The judgment of magistrate CJ Collis in which she found Julius Malema guilty of hate speech and harassment will probably be cheered on by many South Africans who are sick and tired of the hateful and idiotic utterances of the leader of the ANC Youth League. “Finally old Julius got his come-uppance,” many of us might say. “Finally our legal system has shown Julius a big fat middle finger!”
The problem is, from a legal perspective it is difficult not to conclude that the judgment is wrong. In my opinion it may very well be overturned on appeal. By saying this I am not agreeing with Tim Cohen in Business Day who warned that the judgment implies that one may not say anything rude about anyone. Cohen wrote:
Yet the court seemed to attach little significance to the notion of freedom of speech, and elevated his comments to “hateful” even when Malema was transparently motivated not by hate but by disbelief — a disbelief actually endorsed by the court’s finding. In a sense, this finding is in the same category as the charge against University of Cape Town student Chumani Maxwele, who “waved” at President Jacob Zuma ’s blaring cavalcade. Police ministry spokesman Zweli Mnisi reportedly said that “no person is permitted to use foul language, swear at another individual, as such conduct may lead to promoting hate”.
It is clear from the relevant provisions of the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) that Cohen’s fears are misguided. Hate speech is defined in the Act as words based on one or more of the prohibited grounds, (in other words, words based on race, sex, gender or sexual orientation, say) against any person that could reasonably be construed to demonstrate a clear intention to be hurtful; be harmful or to incite harm; or promote or propagate hatred. Showing the middle finger to the President could never be construed as words based on any of the prohibited grounds such as race, sex, gender and sexual orientation, so it could never be construed as hate speech.
Many people fail to understand that hate speech as defined in PEPUDA requires more than making hurtful or harmful statements about someone. If I say the President is a sex obsessed idiot, or that Helen Zille is a racist madam, it might be rude and it might even be defamatory but it would not constitute hate speech as I would not be saying anything based on Zuma or Zille’s race, sex or sexual orientation.
Having said that, it seems pretty clear to me that the magistrate dropped the ball and applied this provision on hate speech incorrectly when she found him guilty. Remember, Julius Malema had said:
When a woman didn’t enjoy it, she leaves early in the morning. Those who had a nice time will wait until the sun comes out, request breakfast and taxi money. In the morning that lady requested breakfast and taxi money. You don’t ask for taxi money from somebody who raped you.
As the expert witnesses pointed out, such utterances were gender insensitive and trivialised rape. It perpetuated male sexual entitlement and was obviously sexist and would have upset many South Africans – including the survivors of rape. Based on this expert opinion above (with which I agree) Magistrate Collis found that “given the totality of the evidence” the court was satisfied that the words “could reasonably be construed as hurtful, harmful and demeaning to women” and hence constituted hate speech.
The problem is that the definition of hate speech states that words will only constitute hate speech when they can “reasonably be construed to demonstrate a clear intention” to be hurtful or harmful to woman, or black South Africans or gays and lesbians. Given the modest educational achievements of the respondent, his sexist world view and the context in which the words were uttered (at an election rally where Julius was defending Jacob Zuma) it is far from clear that his words could reasonably be construed to demonstrate a clear intention to cause harm to women in general.
Even if the words could be so construed, the magistrate erred by failing to make a finding on this crucial point. She thus never made a finding on whether, objectively determined, Julius could be reasonably suspected of having the intention to harm women in general. By failing to focus on the intention of the respondent, the magistrate did not apply the test for hate speech correctly.
She also found Julius guilty of harassment, which is defined in PEPUDA as “unwanted conduct which is persistent or serious and demeans, humiliates or creates a hostile or intimidating environment or is calculated to induce submission by actual or threatened adverse consequences and which is related to gender or sexual orientation; or a person’s membership or presumed membership of a group identified by one or more of the prohibited grounds or a characteristic associated with such group.”
This provision obviously applies to the conduct of one person against another. What is required is an identifiable victim. One must be behaving in a persistent or serious manner towards another because of their sex or sexual orientation and there must be consequences for the victim before one could be found guilty of harassment. Magistrate Collis found that because the words demeaned and humiliated women in general the utterances constituted harassment. This is obviously wrong as it fails to identify specific victims of the harassment as intended by the Act.
Saying this does not mean that I do not think what Julius said was despicable and that his words perpetuate harmful myths about rape. I am merely saying that perpetuating harmful myths about rape in and of itself does not constitute hate speech as defined in PEPUDA. Similarly, while perpetuating harmful and incorrect myths about black people – by saying black people are intellectually inferior, say, or are predisposed towards corruption – would be despicable and worthy of censure by all right thinking South Africans, it would probably not constitute hate speech.
That is why the judgment is probably wrong. Brace yourself for the gloating when it is overturned on appeal.
So if he has to”demonstrate a clear intention to be hurtful”, would his latest utterance against “Boer rapists” be construed as mere metaphorical bluster with historical connotations, not intending any harm to any racial group? And how is “hurtful” defined? Only physical hurt or can one extrapolate it to the realm of the emotional?
Spot on. More a political judgment than anything.
You make a persuasive argument that the magistrate erred and that an appeal may succeed. However, I would go further and argue that an appeal against the hate speech provisions in the Equality Act on Constitutional grounds would also succeed. The act goes much further in defining hate speech than the constitution, and in effect creates a faultless crime: intention to incite harm is not required, just that the words may be construed to have such an intention. It also widens the scope of hate speech to comments that “hurt” or propagate hatred, whereas the constituton refers to “harm” only.
“‘prohibited grounds’ are -
(a) race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth; or
(b) any other ground where discrimination based on that other ground -
(i) causes or perpetuates systemic disadvantage;
(ii) undermines human dignity; or
(iii) adversely affects the equal enjoyment of a person’s rights and freedoms in a serious manner that is comparable to discrimination on a ground in paragraph (a);”
1.Could it be said that: “that other ground” is that the comments are “demeaning to women” and perpetuates systemic disadvantage to women which undermines their dignity?; this is in the context of rape in South Africa.
2.Could it be said that: the intention of a person to be hurtful is lacking, where the stature and influence of such a person demands that he/she should have foreseen the comments to be potentially demeaning to women?
[...] PPPS. So does constitutional expert Pierre de Vos on his blog Constitutionally Speaking. [...]
As students at Rhodes in 1973 we staged a sit-in on the pavement from the Graham Hotel (of course!) to the cathedral to protest against some or other recent vagary of the National Party government. Aware that the Riotous Assemblies Act stipulated that, for individuals to be engaged in a “riotous assembly” they had to be within 1.5m of each other, we used a tape measure to meticulously ensure no one was closer to any one else than 1.7m in any direction. We did this blatantly under the watchful weary glares of the fuzz.
So they nailed us all – about 200, I think – under some archaic 19th century Albany by-law that banned the obstruction of a public thoroughfare. I still have the R10 fine (a fortune back when a 750ml bottle of Black Label cost 28c) stub and still owe Big Brother 10 bucks.
