Fltr:  Head of the Department of Jurisprudence, Prof Joel Modiri, UP Vice-Chancellor and Principal Tawana Kupe, Prof Anton Kok and UP Law Dean Prof Elsabe Schoeman 

The Faculty of Law (UP Law) at the University of Pretoria (UP) congratulates Professor Anton Kok in the Department of Jurisprudence on his inaugural address to celebrate his promotion to full professor in January 2020.

In his presentation on 3 March 2022, Kok stated that ‘It could be argued that many provisions in the Equality Act aim to bring about changes in the hearts and minds of South Africans.’ He further examined to what extent claims brought in terms of the Equality Act should rather not be dismissed for being too trivial for a court to engage in.

‘‘The Equality Act contains several qualifiers that may be interpreted as a signal by Parliament to filter out at least some complaints. The Equality Act prohibits ‘unfair’ discrimination, ‘hurtful’ words, and ‘persistent or serious’ harassment. One of the factors to consider when determining if the impugned discrimination was fair or unfair is the ‘nature and extent of the discrimination’.’’  Kok further argued these qualifiers should be interpreted purposively and generously to achieve the Equality Act’s purpose and not be used to easily dismiss seemingly trivial instances of discrimination, hate speech and harassment.

He continued by stating that ‘The Equality Act’s aim of large-scale societal transformation will inevitably be hindered if courts brand discrimination as trivial (and therefore find that the impugned discrimination was fair) or if courts brand insulting words as trivial (and therefore find that the words did not constitute hate speech), or if courts brand demeaning conduct as trivial (and therefore find that the harassment was not serious and that the claim fails). When ostensibly trivial incidents implicate important Constitutional values, the law should still concern itself with these infractions.’  In his view, Kok said that the equality courts are tailor-made indeed to address the ‘daily pinpricks, the little discourtesies, the minute humiliations’.

Inter alia, Kok made reference to the definitions of unfair discrimination and harassment in the Equality Act that contain qualifiers that could potentially slip de minimis non curat lex in via the back door.  ‘For example, the test for unfairness in section 14 includes the impact of the discrimination on the complainant, and the nature and extent of the discrimination. Logically, a finding of trivial unfair discrimination cannot be made – courts will label insignificant, trivial discrimination as “fair” and dismiss the claim. Where courts should be careful is to properly and sensitively apply the factors set out in section 14 of the Equality Act to determine “fairness” or “unfairness". Courts should be careful to avoid using these factors to non-suit a plaintiff. The less serious nature of some kinds of discrimination should rather be reflected in a less-invasive remedy than in non-suiting  a plaintiff on a finding of so-called “fair” discrimination.

We now have the untenable position in South African law that ordinary insults, whether committed in private or in the public arena, are actionable in the ordinary South African courts, based on the hurt caused to the plaintiff, but insults based on the prohibited grounds must be committed in public and must be harmful or incite harm or promote or propagate hatred to be actionable in the equality courts. 

Kok stated that ‘The Equality Act’s aim of large-scale societal transformation will inevitably be hindered if courts brand discrimination as trivial (and therefore find that the impugned discrimination was fair) or if courts brand insulting words as trivial (and therefore find that the words did not constitute hate speech), or if courts brand demeaning conduct as trivial (and therefore find that the harassment was not serious and that the claim fails). When ostensibly trivial incidents implicate important Constitutional values, the law should still concern itself with these infractions. I will argue that the equality courts are tailor-made to address the ‘daily pinpricks, the little discourtesies, the minute humiliations’.

In conclusion, Kok said that he was looking forward to increased contact classroom teaching and the restart of the Faculty's curriculum transformation initiative. ‘If we take our obligations as law teachers seriously, we will be having many difficult conversations in the classroom and with colleagues in the months and years to come. I trust that as bona fide legal experts we will be able to distinguish between hate speech and harassment on the one hand, and uncomfortable conversations on the other hand. To experience discomfort when a difficult conversation is taking place on social justice is not the same as being hurt’, Kok inferred.

In her congratulatory address, Dean Professor Elsabe Kok congratulated Professor Kok on his ‘thought-provoking inaugural address on a topic that is perfectly aligned with the University’s research and transformation strategy to pursue “research that matters”, that is, research that transforms lives and communities, and addresses complex societal challenges. You have done that tonight and I know that this will be your focus for the immediate future and beyond. I wish you the very best!’