Quote of the week

Mr Zuma is no ordinary litigant. He is the former President of the Republic, who remains a public figure and continues to wield significant political influence, while acting as an example to his supporters… He has a great deal of power to incite others to similarly defy court orders because his actions and any consequences, or lack thereof, are being closely observed by the public. If his conduct is met with impunity, he will do significant damage to the rule of law. As this Court noted in Mamabolo, “[n]o one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law”. Mr Zuma is subject to the laws of the Republic. No person enjoys exclusion or exemption from the sovereignty of our laws… It would be antithetical to the value of accountability if those who once held high office are not bound by the law.

Khampepe j
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18
13 September 2010

WWYHD: “What would you have done?”

One of the wonders of living in a democracy is that one soon finds out that there are quite a few idiots about (not all of them politicians) and that it is ok for people to behave like idiots as long as they do not cause too much harm to others. Usually the world as we know it does not come to an end just because some fool somewhere has decided to do something really daft to attract attention or to demonstrate that he (it is always a he is it not?) can be hateful and bigoted in a very special way.

One is free to phone radio talk shows to make cringe worthy statements demonstrating one’s ignorance and superstition or  to say racist, sexist and homophobic things – even if your name is not Julius Malema. One can dress up in horns and a tight blue jersey and paint one’s face blue to show loyalty to that hopeless rugby team called the Blue Bulls. One can appoint an all male cabinet and think no one will notice and one can even – and now I am pushing it – believe that the legal advice provided to the Minister of Defence by her fugitive-from-justice advisor is legally sound.

But when should the courts intervene to stop individuals from making fools of themselves? On what basis should a judge decide that the actions of an individual will cause such harm to others that he or she should be stopped and should be interdicted from going through with his or her planned actions? Should a judge prevent someone from communicating his or her displeasure about a topical issue merely because this would be hurtful to a certain section of the population?

These questions came to mind when I read in the media that Judge Sita Kolbe in the South Gauteng High Court issued an interdict on Friday against a planned Bible burning by businessman and law student Mohammed Vawda.  Vawda said his plan had nothing to do with Christianity; instead, he said he planned the burning because he was angry about Florida pastor Terry Jones’s plan to burn Korans over the weekend.

One could argue that this judgment is not surprising, given the provision of section 16(2)(c) in the Constitution as well as the content of section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA). Section 16(2)(c) of the Constitution states that freedom of expression does not extend to advocacy of hatred that is based on race, ethnicity, gender or religion and that constitutes incitement to cause harm.

This means that the burning of Bibles (or the Koran) would not constitute constitutionally protected speech if it advocated hatred and constituted incitement to cause harm. The Constitutional Court has not yet given a conclusive answer to what this might mean. Canadian case law suggests that the harm should be defined more broadly than physical harm. Acts or words that advocate hatred against a group based on their religion and that constitute incitement to cause serious emotional distress would also qualify as hate speech and would not be constitutionally protected.

Would the burning of Bibles or the Koran constitute incitement to cause serious emotional distress?  Well, it probably would cause serious emotional distress to devout Christians or Muslims if Bibles or Korans are burnt, but I am not so sure that one would be able to argue that the burning of these books would in itself constitute advocacy of hatred of people based on their religious beliefs. Such actions would be mean-spirited and would clearly be intended to hurt the seriously religious. But would one be able to interpret such a pathetic act as advocating hatred against Muslims or Christians? Would it not “merely” be a spiteful attempt to upset Christians (or Muslims)?

If one thought that it could be interpreted as advocating hatred, then one would be entitled to believe that the interdict would have been granted validly. If one thought that it could not, then one might have to conclude that the judge was wrong to grant the interdict.

But even then, this would not be the end of the matter as section 10 of PEPUDA prohibits any person from publishing, advocating or communicating words that could reasonably be construed to demonstrate a clear intention to be hurtful, to be harmful or to incite harm against individuals or groups, inter alia, because of their religion.

Here the definition is far broader than the hate speech provision in the Constitution – except that it seems only to include words and not other kinds of communication such as the burning of Bibles or Korans. One would have to interpret the phrase “advocating or communicating words” so broadly as to include actions – such as the burning of Bibles – where no words are spoken at all but where some communication takes place that signals an intention to hurt others on the basis of their religion.

I am not so sure that the phrase could reasonable be interpreted in such a broad manner. If it could be interpreted so broadly, then it would be clear that the burning of Bibles (or Korans) – a rather spiteful and childish act intended to upset others – would constitute hate speech in terms of PEPUDA and the court would have been correct to grant the interdict. If, however, one interprets words more narrowly to include only words (what a lawyerly phrase that is!) then section 10 would not apply to the burning of Bibles (or Korans) and the granting of the interdict might have been a mistake.

Unless, perhaps, the burning of the Bibles (or the Korans) would have incited people to commit violence. Could a court justifiably have granted an interdict because it was worried that the burning of Bibles or copies of the Koran would have been so provocative that it would have created a serious threat of violence by those offended by the burning of what they consider to be a holy book?

Would this have been a responsible and correct approach or would it have been rather problematic because it would have endorsed the religious intolerance of those who are so easily offended that they would resort to violence every time somebody does something nasty or hurtful relating to their religion? Should religious people not lighten up a bit and chill out and if they do not, should the court take this into account when muzzling free expression?

If we talk about a respect for difference and tolerance of religious diversity, does this not mean that religious believers must also show a tolerance and a respect for diversity towards those who wish to provoke them. I for one, will not rush out to buy a gun or gather my matches and necklaces to go out and kill Christians just because they rock up at my house to protest and to tell me that I am a pervert and that I will burn in hell.

In fact, I will blow them kisses and wave nicely – “one-two-three clutch pearls” – before smiling and getting ready for another wave – “one-two-three clutch pearls”(one can always learn something about how to behave in stressful situations by studying the Queen – of England).

But what is to be done when others are not as tolerant as oneself? Should a court take cognisance of that fact or should the court stand firm against all kinds of intolerance? For once I am not sure what I would have done in this case.  Should a judge prohibit the burning of Korans and Bibles because of the obvious intention behind such a move merely to hurt (rather than to communicate a political or religious message)? Or should a judge allow such a burning on the basis that religious believers should grow up and should learn to embrace the values of democratic tolerance?

WWYHD? (What would you have done?)

2015 Constitutionally Speaking | website created by Idea in a Forest