FOR SA applies to be Court’s friend in Chatsworth hate speech case

by Daniela Ellerbeck
18 August 2021

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 will briefly recap what the case is about, specifically looking at FOR SA’s application to be admitted as an amicus curiae (otherwise known as a “friend of the Court”) in the matter.

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:

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 the following: “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.)

The SAHDS, joined by two other Hindu organisations, alleges that the statement constitutes hate speech (as it was defined by section 10 of the Equality Act) and that it impaired the Hindu community’s right to dignity.

As a result, the SAHDS is asking, amongst other things, for a Court Order that Mr Chetty never makes such statements again, that he completes 200 hours of community service and that he (and/or his church, Revival Ministries) be ordered to pay R200 000 in damages to the SAHDS. (The original amount claimed by the SAHDS was R1 million).

Hate Speech:

The Constitutional Court recently, in the matter of Qwelane, ruled on the constitutionality of section 10 of the Equality Act.   (i.e. the statutory prohibition on hate speech).  This judgment has immediate application to any pending or future hate speech cases (including therefore the Chetty case).

As a result of the Qwelane judgment, section 10 now reads as follows:

“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.”

Importantly, the Constitutional Court specifically removed speech that is “hurtful” from the definition of hate speech. In this regard,  the Court specifically stated that hate speech is expression which “travels beyond mere offensive expression and can be understood as ‘extreme detestation and vilification which risks provoking discriminatory activities against that group’.” 

Thus, offensive speech is not prohibited.  Indeed the Court said that “a healthy democracy requires a degree of tolerance towards expression or speech that shocks or offends“.  Only speech that goes beyond being offensive and causes a risk that a group will be targeted and discriminated against will amount to hate speech.

This definition is very close to what the Constitution already prohibits in section 16(2)(c), namely the advocacy of hatred (on prohibited grounds such as religion, conscience or belief) that constitutes incitement to cause harm.

The latest developments:

As a faith and doctrinally neutral legal advocacy organisation that protects and promotes the right to religious freedom, FOR SA protects and promotes the right of all persons to choose for themselves what they want to believe (or not believe), to say what they believe, and live out their beliefs – freely, and without fear of punishment by the State or anyone else.

In light of the religious freedom concerns in this matter relating to the public expression of one’s faith, FOR SA on 5  July 2021 filed a formal application to be admitted as an amicus curiae (or “friend of the Court”)  in this matter. 

FOR SA’s intention – as a neutral party to the case, appearing as an amicus curiae (friend of the Court)  – is to assist the Court by presenting specialist legal input on how the competing Constitutional rights and interests ought to be balanced to ensure that freedom of expression (including religious expression) remains protected.  This input with assist both Mr Chetty and the Hindu orgnisations, whose own rights to freedom of expression may be negatively affected by an adverse judgment. 

FOR SA’s application was set down for hearing before the Chatsworth Equality Court on 11 August 2021,  was attended by FOR SA’s Legal Counsel Advocate Nadene Badenhorst and FOR SA Executive Director Michael Swain. However, on the day itself,  the three Applicants (the three Hindu organisations) suddenly indicated that they were opposing FOR SA’s application. As a result, the hearing for FOR SA’s amicus application was postponed to 29 September 2021. The parties also agreed timelines within which the Applicants must provide reasons for their opposition, and FOR SA will provide our responses and counter-arguments. 

Until FOR SA’s amicus application is decided, the case – which has been ongoing for more than a year now – cannot proceed on the merits.  

At the hearing on 11 August 2021, the Magistrate (again) encouraged the parties to attempt to settle the matter outside of Court. FOR SA believes that the matter is one which is capable of being amicably resolved, and hopes that the parties will make a sincere attempt to do so. South Africa has traditionally been a country with a remarkable degree of religious tolerance, wherein people and organisations of different faith groups have granted each other the space to freely share and exercise their faith – as long as it does not amount to hate speech as defined by the law (and more particularly, by the recent Qwelane judgment which has raised the bar for hate speech in South Africa).

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Daniela Ellerbeck

Daniela Ellerbeck is an attorney of the High Court of South Africa. She serves as FOR SA’s Legal Advisor and Parliamentary Liaison. For her full bio, see https://forsa.org.za/about-us/our-team/

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