It must ‘incite violence’ – SCA rules hate speech definition unconstitutional

The definition of hate speech has been deemed unconstitutional. Picture: File
The definition of hate speech has been deemed unconstitutional. Picture: File

A ruling by the Supreme Court of Appeal, declaring the definition of hate speech unconstitutional, will have far-reaching consequences.

The Supreme Court of Appeal (SCA) declared the controversial definition of hate speech unconstitutional on Friday by finding that a comment is only hate speech if it causes harm as well as incites violence.

In doing so, legal experts say, the full Bench of the court has given short shrift to the hate speech “spiral” that South Africa has found itself in, in which anything from the old South African flag, insults directed at the LGBTIQ community in speeches and even the use of the k-word between black people has been declared hate speech.

The ruling could have far-reaching consequences for high-profile cases such as the one involving the SA Human Rights Commission (SAHRC), which alleges that Springbok rugby player Eben Etzebeth used the word “h**not” and wants this to be declared hate speech.

It could also affect Afrikaner lobby group Solidarity’s case against Black First Land First (BLF) leaders because the latter were quoted as saying they “welcomed” the death of white pupils at the Hoërskool Driehoek.

In fact, one of the BLF’s key arguments is that their comments cannot be hate speech just because they cause offence.

Before Friday’s SCA judgment, the Promotion of Equality and Prevention of Unfair Discrimination Act (Pepuda) stipulated that something that was “hurtful” towards a specific group of people could also be hate speech.

The SCA has given Parliament 18 months to amend the act by making the definition of hate speech much narrower.

If it fails to do so, the SCA’s new definition will take effect.

The decision must, however, still be confirmed by the Constitutional Court.

Until it is confirmed, it will have no effect on any hate speech case, including the one about the old flag.
Rupert Candy, the attorney for the Nelson Mandela Foundation

The judges in the matter found that former ambassador and then journalist Jon Qwelane was not guilty of hate speech in 2008, when he wrote in a column in the Sunday Times that it was “not okay” to be gay.

If gays can marry, he asked, “how soon before some idiot demands to marry an animal?”

Qwelane was decried for this and the SAHRC dragged him to the Equality Court.

The SCA has now ruled that Pepuda has unfairly expanded the definition of hate speech contained in the Constitution in three ways:

  • By classifying something that is “hurtful” as hate speech. That has never been part of the pure hate speech definition of the Constitution, but has been used in various cases before equality courts as a reason to declare something as hate speech;
  • By saying that something is hate speech if it is hurtful, or is harmful, or incites harm, or promotes or propagates hatred.
  • The Constitution refers to hate speech on the grounds of race, ethnicity, sex, sexual orientation and religion.

Pepuda’s definitions expanded this to include language, convictions, disability, pregnancy, colour, culture and anything else that undermines human dignity or perpetuates systemic disadvantage.

Andrew Boerner, freedom of speech expert and Qwelane’s attorney, said the judgment would help to move the country forward.

The whole thing about freedom of expression is that we should communicate ideas. Freedom of expression is a cornerstone of our democracy. And, in such a young democracy, we are going to step on each others’ toes.
Andrew Boerner

An advocate, who regularly deals with such cases but who did not want to be identified for professional reasons, told City Press’ sister publication, Rapport, that when the new legislation comes into effect, “hate speech will become a very rare thing”.

Professor André Duvenhage, a political analyst at North-West University, said the judgment was a breakthrough for freedom of expression and that it cleared up much of the uncertainty.

In the future, he added, it will be much more difficult to prove that somebody committed hate speech.

“If it is confirmed, it would swing in favour of people like Etzebeth,” he said.

Duvenhage said that if it was true that Etzebeth had used the h-word, it would, at most, be an insult.

“To adjudicate every insult in the courts is not going to be practically possible. It is not juristically possible. But I am not saying that I approve of insults.”

Duvenhage said that the appeal court’s judgment would prevent the overregulation of society.

Rupert Candy, the attorney for the Nelson Mandela Foundation, which first went to court over the old flag, said that the Qwelane decision would not come into effect until the Constitutional Court had confirmed it.

“Until it is confirmed, it will have no effect on any hate speech case, including the one about the old flag. The [SCA’s] declaration will have no retrospective effect, so it will have no impact on any previous case.”

Candy said the law firm would advise the Nelson Mandela Foundation to intervene in the Qwelane case when it goes to the Constitutional Court, “because hate speech laws are necessary in South Africa to protect vulnerable groups like black lesbians in townships”.

Kallie Kriel, the chief executive officer (CEO) of AfriForum, which is currently appealing an equality court decision that displays of the old South African flag constitute hate speech, said the judgment was a major victory for freedom of expression.

If you wave the flag and say, ‘Let’s make war against black people’, then it is hate speech. But if you are only waving the flag, that is not hate speech
Kallie Kriel

“It does not mean that you should go and wave your old flag around in Soweto or braai your pork chop at a Muslim’s house. This causes offence and is bad manners. You still have to have respect for other people.”

But, he added, people who believed strongly in freedom of expression had to be able to say to others: “I disagree with you, but I will fight for your freedom of expression.”

Kriel said the decision could have significant ramifications for AfriForum’s pending case over the old flag.

The lobby group has asked the SCA for leave to appeal.

“If you wave the flag and say, ‘Let’s make war against black people’, then it is hate speech. But if you are only waving the flag, that is not hate speech,” he said.

“The judgment has the effect that legislation can no longer be abused to limit freedom of expression, because then we are in a ridiculous spiral. In a spiral like that, anyone can decide what should now be considered hate speech, and what should not.”

Professor Anton Kok of the University of Pretoria, who is a specialist in legislation on equality and human rights, said that for offenders who committed violations of dignity by, for example, calling somebody the k-word, the judgment would not have a significant effect.

However, he added, they might still be criminally prosecuted for crimen injuria or be sued in a civil claim.

He said that if the Constitutional Court confirmed the SCA’s hearing, it would probably make some arrangement with regard to hate speech cases that were currently pending.

Kok said the question would then arise of whether an injustice had been committed against those who had been ordered to pay compensation for damages under the previous definition.

As recently as August, the court found that businessman Peter-Paul Ngwenya committed hate speech by calling Fani Titi, the co-CEO of Investec, a “Qwaqwa k****r” and “Bantustan boss”.

Ngwenya was found guilty of crimen injuria, on which the SCA’s judgment would have no effect.

However, the magistrate still ruled that the statement was “hate speech”, even though both parties involved were black.

Rapport has previously reported that the SAHRC is still of the opinion that any use of the k-word constitutes hate speech.

This is one of the reasons it wanted to take Etzebeth to the equality court over the h-word, to place it on an equal footing with the k-word.


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