South Africans are far too quick to brand stupid, irritating or offensive language as hate speech. For example, I, for one, am far from certain that the sexist and offensive statements made by Julius Malema regarding rape survivors and the complainant in the Jacob Zuma rape trial constitute hate speech and I would not be surprised if Malema wins his equality court case.
Statements that are racist, homophobic or sexist would not necessarily constitute hate speech – even in terms of the very broad (and possibly unconstitutional) provisions of the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA). Even using the “K’-word to describe a black person or m%#ffie to describe a gay man is not necessarily unlawful in terms of PEPUDA. Although such language is deeply offensive and those who use such words to describe others who are not like them are really beyond the pale, those who use such words would not usually be guilty of hate speech. (They would be guilty of being homophobic, racist or sexist fools, but that is another matter.)
Section 1o of PEPUDA states that “[n]o person may publish, propagate, advocate or communicate words based on one or more of the prohibited grounds, against any person, that could reasonably be construed to demonstrate a clear intention to- (a) be hurtful; (b) be harmful or to incite harm; or (c) promote or propagate hatred”, while section 12 prohibits any person from making statements that “could reasonably be construed or reasonably be understood to demonstrate a clear intention to unfairly discriminate against any person”.
This is an objective test. One asks, after looking at all the evidence, whether a reasonable person would have had reasonable grounds to conclude that the statement was intended to be hurtful, to be harmful or to incite harm or to propagate hatred or whether it was intended to unfairly discriminate against anyone on the basis of race, sex, gender, sexual orientation or any of the other grounds listed in the Act.
There are two important factors that need to be present before a statement would fall foul of the PEPUDA prohibitions. First, there must have been an intention to do damage and that intention had to be established on the basis of what could reasonably have been construed. Second, the statement had to have been directed at a specific person or persons and it must be shown that the intention was to hurt or harm or discriminate against that specific person(s). “Merely” expressing prejudice, racism or homophobia in general would not be sufficient.
(Even though section 10 and 12 of PEPUDA thus limit the scope of what speech would be prohibited, these provisions nevertheless go much further than the specific exceptions provided for in the Constitution itself. A good argument could therefore be made that section 10 and 12 of PEPUDA are unconstitutional because they are overbroad and prohibit speech protected by the Bill of Rights. But this is a complex issue so I will not elaborate on it here.)
In any case, whatever the interpretation given to section 10 and 12 of PEPUDA, one thing is clear: if proven to be true, the statement by Free State ANC Youth League chair Thebe Meeko who allegedly called for Prof Jonathan Jansen, the University of Free State’s recently appointed vice-chancellor, to be “shot and killed because he is a racist” would contravene the Act. Meeko is reported to have said:
Like President Jacob Zuma when he said the police must meet fire with fire [referring to police shooting armed criminals], the shoot-to-kill approach must also apply to all the racists, including Jansen – because he is a racist. He must know that we have removed more powerful people than him before. Jansen is equally a criminal like those four racists.
The ANC has distanced itself from the statements and the DA has lodged an PEPUDA complaint against Meeko. The Times newspaper seems to have a video recording of Meeko making the statements as well, so one would imagine that the chances are rather good that Meeko would be found guilty of hate speech.
But these statements – if true- would be so shocking and would represent such an egregious attack on the values underlying our Constitution, that it would not be enough for Meeko to be found guilty and for the ANC to reprimand him. If convicted, the ANC should put its money where its mouth is and should expel Meeko. If it is true that The Times has captured Meeko on video saying these things (I am currently out of town and my computer here does not have sound facilities), then the ANC should not wait for the court case to be concluded but should immediately take action to get rid of this guy.
If he indeed said what he is reported to have said, he is a despicable human being. Surely he would then be hardly any better than those four Reitz boys who made the racist video and he should be treated accordingly. If the ANC fails to take action in the face of clear evidence of such hateful and dangerous speech, it would, sadly, be a sign that it has lost its moral compass.
A link to The Times video: http://multimedia.timeslive.co.za/videos/2009/10/shoot-racist-jansen-ancyl/
Firstly, I’m so glad we can start a new debate!
Back to the topic: I heard on the news this morning that Thebe Meeko denies having used those words, despite the recrding.
I think there are two aspect here:
1) To call Prof Jansen a racist
2) To make instigate the killing of Jansen.
I heard the sound track of what he supposedly said on a radio news broadcast, and it was word for word as stated in Pierre’s post. I was really shocked, but I will be surprised if he gets more than a repremand from the ANC.