The point I’m making is that idiot laws have long outlived their usefulness in 21st century society. If laws are made to protect society, then surely the SPIRIT or INTENT is more important than the pedantic pointlessness of semantics. This makes strictly legalistic arguments based on such idiot laws as Pepuda (and it isn’t the only sheaf of waste on our statutes) Sisyphean and ultimately irrelevant. These kinds of debates should only be unleashed (with an “R” rating) in forums where oddities sit under ladders debating what would happen if the unstoppable force hit the immovable object – loads of fun, but entirely futile.
There is not a person with an IQ above 3 in SA who does not precisely know and understand what the King of the Kiddy Commies meant by what he said. What were the SPIRIT and INTENT of his words. They were intended to cause hurt, to entrench hatred of the victim and harm society by directly denigrating Zuma’s rape accuser. The fact that he didn’t call her a kaffer slut whore who asked to be fucked is completely irrelevant. The fact that Julius Malema showed his contempt for the court (and legal system of SA) by not even bothering to appear, underlines his “clear and present” intent.
In arguing along legalistic lines this article not only sets out to question Collis’s judgment (which is fair), but it makes a mockery of Pepuda (a toothless asinine “law” because it will be overturned on appeal) and all the other pointless piles of paper that, in their foolish turn, make a mockery of the Constitution, of claiming citizenship of SA, of our shared humanity, of timeless moral values and of the very concept of equality. Had that same statement been made by a poor young Afrikaner man during a Voortrekker bunfight on 16 December, would this debate be taking place? No, of course, it would not. He’d be guilty of hate speech – finished and klaar! To argue any other is sheer hypocrisy – the ANC’s favourite pastime (as Tim has pointed out before in The Daily Maverick).
Robert: If you “hurt” a person, does that not cause “harm” to that person?
Prof,
Without taking anything away from your legal argument, I wish to present a view from a non legal perspective.
I believe Malema’s words to constitute hate speech. Here’s why:
This woman, called Khwezi, was vilified by Zuma supporters during the rape trial. Some women even called for her blood. This woman is now living in exile for fear of her life.
Malema’s words and message at that rally are clearly meant to paint this woman as a bad person who deserves what she got and more. These words add to the suffering and danger that Khwezi is subjected to on a daily basis and they make it even more dangerous for her to come back to the land she considers her home.
Can you imagine what would have happened to her, had Khwezi shown her face at that particular rally at that time?
I don’t have to remind you about what happened to that American exchange student who showed her face at the wrong place and the wrong time. Amy Biehl was killed by a group of people who were not inherently evil or bad, but they happened to be singing and chanting inciting “one settler, one bullet” slogans at that very moment.
Malema is an influential leader to his impressionable followers and a strong message needs to be sent to curb further and unnecessary acts of violence that could result from his careless rant.
If overturned on appeal, it would be unfortunate and would further put vulnerable women in general and Khwezi in particular in further jeopardy.
However inciting his followers to “kill the boers, they are rapists”
Now THAT is hate speech.
I’ve always thought this case was dubious and was surprised at the outcome. Much as I detest Juju,I think Prof is correct. However I think the “kill the boer” comments fall foursquare into the hatespeech definition,and he is going to see his proverbial gat on that one, although I think he will succeed here on appeal. All he was doing here really was repeating what the evidence had shown, with some of his own mocking interpretation therof.
Barry Giesken: not necessarily. Harm could mean physical or psychological harm, but the latter is something more than just hurt feelings. Something can be hurtful without causing psychological harm.
I think if the writers of the constitution wanted hate speech to include speech that is hurtful, they would have said so.
Robert Brand: I agree that a “hurt” of feelings may not necessarily be “harm” as intended by the draftsmen of the Constitution. However, the phrase “do (someone) no harm” is used to indicate that a situation or action will not hurt someone. The post by Dumisani Mkhize implies that the utterances (appart from being hurtful) were “harmful” to Khwezi AND propagated hatred toward her.
In the context of rape in South Africa, the utterances have been construed as demeaning to women. In this context the utterances undermine the dignity of woman, in that they perpetuate systemic disadvantage. Is this not “harm”?
The utterances were made at a rally. A rally is a platform which is often used to incite action, or to instill attitudes. The purpose of the utterances, if not for the benefit of women, and not benign, must surely be construed as an incitement to cause harm to women. A speaker at such a rally should have foreseen that the utterances would be construed as being demeaning to women; and that they had the potential to cause harm.
Where am I going wrong in this thinking?
Barry: I understand your harm argument. But if you are consistent, then any statement that could be construed as undermining the dignity of a group or class of people becomes hate speech. Surely that cannot be what the constitution intended? I think the word “harm” in the constitution refers to actual physical or psychological harm, which is something that can be objectively established. The word “hurt” is far too vague.
I agree with Prof and Vuyo, this is nothing more than a political decision – reminds me of one NIcholson J from my home Province.
As Prof correctly points out, it was not the smartest thing to do for Malema to say what he said but that does does not mean that it qualifies as hate speech.
The Magistrate clearly got it wrong but I’ve heard somewhere someone suggesting that he got it wrong because he is a DA anti-revolutionary and racist what what….I say that’s a load of rubbish, he simply got it wrong, end of story!!
mzo – I agree, ‘cept for the fact that the magistrate is a ’she’, not a ‘he’. Watch it, you can be branded sexist for failing to acknowledge that fact!However, I’m not so sure that Prof de Vos is totally right – the mere fact that a presiding officer (in any matter) does not mention a specific finding during his/her ex tempore (or even reserved) judgment, does not mean that he/she did not make the finding. It will all depend on the surrounding circumstances. Therefore I think Prof’s offer to gloat when the judgment is overturned on appeal is premature. The part of the post invoved here is:
“Even if the words could be so construed, the magistrate erred by failing to make a finding on this crucial point. She thus never made a finding on whether, objectively determined, Julius could be reasonably suspected of having the intention to harm women in general. By failing to focus on the intention of the respondent, the magistrate did not apply the test for hate speech correctly.”
Anonymouse says: March 16, 2010 at 15:43 pm
Thanks for pointing that out, these gender issues can be very touchy!
I don’t know much about the legal aspect of hate speech. But this judgement to me was very strange. In South Africa for instance there are a lot of people who when there is a report of corruption by a black person; say black people are corrupt. Will this now be regarded as hate speech? I feel insulted by this stereotyping but would this be hate speech?
Clearly, the Collis verdict is on very shaky ground and it is apparent that Malema is the victim of a raw judicial deal. It is easy for one’s dislike of Malema to cloud one’s assessment of the fairness or otherwise of the ruling. But the problem goes further than that elaborated on in this article. It goes to the lunacy of having a concept such as hate speech written into the Constitution in the first place and the subsequent extension of such lunacy by having statutes such as PEPUDA, gender commissions, equality courts and a whole slew of pc legislation which is intended to hide the real fascist nature and agenda of the present government. All of this is essentially and grossly illiberal and a crude attempt at thought control and a tool to curtail freedom of speech. There are enough statutory provisions to protect citizens from defamation, slander, libel, contumelia and crimen injuria. Are the learned judges of the constitutional court, given their different cultural and societal origins, able to discern the difference between so-called hate speech, disdain speech, disparage speech, contempt speech, sarcasm speech, derision speech and so on and able to show any sort of unanimity thereon? Albie Sachs for example put himself up as an expert on humour and trade mark law. He apparently regarded the puerile T-shirt slogans produced by Laugh it Off Promotions as funny. Maybe Malema’s distasteful (but note hate speech) utterances can also be construed by some as such.
