Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
14 February 2011

On Bono’s instinct for what is right and wrong

When I was a poor student, squatting in the living room of a two bedroom apartment in Stellenbosch, one of my most prized possessions was a record (those were the days before CD’s, DVD’s or Ipods) of a band called U2. The album was The Joshua Tree and the lead singer was a guy with the strange name of Bono, which admittedly sounds like the name of a clown in a circus – but at least Bono wears cool sunglasses. I played that record over and over again and can still recall some of the lyrics of “Where the Streets Have no Name”, “I Still Haven’t Found What I am Looking For” and “Mother’s of the Disappeared”. (My other prized records included Wie is Bernoldus Niemand which contained the classic Pretoria song, “Snor City”, and Stimela’s “Look, Listen and Decide”.)

Well, now U2 is touring South Africa and Bono is turning out to have a better feel for justice and what the contours of the law might be than a far less talented musician like Steve Hofmeyer (who is famous for doing cover versions of Neil Diamond and for extolling the virtues of Die Blou Bul). In an interview with The Sunday Times Bono compared the singing of “Kill the Boer, Kill the Farmer” to singing rebel songs about the Irish Republican Army. Bono is then quoted as saying:

We sang this and it’s fair to say it’s folk music… as this was the struggle of some people that sang it over some time,” he told the newspaper. But the rocker went on to say such songs shouldn’t be sung in the wrong context.  Would you want to sing that in a certain community? It’s pretty dumb. It’s about where and when you sing those songs. There’s a rule for that kind of music.

Steve Hofmeyer was rather upset by this and, perhaps forgetting the lessons taught to him at the Voortrekkers and Veldskool about not polluting the environment, allegedly threw his U2 concert tickets in the Jukskei River. Hofmeyer wrote on his Facebook page that “Bono is trying to lick the asses of the ANC by attempting to validate hate speech struggle songs by comparing them to Ireland’s songs”.

It turns out that Hofmeyer is talking through his nose and that Bono’s statement perfectly captures the legal position in South Africa regarding utterances that could be construed as hate speech. As I have argued before, it would be constitutionally impermissible to ban such a song outright on the basis that it constitutes hate speech. Section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act states that:

no 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 be hurtful; be harmful or to incite harm; promote or propagate hatred.

Section 12 of the Act also seems to make an exception for “bona fide engagement in artistic creativity, academic and scientific inquiry, fair and accurate reporting in the public interest in accordance with section 16 of the Constitution”. In other words, songs or words that might have constituted hate speech in certain contexts, might not constitute hate speech in other contexts, depending on who utters it, where it is uttered and in what form it is uttered.

This means that what is required to establish that hate speech has occurred is for us to focus on the intention of the person who uttered the alleged hateful words or sang the alleged hateful song. Could it be reasonably construed by a well-informed, thoughtful and objective observer (therefore not Steve Hofmeyer) that the uttering of the words or the singing of the song in a particular context by a particular individual in a particular format demonstrated an intention to harm others because of their race, sex, gender, sexual orientation and the like. 

The question is not whether some people were hurt or felt aggrieved by the singing of the song. It is not even whether some people like Hofmeyer have concluded that the song was sung with the intention to be hurtful to Afrikaners. The question is, objectively speaking, whether given the facts and the context one can reasonably conclude that the person or group who sang the song had the intention to harm or hurt others on the basis of their race.

For example, if the Drakensberg Boys Choir sang “Kill the Boer, Kill the Farmer” at a choir competition in Vienna as part of a medley of struggle songs, no court in its right mind is going to find that the singing of the song in that context constituted hate speech prohibited by section 10 of PEPUDA because those boys could not reasonably be construed as having had the intention to harm others on the basis of their race.  If the song is used as part of a soundtrack of a documentary about the United Democratic Front and the uprising against the apartheid state in the nineteen eighties, one would be hard pressed, once again, to make a finding of hate speech. Neither would the homophobic utterances of a fictional character in Spud constitute hate speech.

Bono’s assertion that it is all about when and where you sing such a song is therefore spot on. If he stops being a musician and an ambassador for World Peace, he might want to consider studying law (but then he won’t be allowed to wear those cool sunglasses to work). He obviously has a better instinct for what is right and wrong and for where the law should draw the line than that polluting musician, Steve Hofmeyer.

Of course, one is entitled to express a dislike for the song – no matter in what context it is sung or performed. One is entitled to boycott a band if one does not like its politics (although one should really not pollute a river – even the Jukskei River – in the process). Maybe there are big Steve Hofmeyer fans who live in Cape Town and wish to boycott U2’s concert here in support of their hero. I would support their boycott one hundred percent – especially if they agree not to throw their tickets in the Liesbeek River but rather to give those tickets to me so that I can make good use of them.

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