Early in 2016, a racist outburst by a white woman in KwaZulu-Natal, Penny Sparrow, ridiculing Black beachgoers as ‘monkeys’, and announcing that thenceforth she would ‘address the [B]lacks of South Africa as monkeys’, published in her online profile, was quickly disseminated countrywide. It convulsed South Africa in shame and acrid anger. The [Constitutional] Court was not unaffected. Previous members of the Constitutional Court took comfort in reflecting, with evident satisfaction, on the absence of racially loaded and racially defined splits. Dramatically, these now fractured the Court.
Hate speech travels beyond mere offensive expression and can be understood as “extreme detestation and vilification which risks provoking discriminatory activities against that group”. Expression will constitute hate speech when it seeks to violate the rights of another person or group of persons based on group identity. Hate speech does not serve to stifle ideology, belief or views. In a democratic, open and broad-minded society like ours, disturbing or even shocking views are tolerated as long as they do not infringe the rights of persons or groups of persons. As was recently noted, “[s]ociety must be exposed to and be tolerant of different views, and unpopular or controversial views must never be silenced”.