History has a tendency of repeating itself.
Wait for another divorce.

“Ironically, many of the people who take exception to the President being called names on the basis that it is unethical, revert to the formalistic innocent until proven guilty mantra (and thus hide behind what the law says only) when some of us make ethical value judgments about that President. This, to me at least, seems like a double standard”.

I am not sure how name calling advances the debate or even strengthens the view that Simelane was and awful (even illegal) choice.

I plead guilty to double standards – if for example you had called Jackie Selebi a gangster, I probably would have agreed.

As you make out, whether a communication is ethically acceptable is a different inquiry from whether it is lawful. That is, calling a politician an unflattering name may breach ethical standards – and I have not expressed an opinion on that score during this discussion. But the name-calling may very well be protected by the right to freedom of expression which of course would render the potentially unethical utterance lawful. In short, an utterance can at once be both unethical and lawful.

For the sake of clarity I would just say this: saying that insulting a politician will almost always be lawful is another lucid way of saying that the ambit of the right to freedom of expression is wide enough to protect at least some insults. I hope that my fellow participants will forgive me for being a little petty here– but like most of the human race, I am not completely free of vanity

The debate here, seems to me, to go back to another theme of this Blog, namely that there is a difference between what is ethically acceptable and what is lawful. In my view, insulting a politician and calling him or her names will almost always be lawful as it would form part of the democratic right of individuals to take part in vigorous debate about politicians and issues. But it might not always be ethically acceptable to call the President names. Given the fact that President Zuma was acquitted on rape charges, for example, I suspect most of us would think it unacceptable to say that the President has raped the constitution by doing X or Y or Z. In the same way POLITICIANS often act in ways which have not (yet) led to them being convicted in a court of law. But as citizens we have a right to say that a politician has behaved in an unacceptable manner and to make an ethical judgment about that politician for, say, consorting with a convicted crook. Ironically, many of the people who take exception to the President being called names on the basis that it is unethical, revert to the formalistic innocent until proven guilty mantra (and thus hide behind what the law says only) when some of us make ethical value judgments about that President. This, to me at least, seems like a double standard.

I guess we’ll have to agree to disagree. So long as you consider insults part of the desirable discourse, the two of us can never find common ground.

Similarly, I cannot see any corwardice when the Presidency tells Prof how the issues should be debated (whether it’s hypocritical to do so or not is a totally different issue) and leaves the actual debating of the relevant issue to the relevant department. Again I repeat, Min Radebe explained (OK, tried to) why they thought Adv Simelane was their man.

You (just like me) disagree with the “justifications” (if you can even call them that) by Min Radebe but that does not, in my view, ENTITLE you or anyone else to hail insults. That is my final take on this issue!!

The last three lines of my fifth paragraph should read:

‘Removing a form of expression from the public discourse is to make the right to freedom of expression smaller. In other words, such a removal amounts to a curtailment.’

Thank you once again for taking the time. It seems to me that we can reduce our exchange to three issues: the first is whether the right to freedom of expression is wide enough to protect insults. The second is whether the right to freedom of expression would be curtailed by removing freedom of expression from our public discourse. And the third is whether I have unjustly accused the presidency of being cowards due to my misunderstanding of the purpose of their statement.

I think that the scope of the right to freedom of expression can protect insults. That is not to say that it will protect every communication which amounts to an affront – and I have never advanced that the right is so broad in scope as to cover every insult in every circumstance. For a start, you will of course be aware of the section 36 limitations inquiry. And secondly, Kriegler J made it clear in the Mamabolo case at paragraph 41 that the right to freedom of expression has to be balanced with the right to dignity. What I have said is that we cannot abide a position to the effect that insults automatically fall outside the right’s sphere of application. If you can agree that the jurisprudence recognises that this particular right is to be construed widely, then my position may start to look less contentious.

That being said, we do have two constitutional law experts in the house as it were. So I would like to ask the Professor and Michael for some input here – on the understanding that the Professor can offer his legal opinion on the breadth of the right to freedom of expression without in any way reducing the sincerity of his apology to the president.

If the Professor or Michael could spare the time and say a few words here: is it the case that the right to freedom of expression is never wide enough to protect communications that amount to insults?

I turn now to the second issue: you make out that in your view, freedom of expression would not be curtailed if insults were taken out of the public discourse. With respect, I disagree with this view. Making an insult is a form of expression. Removing a form of expression from the public discourse is to make that discourse smaller. In other words, such a removal amounts to a curtailment.

