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.
News that the South Gautenteng High Court Acting Judge Leon Halgryn ruled on Friday that use of the words “dubula ibhunu (shoot the boer)” was unconstitutional and unlawful is odd, to say the least. Unfortunately this was an urgent application so the judge did not seem to have given reasons for his judgment. Nevertheless, if the media reports are correct, the judgment does not seem to make much sense.
I am not sure on what basis the “publication” and the “utterance” of the words can be declared unconstitutional. It is true that section 16 of the Bill of Rights states that the right to freedom of expression does not extend to incitement of immenent violence or advocacy of hatred that is based on race, ethinity, gender or religion and that constitutes incitement to cause harm. However, section 16 itself does not ban such words, but merely states that the utterance of such words are not protected speech.
This would mean such speech could be regulated or banned by the legislature and such a ban could not be challenged on the basis that it infiringed on the section 16 protection of freedom of expression. It decidedly does not mean that in the absence of such regulation by the legislature the words are “unconstitutional”. How a particular phrase could ever be declared unconstitutional is beside me. There is no provision in the Bill of Rights that prohibits any particular phrase. If the judge was quoted correctly, he was obviously talking nonsense.
Another question is whether a particular phrase could be declared unlawful by a court. I suspect not. The utterance or publication of some words in certain context could amount to defamation or it could fall foul of section 10 of the Equality Act but that could only be done with reference to the specific context and the facts of a particular case.
Maybe the Acting Judge was relying on the criminal law principle in common law and in terms of the Riotous Assemblies Act which prohibits the incitement of a crime. But then it would have to be shown that an accused “sought to influence the mind of another person towards the commission of a crime” and that would depend on the facts of a particular case and could not be decided in the abstract.
It seems to me bizarre that a court could decide in the abstract in an urgent application that a particular phrase was unconstitutional and unlawful. Surely one will have to decide on a case by case basis whether the utterances of words defamed someone or falls foul of the Equality Act or constitutes incitement to commit a crime.
To hold otherwise would be dangerous, nonsensical and would lead to absurd consequences. What would happen if I write a short story and one of the characters sings “Shoot the Boer”. Would this mean my story when published would be declared “unconstitutional” and “unlawful”?
At the very least it would be good for the judge to present written reasons for this judgment. Based on the available evidence it makes absolutely no sense.BACK TO TOP