsors or business associates".

124 I am not certain what is meant by "harassing" the complainant, as I do not

believe that I have ever harassed or acted unreasonably towards Mr Hofmeyr,
let alone intimidated or threatened him.

I also am not aware that I have

published any "defamatory threats" against Mr Hofmeyr, nor do I detect any

evidence of such threats in Mr Roodt's affidavit.

125 In any event, I have been careful not to disrespect this Court and accordingly I
have refrained from contacting or criticising Mr Hofmeyr on Twitter or through
any other medium .

126 With a view to abiding by the prohibition on contacting "sponsors or business

associates" of Mr Hofmeyr (which are not identified in the order or the
application), I instructed my attorneys to address a letter to the applicant,
attached hereto marked "CK27", requesting a list of Mr Hofmeyr's sponsors or
business associates.

Mr Roodt refused to provide such a list, in an email

attached hereto marked "CK28".

127 While Chester had been campaigning to questions corporate citizens about
their endorsement of Mr Hofmeyr (before the order was granted), Mr Hofmeyr
remarked on Twitter that he and I shared a number of sponsors. I asked him
repeatedly to identify these alleged sponsors, and he consistently ignored my
requests. This is apparent from the tweets attached hereto marked "CK29". It
is also important to point out that Land Rover and Pick n Pay both confirmed

54

that, while they were sponsors of the Afrikaans is Groot concerts, they were not
sponsors of Mr Hofmeyr and had no business relationship with him.

128 Accordingly, I remain unable to identify the persons whom I am prohibited from
contacting under the order, except that l infer that Land Rover and Pick n Pay
are not among them.

129 In Mr Roodt's email, he alleges baldly that he has "evidence that [/} breached

the order'. I deny that I have breached the order (which was, in any event, not
in force at the time of Mr Roodt's email), and I do not know to what "evidence"
Mr Roodt is referring.

130 On the contrary, owing to the fact that the scope of the order is unclear to me, I
have been compelled to err on the side of caution. This has severely restricted
my in the conduct of my work, which entails fearlessly and robustly tackling
topical issues. Mr Hofmeyr is a very famous and prominent personality, who
speaks provocatively on many matters which are germane to my work, such as
politics, crime and race relations.

In circumstances where Mr Hofmeyr has

placed himself at the forefront of topical issues - such as the changing of street
names in Pretoria or the incarceration of Chris Hani's murderer Clive DerbyLewis or even the performance of the Blue Bulls rugby team- I am required to
inhibit my speech in order to avoid inadvertently criticising his views and thus
allegedly "harassing" him. This inhibition is particularly intense in light of the
fact that any breach of the order will activate a warrant for my arrest.

55

131 I am also constrained in how I engage with other polarising personalities on

Twitter, including the applicant, Mr Roodt. Both before and after the order was
granted, Mr Roodt (among other supporters of Mr Hofmeyr) has repeatedly
addressed me and Chester on Twitter in aggressive and even profane terms,
yet it is not clear whether I am permitted by the order to respond (even politely),
as Mr Roodt may very well be a "business associate" of Mr Hofmeyr, whom I
am prohibited from "contacting".

132 A particularly vivid example of how the order has inhibited my work is the
effective censorship of two columns Chester and I had written for the Sunday
newspaper City Press before I was aware of the terms of the order. Chester
and I have contributed columns to the City Press (among other publications)
over the past two years, in which we have confronted a wide range of political
and social issues of public concern. My columns typically do so in an academic
analytical style, while Chester's are more colloquial, colourful and satirical.

133 Before receiving a copy of the order, I sent City Press editor Ferial Haffejee two
columns addressing with Mr Hofmeyr's offensive statements, as they had
raised public concerns about the persistence of structural racism and the
prevalence of apartheid denialism in South Africa today. The columns were to
feature in the 9 November 2014 edition of City Press, alongside pieces
addressing the related topic of recent tweets by popular radio personality
Gareth Cliff about deceased Bafana Bafana captain Senzo Meyiwa, which were
considered by many to be insensitive and racist. The page featuring my and
Chester's columns, as originally laid out for publication, is attached hereto
marked "CK30".