I am glad that you brought up Malema. I for one have always recognised that I will just have to tolerate many of the things that Malema says. Many of the things he says are groundless or, at times, plain daft. But that is not to say that he does not have the right to say many of the things he utters. Be that as it may, section 16 (2) of the Constitution amounts to an internal limitation on the right to freedom of expression. And some of Malema’s utterances have smacked mightily of expression contemplated by section 16 (2). The same simply cannot be said of the Professor’s utterance. Thus it is not necessarily hypocritical to take special exception to the junk that has come out of Malema’s mouth often enough.

As regards the third issue, I do not think I have unjustly accused the presidency. And with respect, neither do I think that I misunderstood the purpose of the statement. The purpose of the statement was to take exception to the description of the president and to offer views about the way in which the presidency thinks (with no small measure of hypocrisy) that debates should be conducted. The reason as to why I think the statement is an example of cowardice is that if one reads the statement, one would think that the Professor had made no attempt to justify his decision to describe Zuma in that way. That was simply not the case. And I continue to think of it as cowardly to completely avoid considering the justification of the description in making the statement.

I associate myself with Mzo’s post (Mzo December 9, 2009 at 7:07 am) to which you’re replying.

I appreciate the authority that you have invoked for your viewpoint. However, nothing in the quote in its entirely and in your emphasis lends support to your proposition that in expressing ourselves or in criticizing the Head of State, we should resort to insults. In fact, in my view, resorting to insults when showing our disagreement with anything merely serves to highlight an abuse of our freedom of expression. Moreover, from the reading of that quote, what seems to be protected thereby is the aspect of the freedom of expression which deals with having ideas, expressing same and having the right to disseminate such ideas through others having rights to receive such ideas. An example of the aspect of the right to freedom of expression pronounced upon in the relevant quote would be you having an idea of writing a book detailing how the ANC targeted people belonging to IFP prior to 1994 elections in order to scare them from taking part in the general elections. Such an idea, the right have the book published in South Africa and sold, the right of other people to buy it and share your ideas, etc. would be aspects of the right protected under section 16 of the Constitution. The quote you have provided deals with the above scenario and does not extend to allowing you to hail not criticism but insults to the Head of State. Ridiculing is one thing but insulting is another. Honestly, I do not see how the prohibition on insulting the Head of State is limiting your right to freedom of expression. It should be noted that what is prohibited here is not the substantive right to criticize the President or the Presidency but the inappropriate manner of doing so. Do you consider an insult directed to another as exercising freedom of expression and if yes why?

I have noted the example that you have given in your post. The example is clearly lacking in one material respect. It makes no mention of the rights of the insulted leader. Leigh, I note that you equate insulting with criticizing. The former is unacceptable and the latter is welcome in a Constitutional democracy like ours.

Leigh, do you think if you were to shout your criticism (as opposed to voicing them) in a Board Meeting the Board Members would just focus on the merits of your criticism and not on the manner in which you have chosen to “express” such criticism? Like I said before, the manner of doing things is important and you cannot simply hide behind the substance or merits. In order to avoid chaos, things are done in an orderly fashion and each critic must observe this order regardless of how valid his or her criticism is. Leigh, here you are trying to flout adhering to a proper way of exercising your right to freedom of expression which is not an unlimited right. Asking you to observe a proper manner of exercising your rights does not automatically limit your right. This is especially so if the manner concerned has as its objective the protection of other people’s rights…

I do not read the extract from Kriegler to support a view that we can hail insults to people under the guise of freedom of expression. If I am wrong on this score, then it would appear to me that people who complain about Malema’s utterances every now and then are nothing but hypocritical. The wide meaning you advocate for seems to be far reaching than Kriegler himself would have contemplated.

I can never agree with a proposition that a person (A) can EVER be ENTITLED to hail insults at other people and thereafter claim protection under the freedom of expression.

In short, I do not believe that freedom of speech would in any way be curtailed if insults were taken out of our public discourse, whether such insults emanate from Malema, Zille or Prof.

In conclusion, are you perhaps not unjustly accusing the Presidency of being cowards simply because you may just be misunderstanding the purpose of their statement. I do not understand the statement to have been an attempt to justify Adv Simelane’s appointment. It seems to me that the statement was intended PRIMARILY if not SOLELY to “call the Prof to order” (if you may). The duty to justify Adv Simelane’s appointment was left to Minister Radebe, which he did – rather poorly I might add.

For the record, I think Adv Simelane’s appointment was ill-advised, at best!!

SA Airlink overshoots the runway there is all noise around us (34 passengers) all survived. In the same week two trains collide and pregnant woman is dead with hudreds involved, less noise. A bus in moloto road crashes 4 dead and 62 injured, ahhhh thats small stuff.