Malema judgment: A re-think on hate speech needed

There are many interesting as well as perplexing aspects to the judgment handed down today by Justice Colin Lamont in the South Gauteng High Court in which he found that Julius Malema had engaged in hate speech when he sang the song “Awudubula (i) bhulu… Dubula amabhunu baya raypha” (translated as “shoot the Boer/farmer”, “shoot the Boers/farmers they are rapists/robbers”).

The first aspect of the judgment that struck me is the fact that this judgment gestures towards some aspects of the philosophy purportedly espoused by our new Chief Justice, Mogoeng Mogoeng. Judge Lamont invoked the notion of ubuntu (just like justice Mogoeng did in the McBride case earlier this year) to help justify the drastic limitation on the freedom of expression of all South Africans. For judge Lamont (as for justice Mogoeng), the protection of dignity and adherence to the values of ubuntu requires a radical limitation on the right to freedom of expression.

It is a drastic limitation because Judge Lamont did not only find that the singing of the song by Julius Malema in specific contexts constitutes hate speech. Instead he ordered that both Julius Malema and the ANC be interdicted and restrained from singing the song known as Dubula Ibhunu “at any public or private meeting held by or conducted by them”. It is not clear how an organisation as such could be interdicted from singing a song as one would have imagined that the ANC (not being a person) cannot sing a song and that only members of the ANC could be interdicted in this way. I would therefore assume that the order interdicts any ANC member from singing the song — even at a private meeting or gathering of its members.

This means that if ANC members congregate at a party at which they reminisce about the struggle days and one of its members then sing this song, that person will be in contempt of this ruling and might be found guilty of contempt of court. This, in my opinion, constitutes a rather absurd and drastic infringement on the right to freedom of expression not warranted by the Equality Act — even given the broad provisions of that Act.

Judge Lamont also found that the “morality of society dictates that persons should refrain from using the words” and  “singing the song” and seemed to suggest that anyone singing the song could well be found to have contravened the hate speech provision in the Equality Act, arguing that:

Persons who are not parties to the proceedings must be dealt with by way of structuring the order so that society knows what conduct is acceptable. Persons who are aware of the line which has been drawn by the Court are as a matter of both law and ubuntu obliged to obey it. There may be no immediate criminal sanction. Their breach of the standard set by this Court will however surely result in the appropriate proceedings under the Equality Act being taken against them. Non participants are bound by orders setting such standards. The Equality Act contemplates that they will be so bound. The orders of the Court which set the law are no different from any order of any Court which determines what the law is. The course open to a non participant who is aggrieved is to try to persuade the Court hearing his particular matter that the order of the other Court is clearly wrong.

In doing so, Judge Lamont relied on the majority judgment in the controversial Dey judgment (a judgment which Chief Justice Mogoeng – as well as Deputy Chief Justice Moseneke, it must be said — signed on to), to argue that in order to determine whether hate speech occurred one must take into account how the words would have been interpreted by various audiences. In the Dey judgment, the Court stated that:

It may be accepted that the reasonable person must be contextualised and that one is not concerned with a purely abstract exercise. One must have regard to the nature of the audience. In this case the main target was the school children at the particular school, but it also included at least teachers.

This means, according to judge Lamont, that where some South Africans (who would largely, but not exclusively, be black) would not reasonably construe the song to have had the intention to be hurtful to whites, but others (who would largely, but not exclusively, be white) would indeed do so, “each meaning must be considered and be accepted as a meaning…. If the words mean different things to different portions of society then each meaning, for the reasonable listener in each portion of society, must be considered as being the appropriate meaning”. In this way the judgment avoided dealing with a difficult legal problem, namely that the song would be viewed differently, depending on the audience. He could thus dispense with the requirement to establish how a reasonable South African (as opposed to a reasonable white or black South African) might view the impugned words.

Flowing from this is a second aspect of the judgment that might elicit adverse comment. Judge Lamont divided South Africa into the majority and a minority and suggested that minorities (defined as white South Africans or as white Afrikaners) are therefore in particular need of protection from words that could be construed as having the intention to be hurtful to that minority. Hinting that white people might well in the future be in danger of facing a genocide, Judge Lamont stated that:

It must not however be forgotten that minority groups are particularly vulnerable. It is precisely the individuals who are members of such minorities who are vulnerable to discriminatory treatment and who in a very special sense must look to the Bill of Rights for protection. The Court has a clear duty to come to the assistance of such affected people. Minorities have no legislative or executive powers and are compelled to approach the Court to protect their rights. They are particularly at risk due to the expense involved in such approaches. The fact that they are minorities and experience such difficulties frequently results in them being driven to protect their identity by invoking and enforcing within their group, customs practices and conventions which are believed to be appropriate. In addition, they are fragile in that they are readily assumed by the mass and lose their identity. A Court which hears a matter must, while balancing the rights in question take into account in the construction of what hate speech is the fact that it is directed at a minority.