56

134 However, after I received a copy of the order on 7 November 2014, I asked my
attorneys urgently to advise on whether the columns could be published. They
advised that, although the order was not yet formally in force, it would be
unwise to risk arrest by publishing the columns. By this time, City Press was
minutes away from its print deadline, and it was too late to source alternative
content for that page. For the reasons set out in the accompanying affidavit of
Feria I Haffejee, she decided that the contents of the columns would need to be
blacked out in order to insulate me and potentially her from being arrested for
alleged breach of the order. A copy of the published version of the page is
attached hereto marked "CK31 ".

135 This demonstrates the extent to which the applicant would succeed in stifling
legitimate commentary and public debate is he succeeded in this application.
135.1 In the piece to have been published under my name, I explained in detail
why I believe that the racism of Mr Hofmeyr must be engaged with and
opposed publicly. I pointed out that: "The problem with racism is that it

has real world impact. It adds to a cultural discourse that affects actual
policy. Race is the number one indicator of wealth in SA, and structural
racism is a major problem for millions of poor people. "
135.2 I also explain why it is legitimate to target the relationship between Mr
Hofmeyr and mainstream corporations, because this is necessary to
undermine the structural racism that is endemic in our society.

57

135.3 In the piece to be published under Chester Missing's name, Chester

ridiculed and mocked the racism of Mr Hofmeyr, and subverted his
arguments using humour and satire.

136 I submit that both columns are plainly legitimate forms of expression under the
Constitution. They do not constitute harassment of Mr Hofmeyr, but rather a
deliberate and permissible engagement with positions that he publicly
espouses

and

advances

as

self-proclaimed

political

activist

and

commentator. Yet, if the applicant's case succeeds, they and similar future
columns would not see the light of day.

The continued actions of Mr Hofmeyr

137 Moreover, while I have been silenced by the interim order, Mr Hofmeyr has
been able to render his racist musings in full in the. public domain. Indeed, the
order has apparently emboldened Mr Hofmeyr in making more and more
strident and confident expressions of white supremacy and/or black inferiority,
presumably because the order has proved to be an effective tool to silence his
critics.

If anything, his statements have become more outrageous and

provocative since the interim order was granted.

138 I refer in this regard to:

138.1 The interview given by Mr Hofmeyr to netwerk24 on 8 November 2014
wherein he vigorously defended the "architects of apartheid" tweet that

58

led to this dispute and in doing so compared himself to Steve Biko.

dealt with this at para 64.2 above.
138.2 Mr Hofmeyr's public endorsement on 12 November 2014 of the
extraordinarily racist article written about Ms Keppler. I dealt with this in
paragraph 46 above.
138.3 The lengthy post published by Mr Hofmeyr on his Facebook page on 10
November 2014, attached hereto marked "CK32". It is structured as a
questions and answers session between Mr Hofmeyr and a fictional
interviewer, in which Mr Hofmeyr lays bare his racism and resentment of
black enfranchisement.

The following statement (translated by my

attorneys) shows clearly that Mr Hofmeyr's singing of Die Stem is not a

cultural act but an overtly political one: "Die Stem is also a lesson in
respectable poetry compared to the illiterate shit the ANC sing and now
force us to sing." Another instructive sample is the following:
"Q:

What if you win [this application]?

Steve: Then I proceed with the other two charges.

Q:

Whatif you lose?

Steve: I proceed with the other two charges, but then it is open season in
South Africa for people to call people whatever you want, to
sabotage their income and to harass everyone for sport. We are
waiting anxiously for this absolute freedom. We will then be
allowed to use the k-word, the f-word, the c-word, the d-word and
the m-word on any platform. And I will begin immediately with that
and get thousands to play along. . ..
Q:

Name four things that Afrikaners can do to feel part of the new
South Africa?