The main thrust was that he wanted Jansen removed from office, which would seem superfluous if he was to be killed first. So I would take the kill bit as simply a bit of rhetorical flourish, which is pretty standard within the ANC. The more serious hate speech is accusing Jansen of wanting to be a “white person” – sies! – can there be a more vile personal attack!
PS Pierre, my gay friends led me to believe that the gay community had fully reclaimed, and hence defanged, the word “moffie”. Or is this only the case for gay self-reference?
Peter, I think “moffie” is like “nigger”: if the word was reclaimed by a group I think that it is fine for THAT group to use it but others would not be able to use it in order to denigrate or harm the target group. If a gay man uses “moffie” – depending on the context – I might not be offended. If a straight man uses the term “moffie” it would always be offensive to me.
Pierre De Vos says:
October 28, 2009 at 14:56 pm
Compare it to the word “Boer” Some Afrikaners will use it with pride to describe themseves, and still be offended when it is used by others with the aim to offend.
Pierre De vos wrote: “If convicted, the ANC should put its money where its mouth is and should expel Meeko.”
Pierre, if there is one I certainly cannot accuse you of, its a lack of optimism!
Prof: I had a moffie friend (one of many). He would do the bride’s makeup when I photo shot weddings which I still do, a hobby. I thought the world of him and bragged to folk that here was a young man from the communities who would make something of himself. Having three sons, I know quality in young men when I see it. He was in a shabeen one night two years ago and was insulted with the term ‘moffie’ by an intoxicated woman. He slapped her. She left, came back with her brothers and they killed him with a half brick. He was 21.
Its precisely because of statements like those Meeko, Mabulua (sp) and Malema make, that we are now living in such dangerous times. Rawanda started in this way, insults leading to threats, leading to…. disaster. Incitement is not to be ignored, especially coming from youth and uneducated fanatics. Such comments almost always lead to very bad stuff indeed. These young men are the modern heros to our volatile black youth. Nothing good can come of it. Pity. It could have been otherwise. Also a pity that Madiba is so old and can’t take Malema aside and mentor him. A pipe dream, I know.
Reading comments at M&G and Politicsweb reveal how bold, brash, ignorant and threatening, members of the black youth are becoming under todays ANCYL.
Just re-read all the comments on your gun issue blog, previous to this. Wow!
Did that ever bring folks out of the woodwork. And Maggs: what I smoke is tobacco, even grow it, need to give it up, hard on ya at my age.
So Prof: have you relaxed since that post of yours. cheers.
Pierre, I am frankly shocked that you put Comrade Meeko on the same level as the Reitz “boys.”
I have always agreed applauded your oft-repeated assertion that black people are incapable of racism. (Racism, we know, is all about historically sedimented powers relations.)
By the very same taken, I insist that persons other than white are not really capable of “hate speech,” or anything similar thereto.
Try to understand that Comrade Meeko is venting a deep sense of outrage against the Reitz boys, a cry that resonates with centuries of stifled resistance. Even now, Comrade Malema and Comrade Meeko face the distortions and ridicule of the white-owned media whenever they speak out against racism!
[...] http://constitutionallyspeaking.co.za/alleged-ancyl-hate-speech-calls-for-swift-action/ a few seconds ago from tr.im [...]
Mikhail Dworkin Fassbinder says:
October 28, 2009 at 21:12 pm
Get a life. Black people are also capable of racism. If it smells like racism, looks like racism and feels like racism….it is racism.
I listened to the clip and did not feel that there was a direct incitement to kill. It came very close to that, but then moved on to a call for Prof Jansen to be removed from his post. However, I do feel that there is something cillingly deliberate in the insinuations that are as close as possible to being death threats, without actually being such. I get the feeling that these guys are playing with us.
Of course, the other thing to be borne in mind would the language used by senior apartheid leaders that did not amount, per se, to instructions to kill “enemies”, thus ensuring “deniability”, but which were nonetheless understood by the underlings who went and committed the fould deeds.
Mike Atkins says:
October 29, 2009 at 8:00 am
“I listened to the clip and did not feel that there was a direct incitement to kill”.
Maybe.
But not everyone will not join the dots.
I am horrified at the nature of the ugly rhetoric (frequently with connotations of violence) that is emerging in some, albeit small, quarters.
It’s time for the ANC, President Zuma in particular, to show leadership if not authority.
One of the premises that I fully supported this administration on (and continue to do so) was that we needed to restore the era of open and robust debate.
Speech that provokes hate or violence (directly or indirectly) is not nearly what I had in mind.
I disagree with Jansen, but I don’t want him killed.
