What is incitement to harm?
The Supreme Court of Appeal is the latest court to find that hurtful or offensive comments cannot be found to be hate speech. The ruling has narrowed the definition of such speech, and prompted new questions.
Political and social debate in SA has been chracterised by vitriolic attacks and threats of violence to the extent that the targets of these attacks have increasingly turned to hate-speech legislation in the hope of seeking legal protection.
Everyone from DA federal council chair Helen Zille to EFF leader Julius Malema has been accused or found guilty of hate speech over comments interpreted as deeply offensive and insensitive (in the case of Zille) to threatening and racially loaded (in the case of Malema).
But on Friday the Supreme Court of Appeal (SCA) became the latest in a series of courts to find that hurtful or offensive comments cannot be found to constitute hate speech. That ruling has both narrowed the parameters of what defines such speech, and prompted new questions over how it can be identified and prosecuted.
Deciding on a hate-speech complaint lodged a decade ago against former SA ambassador to Uganda Jon Qwelane over his now notorious “gay is not OK” column, judge Mahomed Navsa said the definition of hate speech contained in the Promotion of Equality and Prevention of Unfair Discrimination Act should be changed to fall in line with the constitutional requirement of freedom of expression.
He ordered that, in the interim, the act should read: “No person may advocate hatred that is based on race, ethnicity, gender, religion or sexual orientation that constitutes incitement to cause harm.”
So one may be hurt by a racist or homophobic slur , but to show this slur is hate speech you will need to clearly demonstrate that it amounts to “incitement to cause harm”.
The SCA has been at pains to stress that this harm may be physical or psychological, but significant questions remain about proving harm and demonstrating that the person accused of hate speech had a clear intention to incite harm.
Malema’s Constitutional Court challenge to the Riotous Assemblies Act, under which he has been charged by the National Prosecuting Authority for inciting his EFF supporters to occupy vacant land, provides valuable insights into how our courts define incitement.
According to the Pretoria high court’s full-bench ruling against Malema, incitement is “the intention, by words or conduct, to influence the mind of another in the furtherance of committing a crime”.
“It is apparent from this definition that the mere voicing of one’s opinion will not be enough for incitement The statement ‘take back the land’ would likely not constitute incitement as it specifies neither a crime nor an object ... the crime is to be committed against,” the court said.
Pivotal to proving that someone is guilty of incitement, the court said, is to show that “shorn of any heated political rhetoric, the clear intention to influence the mind of another to commit a crime must be present”.
So what does that mean for proving that abusive slurs amount to hate speech?
The Constitutional Court may soon provide further answers to that question, when it rules on the hate-speech complaint against Cosatu official Bongani Masuku over his 2009 comments about liberating Palestinians “from the racists, fascists, and Zionists who belong to the era of their friend Hitler”.
Among other comments about “Zionists”, Masuku stated: “We must target them, expose them, and do all that is needed to subject them to perpetual suffering until they withdraw from the land of others and stop their savage attacks on human dignity.”
The Constitutional Court must now decide if the SCA was correct to find that the comments did not entail “the incitement of imminent violence; or the advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm” in a decision that will undoubtedly set a standard for how incitement to cause harm is defined.
Whatever the country’s highest court decides, it is apparent that judges are growing wary of being asked to rule in court battles in which hate-speech law is used as a weapon.
They have made that clear by dismissing hate-speech complaints against Malema, the EFF and Qwelane and stressing that, as much as their remarks may be offensive, cruel and hurtful, SA’s dark past and constitutional democracy demand that they cannot be silenced.