As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
Afriforum, an organisation that fights for the preservation of white privilege, is threatening to go to court to have the song of a Cape Town based hip-hop collective called Dookoom declared hate speech. The song (deploying Afrikaans in all its exquisite richness) is entitled “Larney, jou poes”. The threat by Afriforum raises several interesting questions – only some of a legal nature.
It is trite to say that racism remains deeply entrenched and widely practiced in South Africa. Some forms of racism are structural in nature, but sadly many “white” South Africans who perpetuate it and benefit from it often deny its existence. (By “white” I mean to refer to those of us who benefit from being perceived by ourselves or by others to be members of the constructed category of “white”)
This denial is probably based on a genuine belief that structural racism does not exist. After all, not everyone understands the direct link between power and racism.
Having no theory (or an impoverished theory) of power and little understanding of how history, social and economic factors and cultural context influence how we experience the world and how we are seared by the words and actions of others, such individuals do not have the intellectual tools to identify injustice in its complex multiplicity.
They do not understand that questions of power – who has it and why; who are able deploy it and to what effect; what is the context in which it is being deployed and to what end; is it being deployed to challenge or to reinforce deeply entrenched patterns of privilege and advantage – loom large when we try to understand what racism is and why some forms of denigration can be racist while other forms can be anti-racist.
For many (but not all) “white” South Africans their racial privilege thus remains comfortingly invisible – much like the air they breathe. When somebody claims “not to see race” I try to give that person the benefit of the doubt and to assume he or she does not have the intellectual tools to realise that such a denial helps many of us “white” South Africans to remain soothingly blind to the structural racism from which we benefit – whether we choose to do so or not.
This does not mean that we are not mired in a cesspool of more crass forms of racist hatred. You only have to visit the comments section of most news websites or the Facebook page of alleged singer Sunette Bridges (the page optimistically refers to her as an “artist”) to know that some “white” South Africans, using their economic and social power (if not always their intellect), regularly indulge in the most hateful forms of racist speech.
If Afriforum were truly concerned about racist hate speech it would, of course, long since have threaten people like Sunette Bridges and some of her ardent followers with court action for alleged hate speech published on her site.
But Afriforum has not done so because it is not concerned about the words or actions of “white” racists. Instead it is concerned about the words and actions of those who criticise “white” racists; of those who challenge “white” privilege; of those who threaten the social status and economic dominance of “white” people who identify themselves as “Afrikaners” (a political term for a certain group of Afrikaans speaking “whites” who strongly identify with a romanticised version of the history of “white” Afrikaans-speakers).
Because of the self-serving hypocrisy inherent in the threat issued by Afriforum against Dookoom, it is tempting to dismiss Afriforum’s threat out of hand. But that would be making the mistake (so commonly made by those who engage in political “debate” in South Africa) of conflating motive with the merits of an argument. Just because Afriforum usually takes up the cudgels in defence of white privilege does not necessarily mean that in this particular case it may not have a legally valid (if possibly an ethically tenuous) point.
To explore whether this is the case, it is important to say a bit more about the song that caused all the trouble. “Larney jou poes” is a hip-hop track, a genre of music that is steeped in anger against the status quo; in aggression; in feelings of alienation and torment. In this case the song’s intent is signalled by the banging beat and industrial-strength synths over which the angry lyrics are rhymed.
Invoking a biblical imagery the song starts as follows: “Farmer Abrahams has many farms / Many farms has farmer Abrahams / I work one of them / And so do you / So let’s go burn them down.” In another verse the political context of the song is made more explicit:
Bra, remember you came here in 1652 / You a skollie too / You were fokken sentenced with a convict crew / You robbed and screwed the natives / Now who’s the savage?
The chorus underlines the anger of the song by repeatedly exclaiming, “Jou poes, my larney”.
I can imagine that this form of artistic expression – displaying a level of originality and talent lacking in many other South African “artists” – would upset many privileged South Africans, especially “white” South Africans who own farms or have family members who own farms.
I might be wrong, but I suspect most people in South Africa won’t like being called a “poes” (and not only because the term is sexist), and won’t like to be told that they are “skollies” and thieves. Nor, I imagine, would many farm owners – whether a “larney” like Deputy President Cyril Ramaphosa, a larney” like Transvaal Agricultural Union President Louis Meintjes, or a “larney” like Julius Malema (before he lost his farm to SARS) – appreciate lyrics of a song that talks about the burning down of farms.
But does it constitute hate speech?
Section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) states that no person “may publish, propagate, advocate or communicate words” based on any prohibited ground like race, sex, gender, sexual orientation, language or culture “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.
Afriforum will only be successful in getting a court to censor the song if it could convince a court that the song targeted a group of people based on their “race”. (Ironically, those who claim to believe that race as a lived reality does not exist and that they do not see it, will therefore not be able to rely on this section). In addition, it will have to show that a reasonable person (a person who has an understanding of racism and how power works, is not too thin-skinned and self-righteous and thus not your average member of Afriforum) would believe that the song was intended to hurt or harm a group of people based on their race.
The High Court has not interpreted this section contextually as it was supposed to do. Neither has it interpreted the section with reference to the link between racism and power. It was for this reason (much criticised by legal academics) that it found against Julius Malema in the Dubul’ ibhunu judgment. As the case was never appealed, we do not have the benefit of a more informed and nuanced analysis of the hate speech provisions of PEPUDA by the Constitutional Court.
Given the narrow and a-contextual interpretation of section 10 provided by the High Court, I would have to assume for the moment that Afriforum would be able to convince a court that the relevant factors existed and that in terms of section 10 of PEPUDA the song constitutes hate speech.
But because these are not the words of a politician shouted at a political rally, but words contained in a work of art, that would not be the end of the matter This is so because section 12 of PEPUDA excludes “bona fide engagement in artistic creativity” from the hate speech prohibition in section 10.
Anyone who watches the video and listens to the (very angry but very clever) lyrics of “Larney, jou poes” would agree that this song is indeed a bona fide engagement in artistic creativity. This means that it is difficult to see how a court could find that this song constitutes hate speech. Just because a work of art is upsetting to a section of the population (as art often is) does not mean that it can be censored on the basis that it constitute hate speech.
Of course, some of the same people who shouted “freedom of speech!” when people complained about the implicit racism in the painting of Brett Murray’s “The Spear”, would now demand that the song be banned. Similarly, some of the same people who demanded that “The Spear” be banned will now champion this song and vehemently oppose it being censored.
But, sadly, not many South Africans seem to have the ability to be consistent or to take positions not based on the person involved in a case but rather based on the applicable principle or legal rule. This inability to be principled is sad, but also so tediously predictable that nothing else need to be said about it.
Far more interesting would be to engage in a debate about the merits of the song.
Is it a brilliantly angry and clever hip-hop track or mediocre at best? Does it express a profound truth about the injustice of capitalism and white privilege or is it a cheap and uninteresting form of sloganeering? Will it help to conscientise farmworkers about their exploitation at the hands of many (but not all) black and white farm owners or will its bristling anger and anarchic spirit alienate the very people it aims to politicise? Does it express a political truth that too many people are afraid to verbalise or is its artistic merit diminished by prejudiced generalisations? What’s up with the misogyny of certain hip-hop artists?
Works of art are meant to trouble, provoke, disturb, anger, inspire or move those who are exposed to them.
It is therefore a pity that members of Afriforum either do not have the intellectual tools to engage in such a vigorous debate, or are too scared that they will lose the debate if they do, to engage in it. Instead they are threatening to approach a court to help it censor a work of art because the work of art troubles and disturbs them.BACK TO TOP