By Daniela Ellerbeck, Legal Advisor to FOR SA
Co-author Adv Nadene Badenhorst, FOR SA Legal Counsel

Two unrelated videos posted on social media have caused a significant uproar amongst some members of the Hindu community, who regard the content as “Hindu bashing”.

The first features Rev’d. Lewellyn Joseph, who made the following statement during an altar call at the end of a Christian religious service at the Revival Ministries church in Chatsworth, Kwa-Zulu Natal: “There’s a fear that, that curse, or those spirits are working in and through your home. And every time it comes around the Kavadi time, the previous time you just feel a heaviness come upon your family, your home. Is that person here? I want to pray for that person.”

The second video is of a young street evangelist, Simeon Bradely Chetty, who was recorded as saying: “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?”

These statements were picked up and labelled as hate speech by a Hindu-based social media organisation, “Indian Spice”, as well as other social media activists.  Predictably, this was followed by an outpouring of anger, threats and vilification against the two men in question, as well as the Revival Ministries church (“the church”) itself.  Lawyers were duly instructed to lay complaints against those responsible with the South African Human Rights Commission (SAHRC), the CRL Rights Commission (CRL), the Film and Publications Board (FPB) and even Facebook itself. Despite the issuing of an apology from the church for any offence which their remarks may have caused, the President of the SA Hindu Dharma Sahba has also laid criminal charges of crimen iniuria with the Police against Rev’d Josephs and Mr Chetty, calling upon the President to tighten the laws “to prevent religious defamation and Hindu bashing”.

The ambit of the right to religious freedom:

It is important, in this context, to recognise that South Africa is a diverse nation which also includes significant diversity in our religious beliefs and their expression. Our Constitution and the courts have affirmed that we are a nation where diversity is celebrated, not just tolerated (as said so well in the OGOD judgment). The preamble of our Constitution states that we “[b]elieve that South Africa belongs to all who live in it, united in our diversity”. 

It is equally important to recognise that (thankfully) South Africa is a country where everyone’s right to religious freedom is protected by section 15 of the Constitution. This right protects not only a person’s right to believe as they wish, but also to publicly declare their beliefs and to practise them (even if they are “bizarre, illogical or irrational”) without being afraid of prosecution or persecution. As a result, everyone (whether Hindu, Christian, Jewish, Muslim or any other faith or belief) enjoys the right to practise their religion freely and publicly – whether by worship or by teaching and disseminating (i.e. telling others about) their beliefs.

The legal limits on (religious) speech:

FOR SA has already previously written widely on hate speech.  This article, therefore, will only briefly recap the law as it pertains to the limitations on freedom of expression. In particular, the article focuses only on whether the content of the statements meet the legal requirements for hate speech and/or crimen iniuria.

Section 16(2)(c) of the Constitution prohibits “advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm”.  [Own emphasis.] It is important to note that the Constitution requires both these elements – the advocacy of hatred and inciting people to cause harm – to be present for hate speech to occur. If both elements are not present simultaneously, then it is not hate speech.

Apart from the Constitution, the most important legislation prohibiting hate speech is the Promotion of Equality and Prevention of Unfair Discrimination Act (commonly referred to as PEPUDA, or “the Equality Act”). The Equality Act previously had a definition of hate speech that was significantly wider that the Constitutional prohibition (in section 16(2)(c)).  This included speech which “could reasonably be construed to demonstrate a clear intention to be hurtful; be harmful or to incite harm; to promote or propagate hatred.”

However, in the recent judgment by the Supreme Court of Appeal (the SCA, which is the second highest court in South Africa) in Qwelane v SAHRC & Others, the Court declared this broader definition unconstitutional. (This judgment has since been referred to the Constitutional Court for confirmation and is currently set down for hearing on 22 September 2020.) As a result, the definition of hate speech in the Equality Act currently effectively mirrors the Constitutional definition, and now reads as follows:

10(1)  No person may advocate hatred that is based on race, ethnicity, gender, religion or sexual orientation and that constitutes incitement to cause harm.” [Own emphasis.]