I disagree with Asmal, but I don’t want him to die.
Pierre, please explain why an instance in which a person calls another person a “kaffir” would not almost automatically be liable under s 10(a) of PEPUDA. “(No person may publish, propagate, advocate or communicate words based on one or more of the prohibited grounds, against any person, that could reasonably be construed to demonstrate a clear intention to- (a) be hurtful …”)
Or a man calls a woman a “bitch.” Why would s. 10(a) not also apply? Surely an intention to “hurt” can usually be inferred. (Note that the verb is “hurt”, not “harm”.)
On the other hand, I agree that Comrade Meeko cannot be liable for hate speech. The law of defamation has the hyperbole exception, protecting statements that no reasonable person aware of the context would take literally. I would think that Bill of Rights would demand that a similar doctrine be used to limit the scope of PEPUDA.
sirjay jonson says:
October 28, 2009 at 20:49 pm
“Just re-read all the comments on your gun issue blog, previous to this. Wow!”
I’m just glad that everyone having participated in this thread up to now seems to more or less sane!
Chris says:
October 29, 2009 at 8:30 am
“I’m just glad that everyone having participated in this thread up to now seems to more or less sane!”
Give it a day or two
The restoration of an era of open and frank debate, if it ever existed, must commence with the contributors on this blog. which I have followed for a while now. Our contributions are tinged with hurtful elements which at times conceal the substantive strategic content of our input.
I think the youth are in an exploratory path of self-development. All these unwelcome remarks will be eschewed by the utterers. The unfortunate thing is that we keep them alive by undue harping on.
We ought not elevate unhelpful remarks to a scale where one gains international notoriety by advancing them. I think the remarks about killing were long jettisoned by Malema. He had not used such a word in a long time.
However, prominent experts have kept the words alive to a point that I think of a creative way to insult a person to be on television for posterity. There concepts of baffonry, idiocy, lunacy, mediocrity are such popular words.
Killing a gun wielding criminal is not unlawful at all, for police and ordinary citizens yet we want to exact political fame or capital by hummering on it as an ill-advised statement. We must invet kiss the killer. Perhaps an antic which can work with venomous-lipped persons, if any.
I must agree with prof that the question of invoking kill against jansen is inappropriate. Being the epic conciliator he is, no issue will be taken with the matter. Let us raise the bar if debate and all will fall into line. I even dread to state that i’m dressed to kill as this word seems susceptible to total misconstruction and distortion. It must be scrapped from the vocabolary.
I hope the equality cases will promote the court. Society is mainly ignorant of this court. We do wish Kader Asmal more days in deed. He is a distinguished liberation figher and legal scholar of note.
He must hate a young leader to a point of sucuidal talk. The contributions he advanced with help the debate on the transformation of the police. It does help to attack the person. let us tackle the topic and speak truth to facts.
In the ANC, expulsion is the last resort. The ANC is a parliament of the people, we are building a sociery here. reprimand is watch childred want in a formative stage. A lot of lessons would have learnt when the young leader reaches 35 and leaves the youth league and becomes a leader of the ANC.
ISHMAEL MALALE says:
October 29, 2009 at 8:41 am
I agree with much of what Ishmael says, but I don’t think a person in his twenties can be called a youth. I don’t know when Malema and Meeko was born, but I really can’t see how their immaturity resulting from youthfulness can be used as an excuse for their unacceptable behaviour. I’m not sure is Ishmael is referring to Meeko and Malema when he says “children want in a formative stage”, but if so, then I can’t agree. I wonder what Malema and Meeko would say if the Reitz Four used youth as an excuse, and say they are just children in a formative stage.
Referring to the last paragraph: Sometimes a person has to make a choice and decide if he/she is prepared to be associated with certain individuals. I’m way to old to qualify as a member of ANCYL, but if I were younger, I would not have been prepared to to be associated with the likes of Meeko, and that would have prevented me from joining their ranks, even if I agreed with everything else they say they are standing for. Is the lack of proper action against people like Meeko, such as expulsion, keeping responsible young leaders from joining the ANCYL?
@ Ishmael
“A lot of lessons would have learnt when the young leader reaches 35 and leaves the youth league and becomes a leader of the ANC.”
Ishmael is right. You can’t single out the ANC. Just look at the nutty DA and UDM Youth Leaders. (Whatever their respective names are.)
The DA kid says crazy things every day, just like Comrade Malema.
Yet, when the day he turns 35, this boisterous DA puppy will emerge as a mature and wise party stalwart, just like Tony Leon.
Just wait and see!
