Case Reference No. GP/2008/1037/E MOKONYAMA
FINDING IN THE MATTER BETWEEN: -
Manamela, Buti and Others - Complainant
Shapiro, Jonathan - Respondent
1. Background & Facts
During September 2008, the South African Human Rights Commission (SAHRC) received a complaint lodged by Mr Buti Manamela, the then National Secretary of the Young Communist League about a cartoon that was published in The Sunday Times newspaper on 7 September 2008. The cartoon was drawn by the cartoonist, Mr Jonathan Shapiro, commonly known as "Zapiro". Several other complaints from other parties/persons were also received.
The cartoon depicts African National Congress president Mr Jacob Zuma (Zuma) with his pants undone, while ANC Youth League president Mr Julius Malema and the then secretaries general in the tripartite alliance, Mr Gwede Mantashe, Mr Blade Nzimande and Mr Zwelinzima Vavi, hold down a blindfolded female figure. The female figure is wearing a sash with the words: "Justice System" on it. A speech bubble indicates Mr Mantashe saying to Mr Zuma: "Go for it, Boss!"
*** Picture cartoon
2. The Complaint
The Complainant describes the cartoon as:
"defamatory and offensive" and "depicts...Zuma as a rapist, is distasteful, deplorable and boarders [sic] on defamation of character. It is, in our view, an abuse of press freedom by Zapiro. This cartoon, drawn under the pretext of ‘press expression', undermines the fundamental human rights to dignity guaranteed in the Constitution. In a country where the scourge of women abuse and rape in particular is rampant, the careless and insensitive use of the barrel of the pen to depict our leaders as rapists is reckless and uncalled for".
The Complainant requested the SAHRC to determine whether any of Mr Zuma's human rights, and/or in particular his right to Dignity as entrenched in section 10 of the Constitution of the Republic of South Africa, Act 108 of 1996 (the Constitution), have been violated by the publication of the said cartoon as well as whether same amounted to Hate Speech.
The SAHRC subsequently assessed the complaint and conducted an intensive research, in investigating the allegations in terms of its internal Gazetted Complaints Handling Regulations, No. 107 of 1994. In the process, the allegations in the complaint were put to the respondent, who in turn submitted his written response to the SAHRC, arguing that his conduct in publishing the said cartoon was tantamount to exercising his right to Freedom of Expression. The research took into account in addition to the facts, the right(s) alleged to have been violated and its/their definition, applicable legislation/legal principles, case law, in arriving at the finding contained hereunder.
3. The Right(s)
- Right to Dignity
The Constitution of the Republic of South Africa, Act 108 of 1996
Section 10 of the Constitution states:
"Everyone has inherent dignity and the right to have their dignity respected and protected."
The Complainant alleges that Mr Zuma's right to dignity has been infringed. Other allegations have also been made that the cartoon infringes the right to dignity of women and rape victims.
The Republic of South Africa is founded on the values of "human dignity, the achievement of equality and the advancement of human rights and freedoms". Dignity is common to the core values of the Constitution and plays a role in the balancing process necessary to bring different rights into harmony. The meaning of the concept of dignity is not certain as the Constitutional Court has not yet provided a comprehensive definition of the term. Its origins, however, have been linked to Kantian philosophy, where human dignity is considered to be what gives a person their intrinsic worth.
Ackermann J held in S v Dodo that:
"humans are not commodities to which a price can be attached; they are creatures with inherent worth and infinite worth; they ought to be treated as ends in themselves, never merely as means to an end."
In S v Makwanyane, the Constitutional Court held that the right to dignity and the right to life were the most important human rights. The court found that human beings were entitled to be treated as worthy of respect and concern. The dictum in Makwanyane, however, is not authority for the proposition that in all instances, notwithstanding the context, the right to dignity must prevail over all other rights. The judgment suggests that rights should be evaluated and balanced in accordance with their worth in a democratic society.
