Hate Speech Case in Chatsworth: FOR SA’s Role as Amicus Curiae

Introduction

FOR SA has previously written about the Equality Court case in Chatsworth, KwaZulu-Natal, involving a Christian evangelist and various Hindu organisations.

Three Hindu organisations have alleged that the Christian evangelist committed hate speech when he publicly shared his faith.

This article briefly recaps the case, with a specific focus on FOR SA’s application to be admitted as an amicus curiae (a “friend of the Court”).

Background

The South African Hindu Dharma Sabha (“SAHDS”) instituted a case against Mr Simeon Chetty (“Mr Chetty”) in the Chatsworth Magistrate’s Court (sitting as an Equality Court) in August 2020.

The SAHDS alleges that Mr Chetty committed hate speech in terms of section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (PEPUDA, or the “Equality Act”).

Facts of the Case

At an outdoor gathering that allegedly occurred on 31 May 2020 (under the first Alert Level 3 Lockdown Regulations), Mr Chetty was asked to close in prayer.

As part of closing in prayer, Mr Chetty said:

“My father was a Telugu, my mother was a Tamil and while they were growing up they said, – you know what, they have no meaning – they worship idols, they worship other gods. But I am here to tell you that the name of Jesus is above every other name. Let me ask you this question, why would a Telugu man worship Jesus? Why would a Muslim man worship Jesus? Why would every religion give their life to Jesus?”

(Mr Chetty alleges that this is not his full statement.)

Claims by the Applicants

The SAHDS, joined by two other Hindu organisations, alleges that:

• the statement constitutes hate speech (as defined by section 10 of the Equality Act)
• it impaired the Hindu community’s right to dignity

They are seeking, among other things:

• a Court Order preventing Mr Chetty from making similar statements
• 200 hours of community service
• R200 000 in damages (reduced from the original R1 million claim)

Understanding “Hate Speech” (Qwelane Judgment)

The Constitutional Court recently ruled on the constitutionality of section 10 of the Equality Act in the Qwelane matter.

This judgment applies to:

• all pending cases
• including the Chetty case

Updated Definition

Section 10 now reads:

“Subject to the proviso in section 12, no person may publish, propagate, advocate or communicate words that are based on [religion, conscience, belief] against any person, that could reasonably be construed to demonstrate a clear intention to be harmful or to incite harm and to promote or propagate hatred.”

Key Shift

The Court removed “hurtful” speech from the definition.

It clarified that hate speech is:

“extreme detestation and vilification which risks provoking discriminatory activities against that group”

Important Principle

• Offensive speech is not prohibited
• A democracy requires tolerance for speech that shocks or offends
• Only speech that:
  • incites harm
  • promotes hatred
    qualifies as hate speech

This aligns closely with section 16(2)(c) of the Constitution, which prohibits:

• advocacy of hatred
• that constitutes incitement to cause harm

FOR SA’s Involvement

As a faith- and doctrinally neutral legal advocacy organisation, FOR SA:

• protects the right of all people to choose their beliefs
• supports freedom to:
  • express beliefs
  • live out beliefs
• opposes punishment for lawful religious expression

Application as Amicus Curiae

In light of the religious freedom concerns raised by the case, FOR SA filed a formal application on 5 July 2021 to be admitted as an amicus curiae.

Purpose of the Application

FOR SA’s role is to:

• assist the Court with specialist legal input
• help balance competing Constitutional rights, including:
  • freedom of expression
  • religious expression

This input is intended to assist:

• Mr Chetty
• the Hindu organisations

Both parties’ rights to freedom of expression may be affected by the outcome.

Latest Developments

The application was set down for hearing on 11 August 2021 in the Chatsworth Equality Court.

FOR SA was represented by:

• Advocate Nadene Badenhorst
• Executive Director Michael Swain

Unexpected Opposition

On the day of the hearing:

• the three Applicant organisations indicated that they would oppose FOR SA’s application

As a result:

• the hearing was postponed to 29 September 2021

Timelines were agreed for:

• Applicants to submit reasons for opposition
• FOR SA to submit responses and counter-arguments

Current Status

Until the amicus application is decided:

• the case cannot proceed on the merits

The matter has now been ongoing for more than a year.

Possibility of Settlement

At the 11 August hearing, the Magistrate again encouraged the parties to:

• attempt to resolve the matter outside of Court

FOR SA believes:

• the matter is capable of being amicably resolved

Wider Implications for Religious Freedom

South Africa has historically been marked by a strong degree of:

• religious tolerance
• mutual respect between faith groups

This includes:

• the freedom to share beliefs
• the freedom to practise religion

— provided that such expression does not amount to hate speech as defined by law.

Final Note

The Qwelane judgment has raised the bar for what constitutes hate speech in South Africa.

This case will therefore play an important role in shaping:

• the boundary between free expression
• and unlawful hate speech

End

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