Given the rabble-rousing gang of feminists and lesbians at the court baying for Malema’s blood, one wonders if the female magistrate did not feel intimidated and press-ganged into delivering a politically expedient verdict?
This judgement will in all likelihood and rightly be overturned, but we need not worry too much. He’ll be klapped by his subsequent inflammatory utterances about shooting farmers.
I seem to agree with you Prof
But then like mentioned before there is more to this comment than meets the eye. I think that Many people forget about the girl that Malema was talking about, but my question is, does she then have a delictoul claim against Malema after this judgment?
Dumisani Mkhize says:
March 16, 2010 at 12:09 pm
I agree with the spirit of your post.
However, it is difficult to refute the essence of Pierre’s post :
“Even if the words could be so construed, the magistrate erred by failing to make a finding on this crucial point. She thus never made a finding on whether, objectively determined, Julius could be reasonably suspected of having the intention to harm women in general. By failing to focus on the intention of the respondent, the magistrate did not apply the test for hate speech correctly.”
I get the sense that a successful appeal by Malema would be more harmful that his utterances.
Such is life under a constitutional democracy.
Anonymouse: does hate speech have to be intentional? My experience is that it generally arises from negative emotional intensity, quite noticeable with Julius,but is often pre-determined and well thought out with the intention to do harm, get even. If I was on the bench hearing this case, one of the principal factors I’d insist on would be the conditions at the time, which we know.
I believe he meant it to be hurtful, even to encourage physical harm. You may recall that the women were also screaming “burn the bitch” at Zuma’s trial. Malema’s modus operandi was quite obviously intended to protect and exonerate Zuma and crucify Khwezi, and he cared not one whit about its effect on her, or on the fight so vital in our society to change attitudes towards women. After all, we know he doesn’t think that deeply. However, ignorance is not a defence.
For example, what were the effects of his comments with respect to Khwezi, and her mother?
Law is not just about the letter. Its also about common sense, societal changes, and precedents. In Western Democracies, precedents are set by the bench and trump even legislation.
Although your predictions are often correct, this one may only be so because the appeal succeeds on technicalities concealing biased political considerations and possibly made out of fear or intimidation. At the same time I refute the comments which state this was a political decision. Hardly. Possibly one of revulsion. Its one of the reasons women judges and magistrates are so important. They see things much differently than we men.
Co-incidentally, three separate farm murders occurred in JuJu’s province last week since his atrocious and dangerous singing. One can only pray one of these idiot thugs under interrogation says: “well Julius said to get rid of the bastards”. Then we have a miracle.
Here’s my prediction: regardless of this appeal outcome, Julius is finished. Subsequently, we will have other problems to deal with with from all his fanatical young turks. The anger on all sides is not dissipating and white indignation is gatvol and rising.
Additionally, there is now no way the Canadian appeal of the SA man granted refugee status will be overturned. And that’s my prediction.
I applaud the wise decision of the Magistrate. Cmd Malema is still young. He has a lot to learn. Look at the context. Language is metaphorical. Some women like to walk. Others prefer the bus.
As Cmd Zuma has said, Cmd Malema has all the makings of a fine leader. It is because Cmd Zuma has recognised this fact that I would, like Maggs, vote for him — certainly ahead the odious liberal alternative!
I’m curious Prof: what are the requirements for a successful prosecution of treason in South Africa.
Not sure what dictionary this is from, but herewith:
1. Treason means disloyalty or treachery to one’s country or its government. Treason is any attempt to overthrow the government or impair the well-being of a state to which one owes allegiance; the crime of giving aid or comfort to the enemies of one’s government.
Note: “treachery to one’s country…” to impair the well-being of a state”…
[...] Governance at the University of Cape Town Professor Pierre de Vos has questioned the guilt verdict. He argues that the judgement is wrong: The judgment of magistrate CJ Collis in which she found Julius Malema guilty of hate speech and [...]
Mikhail Dworkin Fassbinder says:
March 16, 2010 at 18:15 pm
“As Cmd Zuma has said, Cmd Malema has all the makings of a fine leader. It is because Cmd Zuma has recognised this fact that I would, like Maggs, vote for him — certainly ahead the odious liberal alternative!”
As I always say, Dworky (like mother) knows best!
Judgements by courts of appeal are often stranger than fiction. Therefore I will not even try to predict a result this time.
This is off topic but nevertheless interesting. I have just watched the Carte-Blanche video on youtube
http://www.youtube.com/watch?v=2VFtfr54KmI
about the Metro cops abuse of power. I am really interested in what transpires around the guy in the white T-shirt filming the incident on his cell-phone when the cops came and grabbed his phone. They later deleted the footage and then retuned his phone.
What are the laws regarding this ? Are bystanders to an incident involving police allowed to film/photograph it ? Are the cops allowed to confiscate your camera/cellphone and delete any footage ? What are our rights in this regard ?
Maybe a separate article Professor ?
Sirjay: I am curious about your “Treason” thoughts. Are you suggesting that there may be a possible argument that: an act aimed at undermining the South African Constitution (or its values), by a South African, may constitute treason?
It seems that young Juju has missed the opportunity to reinvent himself.
“Julius Malema paid a prison visit to Molemo “Jub Jub” Maarohanye on the eve of the hip-hop artist’s court appearance for the murder of four schoolboys
…
“The news has, meanwhile, angered one of the families of the slain boys.
“It’s absolutely not right,” said Edwin Masemola, father of 16-year-old Phomelelo. “I am very disappointed. He should have visited the victims’ families, not the accused.”
“Masemola said the only politician he met was Gauteng Premier Nomvula Mokonyane.
“Malema had planned to visit the four families last week, but did not do so. No explanation as to why the visits did not take place was forthcoming from the league or Malema.”
http://www.iol.co.za/index.php?set_id=1&click_id=13&art_id=vn20100317041910465C643180&singlepage=1
Hi… not a law expert.
But I would agree with the ruling. Even if he wins on appeal, the fact is that our constitution is not correct, and all it tries to do is make things fair for everyone. That includes woman of course. The grey area around the fringes of the arguments here, are legally probably sound, as it seems to me, but it also hangs on what the definitions of “hurt”. “harm” and “intent” are here. These are difficult to define, hence the judge did what any human would have done and used a “judgement”. At some point this was gonna happen.
I agree with one of the previous posters, in that, Malema, whether knowingly or not, incited a group of people, and made this woman look really bad. How ever you look at it…. Therefore, what goes for “hate speech” and “freedom of speech” are by my meaning rather a very grey area and probably a matter that will never be resolved, solely for the definition of “hate speech” and “freedom of speech”…
This is political which ever way one looks. Either he was found guilty of something that can be won on appeal, or he is not even tried for the same crime, the “kill the boer” chant.
