About “unknown unknowns” and hate speech

Donald Rumsfeld, the former American Secretary of Defence famously said: “[T]here are known knowns; there are things we know we know. We also know there are known unknowns; that is to say we know there are some things we do not know. But there are also unknown unknowns – the ones we don’t know we don’t know.” When a judge clearly does not know that he does not know the applicable law, his or her judgment usually makes for interesting but somewhat depressing reading.

I was reminded of this truism when I read the “judgment” of Judge LP Halgryn in the matter of African National Congress and Others v Harmse and Another. The “judgment” purports to deal with an application of the ANC to appeal a previous consent order granted by the judge to the effect that the singing of the song Dubula Ibhunu was “unconstitutional and unlawful”.

However, without having heard any evidence on the matter and without having considered the factual context within which the words were supposedly communicated, the “judgment” declares that the song is “unconstitutional” and that chanting it “prima facie satisfies the crime of incitement to commit murder”.

Acting judge Halgryn, dismissing the ANC’s application for leave to appeal, has now provided reasons for the original order. That order was, of course, a legal nonsense, but that has not prevented the acting judge from providing a set of rather incoherent and embarrassingly uninformed justifications for granting the order. He has also amended the original order without having received an application in terms of Rule 42(2) read with Rule 42(1)(b) of the Uniform Rules of Court for a rescission or variation of the order.

The acting judge seems unaware that the Constitution itself does not prohibit any speech – be it hate speech or any other kind of speech. He relies on section 16)(2) of the Constitution which defines certain forms of hate speech to which the protection of freedom of expression does not extend. Judge Halgryn then states that section 16(2) of the Constitution “prohibits” hate speech. It does nothing of the sort.

The chanting of Dubula Ibhunu can therefore not be unconstitutional and the original order is therefore legally embarrassing. Although the judge refers to the Islamic Unity Convention decision of the Constitutional Court where the meaning of section 16 is explained rather clearly, he has either not read the judgment he cites or he has not understood its meaning. In that case, then Deputy Chief Justice Pius Langa explained how one had to read section 16 of the Constitution.

Section 16 is in two parts. Subsection (1) is concerned with expression that is protected under the Constitution. It is clear that any limitation of this category of expression must satisfy the requirements of the limitations clause to be constitutionally valid. Subsection (2) deals with expression that is specifically excluded from the protection of the right. How is section 16(2) to be interpreted? The words “[t]he right in subsection (1) does not extend to . . .” imply that the categories of expression enumerated in section 16(2) are not to be regarded as constitutionally protected speech. Section 16(2) therefore defines the boundaries beyond which the right to freedom of expression does not extend. In that sense, the subsection is definitional…. There is accordingly no bar to the enactment of legislation that prohibits such expression. Any regulation of expression that falls within the categories enumerated in section 16(2) would not be a limitation of the right in section 16.

In other words, section 16(2) does not prohibit any speech, but it allows the legislature to pass legislation to prohibit or limit the speech defined in section 16(2). If a legislature passed legislation to limit such speech, that legislation could not be tested against the freedom of expression provision set out in section 16 because it would fall outside the scope of what constitutes protected speech.

The legislature did exactly that, passing section 10 (read with section 12) of the Equality Act, which does place limits on several kinds of speech. If one wishes to enquire whether the singing of a song constitutes hate speech which could legally be banned, one is therefore required to rely on this section – not on section 16(2) of the Constitution.

Because the judge wrongly relies on 16(2) to justify his order, the judge argues that the intention of the person uttering the aggrieved words “is wholly irrelevant”. Section 10 of the Equality Act famously defines hate speech as speech that could reasonably be construed as having the intention to hurt or harm someone based on their race or some other offensive ground. The learned judge claims that “it is not for the maker/ articulator of the expression/declaration under consideration, (nor is it for the Courts), to dictate how the beholder thereof should perceive” the words.

This is of course wrong. It is exactly for the Courts to decide whether a reasonable person would construe the words uttered by a specific person in a specific context as having had the intention to harm a group of persons based on their race or based on some other ground. Whether the beholder of the words perceives the words to be hurtful is not the relevant point that would clinch the deal. This is because the beholder of the words might not be a reasonable person. That beholder might – say – be Steve Hofmeyer or acting Judge Halgryn, in which case a court might well argue that the fact that the beholder has perceived the words as hateful is utterly irrelevant.

It is for the court, applying an objective test, to determine whether the person who uttered the words could reasonably be construed as having had the intention to hurt a group of people based on their race. That is why a judge cannot ban a song as judge Halgryn purported to do in this “judgment”. To decide whether the utterance constitutes hate speech in terms of section 10 of the Equality Act, one would have to look at the specific context to determine whether the intention of the person uttering the song could reasonably be construed as having the intention to hurt a group of people based on their race.

If I sing Dubula Ibhunu at a dinner party as part of an extended riff on the fact that I have a secret crush on Julius Malema and one of my guests takes me to court for hate speech, I am pretty sure I would be able to convince the court that I could not reasonably be construed as having had the intention to hurt white people. This rather obvious legal point which acting Judge Halgryn – in his seeming rush to ban a song that he finds objectionable – has failed to grasp.

The original order stated that chanting the impugned song “prima facie satisfies the crime of incitement”. There is, of course, no such crime as incitement in our law. This did not stop the acting judge from amending the order – without having been requested to do so in the legally required manner – to the effect that the song prima facie satisfies the crime of incitement to commit murder. Quite a novel approach to the law, which would have warmed the heart of Lindiwe Sisulu’s lawyer.

The fact that acting judge Halgryn so obviously did not know that he did not know the law regarding hate speech, makes this “judgment” one of the least plausible judgments I have ever read in my academic career.

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