JAUNDICED EYE

Ah, the poor SA Human Rights Commission. It’s a once-admirable concept that’s steadily descended into a bleakly surreal irrelevance.

The often superficial and contradictory findings of the “hate speech” cases it has brought before the specially convened Equality Courts are having a torrid time, with regular appeal challenges and reversals. At the Supreme Court and Constitutional Court levels, political expediency and moral opportunism rarely survive rigorous judicial scrutiny.

But the SAHRC is as indefatigable as an unteachable puppy. Despite repeated slap downs with a rolled-up newspaper, they’re still pissing on the Persian carpet and crapping in the kitchen.

While Julius Malema and thousands of attendees at Economic Freedom Front rallies chant “Kill the Boer, kill the farmer” and hundreds of social media users applaud the murder of white farmers, their wives, and their children — often after the most hideously protracted and vicious torture — SAHRC has set its gunsights on an often annoying but essentially peacable journalist for a tweet made more than four years ago. ___STEADY_PAYWALL___

This week SAHRC served summons on outspoken political commentator Kanthan Pillay for alleged hate speech. It’s a serious charge that previously has reduced others, whether found guilty or not, to social disgrace, lost employment and penury.

That the musings of a journalist on social media are the focus of a criminal action is a chilling development. It appears to be a significant attempt by the African National Congress, in the form of the supposedly independent SAHRC, to extend the scope of what the State can censor, prohibit and punish.

Pillay — for those readers who pretend not to notice these things — is an Indian South African. He triggered the SAHRC’s Thought Gestapo when he dared describe himself in a tweet as a “kaffir” and urged others not to be afraid of the term. Possibly the SAHRC would have found his ideas less objectionable had he stuck to his designated lane and described himself as a “charro”, a pejorative but common description of those of Indian descent which does not seem to bother the SAHRC overly much.

“Can we stop this fearful use of the ‘k-word’? Pillay wrote in this once-off 2019 tweet. “The word is ‘kaffir’ and means infidel. 

“Kaffir, nigger, Voldemort ... words acquire power when you are afraid to use them. Arthur Mafokate wrote a song called Kaffir Boy. Should we call it K-word Boy? I am a kaffir and proud of it.”

This kind of contrarian thinking — the tweet is about a philosophical position and not in any shape or form an affirmation of abuse and violence — is very typically Pillay. It seems to me — I’ve not discussed it with him, although we’ve been friends for decades — to be both deliberately intellectually provocative and inadvertently Quixotic. 

On the one hand, it’s in the nature of cheeky journos and cartoonists to tweak noses. Po-faced wokery and hypocrisy around race will always be obvious and appropriate targets. 

But on the other hand, the tweet’s also somewhat idealistic. Pillay suggests we subvert the label with which the racists seek to humiliate and divide, instead to make it a badge of honour and pride. 

It’s going to be most interesting to hear the SAHRC explain how self-identification with a term of abuse to neutralise its sting — akin to the World War II incident where some Hungarian Christian orphans in defiance of the Nazis donned the yellow Star of David in solidarity with their Jewish schoolmates — can somehow be equated to the call for scorn, exclusion and harm that constitutes actual hate speech. 

A further impediment to the SAHRC’s case is that Pillay has described himself as a kaffir on public platforms several times before. 

In May 2012, he wrote in a Post column arguing against people defining themselves in terms of racial identities: “I have said it before and I will say it again: I'm a kaffir and proud of it. The word comes from Arabic and is used by the Islamic world to refer to infidels and I am firmly in the ranks of non-believers.” 

One must ask why, if his views are so dangerously subversive of the Republic and destructive of the social order, the SAHRC has waited more than a decade to prosecute him. 

In its founding affidavit, the SAHRC says that Pillay’s 2019 use of the k-word “cannot withstand constitutional and legislative scrutiny” and that his views “constitute hate speech and unfair discrimination against black people, black Africans in general” as provided for under the Promotion of Equality and Prevention of Unfair Discrimination Act of 2000. 

Further, his statements fall outside the ambit of the Constitution’s right to freedom of expression: “The Constitution … explicitly excludes the incitement of imminent violence and the advocacy of hatred.” 

The SAHJRC says that the organisation has “noted with concern an increase in the number of complaints it has received over the past few years relating to hate speech … It is in the public interest for the Honourable Court to pronounce on this phenomenon, which although not uniquely South African, appears to be gaining momentum and threatens to undermine the rule of law and respect for fundamental human rights in South Africa.

“The fragile nature of race relations and the threats to social cohesion in the Republic frequently dominates (sic) media reports. As such it is [the SAHRC’s] humble submission that it would be in the public interest to utilise the Equality Courts to obtain appropriate relief and … prohibit the promotion and/or advocacy of the use of the k-word and/or inclusion of the k-word in everyday vocabulary.”

The SAHRC is not forthcoming about who complained. It says only that there were “several” and their identities and complaints would be revealed during the court proceedings. 

They want the court to order an unconditional apology from Pillay for his “advocacy of a prohibited word”, prohibit him from “further hate speech”, impose damages of R250,000 to be paid to a non-profit that promotes tolerance and reconciliation, and despatch him for race sensitisation training by the SAHRC.

While it obviously will be calamitous for Pillay if found guilty — aside from the reputational cost, he has now been trussed to an excruciatingly expensive legal wrack, with court appearances and likely appeals piling on the financial pressure — this is even more damaging to free speech.

There’s no doubt that Pillay’s tweet will have offended some. Maybe many. But it’s difficult to find any malevolence in his words. On the contrary, it takes a certain malevolence (or charitably, malignant ignorance) on the part of the reader and the SAHRC to do so.

Pillay’s views may be naive or even mischievous but they are part of a legitimate and ongoing adult conversation regarding the toxic flotsam of the past, which we should not be closing down. Blanket prohibitions rarely work.

Personally, I rather like the idea that we as South Africans should, whatever our outward ethnicity, do as Pillay has done. Not as a badge of non-belief but rather in the spirit of solidarity and defiance of the Hungarian orphans — or for that matter, the Je Suis Charlie slogan adopted by freedom of speech advocates when 12 journalists were murdered by Islamist fanatics at the French satirical newspaper Charlie Hebdo. 

I am you. We are one.

Follow WSM on Twitter @TheJaundicedEye