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.
It is not surprising that the Chief Magistrate of Cape Town earlier this week ruled that the work of art by Dean Hutton (which includes a repetition of the phrase “Fuck White People”) did not constitute hate speech. The Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) specifically excludes bona fide engagement in artistic creativity from the ambit of the hate speech provision, which means that one is unlikely ever to win a hate speech case against the creator of a work of art.
There must be something about the word “fuck” that gets some white Afrikaans people hot under the collar. Maybe it’s our conservative protestant roots. It sure is not because of an inherent aversion towards words that could be used to insult other people. (Afrikaans must be one of the languages with the most expressive and colourful bouquet of swear words at its disposal.) Nevertheless, using the word “fuck” in polite company (also in its many Afrikaans variations) has long been frowned upon in certain Afrikaans circles.
In 1988 the Afrikaans writer Koos Prinsloo (who later tragically died of an Aids related illness) was awarded the Rapport fiction prize for his brilliant collection of short stories titled “Die Hemel Help Ons” (Heaven Help Us). However, the management board of Rapport newspaper vetoed this award. They objected to the fact that a racist character in one of the short stories referred to then President PW Botha as somebody who fucks black women.
It is the same sentence of dialogue which led to the decision by several Afrikaans publishers not to publish Prinsloo’s book. (It was ultimately published by the “alternative” publisher who published work critical of the apartheid regime.) Although Rapport later handed over the prize money to Prinsloo, he was never officially awarded the prize. Rapport (like all other mainstream Afrikaans newspapers at the time) were all mouthpieces of the National Party regime and must have feared the wrath of PW Botha and his government, so they must have been horrified that Prinsloo was offered the prize.
Prinsloo’s short stories engage in a conceptually innovative manner with issues of sex, loneliness, the oppressive workings of heterosexual, white, power in apartheid South Africa and the struggle with the real and symbolic father. Some people who have an interest in Afrikaans literature hate his work (as is their right), while others (myself included), revere the work, despite of (or perhaps because of) its brutal honesty.
In the same manner, the “Fuck White People” work of art by Dean Hutton (first exhibited at the South African National Gallery in Cape Town) engages in a provocative (and I would say, serious) manner with the problem of white privilege in so called post-apartheid South Africa. (Hutton would have been classified white by the apartheid regime.)
It must be partly for this reason that many white South Africans were immediately offended by the work and why it was challenged in the Equality Court on the basis that it discriminated against white people and constituted hate speech. The court rightly rejected these arguments. As judgments by magistrates courts are not reported I have not been able to obtain a copy of the judgment. All I can do is therefore to explain why the judgment makes perfect legal sense.
First, the work of art could not fall foul of section 10 (read with section 12) of PEPUDA, because judging in the context in which the work was offered a reasonable person would not deduce the intention in it to harm white people. Section 10 famously prohibits any person from publishing, propagating, advocating or communicating words based on one or more of the prohibited grounds (like race, sex, gender and sexual orientation), against any person, “that could reasonably be construed to demonstrate a clear intention to be hurtful; be harmful or to incite harm; promote or propagate hatred”.
The peculiar wording of section 10 (“could reasonably be construed as having the intention”) signals that the context within which something is communicated will be relevant to determine whether it constitutes hate speech. A reasonable person will know the context and will decide whether the person could have had the intention to target the group, at least partly with reference to this context. The context in which the work of art was made, is of course, foremost, South Africa’s history of racial oppression and exploitation and the economic and social privilege still enjoyed by white South Africans. When one engages critically with forms of expression, it is therefore important to understand that power – including social power and economic power – matters.
It is for this reason that it would be wrongheaded – also stupendously unoriginal – to argue that a work of art that contained a similar phrase targeting black people would now be absolutely above board. No. It. Will. Not. Because. Power.
Another context will also be relevant, namely the context within which the message is conveyed. For example, when a homophobic character in an anti-homophobic play shouts to another character: “I am going to fuck you up, faggot!” it could not reasonably be construed that the author of the play had the intention to hurt LGBTQ people. It would be very different if the same phrase was shouted at a political rally at a political opponent.
In the latter context it may well be that a reasonable person would conclude that the person who uttered the homophobic threat had the intention to be hurtful; be harmful or to incite harm; or to promote or propagate hatred against another person because of his or her sexual orientation.
(It is important to remember that the possibility of hate speech only arise when the words or other communication targets a person because of his or her membership of a listed group, in other words, because of his or her race, sex, gender, sexual orientation or the like. Insulting somebody in a manner that has no connection to that person’s racial, gender, sexual or other identity, would therefore not constitute hate speech. So, telling somebody that he or she is corrupt might be defamatory but it would definitely not be hate speech.)
The work by Hutton is a serious engagement with white privilege. It challenges people to reflect on this concept and to engage with it. The work gains a certain poignancy exactly because the artist is white.
It might be that some viewers who reject the idea of white privilege or wishes not to have to engage with difficult questions about their own white privilege, would choose not to have to be confronted by a work of art with the words “Fuck White People” scrawled over it. But this is neither here nor there as the test for hate speech is not whether the speech would make some people uncomfortable or would upset them – it is about whether a reasonable and informed person would believe that the intention of the author was to hurt or harm the targeted group.
But there is another reason why a provocative message contained in a work of art (or in a movie, novel, or play) would almost never constitute hate speech. This is because section 10 is qualified by the proviso in section 12 of PEPUDA which states that:
[B]ona 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, is not precluded by this section.
The requirement here is that the work of artistic creativity or academic work or fair reporting needs to be bona fide – something done in good faith. If I wish to target a group of people with hate speech and I pretend to do so in the form of a work of art, but it is clear that the format is just an excuse to try and circumvent the law, the proviso would not apply.
In this case, Dean Hutton’s work of art was clearly done in good faith. It was in fact a serious piece of art, engaging with an important and vexing contemporary issue (white privilege), a work of art exhibited in the South African National Gallery, a work of art that has generated heated (and sometimes even intelligent) debate. So, there is no way that a court will find the work was not a bona fide engagement in artistic creativity.
This does not mean, of course, that bona fide works of art are above criticism. Nothing stops anyone from critiquing Hutton’s work (just as nothing stops anyone from critiquing Brett Murray’s “The Spear”).
It is true that some free speech fundamentalists invoke free speech to try to stop any discussion about the political, aesthetic or ethical merits of a work of art or a book or of any common garden variety offensive speech. But when they do so, they are misguided. Having your right to free speech protected because you are an artist (or a novelist or cartoonist or the like) does not mean that you are protected from severe criticism of your work, or from other consequences, such as a boycott of your work. It does mean that as a general rule you could not be found guilty of hate speech.
It is for this reason that the people offended by Dean Hutton’s work of art would do better to engage with the critique of white privilege contained in the work (one could critique the work, for example, as being derivative or lacking an aesthetic punch), rather than to turn to the courts to have the work branded as hate speech.BACK TO TOP