The South African Human Rights Commission has welcomed the landmark Equality Court judgment against Gqeberha shop owner Dawood Lagardien, saying it reinforces that religious freedom and freedom of expression cannot justify unlawful discrimination against LGBTQIA+ people.
The case arose after Lagardien displayed a sign outside his La Gardi packaging, spice, dairy and baking shop in Gqeberha in July 2023, declaring: “LGBTQ not welcome at La Gardi – save our children”.
He also established and administered a WhatsApp group containing harmful and threatening messages directed at the LGBTQIA+ community.
The court found that Lagardien’s conduct amounted to hate speech, unfair discrimination and harassment under the Promotion of Equality and Prevention of Unfair Discrimination Act.
The SAHRC brought the case before the Equality Court, with the Commission for Gender Equality (CGE) subsequently joining as the second applicant. Media Monitoring Africa Trust, now known as Moxii Africa, participated as a friend of the court.
Court orders apology and R200,000 payment
In its 6 October judgment, the Equality Court ordered Lagardien to issue a public apology acknowledging the harm caused by his conduct. It also directed him to pay R200,000 in damages to a non-governmental organisation promoting equality, to be identified by the SAHRC.
The court further prohibited him from engaging in similar unlawful conduct and referred the matter to the National Prosecuting Authority for criminal investigation.
The ruling follows a lengthy legal battle after the SAHRC sought to hold Lagardien accountable for the exclusionary sign and the WhatsApp group.
Removing hateful content does not erase accountability
The SAHRC highlighted the significance of the court’s rejection of Lagardien’s argument that the case had become moot because the sign had been removed and the WhatsApp group discontinued.
The Commission said the finding reinforced the importance of accountability and effective remedies, even when the conduct at the centre of a case has stopped.
The judgment also recognised that hate speech and discrimination can occur in both physical spaces and digital environments, confirming that existing human rights protections apply to harmful conduct facilitated through platforms such as WhatsApp.
This has important implications for LGBTQIA+ people who experience discrimination in businesses and other public spaces, as well as those targeted by online harassment and hate speech.
Religious freedom does not justify discrimination
The SAHRC also welcomed the court’s reaffirmation that constitutional rights to freedom of religion and freedom of expression, while fundamental, do not justify conduct that unlawfully violates other people’s rights to dignity and equality.
“The protection of equality and dignity remains a constitutional imperative, irrespective of an individual’s sexual orientation or gender identity,” the Commission said.
The ruling reinforces the principle that businesses serving the public cannot use claims of religious belief or freedom of expression to justify unlawful discrimination against LGBTQIA+ people.
A significant victory for LGBTQIA+ rights
The SAHRC said it particularly welcomed the court’s recognition of the harm caused by conduct targeting historically marginalised communities.
The Commission reaffirmed its commitment to challenging hate speech, harassment and unfair discrimination, and to promoting a society founded on human dignity, equality and freedom for all.
For LGBTQIA+ South Africans, the judgment represents an important affirmation that discriminatory conduct can carry legal consequences, including when it takes place online or when those responsible subsequently remove the offending material.