@ Chris
Chris, you cannot hold a young Comrade like Malema to the same standard as a young white liberal politician. Comrade Malema struggled with his education. He did not enjoy cushy apartheid-style educational privileges, like most DA leaders. It is easy for a privileged young liberal who attends so-called elite schools to internalise habits of verbal restraint and evasive tactfulness.
Mikhail Dworkin Fassbinder says:
October 29, 2009 at 9:33 am
Much is said in chastising Malema But I still must see him do anything remotely as horrifying as what the Reitz 4 has. Unlike Malema, two of the boys have graduated and will be entering the greater society, with us still unsure that their attitudes have been changed.
Michael Osborne, it seems to me the context and how says what to whom will often be the determining factor. I have been in situations where another gay man affectionately called me a “moffie” and it would not have been reasonable to infer that he had the intention to hurt me. In the US rappers often use the “N”-word to demonstrate solidarity and not an intention to harm. It depends on how people weild a word politically.
Harold is right.
You also have to bear in mind the relative impact of the offensive conduct and speech.
The Reitz boys have a national platform, occupy positions of leadership, enjoy access to the media, and engage in an ongoing course of bigoted behavior.
By contrast, few have ever heard of Comrade Malema — and his bigotry is very much a “once-off” affair.
Primedia’s Eyewitness News has a recording of Meeko saying: “Prof Jansen is equally a criminal … and we agree with the president of the ANC, ‘Shoot and kill a criminal’.” That is clearly in contravention of section 10 of PEPUDA – even if one interprets it as narrowly as possible to bring it closer to what the Constitution guarantees as freedom of expression. Mr Meekos should be suspended from the ANC immediately. If he is not, the ANC would implicitly be endorsing death threats.
Pierre, I still think Comrade Meeko could make a good argument that no reasonable listener would take the injunction to “kill” Jansen literally.
I know you really love to raise “context.” I often respond that “context” is so indeterminate that it offers no real guidance one way or another.
But here our roles are reversed. This is indeed an area in which historical constext and political culture is important, and not especially opaque.
What I mean is that the ANC has debased the political discourse — with slogans like “Kill the Boer, Kill the Farmer” — to such an extent that Meeko’s Counsel could well argue that it is now understood that the the injunction to “kill” Jansen does not constitute a directive to bring about Jansen’s physical demise. That is especially when uttered from a public platform, and the target is someone who is allegedly a “racist.”
Michael, I know you sometimes argue for the sake of arguing, but I will give it a bash nevertheless. What needs to be shown is (i) that the speech was directed at a person (Jansen) and (ii) looking at the facts it could reasonably be construed to show an intention to be hurtful; be harmful or to incite harm; or promote or propagate hatred on one of the listed grounds. Clearly the words were intended to hurt Jansen and to promote hatred against him. If you say that a person should be killed – even if this is supposedly meant as a rhetorical device – it must surely be intneded to promote hatred of that person. Where Mr Meeko could escape is by arguing that this expression of hatred was not based on any of the listed grounds. He was “merely” issuing a death threat to a person which was not based on that persons race, sex, gender, etc but based on Jansen’s actions. Jansen might be “coloured” but that was not the basis for the death threat. Such a defense mightw ell work.
Pierre, yes, I sometimes argue a point to which I am not personally committed, for the sake of testing an idea, or the limits of a concept. Is that so very bad?
But in this instance, I really am in agreement with your general sentiment that PC-type thinking sometimes threatens free speech, and that the Malema Equality Ct litigation is an example thereof.
But I do not see why you are tentative in your suggestion that Comrade Meeko’s purported death threat was not “based on” any listed ground. Surely this is a “slam dunk” defense?
Mikhail Dworkin Fassbinder says:
October 29, 2009 at 10:08 am
“The Reitz boys have a national platform, occupy positions of leadership, enjoy access to the media, and engage in an ongoing course of bigoted behavior”.
Indeed – it’s called youtube!
@ Maggs
Indeed, Maggs, not just a national, but an international media platform. Next thing you know moronic BNP-aligned yobs will be soiling the soup of Polish cleaners at the University of Northumbria.
That is why I agree so adamantly with Harold that the Reitz four are far more dangerous than Comrade Malema or Meeko in the long term!
I’d venture that much is lost in translation when individuals mentioned utter their opinions on certain matters. Anyone would vouch that when speaking in a 2nd or 3nd language, one is still plagued with thinking in your mother tongue …
I could never get my head round “hoe laat is dit?” and “wat is die tyd?”
Give a thought then to the implied idea that the “RACISM” must be killed/DESTROYED and not necessarily the RACISTS themselves.
