Quote of the week

Remedial or restitutionary equality are not in themselves a deviation from, or invasive of, the right to equality guaranteed by the Constitution. They are not “reverse discrimination” or “positive discrimination” … They are integral to the reach of our equality protection… Equality before the law protection in section 9(1) and measures to promote equality in section 9(2) are both necessary and mutually reinforcing but may sometimes serve distinguishable purposes.. However, what is clear is that our Constitution and in particular section 9 thereof, read as a whole, embraces for good reason a substantive conception of equality inclusive of measures to redress existing inequality. Absent a positive commitment progressively to eradicate socially constructed barriers to equality and to root out systematic or institutionalised under-privilege, the constitutional promise of equality before the law and its equal protection and benefit must, in the context of our country, ring hollow.

Moseneke DCJ
Minister of Finance and Other v Van Heerden (CCT 63/03) [2004] ZACC 3
18 January 2024

On David Teeger, Cricket SA and the wrongheaded freedom of speech arguments made in his defence

What the Teeger case illustrates is just how difficult it is to devise (and consistently apply) a clear set of free speech principles to ensure the fair and consistent regulation of controversial statements made by members and captains of national sporting teams in accordance with democratic values of dignity, freedom and equality.

The decision by Cricket South Africa (CSA) to relieve David Teeger of his captaincy of the South African Under-19 cricket team, ostensibly because of a risk that protests about the Israeli war on Gaza could “result in conflict or even violence” at the Under-19 World Cup tournament starting on Friday has been widely (but wrongly) condemned as a flagrant and outrageous breach of Mr Teeger’s right to freedom of expression.

Controversy erupted late last year after Teeger – then still a schoolboy – in off-the-cuff remarks at the Jewish Achiever Awards ceremony dedicated his “Rising Star” award to “the state of Israel and to every single soldier fighting so that we can live and thrive in the diaspora”, saying that the “true rising stars are the young soldiers in Israel”.

Wim Trengove, an independent arbiter appointed by CSA to deal with complaints made against Mr Teeger,later found that Mr Teeger’s statements were not in breach of the relevant provisions of the CSA and Lions Codes of Conduct that prohibits cricketers – among others – from making statements “that are detrimental to the game of cricket in general”, notably because the remarks were not made on a “cricket platform” and thus did not purport “to associate and align the game of cricket with a divisive cause”.

I am rather sceptical about the claim by CSA that Teeger was relieved of the captaincy because of concerns about security at the Under-19 World Cup tournament, and am willing to assume (without making a definitive claim) that Mr Teeger was in fact removed as captain because of his controversial statements in support of Israel and its soldiers fighting in Gaza, and thus that freedom of expression does come into play in this case.

But while CSA deserves criticism for the manner in which it has handled the matter, many of those who criticised CSA’s decision on free speech grounds entirely missed the point, often by making sweeping claims about freedom of expression whose consistent application they themselves could not possibly support – although some might very well not realise how flawed their reasoning is.

What this case illustrates is just how difficult it is to devise (and consistently apply) a clear set of free speech principles to ensure the fair and consistent regulation of controversial statements made by members and captains of national sporting teams in accordance with democratic values of dignity, freedom and equality (similar issues also arise in the workplace.)

Members of national sporting teams are usually required to abide by a code of conduct that invariably places limits on what they can and cannot say and do, thus limiting their right to freedom of expression. Any restrictions on speech imposed by such a code as well as the manner in which the code is enforced must also be constitutionally compliant.

In practical terms this means that such restrictions must be reasonable and justifiable, weighing up the importance of the purpose of the restriction against the seriousness of the limitation. There must also be a rational connection between the limitation and its purpose. Moreover, where restrictions on speech are overbroad, the code (or a specific application of the code) might not pass constitutional muster.

Such codes often contain entirely uncontroversial general clauses prohibiting players, for example, from saying or doing anything that would bring the sport or the team into disrepute. It is the application of such clauses that creates difficulties.

From this, it must be clear that claims that members of national sporting teams have (or should have) an absolute right to say what they wished as long as the speech did not fall foul of the prohibition on hate speech (as some have claimed with regards to Mr Teeger), is obvious nonsense, both as a matter of constitutional law and as a matter of common sense.

Let me provide a few examples to illustrate my point.

A Springbok rugby captain who calls the Hamas militants who – on 7 October 2023 – killed Israeli civilians, including children, “true heroes”; expresses admiration for his heroes, Adolf Hitler or HF Verwoerd; or is caught on video using the “k” word with reference to the president of the country or the leader of an opposition party, would – in my view – rightly be in trouble. Removing him as captain (and as a team member) in line with the relevant code of conduct would constitute an entirely permissible limitation on his right to freedom of expression.

