A rul­ing by the Supreme Court of Ap­peal, declar­ing the def­i­ni­tion of hate speech un­con­sti­tu­tional, will have far-reach­ing con­se­quences

CityPress - - Front Page - JEANNE-MARIE VERSLUIS [email protected]­press.co.za

The Supreme Court of Ap­peal (SCA) de­clared the con­tro­ver­sial def­i­ni­tion of hate speech un­con­sti­tu­tional on Fri­day by find­ing that a com­ment is only hate speech if it causes harm as well as in­cites vi­o­lence.

In do­ing so, le­gal ex­perts say, the full Bench of the court has given short shrift to the hate speech “spi­ral” that South Africa has found it­self in, in which any­thing from the old South African flag, in­sults di­rected at the LGBTIQ com­mu­nity in speeches and even the use of the k-word be­tween black peo­ple has been de­clared hate speech.

The rul­ing could have far-reach­ing con­se­quences for high-pro­file cases such as the one in­volv­ing the SA Hu­man Rights Com­mis­sion (SAHRC), which al­leges that Spring­bok rugby player Eben Etze­beth used the word “h**not” and wants this to be de­clared hate speech.

It could also af­fect Afrikaner lobby group Sol­i­dar­ity’s case against Black First Land First (BLF) lead­ers be­cause the lat­ter were quoted as say­ing they “wel­comed” the death of white pupils at the Hoërskool Driehoek.

In fact, one of the BLF’s key ar­gu­ments is that their com­ments can­not be hate speech just be­cause they cause of­fence.

Be­fore Fri­day’s SCA judg­ment, the Pro­mo­tion of Equal­ity and Preven­tion of Un­fair Dis­crim­i­na­tion Act (Pepuda) stip­u­lated that some­thing that was “hurt­ful” to­wards a spe­cific group of peo­ple could also be hate speech.

The SCA has given Par­lia­ment 18 months to amend the act by mak­ing the def­i­ni­tion of hate speech much nar­rower. If it fails to do so, the SCA’s new def­i­ni­tion will take ef­fect.

The de­ci­sion must, how­ever, still be con­firmed by the Con­sti­tu­tional Court.

The judges in the mat­ter found that former am­bas­sador and then jour­nal­ist Jon Qwe­lane was not guilty of hate speech in 2008, when he wrote in a col­umn in the Sun­day Times that it was “not okay” to be gay.

If gays can marry, he asked, “how soon be­fore some id­iot de­mands to marry an an­i­mal?”

Qwe­lane was de­cried for this and the SAHRC dragged him to the Equal­ity Court.

The SCA has now ruled that Pepuda has un­fairly ex­panded the def­i­ni­tion of hate speech con­tained in the Con­sti­tu­tion in three ways:

● By clas­si­fy­ing some­thing that is “hurt­ful” as hate speech. That has never been part of the pure hate speech def­i­ni­tion of the Con­sti­tu­tion, but has been used in var­i­ous cases be­fore equal­ity courts as a rea­son to de­clare some­thing as hate speech;

● By say­ing that some­thing is hate speech if it is hurt­ful, or is harm­ful, or in­cites harm, or pro­motes or prop­a­gates ha­tred.

● The Con­sti­tu­tion refers to hate speech on the grounds of race, eth­nic­ity, sex, sex­ual ori­en­ta­tion and re­li­gion.

Pepuda’s def­i­ni­tions ex­panded this to in­clude lan­guage, con­vic­tions, dis­abil­ity, preg­nancy, colour, cul­ture and any­thing else that un­der­mines hu­man dig­nity or per­pet­u­ates sys­temic dis­ad­van­tage.

An­drew Bo­erner, free­dom of speech ex­pert and Qwe­lane’s at­tor­ney, said the judg­ment would help to move the coun­try for­ward.

“The whole thing about free­dom of ex­pres­sion is that we should com­mu­ni­cate ideas. Free­dom of ex­pres­sion is a corner­stone of our democ­racy. And, in such a young democ­racy, we are go­ing to step on each oth­ers’ toes.”

An ad­vo­cate, who reg­u­larly deals with such cases but who did not want to be iden­ti­fied for pro­fes­sional rea­sons, told City Press’ sis­ter pub­li­ca­tion, Rap­port, that when the new leg­is­la­tion comes into ef­fect, “hate speech will be­come a very rare thing”.

Pro­fes­sor An­dré Du­ven­hage, a po­lit­i­cal an­a­lyst at North­West Univer­sity, said the judg­ment was a break­through for free­dom of ex­pres­sion and that it cleared up much of the un­cer­tainty.

