Oliphant in the room: How is she different to Penny Sparrow?

So it would appear that your mother is “a whore of the town” if you said that Minister of Social Development Bathabile Dlamini is a drunkard — in other words, that you are able to identify an alcoholic because your own mother is one. This is according to the minister’s spokesperson, Lumka Oliphant, in a Facebook rant defending Dlamini against her accusers.

The furore arose after Dlamini was seen to be unsteady on her feet during a speech, leading to allegations that she was drunk and prompting an expletive-filled response from Oliphant on social media.

Oliphant’s posts have been described as hurtful, unacceptable and irresponsible, and she has subsequently apologised to all the women she offended. But, I couldn’t help but wonder how Oliphant’s rant was different to that of Penny Sparrow, who, a year ago, used the word “monkeys” to describe black people on the Durban beachfront. The only difference is that Sparrow’s rant was racially based, whereas Oliphant’s was gender-based.

In terms of the Promotion of Equality and the Prevention of Unfair Discrimination Act, no one may communicate words that can be reasonably construed to demonstrate a clear intention to be hurtful or harmful, or incite harm or promote hatred.

After complaints were filed with the Human Rights Commission, Sparrow was fined R150 000 by the Equality Court and had to pay a R5000 fine after pleading guilty to crimen injuria in court.

Pandelis Gregoriou, legal head of the Human Rights Commission, said that, “in view of the spirit and constitutional imperative of nation building, one should condemn the use of any language which is undesirable in our constitutional democracy”.

Furthermore, “while one should encourage robust and lively debate, … there is an onus on all South Africans to refrain from making undesirable remarks which allude in a disparaging manner to race, gender, sexual orientation and the like”.

His position is in line with the draft Prevention and Combating of Hate Crimes and Hate Speech Bill, which is open for public comment.

It is right that our society is harsh on racism, given our history. For Oliphant, in her own words, to “take the matter to the gutter” and use women as a weapon is malevolent and speaks volumes about women’s struggles in society. Javu Baloyi, spokesperson for the Commission for Gender Equality, labelled her statements sexist and gender insensitive.

It could be argued that both Sparrow’s and Oliphant’s utterances amounted to hate speech.

Interestingly, these two offences have been treated differently, with Sparrow being investigated, prosecuted and fined, whereas Oliphant simply apologised to women.

Although racism is never acceptable, there can also be no acceptance of any form of gender violence.

According to a Council of Europe convention, “violence against women is understood as a violation of human rights and a form of discrimination against women and shall mean all acts of gender-based violence that result in, or are likely to result in, physical, sexual, psychological or economic harm or suffering”.

Using the phrase “whore of the town” to describe the mothers of Dlamini’s detractors could be seen as amounting to gender violence or hate speech on the grounds of gender.

But Oliphant’s statement would have to be shown to have been intentionally hate speech.

This is so because the Equality Act “targets language that could reasonably be construed to demonstrate a clear intention to be hurtful, harmful or to incite harm or to promote or propagate hatred,” said Gregoriou. “Consequently, a speaker, publisher or communicator can fall foul of this provision simply because his or her statement could reasonably be construed to demonstrate a clear intention to be hurtful.”

Without prejudice to Oliphant’s public apology, it is rather disturbing that such a statement can come from an official working in a department whose mission is “to enable the poor, the vulnerable and the excluded within South African society”.

According to Baloyi, the gender commission will have discussions with both the minister and Oliphant and will also investigate any complaints.

But, as Gregoriou stated, any deliberation on whether Oliphant’s statements amount to hate speech should be done with care, taking into account considerations about limiting freedom of expression.