As a citizen, the specific rugby player would continue to have a right to express these views, but as a captain of the Springboks – representing the sport of rugby, the team, and the entire nation – he would not.

On the other extreme are those who argue that there is no place for politics in sport and that it would (or should) be entirely permissible to prohibit members of national sporting teams from doing or saying anything “political” in public.

This view, too, is nothing more than nonsense on stilts, not only because such a sweeping prohibition would unjustifiably limit the right to freedom of expression, but also because national sport is political and it is therefore impossible to maintain an absolute separation between sport and politics.

Any South African who had paid any attention to the Springbok World Cup campaign would be hard-pressed to disagree with this claim.

The assessment of whether a specific statement or act of a captain or other member of a national sporting team had brought the sport or team into disrepute, taking into account freedom of expression concerns, would often be difficult to make. How an individual viewed the particular statement or conduct may well influence their view on whether action against the individual would be warranted or not.

Individuals with a benevolent view of what was said or done would be more likely to claim that action taken against the captain or other member of a national sporting team constituted an outrageous breach of the sportsperson’s right to freedom of expression.

This is even more so because individuals defending an impugned statement with which they agree or at least do not find shocking or unconscionable, often make abstract claims about a breach of the right to freedom of expression to avoid having to defend the objectionable statement itself. By doing so, they attempt to avoid having to engage in the politics/ethics of the statement.

One of the benefits of playing the freedom of expression card is that it allows one to defend shocking or highly unpopular statements with which one has sympathy without having to admit to it.

This is why it would often be unhelpful to use (or exclusively rely on) a freedom of expression framework to discuss or assess controversies sparked by the kind of statement made by David Teeger.

If we assume that Mr Teeger was relieved of his captaincy of South Africa’s Under-19 cricket team, at least in part because he praised “every single soldier” of the Israeli army fighting in the war on the Palestinians in Gaza, it would be impossible to take a position on this decision, so it seems to me, without reference to one’s own view of the opinion and of what is happening in Gaza, and without engaging with the factors of the specific case.

In his arbitration award in favour of Mr Teeger, Wim Trengove does engage with some of the relevant factors which must have influenced his decision. These include: That Mr Teeger was a schoolboy at the time; that the statements were made off-the-cuff and in good faith at a private event unrelated to cricket; and that many across the globe – including the governments of the US and the UK – “support Israel in its conduct in Gaza as being in legitimate self-defence”. (He could have added that the remarks were made a mere two weeks after the Hamas attack, when the full scale of the horror unleashed on Palestinians in Gaza was not yet widely known.)

But this is where things get tricky. While acknowledging that some might find Mr Teeger’s statements “offensive”, Trengove concludes that these remain protected because a “minority opinion, sincerely held and honestly expressed on an issue of high public interest, but entirely unrelated to cricket, is not detrimental to the game of cricket in the eyes of those who respect Mr Teeger’s right to freedom of expression”.

In my view, as a general statement of principle, this cannot be right. This is so because it seems obvious to me that the expression of some opinions on issues of high public interest by members of a national sporting team, even if sincerely held and honestly expressed, would be detrimental to the game of cricket in the eyes of those who respect the right to freedom of expression.

Would the expression of an opinion celebrating the killing of Israeli civilians by Hamas militants not be detrimental to the game of cricket? Lambasting affirmative action as “reverse discrimination”, or claiming that a white genocide was unfolding in South Africa? Praising the Ugandan government for taking decisive action against “perverted homosexuals”? Repeating Operation Dudula’s xenophobic talking points?

Surely not. The reason being that these opinions are beyond the pale; they shock the conscience, show a lack of basic decency and humanity, and are potentially profoundly harmful. (Of course, if you happen to be a rabid homophobe, racist or xenophobe, or deeply anti-Semitic – or even if you are not – you might disagree with me on this.)

I would therefore argue that the principle enunciated above could only apply to sincerely held and honestly expressed opinions on issues of high public interest, when those opinions, even when deeply offensive to others, are viewed in the particular society as being within the range of opinions on which reasonable people could differ.

As things stand now, my own view on the Israeli war on Gaza is that blind support for the Israeli army and its soldiers (which would signal support for the commissioning of war crimes and, most likely, genocide) could no longer be said to fall within the range of opinions on which reasonable people in South Africa could differ.

For this reason I contend that it would be entirely permissible for a sporting body to remove any member of a national sporting team who now expresses such a view from the team as the statements in all likelihood would bring the sport, the team and the country into disrepute.

Some would no doubt vehemently disagree with me on the latter point. This is to be expected. While some might be tempted to frame their disagreement as being exclusively about freedom of expression and its limits, they would be mistaken.

This is so because when we argue about the scope and content of free expression, we mostly also argue about our different views about the content of that speech.

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