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.
A majority of South Africans (including academics, politicians and perhaps even a judge or two) seem to have lost their heads – all because of one phrase uttered by a rather greedy and foolish young man. (Am I allowed to mention what that phrase is, seeing that the High Court has declared it “unconstitutional and unlawful”? Let’s just say it involves “Boers” and maybe an Umshini Wami or a knife.)
Little Julius has gotten people so worked up about that phrase – just as he had intended to do – that people’s fears, prejudices, ignorance and hatred is overshadowing their logic and reason. The result is that many people have embarrassed themselves by making statements that are ignorant, uninformed and – in some cases – rather laughable.
Thus, in a radio debate this morning, a respected retired academic argued with me by insisting – wrongly – that the Constitution did indeed ban hate speech. And yesterday Gwede Mantashe – who usually speaks more sense – announced that the ANC will file an application in the Equality Court to complain about the Freedom Front Plus’s (FF+) “prosecute Malema” campaign.
Calm down people! Let us look at the facts and the law.
In The Islamic Unity Convention v IBA judgment, then Deputy Chief Justice Pius Langa reminded us of the importance of freedom of expression as guaranteed in section 16 of the Bill of Rights and stated:
we have recently emerged from a severely restrictive past where expression, especially political and artistic expression, was extensively circumscribed by various legislative enactments. The restrictions that were placed on expression were not only a denial of democracy itself, but also exacerbated the impact of the systemic violations of other fundamental human rights in South Africa. Those restrictions would be incompatible with South Africa’s present commitment to a society based on a “constitutionally protected culture of openness and democracy and universal human rights for South Africans of all ages, classes and colours”
We should not forget to what extent the apartheid state censored us and what disasterous effects this had on our ability to take part in democratic dialogue and contestation. We should also not forget how this censorship undermined our personal freedom and to what extent our ability to decide for ourselves who we were and how we wanted to live were curtailed by the authoritarian state.
However, the Court went on to explain the relationship between section 16(1) of the Constitution, which guarantees freedom of expression and section 16(2), which lists the grounds of unprotected speech – including hate speech. In effect the court reminded us what kinds of speech would not be protected by the freedom of expression clause and why this speech would not be protected and said:
The pluralism and broadmindedness that is central to an open and democratic society can, however, be undermined by speech which seriously threatens democratic pluralism itself… Thus, open and democratic societies permit reasonable proscription of activity and expression that pose a real and substantial threat to such values and to the constitutional order itself.
Section 16 is in two parts. Subsection (1) is concerned with expression that is protected under the Constitution. It is clear that any limitation of this category of expression must satisfy the requirements of the limitations clause to be constitutionally valid. Subsection (2) deals with expression that is specifically excluded from the protection of the right.
How is section 16(2) to be interpreted? The words “[t]he right in subsection (1) does not extend to . . .” imply that the categories of expression enumerated in section 16(2) are not to be regarded as constitutionally protected speech. Section 16(2) therefore defines the boundaries beyond which the right to freedom of expression does not extend. In that sense, the subsection is definitional. Implicit in its provisions is an acknowledgment that certain expression does not deserve constitutional protection because, among other things, it has the potential to impinge adversely on the dignity of others and cause harm….
There is accordingly no bar to the enactment of legislation that prohibits such expression. Any regulation of expression that falls within the categories enumerated in section 16(2) would not be a limitation of the right in section 16.
That is why a statement by a judge or an academic that any speech is unconstitutional is, to be polite, utter nonsense. What the above passage makes clear is that the common law or legislation can regulate speech that constitutes hate speech without falling foul of the guarantee of freedom of expression in section 16 of the Constitution. And this is done – thank you very much – by section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA).
But as I have said many times before, section 10 focuses on speech that is intended to cause harm or be hurtful not to one person – even if that person is a cry-baby like Julius Malema – but rather if it is intended to hurt or harm a group based on their race, sex, sexual orientation or religion.
The FF+ “prosecute Malema” campaign is therefore never, not in a million years, ever, by any magistrate or judge, ever, going to be found to constitute hate speech. This is because Malema is targeted and not a racial group and because the campaign is not intended to harm or hurt Malema’s feelings or to have him killed, merely to have him prosecuted in a court of law. It could never, ever, constitute hate speech to campaign for justice and to campaign for the prosecution of an individual. One would then have to ban any campaign to uphold the Rule of Law and the Constitution, a notion so absurd that I do not know whether I should laugh or cry that this idea was raised by a senior leader of the governing party. Let’s face it, Mantashe made a right real twit of himself by suggesting otherwise.
Really, don’t these people think before they talk? Don’t they at least speak to lawyers? Are they not at least a little bit worried about making fools of themselves before they say such silly things in public?
So calm down. Take a deep breath. Smile. Then start digging to find out how Julius became so rich so fast. Expose details of his lavish lifestyle. Remind everyone every day that Julius has given many different and contradicrtory explanations about his wealth and about his involvement in tenders (in other words he has lied repeatedly to us).
Show how crooked tenders, corruption and influence peddling harm the poor and vulnerable people who have voted for the very party to which Julius belongs. Make use of your freedom of expression guaranteed in section 16 of the Constitution to mock Julius because of his double standards and hypocrisy, and (if you really feel like it) to mock his really bad marks for woodwork and his ostentatious and nouvea riche taste in drink and clothes.
But please, before you talk about hate speech, get your facts and your law straight first.BACK TO TOP