Very little criticism is however vented towards very educated and most likely speaking in their first language when using derogatory terms such as “K” and “B’ with wild abandonment. Once again the fears of the white middle class is given preference against the “BLACK HORDES”!
Harold is right.
Last year, I casually said, to a very good Afrikaans friend: “U moet werklik Hollands toe gaan.”
To my alarm, he became visibly furious, and threatened immediate physical assault. Whereupon I quickly explained that I meant only that he should take a cycling vacation while the tulips were in bloom!
Just shows how poor command of language can lead to unnecessary friction!
Mikhail Dworkin Fassbinder says:
October 29, 2009 at 11:47 am
It does seem that the skit at Reitz has caused reactions that the Famous Four would have liked.
Mikhail Dworkin Fassbinder says:
October 29, 2009 at 12:39 pm
Ja ne.
I said, sarcastically, to a friend “You’re a Dwork”.
I meant that I was reminded of you, but I got klapped (verbally of course) – damn somophores!
@Dwork
Thanks for endorsing almost everything I say! This is the first time in my life that I have been allowed to be opinionated and your approval will do wonders for my confidence!
I must also say that I’ve gained much from this post and wasn’t aware that “moffie”, though understood to be derogatory, could land you in serious trouble! I will inform my close family at my sister’s birthday to refrain from using this word – which is as in common usage by them as “whitie” and “darkie” … How they have never be reprimanded or brought to book for casually using these terms in almost every conversation, amazes me!!
I do hope your friend forgave you for your somewhat “Freudian slip”. I think this forgiveness must also become standard in a time where society is relying less and less on accurately expressing themselves and just using abbreviations or symbols to do so ….
Maggs, you mean, of course, “semophores.”
hahahaha – actually I meant homophones, caught that too late.
Damn submit button!
Not that I expect this post to get through, but has anyone else had trouble posting. I do not think Prof de Vos would block posts but I can’t think of another explanation.
Mikhail Dworkin Fassbinder says:
October 29, 2009 at 11:47 am
Ok Dworky – they heard you!
——————————————————————————————————–
ANC Youth League leader Julius Malema has come out in full support of University of the Free State rector Jonathan Jansen remaining in his position.
“We do not agree with any call that he must go,” Malema told reporters after a meeting with Jansen, who has come under wide-spread criticism for offering a pardon to the so-called Reitz Four.
“Jansen is one of our own,” he later told students.
“We cannot feed Jansen to the enemy.”
Malema said as a youth organisation, the ANCYL could not stand in the way of students who wanted to return to university, but disciplinary steps should then be taken against them.
“They must apologise and show remorse when they come back,” said Malema.
——————————————————————————————————-
http://www.iol.co.za/index.php?set_id=1&click_id=13&art_id=nw20091029133151274C475632
Mikhail Dworkin Fassbinder says:
October 29, 2009 at 13:17 pm
Sorry Dworky – bad news for F-O-M.
http://www.timeslive.co.za/news/article172422.ece.
@ Maggs
Indeed, FOM Exco will meet in an emergency session tonight to discuss this development.
I must say I am not surprised. Racism permeates everything. We need transformation in the Magistracy.
Mikhail Dworkin Fassbinder says:
October 29, 2009 at 18:17 pm
LOL!
BTW I see Aunty Helen’s selection of “competent” people went awry re the BRT.
Michael, yes I have changed my mind. I think an equality court challenge to Meeko is not going to succeed as the statement – while hateful and very scary – was not based on one of the listed grounds. I must go and brusg up on my crimen iniuria a bit to see if that line would be open. Surely it cannot be legal to issue what amounts to death threats against a person?
“NINE Limpopo traffic officers are in hot water for daring to stop ANC Youth League (ANCYL) president Julius Malema for allegedly driving over the speed limit.
“Malema’s Range Rover was allegedly caught on camera speeding on the road between Polokwane and his home town of Seshego a fortnight ago. It is also alleged that the provincial roads and transport department ordered the cops to give written statements on why they had ‘ill-treated” Malema.’”
http://www.citypress.co.za/Content/SouthAfrica/News/2168/96a9678a3327446193d6846d2745b88a/01-11-2009-02-00/Malema_Do_you_know_who_I_am
“The driver of ANC Youth League president Julius Malema used a blue light after being asked to pull over for speeding in Limpopo.
“The silver Range Rover that Malema was traveling in was going at 107km/h in a 60km/h zone.”
http://www.timeslive.co.za/news/article180548.ece
How’s that for “swift action”?