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A recent judgment in the case of Masuku and Cosatu v the Human Rights Commission has brought the issue of hate speech into focus, writes Serjeant at the Bar.
between freedom of speech and hate speech, which falls outside the protection
of the constitutional guarantee, is increasingly being tested.
political discourse fuelled by the exploitation of social media needs to curbed
but it must be done without curbing the oxygen of democracy: the right to speak.
A recent judgment
in the case of Masuku and Cosatu v the Human Rights Commission has again
brought this issue into focus. The case involved statements made by Mr Masuku of
Cosatu which were part of an acrimonious exchange concerning the seemingly
intractable dispute between Israel and the Palestinian people.
statements were held by the Equality Court to constitute hate speech. They were
the following : "… Cosatu has got members here on this campus, we can make
sure that for that side it will be hell …"; "…the following things
are going to apply: any South African family, I want to repeat it so that it is
clear for everyone, any South African family who sends its son or daughter to
be part of the Israeli Defence Force must not blame us when something happens
to them with immediate effect …" and "…Cosatu is with you, we will do
everything to make sure that whether it is at Wits, whether it is at Orange
Grove, anyone who does not support equality and dignity, who does not support
the rights of other people must face the consequences even if we will do
something that may necessarily be regarded as harm…"
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Court of Appeal (SCA) overturned the finding of the Equality Court, holding
that the offending statements did not constitute hate speech in terms of Section
16(2) of the Constitution and hence did not fall outside the zone of protected
speech. The approach of the court has been heavily criticised by legal
commentators, primarily because the court appeared to ignore the applicable
statute that governs these disputes, being Section 10 of the Promotion of
Equality and Prevention of Unfair Discrimination Act (Pepuda).
Parliament had passed Pepuda, inter alia, to govern questions of hate speech,
the court should have decided the case on the basis of Section 10 rather than ground
its decision on the Constitution. Technically, this is known as the doctrine of
subsidiarity, meaning that once legislation is passed to give effect to a constitutional
provision, the former applies in all cases, save if it can be shown that the
legislation itself does not pass constitutional muster.
the SCA did not consider the dispute in terms of Section 10 of Pepuda,
seemingly on the basis that the parties had eschewed reliance thereon.
basis of this doctrine, the SCA was obliged to decide the case in terms of the
applicable law, being Section 10 of Pepuda. If, as was clear from the judgment,
the court was concerned about the constitutionality of Section 10 then it
should have considered that option.
judgment has raised legal eyebrows is that it was delivered by a court in which
four of the judges who sat in this case had acted previously as members of the
Constitutional Court and the fifth is an equally distinguished jurist. Contrary
to the observation of one commentator, these judges know constitutional law;
hence the search for a more cogent justification for this decision.
of Pepuda, to the extent relevant, provides that speech which can reasonably be
construed to demonstrate a clear intention to promote or propagate hatred is
prohibited. This is a far wider formulation than is the wording of Section 16(2)
of the Constitution where the advocacy of hatred must constitute incitement to
cause harm and contains a more restrictive class of protected groups being only
race, ethnicity, gender or religion.
anxious not to trigger an argument about the constitutionality of Section 10 of
Pepuda, which would have hardly achieved the purpose of the case, namely to
uphold the complaint, counsel for the Human Rights Commission disavowed
reliance on Section 10 and argued that the speech fell within the scope of Section
16 of the Constitution and thus was not protected because of the operation of Section
reasoning for overturning the Equality Court, the SCA said the following: "the
starting point for the enquiry in this case was that the Constitution in s16(1)
protects freedom of expression. The boundaries of that protection are delimited
in s16(2). The 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.
debate is noisy and there are many areas of dispute in our society that can
provoke powerful emotions. The bounds of constitutional protection are only
overstepped when the speech involves propaganda for war; the incitement of
imminent violence; or the advocacy of hatred that is based on race, ethnicity,
gender or religion, and that constitutes incitement to cause harm.
that Mr Masuku wrote or said transgressed those boundaries, however hurtful or
distasteful they may have seemed to members of the Jewish and wider community.
Many may deplore them, but that does not deprive them of constitutional
reasoning which is predicated correctly on the default position that freedom of
speech is a precious right and should not be given up simply when the exercise
thereof causes offence to some people. More speech rather than the heavy hand
of prohibition is critical to the democratic enterprise and thus the protection
of minorities possessed of less political clout.
reason the order of the SCA is surely correct, however upsetting Mr Masuku's
statement might have proved to some. In therefore circumventing constitutional
challenges to Section 10, the court appeared to have placed substance over the
doctrine of subsidiarity.
approach is controversial, the court's attitude to speech does strike the
correct balance. After all, if free speech is only protected when it is
pleasant to everyone's ear, what would be the point of its protection?
- Serjeant at the Bar is a senior legal practitioner with a special interest in constitutional law.
Disclaimer: News24 encourages freedom of speech and the expression of diverse views. The views of columnists published on News24 are therefore their own and do not necessarily represent the views of News24.
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