I wonder? What will happen if he’s found guilty of hate speech twice? highly in likely given he’s influence.
Freedom of speech is overrated. it gives people without understanding a voice, the same as it make politicians with no education or understanding having to solve some of the most difficult problems in the world. The fact that I can write on this forum is freedom of speech. But “freedom” is an ideology. We have no freedom by mere fact of design. freedom is an illusion that people dont seem to get or understand. One must take responsiblilty for ones actions, and not hide behind freedom of speech. I might as well use the K word and call it freedom of speech, since if Im black who am I harming….
Llewellyn Kriel says: “There is not a person with an IQ above 3 in SA who does not precisely know and understand what the King of the Kiddy Commies meant by what he said. What were the SPIRIT and INTENT of his words. They were intended to cause hurt, to entrench hatred of the victim and harm society by directly denigrating Zuma’s rape accuser.” There are two problems with this argument. First, section 10 of PEPUDA is not applicable to cases where an individual intends to harm another. It is only when the harm is based on race, gender, sex, sexual orientation and the like that the section comes into play. What is required is to show women in general (and not just the complainant in the rape case) was hurt or harmed. Second, the test around “intention” is very confusing. It requires that where it could reasonably be construed (thus objectively) that someone had the intention (thus subjectively) to harm or hurt then the section comes into play. One uses an objective test to determine the subjective state of mind of the person complained of and this is rather tricky. As I see it, one must ask, given the context and given all the facts, would a reasonable person have concluded that Malema had the intention to harm women in general. The answer would most probably be NO.
Is he going to blame the dark forces for posting this on his facebook page as well? http://www.news24.com/Content/SouthAfrica/News/1059/785296522b6c42d69a042d55be562e62/17-03-2010-07-50/Malema_fan_counts_dead_boere
Pierre i wonder whether you consider this to be a myth “… saying black people are intellectually inferior, say, or are predisposed towards corruption…”
How convenient of you to use these examples…
Pierre De Vos says:
March 17, 2010 at 10:26 am
Prof de Vos – I think you have the test for intention wrong. The test is not objective, but subjective. What has to be determined (through inference if the person did not testify and admit intention) is what Malema’s subjective motives were when he uttered the words (speech) concerned. Bringing the reasonable person into the whole thing tends to conflate the tests for negligence (which is an objective test of what the reasonable person in the same circumstances would have done or thought) and intent (which is a subjective test in terms of which the judge will have to determine, according to the available evidence, whether the person intended the required results). And then one should bear in mind that our law does not know only direct intention (dolus directus), but also intention where a possible consequence of one’s act is foreseen, but one continues to act recklessly regardless of whether that consequence would ensue (dolus eventualis). I think, properly applied to the evidence, and taking into account especially JM’s (customary) aggression when he uttered the words (speech), the trial court would have been justified to infer intent to hurt women in general (and Kwezi in particular), and, therefore, that there is a good chance that the appeal (if any?) will not succeed.
I see the ANCYL has become a fan of the good professor. LOL! You may just be appointed as spokesperson or, (lord save us), President!
http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71654?oid=166310&sn=Detail
Here’s another example of police intimidating photographers. More proof that we need an article about this, Professor.
=======================================================
An online journalist at 702 was allegedly intimidated by the SAPS VIP Protection unit after he had taken photographs of President Jacob Zuma’s convoy.
The journalist, Tshepo Lesole was grabbed from behind, taken to a corner and forced to delete all the photographs that he had taken of the line of BMW’s that had brought the president and his entourage.
The incident happened on Tuesday morning when the president was visiting Chris Hani Baragwanath hospital.
Fellow journalist Stephen Grootes tried to intervene but was told to shut up.
The President was at the hospital to inspect the renovated section as well as effective service delivery because the ANC had identified health as one of its key priorities over the next five years.
Talk Radio 702 has called for the police and the Presidency to investigate the incident, Tshepo was not injured during the episode.
Head of news and current affairs at Primedia Broadcasting, Yusuf Abramjee, said he plans to raise this incident and the many others against journalists that have taken place before at the next meeting of the SA National Editors Forum/SAPS task team.
He will also be raising the issue with the National Police Commissioner, Bheki Cele and possibly with the President of the Republic himself, Jacob Zuma.
Pierre De Vos has got it totally wrong – unfortunately your own prejudices are blinding you. What JM said was entirely demeaning and harmful to all women – who are all potential and actual vicitms of rape and sexual abuse. You are tying yourself up in knots and your argument is just not convincing.
“What is required is to show women in general (and not just the complainant in the rape case) was hurt or harmed.” –PdV
Fair enough. How about women who wish to lay charges of rape against men they depend on financially? Will they be spared from violence if they just explain to their potential attackers that Julius was only talking about Kwezi?
Hey! This law thing is getting slippery. No wonder no-one likes lawyers.
anonymous says: March 17, 2010 at 11:47 am
“What JM said was entirely demeaning and harmful to all women”
Take away all the emotions and political correctness that we’re always trying to achieve, can you (and anyone else who can indulge me) please tell me how is it demeaning to women to say:
“When a woman didn’t enjoy it, she leaves early in the morning. Those who had a nice time will wait until the sun comes out, request breakfast and taxi money………………….You don’t ask for taxi money from somebody who raped you.”.
In my view, Malema’s view in this regard (save for the portion which I have left out – simply because I’m not sure about its correctness) is probably correct and is shared by a lot more people than people are prepared to accept. I can hardly imagine a woman who has just been raped requesting breakfast and transportation from the person who just raped her.
Which brings me to another point, in case where the accused is acquitted (like JZ was) who can correctly be called a “victim”? In other words (and I know the Court made no finding in this regard), if this Kwezi woman had lied about the rape, does she remain a “victim” simply on the basis that she was a complainant? Is the person who is wrongfully (not in the technical sense) accused of rape not the real victim?
Pierre De Vos says:
March 17, 2010 at 10:26 am
“As I see it, one must ask, given the context and given all the facts, would a reasonable person have concluded that Malema had the intention to harm women in general.”
That sure sounds unreasonably broad – and would render the law toothless.
Why would we even need a law that has impossible tests?
mzo says:
March 17, 2010 at 12:38 pm
“I can hardly imagine a woman who has just been raped requesting breakfast and transportation from the person who just raped her.”
Other than Zuma and the complainant, nobody else knows what really transpired.
That aside, do you hold the view that a woman who is about to be raped should not ask the rapist to use a condom?
Or not to break her arm?
Or not to gouge out her eyes?
Or not to kill her?
@ Mzo – do married women, in your view, have a right to accuse their husbands of rape?
Mzo – “I can hardly imagine a woman who has just been raped requesting breakfast and transportation from the person who just raped her.”