In the fu­ture, he added, it will be much more dif­fi­cult to prove that some­body com­mit­ted hate speech.

“If it is con­firmed, it would swing in favour of peo­ple like Etze­beth,” he said.

Du­ven­hage said that if it was true that Etze­beth had used the h-word, it would, at most, be an in­sult.

“To ad­ju­di­cate ev­ery in­sult in the courts is not go­ing to be prac­ti­cally pos­si­ble. It is not ju­ris­ti­cally pos­si­ble. But I am not say­ing that I ap­prove of in­sults.”

Du­ven­hage said that the ap­peal court’s judg­ment would pre­vent the over­reg­u­la­tion of so­ci­ety.

Ru­pert Candy, the at­tor­ney for the Nel­son Man­dela Foun­da­tion, which first went to court over the old flag, said that the Qwe­lane de­ci­sion would not come into ef­fect un­til the Con­sti­tu­tional Court had con­firmed it.

“Un­til it is con­firmed, it will have no ef­fect on any hate speech case, in­clud­ing the one about the old flag. The [SCA’s] dec­la­ra­tion will have no ret­ro­spec­tive ef­fect, so it will have no im­pact on any pre­vi­ous case.”

Candy said the law firm would ad­vise the Nel­son Man­dela Foun­da­tion to in­ter­vene in the Qwe­lane case when it goes to the Con­sti­tu­tional Court, “be­cause hate speech laws are nec­es­sary in South Africa to pro­tect vul­ner­a­ble groups like black les­bians in town­ships”.

Kallie Kriel, the chief ex­ec­u­tive of­fi­cer (CEO) of AfriFo­rum, which is cur­rently ap­peal­ing an equal­ity court de­ci­sion that dis­plays of the old South African flag con­sti­tute hate speech, said the judg­ment was a ma­jor vic­tory for free­dom of ex­pres­sion.

“It does not mean that you should go and wave your old flag around in Soweto or braai your pork chop at a Mus­lim’s house. This causes of­fence and is bad man­ners. You still have to have re­spect for other peo­ple.”

But, he added, peo­ple who be­lieved strongly in free­dom of ex­pres­sion had to be able to say to oth­ers: “I dis­agree with you, but I will fight for your free­dom of ex­pres­sion.”

Kriel said the de­ci­sion could have sig­nif­i­cant ram­i­fi­ca­tions for AfriFo­rum’s pend­ing case over the old flag. The lobby group has asked the SCA for leave to ap­peal.

“If you wave the flag and say, ‘Let’s make war against black peo­ple’, then it is hate speech. But if you are only wav­ing the flag, that is not hate speech,” he said.

“The judg­ment has the ef­fect that leg­is­la­tion can no longer be abused to limit free­dom of ex­pres­sion, be­cause then we are in a ridicu­lous spi­ral. In a spi­ral like that, any­one can de­cide what should now be con­sid­ered hate speech, and what should not.”

Pro­fes­sor An­ton Kok of the Univer­sity of Pre­to­ria, who is a spe­cial­ist in leg­is­la­tion on equal­ity and hu­man rights, said that for of­fend­ers who com­mit­ted vi­o­la­tions of dig­nity by, for ex­am­ple, call­ing some­body the kword, the judg­ment would not have a sig­nif­i­cant ef­fect.

How­ever, he added, they might still be crim­i­nally pros­e­cuted for crimen in­juria or be sued in a civil claim.

He said that if the Con­sti­tu­tional Court con­firmed the SCA’s hear­ing, it would prob­a­bly make some ar­range­ment with re­gard to hate speech cases that were cur­rently pend­ing.

Kok said the ques­tion would then arise of whether an in­jus­tice had been com­mit­ted against those who had been or­dered to pay com­pen­sa­tion for dam­ages un­der the pre­vi­ous def­i­ni­tion.

As re­cently as Au­gust, the court found that busi­ness­man Peter-Paul Ng­wenya com­mit­ted hate speech by call­ing Fani Tini, the co-CEO of In­vestec, a “Qwaqwa k **** r” and “Ban­tus­tan boss”.

Ng­wenya was found guilty of crimen in­juria, on which the SCA’s judg­ment would have no ef­fect. How­ever, the mag­is­trate still ruled that the state­ment was “hate speech”, even though both par­ties in­volved were black.

Rap­port has pre­vi­ously re­ported that the SAHRC is still of the opin­ion that any use of the k-word con­sti­tutes hate speech. This is one of the rea­sons it wanted to take Etze­beth to the equal­ity court over the h-word, to place it on an equal foot­ing with the k-word.

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