Quote of the week
Mr Zuma is no ordinary litigant. He is the former President of the Republic, who remains a public figure and continues to wield significant political influence, while acting as an example to his supporters… He has a great deal of power to incite others to similarly defy court orders because his actions and any consequences, or lack thereof, are being closely observed by the public. If his conduct is met with impunity, he will do significant damage to the rule of law. As this Court noted in Mamabolo, “[n]o one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law”. Mr Zuma is subject to the laws of the Republic. No person enjoys exclusion or exemption from the sovereignty of our laws… It would be antithetical to the value of accountability if those who once held high office are not bound by the law.
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18
Declaring "coloured/kleurling" unconstitutional?
Can one have the words “coloured/kleurling” declared unconstitutional? Somebody called me to ask, and was rather miffed when I told him that he would waste his money taking such a ridiculous claim to the
“Why not,” he wanted to know, “I sit in meetings where people refer to me as a coloured or a kleurling and this is deeply hurtful to me. It is racism of the worst kind and I do not have to take it.”
I can understand why the caller does not like these words. They have the unmistakable odor of apartheid engineering about them. For some, they represent a kind of fabricated racial identity, which allowed the apartheid state to divide and rule black people.
But the Constitution cannot address the private hurts of every South African, so a plea to find the words unconstitutional will surely fail.
First, not all people who were classified as “coloured” by the apartheid state object to the use of the word or being identified as “coloured”. In fact many people embrace this identity and proudly talk about the “coloured culture” – which often look much like a certain kind of white Afrikaans culture.
(Of course, people who embrace this “coloured” identity are often Afrikaans speaking and working class, so there might be a certain class and language snobbery involved in the abhorrence of the term, but that is not relevant here.)
Second, section 16 of the Constitution protects the right to freedom of speech. Only speech that advocates hatred based on race, ethnicity, gender or religion and that constitutes incitement to cause harm – so called “hate speech” – is excluded from such protection. Use of the word “coloured” would seldom if ever be viewed as such a form of hate speech, especially given the fact that some people embrace the word and the identity it represents.
Third, the Constitution is really geared towards the protection of individuals from action by the legislature, executive or private individuals. It does not seem to me that a word can per se be unconstitutional. It is only when the word is used in a specific context and thus infringes another right, that it becomes possible to challenge its use in a Court.
So, where a newspaper or a radio station use the word regularly, one could try and make the argument that the use should be restricted because it infringes on the human dignity of others. In such a case, the right to dignity of some must be weighed against the right to free speech. Given the lack of consensus about the hurtfulness of the word, I cannot imagine a court will find in favour of the dignity interest.
But maybe there is a larger issue at stake. What do we do when others use words we find offensive or hurtful? It seems to me in a democracy based on human dignity, equality and freedom, one should object to the use of a word, argue about it, make a noise, try to convince others not to use the word. If one is successful, private “censorship” will ensue and it will become impolite or even disgraceful to use that word in public.
It strikes me as anti-democratic and out of sync with a human rights culture, to want to want to have a word declared unconstitutional. Let us argue about what the word means and why some feel it demeans them – that way we address the real issues and do not repress underlying prejudice. Repression surely is seldom a good idea.