Yes, but using the word-play “didn’t enjoy” and “did enjoy” to communicate either “rape” or “consensual sexual intercourse” clearly demeans women in general, implying that some that are raped (who do not consent), might have so enjoyed the rape so as to stay for breakfast the following morning, or those who did not enjoy the rape, they would have left early in the morning without breakfast andmoney for a taxi. … Preposterous (and extremely sexist) way of thinking! … Remember also that someone acquitted of rape is not necessarily not-guilty at all, he might have been acquitted due to the high requirement of proof beyond reasonable dout – reasonable doubt does not mean that he did not do it. … Malema’s way of thinking (and, apparently yours as well) is extremely sexist in explaining why Jacob Zuma was not guilty of rape (I have tried many rape cases where the victim was kept at the place of rape without her consent for days at end – and such way of reasoning is stupid, to say the least); and, such utterances to explain why the victim that ried rape should be disbelieved have the propensity of being extremely hurtful to women.
Anonymouse says:
March 17, 2010 at 13:00 pm
“Yes, but”
Does the “yes” mean that you “can hardly imagine a woman who has just been raped requesting breakfast and transportation from the person who just raped her” and by extension agree with Mzo and Malema?
Maggs Naidu says: March 17, 2010 at 12:52 pm
I think it would be a smart thing to do for a woman, whenever possible, to ask at the would-be rapist to use a condom or not to do any of those things you mentioned. However, I think breakfast is something else!!
“Other than Zuma and the complainant, nobody else knows what really transpired.”
I agree. However, my statement is made in a general sense.
Maggs Naidu says: March 17, 2010 at 12:55 pm
Married women definitely have a right to lay rape charges against their husband; PROVIDED they have actually been raped. If she just discovered that the husband is dating another girl and now wants to just “get him” I would say she has not right.
Now, do you mind answering some of my questions?
Anonymouse says: March 17, 2010 at 13:00 pm
“Remember also that someone acquitted of rape is not necessarily not-guilty at all, he might have been acquitted due to the high requirement of proof beyond reasonable dout – reasonable doubt does not mean that he did not do it.”
I agree, but you seem to disregard the fact that someone can be acquitted because he really did not rape the woman. Why should that man not be regarded as a victim and why should it be regarded as sexist to say someone who is wrongfully accused of rape is a victim?
What I regard as sexist is the notion that any woman who lays a rape charge is necessarily a victim and any man accused of rape is necessarily a rapist because even if he is acquitted it is never because there was never a case against him but because of the high standard of proof.
mzo says:
March 17, 2010 at 13:15 pm
There are indeed many kinds of situations where people lie about rape.
The test cannot surely be what transpired afterwards, although what transpired afterwards may well go to establishing one or the other version.
I am biased towards Zuma in general so I will resist the temptation to respond to some of the issues you raise.
I agree with you that the real victim is the person who has been wronged, either by being raped or falsely accused of rape – someone I know was locked up for a weekend because his wife maliciously accused him of abuse on a Friday evening to get even with him over some argument, she withdrew the allegations on a Monday morning.
Be that as it may, if the accused is found not guilty does it imply that rape did not occur?
Maggs Naidu says:
March 17, 2010 at 13:10 pm
No, I do not (entirely) agree with them – the explanation after the “but” should convey that much, especially what has been said by malema – he said “a lady who didn’t enjoy sexual intercourse”, “not a lady who was raped”. However, whilst it is improbable that a woman who had been raped would the following morning ask her rapist for breakfast and transportation, it is not at all impossible. It wouod all depend on the circumstances – I mean, someone who has been starved by the kidnapper and rapist would more readily ask (or beg) for breakfast and for transport money. So, in that respect, Mzo’s “can hardly believe” is not really wrong – “hardly believe” highlights “improbability”; but, if he said: “I do’t believe her at all”, now that would have been quite different.
Mzo – “What I regard as sexist is the notion that any woman who lays a rape charge is necessarily a victim and any man accused of rape is necessarily a rapist because even if he is acquitted it is never because there was never a case against him but because of the high standard of proof.”
Good – I do note however that Jacob Zuma never even publicly declared that he has been falsely accused, only that he has been vindicated by the judgment. He has never even attempted to issue summons against the complainant or the NPA for malicious prosecution. Could this have anything to do with the fact that Van der Merwe J did not discharge him at the end of the state’s case, and that he had to testify in order to claim the benefit of the (reasonable) doubt on the veracity of her version?
Anonymouse says:
March 17, 2010 at 13:28 pm
“However, whilst it is improbable that a woman who had been raped would the following morning ask her rapist for breakfast and transportation, it is not at all impossible.”
That’s pretty close to what Malema said, in an immaterially different way “(g)iven the modest educational achievements of the respondent, his sexist world view and the context in which the words were uttered”.
And for that he was found guilty of hate speech!
Maggs Naidu says: March 17, 2010 at 14:08 pm
I agree. I think it is asking too much of any lay person, let alone Malema, to draw the distinction that Mouse draws on these situations.
Anonymouse says: March 17, 2010 at 13:35 pm
“I do note however that Jacob Zuma never even publicly declared that he has been falsely accused, only that he has been vindicated by the judgment”.
I think you are VERY wrong Mouse. Zuma pleaded “not guilty”, which in this context, must surely equate to “I am being falsely accused” and I think this was in open Court and was in fact published in newspapers. How public can it be really? Or did you actually want him to use those exact words: “I am being falsely accused”???
“Could this have anything to do with the fact that Van der Merwe J did not discharge him at the end of the state’s case, and that he had to testify in order to claim the benefit of the (reasonable) doubt on the veracity of her version?”
Once again, you are walking a very thin line towards what I previously said I regard as sexist. I think one can be excused from reading from this comment that you’re actually suggesting that if an alleged rapist fails to get a discharge i.t.o. s74, then it means that he has indeed (or at best, in all likelihood) raped the woman – just that the state has failed to prove beyond reasonable doubt. That, as you surely must agree, is an untenable submission.
Even though I initially made general comments (without necessarily with specific reference to the JZ case), I think my comments apply equally to the matter involving the State President.
Pierre, I agree with you that Malema’s conviction is indefensible, and that PEPUDA’s language is nonsense.
The broader point illustrated by this debate is that the very concept of hate speech is incoherent.
I think the only form of “hate speech” that should be punishable in a democracy is an incitement to violence that (to borrow from the great O.W. Holmes), demonstrably creates a “clear and present” danger of actual physical harm. On that test, even the “Kill the Boer” song should not be punishable.
Michael Osborne says: March 17, 2010 at 15:44 pm
I totally agree with you.
Mzo,
A couple of years ago a story was ran in a newspaper (I don’t remember exactly which one) about a woman whose car was hijacked. She was taken by this group of thugs with apparently an intention for a “gang rape”. This woman, to save her skin, pretended to fall in love with the person whom she perceived to be the leader of the group.
He fell for it. After a few visits to places of drink in what appeared to be a ‘nice time’, the woman asked her ‘lover’ to take her home so that she can get some clean clothes to wear the next day.
When they got to this woman’s place, she went into her bedroom, leaving the man to help himself with some drinks in the kitchen, and she called the cops. Cops found the two of them drinking in the house and arrested the man.
