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
16 March 2010

Why Malema’s hate speech judgment is wrong

The judgment of magistrate CJ Collis in which she found Julius Malema guilty of hate speech and harassment will probably be cheered on by many South Africans who are sick and tired of the hateful and idiotic utterances of the leader of the ANC Youth League. “Finally old Julius got his come-uppance,” many of us might say. “Finally our legal system has shown Julius a big fat middle finger!”

The problem is, from a legal perspective it is difficult not to conclude that the judgment is wrong. In my opinion it may very well be overturned on appeal. By saying this I am not agreeing with Tim Cohen in Business Day who warned that the judgment implies that one may not say anything rude about anyone. Cohen wrote:

Yet the court seemed to attach little significance to the notion of freedom of speech, and elevated his comments to “hateful” even when Malema was transparently motivated not by hate but by disbelief — a disbelief actually endorsed by the court’s finding. In a sense, this finding is in the same category as the charge against University of Cape Town student Chumani Maxwele, who “waved” at President Jacob Zuma ’s blaring cavalcade. Police ministry spokesman Zweli Mnisi reportedly said that “no person is permitted to use foul language, swear at another individual, as such conduct may lead to promoting hate”.

It is clear from the relevant provisions of the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) that Cohen’s fears are misguided. Hate speech is defined in the Act as words based on one or more of the prohibited grounds, (in other words, words based on race, sex, gender or sexual orientation, say) against any person that could reasonably be construed to demonstrate a clear intention to be hurtful; be harmful or to incite harm; or promote or propagate hatred. Showing the middle finger to the President could never be construed as words based on any of the prohibited grounds such as race, sex, gender and sexual orientation, so it could never be construed as hate speech.

Many people fail to understand that hate speech as defined in PEPUDA requires more than making hurtful or harmful statements about someone. If I say the President is a sex obsessed idiot, or that Helen Zille is a racist madam, it might be rude and it might even be defamatory but it would not constitute hate speech as I would not be saying anything based on Zuma or Zille’s race, sex or sexual orientation.

Having said that, it seems pretty clear to me that the magistrate dropped the ball and applied this provision on hate speech incorrectly when she found him guilty. Remember, Julius Malema had said:

When a woman didn’t enjoy it, she leaves early in the morning. Those who had a nice time will wait until the sun comes out, request breakfast and taxi money. In the morning that lady requested breakfast and taxi money. You don’t ask for taxi money from somebody who raped you.

As the expert witnesses pointed out, such utterances were gender insensitive and trivialised rape. It perpetuated male sexual entitlement and was obviously sexist and would have upset many South Africans – including the survivors of rape. Based on this expert opinion above (with which I agree) Magistrate Collis found that “given the totality of the evidence” the court was satisfied that the words “could reasonably be construed as hurtful, harmful and demeaning to women” and hence constituted hate speech.

The problem is that the definition of hate speech states that words will only constitute hate speech when they can “reasonably be construed to demonstrate a clear intention” to be hurtful or harmful to woman, or black South Africans or gays and lesbians. Given the modest educational achievements of the respondent, his sexist world view and the context in which the words were uttered (at an election rally where Julius was defending Jacob Zuma) it is far from clear that his words could reasonably be construed to demonstrate a clear intention to cause harm to women in general.

Even if the words could be so construed, the magistrate erred by failing to make a finding on this crucial point. She thus never made a finding on whether, objectively determined, Julius could be reasonably suspected of having the intention to harm women in general. By failing to focus on the intention of the respondent, the magistrate did not apply the test for hate speech correctly.

She also found Julius guilty of harassment, which is defined in PEPUDA as “unwanted conduct which is persistent or serious and demeans, humiliates or creates a hostile or intimidating environment or is calculated to induce submission by actual or threatened adverse consequences and which is related to gender or sexual orientation; or a person’s membership or presumed membership of a group identified by one or more of the prohibited grounds or a characteristic associated with such group.”

This provision obviously applies to the conduct of one person against another. What is required is an identifiable victim. One must be behaving in a persistent or serious manner towards another because of their sex or sexual orientation and there must be consequences for the victim before one could be found guilty of harassment. Magistrate Collis found that because the words demeaned and humiliated women in general the utterances constituted harassment. This is obviously wrong as it fails to identify specific victims of the harassment as intended by the Act.

Saying this does not mean that I do not think what Julius said was despicable and that his words perpetuate harmful myths about rape. I am merely saying that perpetuating harmful myths about rape in and of itself does not constitute hate speech as defined in PEPUDA. Similarly, while perpetuating harmful and incorrect myths about black people – by saying black people are intellectually inferior, say, or are predisposed towards corruption – would be despicable and worthy of censure by all right thinking South Africans, it would probably not constitute hate speech.

That is why the judgment is probably wrong. Brace yourself for the gloating when it is overturned on appeal.

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