Steve: 1. They must bend over backwards, work harder, and spend
every penny they make on the interests of others whose

59

ancestors couldn't contribute a damn penny to the life

expectancy of a crippled rock rabbit.
2. They must piss on the graves of their own ancestors, deny their
war victories, disregard their vows, shit on their own
monuments, allow their street names to be removed, bum
down their own libraries, and stone their own children at the
gates of white squatter camps as soon as they show signs of
achievement and distinction.
3. They must pretend that black disadvantage is a recent white
creation, which was accompanied by the torching of
infrastructure and thousands of black universities, libraries,
hospitals and schools [built] BEFORE Jan van Riebeeck
landed.
4. Then they must stick tiny cameras to their arseholes in order to
experience first-hand how it feels when a civilization pours right
through your rectum like tart spray."

THE APPLICATION SHOULD BE DISMISSED

139 In this section of my affidavit, I explain in summary why the application falls to
be dismissed in its entirety. Where I make legal submissions, I have relied on
the advice of my legal representatives.
The meaning of 11harassment" in the Act

140 If the applicant has not made out a case that I have, in respect of Mr Hofmeyr,
engaged in harassment, he is not entitled to any order.

141 The Act defines uharassment" as:

"directly or indirectly engaging in conduct that the respondent knows

or ought to know-

60

(a) causes harm or inspires the reasonable belief that harm may be
caused to the complainant or a related person by
unreasonably(i)

following, watching, pursuing or accosting of the

complainant or a related person, or loitering outside of or
near the building or place where the complainant or a
related person resides, works, carries on business,
studies or happens to be;

(ii)

engaging in
verbal.
electronic or any other
communication aimed at the complainant or a related
person. by any means. whether or not conversation
ensues; or

(iii)

sending, delivering or causing the delivery of letters,

telegrams, packages, facsimiles, electronic mail or other
objects to the complainant or a related person or leaving
them where they will be found by, given to, or brought to
the attention of, the complainant or a related person; or

(b) amounts to sexual harassment of the complainant or a related

person".
(Emphasis added)

142 The Act defines "harm" to mean "any mental, psychological, physical or
economic harm".

143 The critical question is whether my conduct constitutes harassment in terms of

the Act, particularly my conduct in publicly questioning corporate South Africa's
association with prominent a racist and apartheid denier.

I submit that, in

answering this question, the most important component of the definition of

harassment is the word "unreasonably". It is only if the conduct of a respondent
is "unreasonable", properly interpreted, that it will constitute harassment under
the Act.

144 I am advised and submit that the definition of "harassment" in the Act must be
interpreted consistent with the Constitution, and in particular with the robust

61

protection afforded by the Constitution to freedom of expression. In terms of

this interpretation, I submit that a communication is not unreasonable if it:
144.1 is protected expression protected in terms of section 16( 1) of the
Constitution; and
144.2 concerns public statements concerning matters of legitimate public
interest and debate.

145 I submit further that in determining what is "unreasonable" in terms of the Act,
this Court must take account of the range of circumstances in which our law
recognises that even defamatory matter is lawful. The Constitutional Court has
held these defences mean that our law of defamation strikes the appropriate
balance between the constitutional rights of freedom of expression and dignity.5
The defences are:
145.1 Truth and the public benefit;
145.2 Privilege;
145.3 Protected comment; and
145.4 Reasonable publication, if the defendant is a member of the media.

146 I submit that the facts of this case, as set out in this affidavit, render all four
defences applicable.

Khumalo and Others v Holomisa 2002 (5) SA 401 (CC)

62

The effect of the Constitution

147 I submit that the interpretation just advanced in respect of what is

"unreasonable" is the only permissible interpretation of the Act.

An

interpretation that was more restrictive of expression would not be consistent

with the Constitution and this Court's duties in terms of section 39(2) of the
Constitution.