Would you therefore say considering all what had happened that rape or an intention thereof did not happen?
In my own case, my girlfriend was raped by my friend. She did not report it. Forgave the guy and retained the ‘friendship’; but I lived with her and I know both the physical and psychological trauma she went through as the result of that incident.
I am trying to illustrate here that the kind of thinking that women who are friendly to their rapists enjoyed themselves and therefore no rape occurred, is dangerous, sexist and very wrong.
Michael Osborne – “I think the only form of “hate speech” that should be punishable in a democracy is an incitement to violence that (to borrow from the great O.W. Holmes), demonstrably creates a “clear and present” danger of actual physical harm.”
That, according to our criminal law, constitutes the common law crime of assault. If that is the case, then there is no room for hate speech in our legal system at all.
Mzo – For your information, pleading not guilty is not tantamaount to saying “I am being falsely accused”. Any Counsel worth his or her weight in gold will tell you that they sometimes (more often than not) are instructed to plead not guilty, simply because it is the accused person’s right (in terms of his constitutioal right to be presumed innocent until proven guilty), but that the actual instructions are hat he has no valid defence against the allegations in the charge sheet but that Counsel must use every possible (admissible) technique in the book to test and discredit the state’s version so that reasonable doubt is established. The criminal law does not require of the prosecution to prove one’s guilt beyond ALL doubt, only beyond reasonable doubt. Similarly, for an acquittal it is ot necessary for a court to find that a person is not guilty beyond all doubt, only that there exists reasonable doubt as to the guilt of the accused person. As far as I can remember, Van der Merwe J never found that the complainat’s version was demonstrably false beyond all doubt. If he did, Zuma would have had grounds to claim that he was falsely accused and to issue summons agaist the prosecution or the complainant. The fact that Zuma was not discharged at the end of the case for the prosecution indicates that, at that stage, the judge thought there was enough evidence on record to convict if Zuma remained silent or were proven to be a liar. However, he testified, and the prosecution failed to establish, beyond reasonable doubt, that he lied on the issue of consent. This is why he was acquitted.
Maggs – “That’s pretty close to what Malema said, in an immaterially different way “(g)iven the modest educational achievements of the respondent, his sexist world view and the context in which the words were uttered”.”
I don’t think so – you see, what Malema said, boiled down to this:”If she did not enjoy the sex, she would not have waited for breakfast and taxi money, but, because she waited for breakfast and taxi money, it shows that she enjoyed the sex – and that shows that she was not raped.” In other words – rape is when you do not enjoy the sex (regardless of whether you have consented to the sex in the first place) and, in determining whether she enjoyed the sex or not, one does not need to take ito account the specific circumstances why she had to wait until the following morning before going to the police. Breakfast and taxi money is therefore tatamount to showing that one has enjoyed the sex and, therefore, accept the modest payment of breakfast and taxi money in return for the man’s moment of pleasure (followed with a quick shower, of course!). I think that is pretty degrading utterances towards women, who are depicted as sex or pleasure objects only and, as long as they do not immediately scream for help and fight off one’s unwelcome attentions, they can never be raped.
Dumisani Mkhize says:
March 17, 2010 at 17:00 pm
I think you’ve said it very right.
@ Mouse
No, as I understand it, Holmes’ test would treat as not unconstitutional a state law that penalised utterances that fell short of common law assault — in the sense that they were not directed at any one particular person — insofar as the utterance creates a clear and presence danger of injury. Thus, to use OWH’s famous example (Schenck v. U.S.), if you shout “fire” in a crowded theatre, you may be held liable for injuries, notwithtanding that you directed you speech at no particular person.
Also, Mouse, I do not think what you call utterances depicting women as “sex or pleasure objects only” can viably be classed as punishable. Not just pornography, but much of ordinary commercial advertising, and certain classical literature, would be criminalised. The Taliban would welcome this. But many of the rest of us would be unhappy.
Anonymouse says:
March 17, 2010 at 17:24 pm
I find the comment that “it is improbable that a woman who had been raped would the following morning ask her rapist for breakfast and transportation” somewhat disconcerting.
I do not see the relationship between rape and what happened subsequently or prior to the rape – as far as I am concerned a person has the right to say no even during intimacy and change her or his mind at any point.
If the consent is denied or withdrawn, that’s it – the other person can find some other way for fulfillment.
A victim may even, as Dumisani points out, forgive the rapist – that does not mean that the victim was not raped or that the rapist did not rape.
Neither do I believe that “enjoyment” is any indication of whether or not rape took place!
Anonymouse says:
March 17, 2010 at 11:09 am
Good to here your clear analysis.
On a cruder note perhaps, but not necessarily untrue, I can imagine Julius and his sycophants sitting around chatting with emotion about how uppity these women are, that they need to know their place, preferably on their backs, and that these forking whiteys need to realize they ain’t real anymore.
Anyone with experience knows these people, how they think, what they value (if the term value in their lives isn’t a profanity to clear thinking men and women).
Regardless of appeal, he won’t win this one on kill the boers. The lines have been drawn. South African intelligence, pride and courage is re-awakening, and not just amongst us whiteys.
Mzo: can you (and anyone else who can indulge me) please tell me how is it demeaning to women to say:
“When a woman didn’t enjoy it, she leaves early in the morning. Those who had a nice time will wait until the sun comes out, request breakfast and taxi money………………….You don’t ask for taxi money from somebody who raped you.”.
I’ll take a stab at this: its demeaning because we all know that women are vulnerable, and since they are vulnerable, any good hearted, well intentioned soul will do their best not to increase or take advantage of their vulnerability. JZ did. Get it? Even if he wasn’t convicted. Ever wonder why so many rape accusations don’t succeed?
She said no repeatedly, and think about it, even physically how could she deal with his weight let alone her knowledge or impression he was a ‘big man’ (as in renown and powerful). Lots of men know that whimpering plead not to continue, and yet they do.
Michael: “I think the only form of “hate speech” that should be punishable in a democracy is an incitement to violence that (to borrow from the great O.W. Holmes), demonstrably creates a “clear and present” danger of actual physical harm. On that test, even the “Kill the Boer” song should not be punishable.”
Sounds like Fass to me. Apart from that, absolute nonsense bro. You obviously don’t understand the sycophant mind, the desire to please the leader. Many kings and leaders have regretted voicing anger at certain people only to find their sycophants went out and eliminated their leader’s discontent to their leader’s political disadvantage.
Kill the Boer is hateful, incites violence in immature minds, creates suffering and is ultimately both treasonous and destructive to country and society. If you are attuned to the changes taking place in SA at this very moment as a result of this controversy, you might consider changing your view. Already future actions and reactions have been determined. We need to be very afraid. Hindsight is wonderful, unfortunately its untimely.
