By Daniela Ellerbeck, Legal Advisor for FOR SA

The controversial area of hate speech remains highly topical, with Parliament having agreed to hold over passing the Prevention of Hate Crimes and Hate Speech Bill until the new Parliament sits after the May elections.  It is very important to keep abreast of developments in this fast-moving field because every time the definition of hate speech is extended beyond section 16(2)(c) of the Constitution, the foundational democratic right to freedom of speech is limited. 

In order to protect this very freedom, the Constitution places narrow limitations on the right to free speech, only prohibiting speech which amounts to propaganda for war (section 16(2)(a)); incitement of imminent violence (section 16(2)(b)); or hate speech, which is narrowly defined as the advocacy of hatred on certain grounds, which constitutes an incitement to cause harm (section 16(2)(c)).  

The problem is that this constitutional definition of hate speech has been broadened by legislation and some court decisions, with the result that there is now legal uncertainty. 

Existing laws dealing with hate speech

Currently in South Africa, there are three (3) laws dealing with hate speech, which is part of the reason why there has been such opposition to a further Hate Speech Bill by Parliament.

As already mentioned, the Constitution prohibits hate speech, but has a narrow definition of what hate speech is. The Equality Act, 2000 (known as PEPUDA) broadened the definition of hate speech by defining it (in section 10) as speech that could reasonably be construed to demonstrate a clear intention to be hurtful and harmful (or to incite harm) and to promote or propagate hatred. The penalties for being found guilty of hate speech in terms of the Equality Act, are of a civil nature and include (amongst others) offering an apology, a prohibitive interdict, or the payment of compensation to an appropriate body or organisation.

However, there is also a common law action of crimen iniuria, where a person can be charged with a crime for willfully and seriously injuring someone’s dignity.  Upon a finding of guilt, the Court can order the convicted person to pay a fine or serve a prison sentence.  This crime – where hate speech can potentially land you in jail – came to the fore in 2016 and 2017 with the convictions of Penny Sparrow and Vicky Momberg respectively. Both were found guilty of crimen iniuria for making racists statements.  In the case of Sparrow, she was fined R5 000,00 and sentenced to two years’ imprisonment, suspended for five years. In addition, she was found guilty of hate speech under the Equality Act and ordered to pay R150 000,00 in compensation to the Oliver and Adelaide Tambo Trust.  In the case of Momberg, she was sentenced to three years’ imprisonment, of which one year was suspended. (Momberg’s case is currently on appeal to a higher court). 

However, there appears to be inconsistency in the way that the courts are ruling on hate speech cases.  Both Sparrow and Momberg’s speech was undoubtedly racist and derogatory in nature, but neither incited violence.  By contrast, earlier this year the South African Human Rights Commission (SAHRC) decided that Julius Malema’s comments (that he was “not calling for the slaughtering of white people, at least for now”) were not hate speech.  This controversial decision was based on the fact that the SAHRC did not regard Malema’s incitement as incitement to “imminent” violence as per section 16(2)(c) of the Constitution, or foreseen at the time when the utterances were made. Moreover, the SAHRC said that, viewed in its context, the statement deals with the subject matter of land dispossession and redistribution, and is not aimed at inciting harm to white people.

In another case in 2017, the Johannesburg High Court (sitting as an Equality Court) considered whether Bongani Masuku’s alleged anti-Semitic statements amounted to hate speech in terms of the Equality Act. The Court found that the statements were “hurtful; harmful, incited harm and propagated hatred” and Masuku was ordered to tender an unconditional apology to the Jewish community. Masuku subsequently appealed to the Supreme Court of Appeal (SCA). The SCA overturned the High Court’s decision in December 2018, because it found that Masuku’s speech had nothing to do with Jews. Instead, it was a political speech focused against supporters of the State of Israel. It said that nothing Masuku did or said, qualified as hate speech in terms of the Constitution, however hurtful or distasteful they might seem.  Importantly, in its judgment the SCA said there is cause for concern that the definition of hate speech in the Equality Act is broader than the definition of hate speech in the Constitution. For that reason, the SCA decided Masuku’s case under the Constitution and found that “a hostile statement is not necessarily hateful in the sense envisaged under s 16(2)(c) of the Constitution”. Likewise, “the fact that a particular expression may be hurtful of people’s feelings, or wounding, distasteful, politically inflammatory or downright offensive, does not exclude it from protection”.

In another 2017 case, Johannesburg High Court (again sitting as an Equality Court) found that journalist Jon Qwelane’s article in the Sunday Sun newspaper titled “Call me names – but gay is not okay”, amounted to hate speech in terms of the Equality Act.  According to the Court, the offending statements (made against the LGBT community) were “hurtful; harmful, incited harm and propagated hatred”.  As a result, Qwelane was ordered to unconditionally apologise and the case was also referred to the police for further investigation in terms of the Equality Act. Qwelane’s case is currently on appeal to the SCA in Bloemfontein, where one of the arguments is that the Equality Act’s definition of hate speech is unconstitutional, because it is wider than s 16(2)(c) of the Constitution.

What can (and can’t) you say?

In the absence of a definitive answer from the Constitutional Court on this issue, the immediate answer probably lies in two very important comments the SCA has made in its judgments on hate speech last year:

In June 2018, in the case of Moyo v Minister of Justice and Constitutional Development, the SCA said that: “unless hate speech, incitement of imminent violence or propaganda for war as proscribed in … the Constitution are involved, no one is entitled to be insulated from opinions and ideas that they do not like, even if those ideas are expressed in ways that place them in fear But that does not entitle them to expect the State to lock up those whose chosen forms of expression placed them in a subjective state of fear or might reasonably (but not in fact) have placed them in fear.” As pointed out above, this narrow concept of hate speech was again confirmed by the SCA six months later, in the Masuku judgment of December 2018.

These statements by the SCA provide some comfort in a world where people increasingly fear that they will be taken to Court (and potentially end up in jail) simply for saying something that someone else does not like, agrees with, or finds offensive.  Right now therefore, the legal position is that hurtful and/or offensive speech is not necessarily hate speech, and religious speech (regardless of how hurtful and/or offensive) remains protected by our Constitution as long as it does not amount to “advocacy of hatred … that constitutes incitement to cause harm” (as per the definition of hate speech in s 16(2)(c) of the Constitution).

All eyes now turn to Qwelane’s appeal to the SCA, especially in light of the SCA’s comment in the Masuku case that “[t]here is cause for concern that the provisions …. the Equality Act have the effect of condemning speech that is protected under … the Constitution.” It may be that this uncertainty, which ultimately will likely only be resolved when the Constitutional Court rules on the matter, is the reason why the passing into law of the Hate Speech Bill has been postponed. 

FOR SA will continue to carefully watch and report back on developments in this critical area, which has clear (even chilling) implications for freedom of speech and ultimately, the freedom of our democracy.

Daniela is a duly qualified Attorney of the High Court of South Africa. She obtained a BCom LLB degree from Rhodes University. Daniela first worked for Médecins sans Frontières before completing her articles of clerkship at G van Zyl Attorneys, where she stayed on after being admitted as an attorney and practised, specialising in litigation. Daniela has loved Jesus since she was young and is a member of a local church in Cape Town where she is actively involved.

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