148 Section 39(2) of the Constitution imposes on all courts a duty to "promote the

spirit, purport and objects of the Bill of Rights". This duty is one in respect of
which "no court has a discretion" and must "always be borne in miner by the
courts.6 That obligation has two main aspects: 7
148.1 First, it requires this Court to avoid any reasonable interpretation that
would render the statute unconstitutional;
148.2 Second, it requires this Court to adopt any reasonable interpretation that
would better promote the spirit, purport and objects of the Bill of Rights,
even

if alternative

interpretations would

not render the

statute

unconstitutional.

149 With this approach in mind , I emphasise three considerations of importance to

the present case.

Phumelela Gaming and Leisure Limited v Grundlingh and Others 2007 (6) 350 (CC) at paras 26-27.

Arse v Minister of Home Affairs and Others 2012 (4) SA 544 (SCA) at para 10.

63

150 First, the statements by me and Chester of which Mr Hofmeyr complains are
plainly protected expression under the Constitution. Some people might see
them as unnecessarily crude or robust, but this does not deprive them of
constitutional protection.
150.1 The Constitutional Court has held that freedom of expression protects
not only information or ideas that are "that are favourably received or
regarded as inoffensive or as a matter of indifference, but also ... those
that offend, shock or disturb .. .Such are the demands of that pluralism,
tolerance and broadmindedness without which there is no "democratic
society'". 8
150.2 This is especially the case in the context of political debates. The
Constitutional Court has recognised that political discourse in this country
is robust, and that the right of freedom of expression protects and
permits such robust engagement: 9
"It was also important that public debate about his fitness should,
within the constitutional bounds protecting Mr McBride's dignity and
reputation, be untrammelled. Public debate in South Africa has
always been robust. More than 50 years ago, within the thenconstrained perimeter of racially-defined public life, a court noted
that in this country's political discussion, '(s)trong epithets are used
and accusations come readily to the tongue'. The court also found
that allowance must be made 'because the subject is a political one.
which had aroused strong emotions and bitterness', of which readers
were aware, and that they 'would not be carried away by the
violence of the language alone'.
These words are still apt today. Public discussion of political issues
has if anything become more heated and intense since the advent of
democracy. A constitutional boundary is the express provision in the

Islamic Unity Convention v Independent Broadcasting Authority and Others 2002 (4) SA 294 (CC)
at para 28.
The Citizen 1978 (Pty) Ltd and Others v McBride (Johnstone and Others, Amici Curiae) 2011 (4)
SA 191 (CC) at para 99 .

Bill of Rights that freedom of expression does not extend to hate

speech. Another is the legitimate protection afforded to every
person's dignity, including their reputation. But, so bounded. it is
good for democracy. good for social life and good for individuals to
permit maximally open and vigorous discussion of public affairs. "10

150.3 In the same judgment, the Constitutional Court pointed out that the
coverage

of

"ungenerous",

Mr

McBride's

candidacy

by

distastefuf' and "vengefuf'. 11

the
Yet

newspaper
those

was

comments

amounted to protected expression under the Constitution.

150.4 A similar point is well explained by Sachs J in his separate concurring

judgment in the Laugh It Off case, which concerned t-shirts which used
satire and parody to take on South African Breweries' well known trade
mark for Carling Black Label beer. He held:

"We are not called upon to be arbiters of the taste displayed or

judges of the humour offered. Nor are we required to say how
successful Laugh It Off has been in hitting its parodic mark.
Whatever our individual sensibilities or personal opinions about the
T-shirts might be, we are obliged to interpret the law in a manner
which protects the right of bodies such as Laugh It Off to advance
subversive humour. The protection must be there whether the
humour is expressed by mimicry in drag, or cartooning in the press,
or the production of lampoons on T-shirts. . ..
A society that takes itself too seriously risks bottling up its tensions
and treat;ng every example of irreverence as a threat to its
existence. Humour is one of the great solvents of democracy.
It permits the ambiguities and contradictions of public life to be
articulated in non-violent forms. It promotes diversity. It enables a
multitude of discontents to be expressed in a myriad of spontaneous
12
ways. It is an elixir of constitutional health. "

10

The Citizen 1978 (Pty) Ltd and Others v McBride (Johnstone and Others, Amici Curiae) 201 1 (4)
SA 191 (CC) at paras 99-100, references omitted .