Here’s a thought: lets watch the stats about surrendering of firearms since the unthinking song of our very own mad child, and the government’s defense of said song as being historically virile; perhaps such observation should give doubters a more realistic grasp of these incendiary words and their implications on all of us.
http://www.sowetan.co.za/News/Article.aspx?id=1123458
This sucks,
I imagined the standard to be impact not intention. Dude, this is nuts.
sirjay jonson says: March 17, 2010 at 19:59 pm
“its demeaning because we all know that women are vulnerable, and since they are vulnerable, any good hearted, well intentioned soul will do their best not to increase or take advantage of their vulnerability. JZ did. Get it? Even if he wasn’t convicted. Ever wonder why so many rape accusations don’t succeed?”
I think what is demeaning and sexist is how you view women, as “vulnerable”. If I was a woman I would prefer to be viewed as equal to men, not as a person who is vulnerable and needs a men to “protect” me!!
In my initial e-mail I requested people to put their emotions aside, those emotions include the hatred you may have for JZ (for the record, the man is not my favourite either). On the FACTS (not on our feelings about JZ) that came out during the trial, I really cannot see how anyone can conclude that JZ raped that woman.
Anonymouse says: March 17, 2010 at 17:24 pm
Mouse, I accept that pleading “not guilty” is not tantamount to saying “I’m being falsely accused” but when a person pleads not guilty, in his testimony he denies that he committed the crime (rape) and later is acquitted and he says he felt vindicated, can that mean anything else other than “the person who accused me was lying / I was falsely accused”. Mind you, this has nothing to do with the presiding officer’s finding on the complainant’s version.
Are you suggesting that if I’m accused and later acquitted I HAVE to issue summons against the complainant / the State, failing which I run the risk of people like you concluding that I actually committed the crime? If that is your submission, I think you are expecting too much from those who are falsely accused. Most people I know are just happy to be acquiited, they want to put the whole thing behind them and move on with their lives. Surely you can’t suggest that there’s anything wrong with that!!
Mzo – No, nothing wrong with that, especially when you escaped conviction by the skin of your teeth. However, it would be wrong for such a person (or his followers) to claim that he is the victim of a false allegation of rape.
Michael – common law assault does not require that the utterance (threat) be directed at a specific person – it can be directed at a group of personbs as well. A prank, calling out “FIRE!” in a crowded theatre, would also amount to assault, especially if one can infer dolus eventualis of physical harm being caused in the process. In the Naidoo case – the throwing of a tear-gas canister in a Disco led to multiple convictions of culpable homicide. i think that could have been murder – but, by analogy, there is no reaql difference between causing panick by throwing a tear-gas cannister and shouting “FIRE!” if the result is physical harm
Dumisani Mkhize, why would your girlfriend maintain a “friendship” with her rapist, if I were you I would question if he really raped her, that is commonsensical,finish and klaar, otherwise believing her rape and her subsequent “friendship” with her rapist is the one that doesn’t make sense!.
Mdu – So a guy who goes to prison and forgives his attackers (during a car hijack or robbery) and even pleas for their release on parole must be disbelieved that he had been robbed? I know of two such instances, and in the one case, the accused even pleaded guilty. Now today, he is a co-BEE-Director of a coy that the complainant established – working for an income for a change. I have also heard of daughters having been raped by their fathers who have forgiven their fathers for doing so, and now live together again.
Mdu says:
March 18, 2010 at 9:53 am
“Dumisani Mkhize, why would your girlfriend maintain a “friendship” with her rapist, if I were you I would question if he really raped her, that is commonsensical,finish and klaar, otherwise believing her rape and her subsequent “friendship” with her rapist is the one that doesn’t make sense!.”
That is nonsense.
Victims respond to the trauma in various ways.
Children who have been abused by parents often don’t want their parents to be jailed.
Kidnap victims often form relationships with the kidnappers.
Abused women and men often remain in the abusive relationships even become emotionally dependent on it.
There’s no single right answer as to why it happens, but it does.
To infer that the victim of rape is lying because she did not behave in ways that some think she ought to have, is simply devoid of reason, insensitive and ugly in the extreme – that is pretty much the same as Malema’s utterances.
Mdu,
Some people have a forgiving disposition which borders on idiocy by some standards.
As I have stated on my previous post, I lived with her and I know the physical, physiological and psychological trauma that she went through. Believe me, it was unbearable – that is one reason I cannot fully fathom how a person who has been through such hell, can be so forgiving.
Rape did occur, I am positive. My friend also made a tearful confession when he begged for forgiveness. She could not fake those nightmares and phobias that had a negative impact on our love lives. Trust me, I know the experience and won’t wish it to my worst enemy.
Anyway, you believe what you want to believe. I am selling nothing here, but just adding my two cents worth to those who would listen.
Again Mdu, it is attitudes and opinions such as yours that propagate the oppression of women in our continent. I actually take a serious exception to your remarks.
Maggs Naidu says:
March 18, 2010 at 10:15 am
True, and the question if she enjoyed it or not has nothing to do with rape. Intercourse without consent is rape, whether the women enjoyed it or not. See S v HENDRICKS 1995 (2) SACR 177 (A).
Back to the hate speech, the magistrate made the finding of fact: “this Court is satisfied the uttered words could reasonably be construed as hurtful, harmful and demeaning to women.” If she is correct, as she said, that this was proved given the totality of the evidence before her, the judgement should stand.
@ Mouse, the people you are talking about actually went to jail for their crimes, I understand that.
@Maggs, you actually agree with me “there is no single right answer to why it happens but it does” , which is why I said it doesn’t make sense!
Dumisani, I understand your stance, but I maintain my attitude and opinions are commo sensical, I would want a rapist to go to jail and to be known so that he doesn’t do it to another friend of his just because he once got away with it!
Mouse, very well, if you are right, then the criminalisation gf “hate speech” per se is redundant.
But let me ask you this; would not common law assault at least demand physical proximity?
Take the famous infamous radio broadcasts in Rwanda, just before the 1994 massacres. Radio Kigali broadcasted a message “kill the cockroaches” (Tutsi.)
In principle, could all Tutsis in the country be deemed to have been “assaulted” by the broadcaster? Seems too attenuated. (Perhaps the doctine of novus actus would assist?)
Michael Osborne et Prof De Vos
I hereby quote a few paragraphs from the judgment that may have bearings on your respective criticisms:
“[13] From the above definition quoted, it is clear that the Equality Act’s definition of hate speech is broad. It extends beyond communicated words that promote hatred by specifically including within its scope the communication of words that are hurtful or harmful.
Hurt or harm in this context is not limited to direct physical harm, and extends to an attack on dignity. See in this regard the decision of Islamic Unity Convention v Independent Broadcasting Authority 2002(4) SA 294 (CC) at pg 32.
[14] A court, in assessing whether the words complained of fall within the definition of hate speech, would have to ask the following questions:
14.1 Are the words communicated based on one or more prohibited grounds?
14.2 May any reasonable person consider the words to be intended to hurt, harm or incite hatred?
14.3 Does the use of the said words fall within the prescribed exclusion as set out in section 12?
If the answer to either of the first two questions is in the negative, the words complaint of do not amount to hate speech. If indeed the answer to either of the first two questions is in the positive, the words amount to hate speech. Important is that intention on the part of the Respondent is not required.
