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.
Durban is being engulfed in Afrophobic/xenophobic violence after King Goodwill Zwelithini – in a speech delivered in March – fanned the hatred and envy among some South Africans towards black foreigners living in our country. Is the King guilty of hate speech and if so, what can be done to hold him accountable for his dangerous and reckless utterances?
Many people have forgotten that until the mid-nineteen nineties most liberation leaders viewed King Goodwill Zwelithini as an apartheid stooge aligned with the then National Party government’s Bantustan policy. In the eyes of progressive activists and organisations, his close relationship with Inkatha (which, at the time, was involved in a bloody proxy war with the ANC and the UDF, funded by apartheid securocrats) had turned him into someone widely viewed as a sell-out, as someone opposed to the ANC-led liberation of South Africa.
But in 1994 democracy came to South Africa and the ANC was elected into government. In a tactically brilliant move the national government took over the payment of traditional leaders to prevent the Inkatha controlled provincial government in KwaZulu-Natal from exerting control over the King and other traditional leaders aligned with Inkatha.
(Of course, before 1994 traditional leaders were paid by the apartheid state. After the passing of the Bantu Authorities Act in 1951, they became administrative agents of the apartheid state in the areas designated as “homelands” and many traditional leaders who refused to do the apartheid regime’s dirty work, were ousted by the National Party government.)
With the help of further skilful negotiations – facilitated by President Jacob Zuma – King Zwelithini (perhaps with one eye to his financial well-being?) became “non-aligned” almost overnight. This contributed immensely to the peace process in KwaZulu-Natal and helped to bring the bloody war that was still raging between Inkatha and the ANC in that province to an end.
When you turn the clock forward to March 2015 and listen to King Zwelithini’s speech to the Pongolo community, you still hear the sentiments of the same conservative patriarch who, before 1994, had aligned himself closely with Inkatha, an ethnic-based organisation that vehemently opposed the (then) progressive pan-Africanist policies of the ANC. In his disastrous, ignorant and (it must be said) bigoted speech in March the King said (see video above):
[W]e talk of people [South Africans] who do not want to listen, who do not want to work, who are thieves, child rapists and house breakers…. When foreigners look at them, they will say let us exploit the nation of idiots. As I speak you find their unsightly goods hanging all over our shops, they dirty our streets. We cannot even recognise which shop is which, there are foreigners everywhere. I know it is hard for other politicians to challenge this because they are after their votes. Please forgive me but this is my responsibility, I must talk, I cannot wait for five years to say this. As King of the Zulu Nation… I will not keep quiet when our country is led by people who have no opinion. It is time to say something. I ask our government to help us to fix our own problems, help us find our own solutions. We ask foreign nationals to pack their belongings and go back to their countries (loud cheers).
The King later lambasted the media for “choosing to deliberately distort what was an innocent outcry against crime and destruction of property”. But if you listen to the audio of his speech, it is clear that the King’s words targeted all foreign nationals (although, one could argue, in the context of his words he was only referring to black foreigner nationals). The King was therefore not truthful when he later claimed his speech was a general outcry “against crime and destruction of property”.
In his speech the King identified what he perceived to be the problem (“lazy” South Africans; foreigners “dirtying our streets”) and proposed a way to “fix” the problem: To have all foreigners (whether legally documented or not, whether law-abiding or not; whether refugees fleeing wars or not) pack their belongings and go back to their own countries.
He further suggested that he was different from other politicians who are democratically elected and rely on “their votes”. Instead he was another kind of politician who did not have to rely on votes (given that he is not elected at all and has no democratic mandate to worry about). He could therefore suggest what our government leaders could not suggest or were too cowardly to suggest, namely that all black foreigners must leave South Africa and must be “assisted” to do so.
Because a traditional leader of the highest rank uttered the words, some might argue that it would be disrespectful of traditional culture and mistaken (especially for a white person like myself) to criticise the King or to suggest that he could be found guilty of hate speech in an Equality Court.
