As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
South Africans are far too quick to brand stupid, irritating or offensive language as hate speech. For example, I, for one, am far from certain that the sexist and offensive statements made by Julius Malema regarding rape survivors and the complainant in the Jacob Zuma rape trial constitute hate speech and I would not be surprised if Malema wins his equality court case.
Statements that are racist, homophobic or sexist would not necessarily constitute hate speech – even in terms of the very broad (and possibly unconstitutional) provisions of the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA). Even using the “K’-word to describe a black person or m%#ffie to describe a gay man is not necessarily unlawful in terms of PEPUDA. Although such language is deeply offensive and those who use such words to describe others who are not like them are really beyond the pale, those who use such words would not usually be guilty of hate speech. (They would be guilty of being homophobic, racist or sexist fools, but that is another matter.)
Section 1o of PEPUDA states that “[n]o person may publish, propagate, advocate or communicate words based on one or more of the prohibited grounds, against any person, that could reasonably be construed to demonstrate a clear intention to- (a) be hurtful; (b) be harmful or to incite harm; or (c) promote or propagate hatred”, while section 12 prohibits any person from making statements that “could reasonably be construed or reasonably be understood to demonstrate a clear intention to unfairly discriminate against any person”.
This is an objective test. One asks, after looking at all the evidence, whether a reasonable person would have had reasonable grounds to conclude that the statement was intended to be hurtful, to be harmful or to incite harm or to propagate hatred or whether it was intended to unfairly discriminate against anyone on the basis of race, sex, gender, sexual orientation or any of the other grounds listed in the Act.
There are two important factors that need to be present before a statement would fall foul of the PEPUDA prohibitions. First, there must have been an intention to do damage and that intention had to be established on the basis of what could reasonably have been construed. Second, the statement had to have been directed at a specific person or persons and it must be shown that the intention was to hurt or harm or discriminate against that specific person(s). “Merely” expressing prejudice, racism or homophobia in general would not be sufficient.
(Even though section 10 and 12 of PEPUDA thus limit the scope of what speech would be prohibited, these provisions nevertheless go much further than the specific exceptions provided for in the Constitution itself. A good argument could therefore be made that section 10 and 12 of PEPUDA are unconstitutional because they are overbroad and prohibit speech protected by the Bill of Rights. But this is a complex issue so I will not elaborate on it here.)
In any case, whatever the interpretation given to section 10 and 12 of PEPUDA, one thing is clear: if proven to be true, the statement by Free State ANC Youth League chair Thebe Meeko who allegedly called for Prof Jonathan Jansen, the University of Free State’s recently appointed vice-chancellor, to be “shot and killed because he is a racist” would contravene the Act. Meeko is reported to have said:
Like President Jacob Zuma when he said the police must meet fire with fire [referring to police shooting armed criminals], the shoot-to-kill approach must also apply to all the racists, including Jansen – because he is a racist. He must know that we have removed more powerful people than him before. Jansen is equally a criminal like those four racists.
The ANC has distanced itself from the statements and the DA has lodged an PEPUDA complaint against Meeko. The Times newspaper seems to have a video recording of Meeko making the statements as well, so one would imagine that the chances are rather good that Meeko would be found guilty of hate speech.
But these statements – if true- would be so shocking and would represent such an egregious attack on the values underlying our Constitution, that it would not be enough for Meeko to be found guilty and for the ANC to reprimand him. If convicted, the ANC should put its money where its mouth is and should expel Meeko. If it is true that The Times has captured Meeko on video saying these things (I am currently out of town and my computer here does not have sound facilities), then the ANC should not wait for the court case to be concluded but should immediately take action to get rid of this guy.
If he indeed said what he is reported to have said, he is a despicable human being. Surely he would then be hardly any better than those four Reitz boys who made the racist video and he should be treated accordingly. If the ANC fails to take action in the face of clear evidence of such hateful and dangerous speech, it would, sadly, be a sign that it has lost its moral compass.BACK TO TOP