11

The Citizen 1978 (Pty) Ltd and Others v McBride (Johnstone and Others, Amici Curiae) 201 1 (4)
SA 191 (CC) at paras 100-101.
Laugh It Off Promotions CC v SAB International (Finance) Bv tla Sabmark International (Fre om
Of Expression Institute as Amicus Curiae) 2006 (1) SA 144 {CC) at paras 108-109.

12

65

150.5 I submit that, like the satire in the Laugh It Off case, my comments must
be understood as satire with a political message. This is a legitimate form
of political expression, which this Court should be slow to limit on the
ground that some find the means chosen to express it offensive.

151 Second, the order sought by Mr Hofmeyr prevents me from publishing certain
kinds of statements, in advance. This is what is known as a "prior restraint".
151.1 The Constitutional Court and the SCA have held that a prior restraint is a
drastic interference with freedom of expression which is only granted in
very narrow circumstances:
"[T}he prior restraint of publication, though occasionally necessary in
serious cases, is a drastic interference with freedom of speech and
should only be ordered where there is a substantial risk of grave
injustice." 13
151.2 Consequently, an extremely strong case must be made out for such an
order to be granted. This is not such a case.

152 Third, in order to decide whether my conduct was "unreasonable" as

contemplated in the definition of harassment in the Act, this Court must
interpret the statements that Mr Hofmeyr complains of.

It must not merely

content itself with the interpretation of Mr Roodt or Mr Hofmeyr.

152.1 I am advised that our courts have developed an approach to giving
meaning to published statements and pictures, in for example the context

13

Midi Television (Ply) Ltd tla E-TV v Director of Public Prosecutions (Western Cape) 2007 (5) SA
540 (SCA) (2007 (9) BCLR 958; [2007] 3 All SA 318) in para 15, confirmed by the Constitutional
Court in Print Media South Africa and Another v Minister of Home Affairs and Another 2012 (6) SA
443 (CC) at para 44.

66

of the law of defamation. They do so by looking at the publication through

the eyes of the hypothetical reasonable person.
152.2 This test is plainly appropriate in determining whether the comments I
have made are reasonable within the meaning of the Act.

The

appropriate standard by which to determine the meaning of my

comments is the same as that used in our law of defamation, namely,
that of the fictitious, normal, balanced, right-thinking and reasonable
person who is neither hyper-critical nor over-sensitive. 14

The applicant has not demonstrated any entitlement to a protection order

153 The facts and contentions contained in this affidavit make clear that the
application is entirely without merit:

154 While the statements I have made about Mr Hofmeyr are indeed robust, they
do not constitute "harassment" as defined in the Act. Numerous requirements
of the Act have not been met. These include the requirement of "harm" - which
has not been shown.

155 Most critically, however, my conduct and the statements made by me cannot
possibly be regarded as "unreasonable" having regard to inter alia the following
considerations:

14

Suid-Afrikaanse Uitsaaikorporasie v O'Malley 1977 (3) SA 394 (A) at 408 D-E and Coulson v
Rapport Uitgewers (Edms) Bpk 1979 (3) SA 286 (A) at 294 H-295 A. See also the judgment of
Yacoob J in LeRoux and Others v Dey (Freedom of Expression Institute and Restorative Justice
Centre as Amici Curiae) 2011 (3} SA 274 (CC) at para 71.

67

155.1 My statements were made in a public forum, in response to equally

public statements in the same or similar public forums made by Mr
Hofmeyr;
155.2 Mr Hofmeyr is not merely a public figure but a self-proclaimed "activist"
who actively seeks to court public attention and controversy in relation to
his views;
155.3 The public statements made by Mr Hofmeyr are so extraordinary in their
racism that they demanded a response;
155.4 My statements were made in the exercise of my right and duty to criticise
and contest Mr Hofmeyr's statements and to hold him accountable for
them; and
155.5 My statements- though at times certainly robustly phrased - constituted
protected expression in terms of section 16(1) of the Constitution.