Furthermore, the courts have made insightful comments regarding hate speech over the years.  In Laugh It Off Promotions the Constitutional Court (which is the apex court in South Africa) affirmed the constitutional boundary lines of freedom of expression, saying that “unless an expressive act is excluded by section 16(2), it is protected expression.” [Own emphasis.].  In the case of Moyo, the SCA said that, unless speech crosses the boundaries laid down in section 16(2) of our Constitution, “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.” [Own emphasis.].  Again, in the case of Masuku, the SCA said that even “a hostile statement is not necessarily hateful in the sense envisages under s 16(2)(c)” and that “[t]he fact that particular expression may be hurtful of people’s feelings, or wounding, distasteful, politically inflammatory or downright offensive, does not exclude it from protection.

Lastly, in its opening statements in the aforementioned Qwelane judgment (where the Court declared the Equality Act’s wide definition of hate speech to be unconstitutional), the SCA relied on the following quotations from literature, which are very insightful regarding the way the law views freedom of expression in South Africa – especially in the light of our recent past of State censorship and propaganda:

  • George Orwell’s Animal Farm: “If liberty means anything at all, it means the right to tell people what they do not want to hear.”
  • Mokokoma Mokhonoana: “Freedom of speech gives us the right to offend others, whereas freedom of thought gives them the choice as to whether or not to be offended.”

The net result is that, legally, the bar for hate speech has been set very high. In our open and democratic South Africa, a statement is protected speech unless it meets the narrow definition of hate speech laid down in the Constitution. 

In light of the above, it is evident that neither of the statements in the videos or transcripts meet the requirements for hate speech in terms of either the Equality Act (in its amended form, as per the SCA’s judgment in Qwelane) or the Constitution itself.  While these statements may be deeply offensive to some, neither of them incite people to either hate, or harm, Hindus.

The next question is whether the statements could amount to the criminal act of crimen iniuria? Thisis where a person wilfully (i.e. intentionally) and seriously injures someone’s dignity in a way that is unlawful (i.e. that it goes outside the boundaries of society’s good morals).  In the event that someone is found guilty of this crime, the Court can order the convicted person to pay a fine or serve a prison sentence.  (This is the crime of which both Penny Sparrow and Vicky Momberg were found guilty for racist statements.)  

The injury to someone’s dignity therefore has to be very serious before it qualifies as a crime. In the current context, it will need to be proven that the statements were made with the intention of seriously injuring Hindu people’s dignity, and that the statements transgressed what society sees as good morals.

In sharing one’s beliefs, it is inevitable that someone who holds to a different faith may be offended. However, religious freedom is the right to manifest one’s faith by, amongst other things, teaching about it and telling others about it. As such, it is difficult to imagine a prosecution on charge of crimen iniuria being successful in this instance, because the State would be arguing that it is illegal for religious leaders to teach and preach about their faith to their congregations (as Rev’d Josephs did) or to share their faith and beliefs freely and openly with others (as Mr Chetty did).  Again, as with hate speech, the high threshold for speech to qualify as crimen iniuria benefits all parties because everyone should be able to teach about their faith and to share it openly with others, without being concerned that they might be committing a crime.

Conclusion – what does this mean for religious diversity?

Firstly, it means that we cannot expect the State to prosecute people for sharing their faith or for statements that fall short of hate speech, regardless of how offended we may be at someone’s statements about our own faith (whether we are Christian, Muslim, Hindu, Jewish or any other faith).  This is a good thing. If we could ask (or even compel) the State to prosecute those who offend us, then we ourselves could be prosecuted for offending someone else.  The high standard on hate speech benefits everyone. As stated by Professor Pierre de Vos: “Do we really want to go back to a situation where we are so scared to express our deeply and sincerely held and honest opinions that we shut up because we fear we might be found guilty of hate speech?”

Secondly (and perhaps most importantly), as the SCA said in the Qwelane case, “[w]e have to, in our beloved country, find a way in which to relate to each other more graciously”. This means being aware of the sensitivity of certain contexts within our multicultural society which we should consider when we express our beliefs and opinions, religious or otherwise. As is the case with most things in life, it is often not what we say, but rather how we say it, that has a lasting effect.

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.
Nadene is an Advocate, and practised as a member of the Cape Bar for a number of years. She holds both a BA LLB degree from the University of Stellenbosch and a LLM degree in International Human Rights Law (cum laude) from the University of Essex. She currently serves as a Next Generation Board Member on the Advocates Africa Board, representing Southern Africa.



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