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.
The South African Constitution protects freedom of expression in very clear terms. Every South African is guaranteed the right to speak their minds on almost any topic and can say almost anything – even if what one is saying is deeply offensive to others or challenges their most cherished beliefs. One can argue that organised religion is an oppressive presence in our society or even that those people who believe in a god at all are delusional. One can argue that homosexuals will burn in hell or that god will punish women who do not know their place and do not want to serve their husbands diligently and with respect.
This right is, of course, not without its limits. Propaganda for war; incitement of imminent violence; or advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm, are explicitly excluded from protection by the Bill of Rights. The common law also protects the dignity of everyone by allowing an aggrieved person to sue somebody else for defamation. The Constitution and the law also places other limits on free speech by prohibiting anyone from interfering with the functioning of courts and chapter 9 institution and by placing a duty on organs of state to protect the dignity and independence and impartiality of these bodies.
But in reality freedom of expression is a more complex beast than the provisions of the Bill of Rights would suggest. Not all South Africans are tolerant of opinions with which they disagree and often take steps either to prevent a person from expressing his or her views or to try and intimidate a person to ensure that the person refrains form expressing a particular view in future. This can take a physical form, for example, by preventing a politician from speaking at a public gathering. But the silencing also takes many other, more subtle, forms.
In this post I wish to focus on this subtle kind of silencing (knowing full well that intolerance of the opinion of others often take a far more violent form). In our society (like any other), who is provided with a public platform to speak, what one is allowed to say on such a public platforms and who is actually listened to and who is ignored, depends on a complex web of factors.
The race and gender of a speaker, his or her status, position and educational achievements, the economic status of a speaker, whether the speaker lives in a city or a rural area, and whether the speaker uses English or not, can all contribute to whether a person is given a public platform to disseminate his or her ideas. And of course, what a person has to say can either legitimise or delegitimise the speaker and what he or she has to say. In the so called marketplace of ideas “the market” is not neutral. “The market” silences some and amplifies the voices of others.
In this marketplace everyone is not given an equal voice and not all ideas are taken equally seriously. Individuals who challenge the conventional wisdom or “common sense” views of members of the media elite, or criticise the underlying (but often unexamined) assumptions of the various economic and/or political elites in society, will find it very difficult to have their voices heard.
An economist who believes that a market economy is a fundamentally evil system that benefits a few and exploits the majority, who questions the conventional wisdom about the need for (and the unquestioning beneficence of) foreign investment, or who rails against the absurdity of the stock market, will probably not become a media pundit often quoted in the financial press in South Africa.
The political and economic elites are quite effective at policing what can be said in public. Sometimes this can seem like quite a good thing. For example, it has become more difficult to find public platforms from which to make overtly racist or sexist statements. Sometimes this silencing can be highly problematic. The views of rural women, say, or the views of those who criticise popular political leaders, challenge the dominance of patriarchy or the assumed superiority of white Western thought and civilisation are often silenced or (at best) caricatured.
Some of us are fortunate enough to have a voice. I, for example, can write what I like (as Steve Biko might have said) and can publish my thoughts on this Blog. Because I am white and privileged, because I am well educated and relatively conversant in English, because I am for some reason or another viewed as some kind of “expert”, because my views are not considered so dangerous that I am viewed as a threat to the elite consensus, my views are sometimes quoted in the media and (so it seems to me at least) are often taken relatively seriously.
It is therefore striking that almost every time I highlight the failure of some white South Africans to deal with their complicity in our apartheid past or their lingering racial prejudices, many readers of this Blog are incapable of engaging in any constructive or logical manner with the argument that I present. Instead of pointing out why my views might be misguided or presenting an alternative analysis, some readers get so offended that they can only spew vitriol. Your view, they seem to say, may not be expressed. By expressing this view you have forfeited any claim on civility. For such individuals, the only way to respond is to try and kill the messenger.
In apartheid South Africa the “marketplace” would have ensured that my views would not have entered the mainstream. But in our democratic state, it is impossible for those offended to censure these views. The only option open to those who would not want to be confronted by these ideas is then to try and convince themselves that the speaker has no legitimacy. To do that, personal attacks and bizarre but irrelevant assertions about the intellect, credibility or motives of the speaker are all that is left.
The message is clear: “In our view what you are saying may not be said. Your view poses a threat to our sense of self, our continued well-being and belief in our own moral purity, our belief that whites are pure and blameless and that everything that is wrong in our country can be blamed on the ANC.“
A German colleague joked today about how some Germans would like to say: “We can never forgive the Jews for Auschwitz”. When some white South Africans respond so vehemently, so irrationally, so vindictively to any mention of the apartheid past and their complicity in it, it sounds as if they are saying: “Us whites can never forgive black South Africans for apartheid.” This is of course a rather sad state of affairs as it reminds us of how broken and how morally confused many white South Africans are and how incapable they are of dealing with the past. For those white South Africans, the only option is to try and erase the past. (As anyone who can read and wants to understand would have noticed, I talk about some white South Africans, not all white South Africans.)
But we live in a democracy now. There has been fundamental changes to what can and cannot be said and heard in the public space. Although many voices are still not heard, others who would not have been heard now occupy a space in the public square. Those who exercised almost complete control over the public discourse during apartheid cannot do so any longer. When what was not allowed to be said during apartheid is said now, it leads to severe anger and indignation. “How very dare you!” This anger comes from a place of insecurity, moral weakness and an acute and painful awareness of a loss of power to dictate what may and what may not be said.
In my view this anger is to be pitied, rather than feared. It does not come from a position of power, but from a position of fear and resentment. I am reminded of the paintings of Francis Bacon: those open mouthed screams of agony that says so much about the vulnerability of his subjects.BACK TO TOP