This means that religious and sexual minorities, say, might be entitled to special protection in terms of this Act and that a court should take note of the sensibilities of such groups when they judge whether a reasonable homosexual or a reasonable Muslim would have viewed a specific communication as having the intention to be hurtful to them as Muslims or as homosexuals. Almost any cartoon that depicts the prophet Mohammed, say, might therefore constitute hate speech. Statements by a pastor that homosexuals are perverts that will burn in hell would also, most probably, constitute hate speech if this line of reasoning is followed. I am also fearful that if I were to call devout Christians “bigots” because of their views on homosexuality, I might be found to have had the intention (judged by these religious fundamentalists) to be hurtful to them and hence that I am guilty of hate speech.

This rather essentialistic and simplistic division of South Africans into different race groups could be viewed as problematic. Instead of dealing with South Africans as South Africans and instead of demonstrating a blindness to race (as required by opponents of affirmative action), the court relied on racial assumptions and stereotypes to justify its finding. One would assume that all the critics of race-based affirmative action would be quick to condemn this judgment on the basis that it invokes apartheid era race categories and assumes that one would have a different reaction to words depending on one’s race and/or the language that one speaks. Surely the principled DA supporters who complain about affirmative action will have to reject this judgment because of its purported unholy valorisation of race?

A third aspect of the judgment that might require a rethink by the legislature is that in terms of the extremely broad definition of hate speech contained in the Equality Act and given the facts of this case, a finding that Julius Malema had engaged in hate speech might well have been warranted on the facts before the court. It seems to me as if Judge Lamont had little option but to find that Malema had contravened the Act. Although the sweeping order made in this case was, in my opinion, not warranted by the wording of the Act, the finding against Malema might well have been warranted — given the way in which hate speech has been defined by our legislature. As Judge Lamont explained:

The message which the song conveys namely destroy the regime and “shoot the Boer” may have been acceptable while the enemy, the regime, remained the enemy of the singer. Pursuant to the agreements which established the modern, democratic South African nation and the laws which were promulgated pursuant to those agreements, the enemy has become the friend, the brother. Members of society are enjoined to embrace all citizens as their brothers. This has been dealt with more fully above in the context of the written laws and agreements. It must never be forgotten that in the spirit of ubuntu this new approach to each other must be fostered. Hence the Equality Act allows no justification on the basis of fairness for historic practices which are hurtful to the target group but loved by the other group. Such practices may not continue to be practised when it comes to hate speech. I accordingly find that Malema published and communicated words which could reasonably be construed to demonstrate an intention to be hurtful to incite harm and promote hatred against the white Afrikaans speaking community including the farmers who belongs to that group. The words accordingly constitute hate speech

As the Equality Act – passed by the democratic Parliament – does not allow a court to take into account historical practices, the defence put up by Mr Malema’s excellent legal team held no water in this case. Because the hate speech provision in the Act was drafted in such sweeping terms and because the Act only allows for exceptions in cases of “bona fide engagement in artistic creativity, academic and scientific inquiry, fair and accurate reporting in the public interest or publication of any information, advertisement or notice in accordance with section 16 of the Constitution”, the defence of the ANC that this song had to be judged in its historic context was dismissed.

The judgment therefore once again places on the table the question of whether the hate speech provision in the Equality Act is constitutionally valid or not. As I have argued before, I suspect that the hate speech provision in the Act is unconstitutional as it defines hate speech in much broader and open ended terms than section 16 of the Constitution, which merely states that “advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm” is not protected by the Constitution.

For some reason (perhaps relating to the politics of the case) Mr Malema’s lawyers did not challenge the constitutionality of the hate speech provision in the Equality Act. Whether they will try to raise this issue on appeal remains to be seen. This does not mean that the ANC dominated legislature cannot amend the legislation to bring it in line with the freedom of expression guarantees in our Constitution. In my view Parliament made a mistake when it passed these sections of the Equality Act and there is no reason why they cannot rectify the mistake without waiting for the Constitutional Court to order them to do so.

Maybe this judgment will lead to a re-think on the manner in which our law deals with cases of alleged hate speech. If it does, some good might yet come of it.

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