Solidarity and Another v Black First Land First and Others

On 1 February 2019, a walkway bridge collapsed at Hoërskool Driehoek in Vanderbijlpark, killing four white learners aged 13-17 and injuring twenty others. On the same day, after the incident became public, Siyanda Gumede posted on Facebook: "Don't have heart to feel pain for white kids. Minus 3 future problems". The first respondent (BLF, a registered political party), through its national spokesperson Lindsay Maasdorp (second respondent), responded on BLF's official Twitter account stating: "Siyanda Gumede is correct! God is responding, why should we frown on the ancestors petitions to punish the land thieves including their offspring". The third respondent, Zwelakhe Dubasi (deputy secretary general of BLF), also commented on BLF's official Twitter account. These comments caused widespread outrage. Solidarity, a registered trade union, launched an application in the Equality Court under section 20 of the Equality Act, seeking a declaration that the comments constituted hate speech. After hearing the matter on 22 August 2019, the judge reserved judgment for 3 December 2019. On that date, the judge requested submissions on the effect of this Court's judgment in Qwelane v SAHRC (29 November 2019), which held section 10 of the Equality Act unconstitutional. The judge had prepared a written judgment finding in favour of Solidarity, but subsequently declared the proceedings a nullity in view of the Qwelane judgment, without issuing a substantive order.

• Whether a court may declare its own proceedings or judgment a nullity rather than deciding the dispute before it
• Whether the Equality Court order declaring the proceedings a nullity was competent
• What the appropriate remedy is when a court fails to discharge its function of bringing finality to a dispute properly before it

1. The appeal is upheld. 2. The order of the court a quo is set aside. 3. The matter is remitted to the Equality Court to be finalised, either by the presiding judge or, if the presiding judge is unable to finalise the matter for whatever reason, any other judge as the Judge President may direct. No order as to costs.

A court does not have the power to decline to decide a case that is properly brought before it. A court may not declare its own proceedings or judgment to be a nullity as this fails to discharge the primary judicial function of bringing finality to disputes. The power of a court derives from the power of the state to bring to an end disputes capable of being resolved by law, either by upholding or dismissing a claim. A court order must be clear, exact compliance, and be capable of enforcement. When a court fails to render a binding decision in a dispute properly before it, the matter must be remitted to enable the dispute to be finally resolved.

The Court noted that if another judge comes into the matter on remittal (should the original presiding judge be unavailable), that judge would be free to issue such directives as to the further conduct of the matter as appears meet, including but not limited to requiring further argument in the matter. The Court also noted, without deciding, the question of whether Mr Mngxitama could represent the respondents in the appeal, as it became unnecessary to address this issue given the limited scope of the appeal and the agreement reached between the parties. The Court observed that the high court could have taken one of two courses: either taken time to consider Qwelane and the parties' submissions before rendering judgment, or more incautiously handed down the written judgment without regard to Qwelane - in either event, an order would have been issued determining the dispute.

This case establishes important principles regarding the fundamental duty of courts to decide disputes properly brought before them. It confirms that courts cannot simply decline jurisdiction or declare their own proceedings a nullity when faced with legally complex or difficult questions. The judgment reinforces that courts must discharge their constitutional function of resolving disputes with finality, even when developments in the law (such as the Qwelane judgment on the constitutionality of hate speech provisions) complicate matters. The case also demonstrates the importance of procedural propriety and the requirement that court orders be clear, final and capable of enforcement. While the substantive hate speech issues were not decided, the case has significance for understanding the limits of judicial discretion and the fundamental obligation of courts to render binding decisions.