In a constitutional monarchy in which a monarch merely fulfils a symbolic and ceremonial role, this argument might have held water. But when that monarch sees himself as a politician (as King Zwelithini’s speech suggests he does) and makes highly controversial and inflammatory statements, this argument cannot possibly hold.
To argue otherwise would be to elevate King Zwelithini above all criticism and above the law. But this is not Swaziland or Jordan and we do not live in an absolute monarchy. Instead we live in a constitutional democracy in which section 1 of the Constitution enshrines the Rule of Law as one of the founding values of our democracy. This means that everyone – regardless of title or position – must be subject to the same laws and can and should be judged in terms of the same laws applied in the same manner.
Section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act (also known as the Equality Act) prohibits any person (and in legal terms the King ís a person) from publishing, propagating, advocating or communicating words directed against another person based, amongst others, on that other person’s race, sex, gender, sexual orientation or foreign nationality, if those words:
could reasonably be construed to demonstrate a clear intention to be hurtful; be harmful or to incite harm; [or] promote or propagate hatred.
Section 12 of the same Act also prohibits any person from disseminating or broadcasting any information “that could reasonably be construed or reasonably be understood to demonstrate a clear intention to unfairly discriminate against any person”.
Does the King’s Afrophobic/xenophobic statement rise to the level of hate speech as defined in the Equality Act? The Act gives effect to the anti-discrimination injunction contained in the Constitution and its meaning must be interpreted in the light of the Constitution and the values enshrined in it. As is often the case with constitutional matters, context is all-important when determining whether speech rises to the level of hate speech (something that right-winger white South Africans often fail to grasp).
What is the context in which the King made his statement? As the Constitutional Court stated in its judgment of Khosa and Others v Minister of Social Development and Others, foreigners (even those who are permanent residents and thus legally entitled to almost all the same rights as citizens) are particularly vulnerable. As Justice Mokgoro stated:
foreign citizens are a minority in all countries, and have little political muscle… [C]itizenship is a personal attribute which is difficult to change… It is also true… that in the South African context [before 1994] individuals were deprived of rights or benefits ostensibly on the basis of citizenship, but in reality in circumstances where citizenship was governed by race.”
The remarks of the King were made to members of the Pongolo community during a “moral regeneration event”. The community members can be heard cheering loudly after the King said that “foreign nationals” should “pack their belongings and go back to their countries”. Moreover the King is an important leader in the region (albeit not one with a democratic mandate) and framed his statement in terms of “necessary truths” which other politicians were too scared to utter. Lastly, the King signalled that he knew the statement was problematic as he prefaces it by stating “please forgive me”.
In terms of the Equality Act it is not necessary to demonstrate that the words of the King in fact led to (or contributed to) the Afrophobic/xenophobic attacks around Durban, attacks which have already resulted in the killing of at least 5 foreigners.
All that must be shown is that a reasonable observer would conclude – looking at the context – that the King’s words could be interpreted to have had the intention to be hurtful; be harmful or to incite harm; or to promote or propagate hatred against foreigners.
As I have argued before, section 10 of the Equality Act may be unconstitutional as it casts the net very wide and limits speech that should be constitutionally protected. But until the section is constitutionally challenged, it remains in operation.
Given the context within which the words were uttered it is difficult to avoid the conclusion that the King would be found guilty of hate speech if charged. At the very least a reasonable person may conclude that the words of the King could be construed as having had the intention of being harmful to foreigners in that it may, at the very least, have been intended to force the government to expel all (black) foreigners – whether legally residing in South Africa or not – from the country.
Perhaps progressive activists who still remember the days before 1994 when the King was viewed in many circles as an anti-ANC Bantustan leader, would be bold enough to approach the Equality Court with a view to have the King found guilty of hate speech.
If the relevant judge finds the King guilty of hate speech, said judge may even be tempted to order that the King (as punishment) forfeit all public benefits (including the R50 million contributed to his household) for a period of one or two years. After all, there are some evidence that while the King may not take kindly to criticism from politicians he may well be more willing to change his position if he believes that his financial livelihood was being threatened.BACK TO TOP