156 In all the circumstances, on this basis alone, there is no basis for any order to
be made under the Act against me.
The interim order is overbroad
157 Even if Mr Hofmeyr had made out a case for some order (which he has not) he
has certainly not made out a case for an order as broad as the interim
protection order.

158 The interim order that this Court granted against me provides as follows:

"The respondent is prohibited by this court from -

68

(a) engaging in or attempting to engage in harassment of the

complainant;
(b) enlisting the help of another person to engage in the harassment
of the complainant; and/or
(c) committing any of the following actls:
(i)

not to harass, intimidate or threaten the Applicant;

(ii)

not to publish defamatory threats;

(iii)

not to contact the Applicant in any manner what so ever,

not to contact Sponsors or Business Associates of
Applicant."

159 The effect of this order, and in particular, paragraph (c)(iii) thereof, is
extraordinarily broad, and unduly invasive of my right to freedom of expression.
In this regard I emphasise the following:
159.1 First, the order appears to accept Mr Hofmeyr's contention that my
engagement with and criticism of M r Hofmeyr's racist statements
constitutes harassment. I submit that this contention is based on an
impermissible and unconstitutional interpretation of the definition of
"harassment" set out in the Act, which I set out in greater detail
hereunder.
159.2 Second, if criticism and ridicule of Mr Hofmeyr's racist views constitutes
harassment, the order precludes me from discussing or even mentioning
his racism in any forum, including, for example in my stand-up comedy
show or on my television show.
159.3 Third, the order prohibits me from contacting Mr Hofmeyr in any manner
whatsoever. This precludes my even mentioning Mr Hofmeyr, for
example on Twitter. On Twitter, when one wishes to mention another
Twitter user, one begins the tweet with that person's username. For

69

example, if I wish to mention Chester Missing in a tweet, I would begin

the tweet with "@chestermissing". If I wish to mention Mr Hofmeyr in a
tweet, I would begin the tweet with "@steve_hofmeyr".

The effect of

doing so is to draw the tweet to the attention of the person who is

mentioned, and to indicate to other readers of the tweet that the tweet
has something to do with that person. It appears that any reference to
"@steve_hofmeyr" would

constitute

contacting

him.

I therefore

understand the order to effectively prohibit me from mentioning Mr

Hofmeyr on Twitter. I am accordingly precluded from criticising any of Mr
Hofmeyr's past or future racist comments. I am prohibited from engaging
with him on his racist views, or on any other issue, and from expressing
my disagreement with those views.
159.4 Fourth, the order prohibits me from contacting any of the sponsors or
business associates of Mr Hofmeyr,

apparently for any reason

whatsoever. The first difficulty with this order is that it is impossible for
me to know what I have to do in order to comply, because Mr Hofmeyr
refuses to provide me with a list of his sponsors and business
associates.

More importantly, I submit that it is a wholly unjustified

limitation of my freedom of expression and my legitimate right to seek

answers from Mr Hofmeyr's sponsors and associates as to whether they
believe it is acceptable to be associated with, and thereby implicitly
endorse, a racist and apartheid denialist. The order would prohibit, for
example, a tweet naming any of Mr Hofmeyr's corporate sponsors and
asking whether they endorse the views that he has expressed. I submit
that raising such issues in a public forum such as Twitter constitutes

legitimate activism and debate, protected by section 16 of the

Constitution.

CONCLUSION

160 I submit that this application is not only entirely without merit, but is also an
abuse of process.

It is an attempt by Mr Hofmeyr to silence me, while he

continues to use social media platforms to espouse his racist views.

DEPONENT

I CERTIFY that the deponent has acknowledged that he knows and understands the
contents of this affidavit, which was signed and sworn before me at C;Af !()U)t-\
on 17 NOVEMBER 2014, the regulations contained in Government Notice No
R1258 of 21 July 1972, as amended, and Government Notice No R1648 of 19
August 1977, as amended, having been complied with.

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