An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
In 2004, Senator John Kerry was ridiculed during his presidential campaign against George W Bush for explaining his stance on a Bill (to the tune of $87 billion) aimed at funding the Iraq invasion in the following terms: “I actually did vote for the $87 billion before I voted against it.”
The ANC has the same problem: it seems to have been against the chanting of the “shoot the boer” slogan, before it was in favour of it. Who knows, someday in the future — when it is not in need of detracting attention from tenderpreneurial corruption, service delivery failures, an absent and ethically challenged President, and the odd trip by a Minister to visit his drug trafficking girlfriend in a Swiss jail — it might be against the singing of the chant again.
I have written before that I believe the hate speech provision in the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) is over-broad and hence unconstitutional. I mean, how absurd that our law prohibits any person from saying anything that “could reasonably be construed to demonstrate a clear intention to be hurtful” to someone else on the basis of that persons race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.
According to this definition, large chunks of Spud might well constitute hate speech. Almost every comedian working in South Africa might well be found guilty of hate speech for something they routinely say at a comedy gig. This is because much of the humour might well reasonably be construed as having the intention to be hurtful to a designated group: whites; gays; jews; christians; married men; women; black people, you name it.
It is one thing to object to comedy because one thinks it is unfunny, reactionary or infused with prejudice. It is an entirely different thing to invoke the law to ban such comedy because it constitutes hate speech. It’s utterly ridiculous. The sooner this section is declared unconstitutional the better.
When we do not like somebody saying something, our best bet is to express our displeasure. If we think Alan Dershowitz is a raving bigot, surely its better to say why we think so, to argue why we think it best to distance ourselves from his pro-torture and pro-collective punishment views, than it would have been to try and prosecute Dershowitz for hate speech.
Although Dershowitz does not have a right (as he seems to think) to spread his hateful message from any platform he wishes (some of us might not wish to extend our hospitality to him and he cannot insist that we invite him to our homes or to our book clubs to talk to our family and friends), he should be free to use those platforms provided to him, to say what he pleases. Similarly, some of us might not want to encourage Julius Malema by providing him with a platform to speak, but trying to shut him up through hate speech litigation may well be counter-productive.
Strangely, Julius Malema’s lawyers are not attacking the constitutionality of the hate speech provision in their defence of Malema in the current case about whether he should be allowed to chant: “Kill the Boer”. By the way, I agree with Jan-Jan Joubert who wrote in Rapport yesterday that this case is completely counter-productive. It provides Julius Malema with a platform from which he can act as a leader of the “revolution” and can thus enhance his reputation and image. This helps us forget about the things that really make him an objectionable character, namely that he is a tenderpreneur who has mysteriously become rich while he masquerades as a man of the people who cares for the poor.
Besides, even if the court rules against him, it will only do so relating to the particular instance where he chanted the offending song (as context must be taken into account when determining whether hate speech occurred) and the court will not be able to ban Malema or the ANC from ever singing the song again in future — no matter what the context.
The other aspect about this case that is perplexing is that the ANC is defending Malema at all. After all, the ANC used to have a different view on this song. In the case of Freedom Front v South African Human Rights Commission, which dealt with the chanting of this song at Peter Mokaba’s funeral, the ANC distanced itself from this chant. Part of the ANC’s defence in that case was that it could not be held responsible for the singing of the chant by the crowd because ANC leaders immediately put a stop to the chant once the crowd started singing it. The ANC also referred to a speech by former President Thabo Mbeki, during which he stated that “nobody, whoever, they are, has the right to call for the killing of farmers or boers….”
The SAHRC thus found that there was no evidence before it that the ANC encouraged either directly or indirectly the chanting of this slogan and that the ANC had clearly disassociated itself from this slogan. But times have changed. Now, almost ten years later, the ANC has stopped disassociating itself from this chant (maybe because Julius Malema is involved or maybe because it needs such slogans in the absence of other real governance achievements).
A bit like John Kerry, the ANC was against the chant before it was in favour of it.
I can understand that the ANC is now suddenly for this chant — even though it used to be against it. After all, it draws attention away from the important issues and help us forget that the ANC is not doing so well at governing as we had hoped (the police brutality, service delivery failures, racial discrimination, hunger, homelessness). It draws attention to the revolutionary history of the ANC, which helps to mask failures of governance. No wonder the ANC has brought out the big guns to defend the song: It is easier to defend the song (which it used to be against) than to defend its record in government.
Pity Afriforum never thought about that.BACK TO TOP