[15] The test is whether a reasonable person would construe the speech as demonstrating a “clear intention” to be hurtful. If the complainant succeeds in proving the words complained of amount to hate speech, it however would not be the end of the inquiry.”
Oh, and paras [14] and [15] of the judgment on the question whether intention on the part of the Respondent is required – one should perhaps read s 10 of the Act quoted by the magsitrate in para [10] of the judgment:
“[10] Section 10 of the Equality Act defines hate speech as follows:
(1) Subject to the proviso in section 12 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;
(b) be harmful or to incite harm;
(c) promote or propagate hatred.”
Mdu says:
March 18, 2010 at 11:01 am
“you actually agree with me” – I don’t agree with you.
I said something entirely different.
There’s no template for victims of trauma of any kind to follow so that it makes sense.
I fail to see how your “attitude and opinions are commo sensical”.
It’s simply illogical to want to impose a duty on victims to “want a rapist to go to jail and to be known so that he doesn’t do it to another friend of his just because he once got away with it!”.
It’s especially bad when we try and hold the credibility sword over the victims – that their experience is only to be believed if they do X, Y, Z.
Michael Osborne says:
March 18, 2010 at 11:13 am
As to whethehr physical harm is required, which would render the criminalization of hate speech redundant – see the magistrate’s opinion in the quote above.
As for your question about the incident in Rwanda – a call to kill cockroaches – that act is part of the acts that are charged as genocide, which is a much broader (and intenser) form of assault. Every one who heard those threats (over the radio or whatever) could however be regarded as having been assaulted by threats of violence.
What one needs to bear in mind here, the definition of hate speech and the remedies that are made available to agrieved persons in the Equality Court, do not make incidents of hate speech crimes. If that were the case, then incidents of hate speech would have to be brought before a criminal court for prosecution and punishment by the state in case of conviction. PEPUDA creates a forum, the Equality Court, for remedies that are sui generis, which are not necessarily similar to criminal or civil remedies for crimes or delict. The definition of hate speech in s 10 of PEPUDA can therefore still pass constitutional scrutiny, as can the judgment. Intention as in the law of delict or in criminal law need not be proven, all that needs to be proven is that the utterances “could reasonably be construed to demonstrate a clear intention to-
(a) be hurtful;
(b) be harmful or to incite harm;
(c) promote or propagate hatred.”
What one needs to understand is that the judgment does not constitute a conviction by a criminal court, or an award judgment in a civil matter for delict. This is a specific remedy created to promote respect for the Constitution and the values it enshrines. In the light hereof, I still think that an appeal to a higher forum will not necessarily succeed.
Oh well – it seems that the youth are getting angry now.
“Another school pupil was angry with African National Congress youth leader Julius Malema for visiting Jub Jub in jail earlier this week.
“If Julius Malema continues to visit Jub Jub we are going to follow him to his house and burn it,” said a girl who called herself “Nelly”.
“Why is he visiting Jub Jub in the prison? He is the youth league president, he should be with us, outside.”
http://www.iol.co.za/index.php?set_id=1&click_id=13&art_id=nw20100318131745882C495227&page_number=2
My learned country wo/men I need to bring to your attention the fact that, if it is accepted that Juju’s comments were directed to President’s rape accuser then it is incorrect to keep refering to rape victims. The court of law acquited the President and therefore there was was no rape and there still is no rape to talk of. This Magistrate got carried away and allowed herself to be influenced by the women lobby groups.
Does anyone know more about this
“This week he turned his guns on the media, releasing a four- page document on City Press’s Dumisane Lubisi alleging corruption and exposing all of the journalist’s most private details, including his address, his children’s identity numbers and his wife’s business interests.
“It is a mish-mash of fabrication, hyperbole and nonsense mixed in with factual detail like identity numbers, bank accounts and telephone details.”
http://www.citypress.co.za/Content/Opinions/Editorials/2265/c20c347afa18485689354ed73fb222d9/14-03-2010-02-00/Mister_Nasty
It sure sounds like the worst kind of politics.
If it is true then the ANC is being allowed to degenerate to the worst kind – it cannot possibly be what the true heroines and heroes would have envisaged or wanted.
http://www.mg.co.za/article/2010-03-19-keeping-it-in-the-family
Apologies to the SA nation for all his mistakes is what this president has been about since taking office >>
There have been no apologies to the SA nation for lack of jobs & service delivery?
Sad State of affairs
If Julius spoke in general terms and the victim in question was affected, it is not for us to draw lines in the sand and distinguish between harm and hurt. The opportunity to curb such ridiculous bahaviour by Malema and his ilk cannot escape us.
At any rate, is it not a manner of interpretation? Why shouldn’t we use a wider interpretetion when the protection of vulnerable goups is concerned?
This is rather interesting. However, most of you focused on Zuma’s innocence/guilt than Malema’s speech. I believe the speech itself, in broad sense, is inappropriate. To prove Malema’s speech as hate speech requires that we untie our emotional strings with Zuma (whether we approve the man or not). I am not suggesting that we ignore the context, but that we must not forget that the focus is Malema’s speech.
Intentions are hard to prove. Malema’s intention could have been to encourage stereotypes or, in his own way, to reinforce Zuma’s innocence, one cannot measure for certain.
Although Malema’s speech is wrong at so many levels, wrongness is not synonymous to hate speech. I am not saying Malema’s utterance is not hate speech, I am merely stating that our rationale in rendering it so needs not be based on a premise, for example, of morality.
Blab Blab Blab Blab Blab Blab Blab Blab Blab Blab So I guess it’s my freedom of speach and my constitutional right to call Julius Malema just another dumb Kaffier !!!
I’m not sure if your response was directed at me. If you called Julius Malema “another dumb kaffir”, I’d argue that:
- Your reference of “ANOTHER”, implies that you are NOT addressing Malema but basing your utterance on OTHER ‘kaffirs’, which would imply that your comment consolidated social relations of dominance and subordination. Malema would only qualify as an INSTANCE of your ongoing racism.
- Then there is the word kaffir which in itself is coloured by racism (not that calling someone ‘bitch’ is a bit more complex to argue. It is an inappropriate use of language but it is hard to prove. For example, if I called Winnie Mandela ‘bitch’, it constitutes as defamation of character. To say it is not hate speech is not to assume that is it acceptable. But I believe that this discussion is on ‘hate speech’ and not other lingual misconducts. If someone said, “women are bitches and they have no place here”, because I’m addressing a non-specific person (but women in general”, the scenario thickens.
Julius Malema’s song of “burn the boer” is a more straightforward ‘hate speech’ than the comment discussed here for 2 reasons. To call it hate speech is not to take away his freedom of speech but to highlight the misuse of that right in reference to others:
- One may argue consequences that Julius’ utterance brought about, but even that must be proven to be direct.
- The context which the song was sung (or its historical context)
- The intent may be easier proven because hate speeches are SINGLE utterances which are NOT ISOLATED, as in they feed on preexistent sexism-racism-tribalism-etc.