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Appeal Court ruling could make hate speech more difficult to prove

  • Bongani Masuku
A ruling by the Supreme Court of Appeal (SCA) last week declaring the definition of hate speech unconstitutional will have far reaching consequences for our community.
by NICOLA MILTZ | Dec 05, 2019

Calling someone a “dirty Jew” will not be considered hate speech. Offensive? Yes. Insulting? Yes. But it’s not hate speech.

In future, in order to find someone guilty of hate speech, one will have to show that the speech advocates hatred and incites harm against somebody because of their race, religion, ethnicity, gender, or sexual orientation.

It’s a tough test, say experts, and it will make the commission of hate speech more difficult to prove. However, some in the legal profession have lauded it as a breakthrough for freedom of expression.

One advocate who could not be named for professional reasons told the SA Jewish Report that it would make the Equality Act line up better with the Constitution. “It will provide greater free-speech protections while at the same time combating genuine hate speech,” he said.

The SCA declared unconstitutional the hate-speech provision contained in the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) – or the Equality Act. The Equality Act has been under scrutiny since it came into effect in 2000. The court of appeal held that the provision limited the right to freedom of expression.

Last week’s judgement found that journalist and former ambassador Jon Qwelane wasn’t 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?” Following an outcry, the Human Right’s Commission took him to the Equality Court.

Some lauded last week’s judgement as the most important free-speech case to date. It still needs to be confirmed by the Constitutional Court.

“I don’t think the judgement will have a negative impact on the Jewish community,” said David Bilchitz, professor of fundamental rights and constitutional law at the University of Johannesburg.

“The judge recognised that advocacy of hatred which incites harm (which includes psychological harm) will remain prohibited. Ultimately, this is all the protection the Jewish community needs against serious expressions of anti-Semitism.”

He said that strong criticism of Israel, for instance, will be permissible – as it should be. The problem “is when such criticism crosses over into advocacy of hatred and incitement against a particular community as it did in the Bongani Masuku case”.

South Africa’s highest court is at present still deciding whether statements made in 2009 by Masuku of the Congress of South African Trade Unions (COSATU) amounted to hate speech directed at Jews or constitutionally protected political speech. His statements were made in the aftermath of the brutal conflict in Gaza, known as the Gaza War.

Bilchitz said last week’s appeal court judgement dealt with the problem that the Equality Act potentially limits freedom of expression “too much”.

“The problem is that this section of the Equality Act could be read to allow restrictions on speech simply because it is hurtful,” he said.

“As the judges note, that would allow, for instance, a religious believer to claim that the speech of an atheist denying G-d exists constitutes hate speech. Valuing free speech must mean that one can assert points of view that some may find offensive or hurtful. Where speech becomes impermissible is where it crosses over into the realms of advocating hatred and inciting harm.”

The Constitutional Court is ultimately faced with deciding the approach to hate speech in the Equality Act. “The speech in the Masuku case clearly envisaged inciting harm. Masuku’s claim was that the focus of his speech was not against Jews – religion or ethnicity – but Zionists – “a political ideology”. When one analyses his statements, I don’t find this claim convincing, and hope the Constitutional Court will be of a similar view,” said Bilchitz.

According to Bilchitz, what Masuku said was not simply “hurtful”, nor did it remain within the realm of intellectual argument or dispute. “He crossed over the boundary into advocacy of hatred and incitement to harm against Zionists. I don’t think threats of violence should be acceptable against anyone in a democracy for holding any view and, consequently, it’s to be hoped that the Constitutional Court will also recognise the need to challenge all forms of speech that advocate violence no matter who is their target.”

He said robust challenges of points of view were completely acceptable. “If Mr Masuku, had utilised the platforms he occupied to advocate for the rights of Palestinians … there could have been no complaint. The problem was that he went further.”

The Appeal Court ruling could have far-reaching consequences for high-profile cases such as the one involving the South African 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 have an impact on AfriForum, which is currently appealing an Equality Court decision that displays of the old South African flag constitute hate speech.

For offenders who have committed violations of dignity by, for example, calling somebody the “k-word”, they might still be criminally prosecuted for crimen injuria or sued in a civil claim.

“Hate speech is only one law which regulates speech. There are other forms of protection. There is crimen injuria, in which there is a severe infringement of a person’s dignity, and one can launch a criminal case on that basis. Defamation laws, the Harassment Act, the Intimidation Act – there are other ways of dealing with speech that isn’t hate speech,” said one attorney who wished to remain anonymous.

Attorney Ian Levitt said, “My view is that a criminal charge of crimen injuria should still be laid against those perpetrating racial hatred. The consequences of a conviction for this crime can be very serious, and can even lead to the jailing of the accused, which is frankly where he or she belongs. There must be zero tolerance to anti-Semitism and all racial hatred, and it must be dealt with strongly and decisively. Only when people see the possible consequences of their conduct, will they think twice.”

The South African Jewish Board of Deputies said this week that it supported the constitutional rights of South Africans to freedom of speech.

National Director Wendy Kahn told the SA Jewish Report, “Equally, we hold dear the limits of this freedom not being absolute when it comes to hate speech. Protected speech is a pivotal component of our Constitution.

“We will continue to pursue our matters within the framework of the legislation, ensuring that our cases are most effectively dealt with,” she said.

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

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