In Holomisa v Argus Newspapers, Cameron JA found that:
"the determination of a right's constitutional importance in each situation unavoidably involves the evaluation of competing values. The values whose protection most closely illuminates the constitutional scheme to which we have committed ourselves should receive appropriate protection in the process... But dictates of a democracy insofar as they relate to political figures require that criticisms of politicians should be ‘free, open, robust and even unrestrained. This is so because of the inordinate power and the seductive influence, which these attributes have upon corrupt men and women. The most appalling crimes have been committed by politicians because the basements and perversity was hidden from public scrutiny."
In Federal Council of the National Party v Maharaj Kasrils and Mokaba, the SAHRC found that:
"While the words complained of, namely that ‘Mnr F W de Klerk is ‘n kaalkop misdadiger wat drup van die bloed van onskuldige mense', are clearly abuse and insulting and, in the political heat, may even have been intended to cause the kind of hurt they have elicited, the issue before the Commission is not whether the words are true or false but rather whether they constitute a violation to the right to human dignity and whether their use was justifiable according to the Constitution."
- Right to Freedom of Expression
Section 16 of the Constitution
It provides that:
"(1) Everyone has the right to freedom of expression, which includes-
(a) freedom of the press and other media;
(b) freedom to receive or impart information or ideas;
(c) freedom of artistic creativity; and
(2) The right in subsection (1) does not extend to-
(a) propaganda for war;
(b) incitement of imminent violence; or
(c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm."
In South African Defence Union v Minister of Defence, O' Regan J held:
"... freedom of expression lies in one of a ‘web of mutually supporting rights' in the Constitution. It is closely related to freedom of religion, belief and opinion (s15), the right to dignity (s10)... The rights taken together protect the right of individuals not only individually to form and express opinions, of whatever nature, but to establish associations and groups of like-minded people to foster and propagate such opinions. The rights implicitly recognise the importance, both for a democratic society and for individuals personally, of the ability to form and express opinions, whether individually or collectively, even where these views are controversial."
Dworkin in Freedom's Law comments as follows:
"Firstly, morally responsible people insist on making up their own minds what is good or bad in life or in politics, or what is true and false in matters of justice or faith. Government insults its citizens, and denies their moral responsibility, when it decrees that they cannot be trusted to head opinions that might persuade them to dangerous or offensive convictions. We retain our dignity, as individuals, only by insisting that no one - no official and no majority - has the right to withhold an opinion from us on the ground that we are not fit to hear and consider it."
In S v Mamabolo, it was held that the public interest in the open market-place of ideas is all the more important to South Africa because its democracy is not yet firmly established. People should be particularly astute to outlaw any form of thought control, however respectable it may seem.
Freedom of expression is protected in a manner that does not warrant a narrow reading and it therefore includes activities such as displaying posters, dancing and publishing photographs, as well as symbolic acts such as flag-burning and physical gestures. In principle, every act by which a person expresses some emotion or belief, qualifies as ‘expression'. Therefore, one's right to freedom of expression can be demonstrated through various ways including words only in so far as it does not amount to, inter alia, hate speech etc.
Section 16 protects expression generally but also refers to specific protections, such as freedom of the press and the media (section 16(1)(a)).
Section 16(1)(b), the right to receive information and ideas embraces the right to receive, hold and consume expressions transmitted by others. If the expression can be considered to convey information or ideas, its receipt is protected without reference to the content of the expression and this even applies to ideas that may offend, shock or disturb people. False speech is also protected in principle though untrue speech is more easily overridden by countervailing interests than true speech.
In section 16(1)(c), freedom of artistic creativity is protected. Artists are often responsible for radical criticism of the way society functions and as their work may upset sensitive people, governments have been tempted to control the production and exhibition of art. All the activities associated with and necessary for the artist to be creative are, however, constitutionally protected. The term ‘art' should be broadly defined.
The structure of section 16 might suggest that the specific listing of certain forms of expression requires a higher degree of protection to be afforded to the press and artistic creativity than to other forms of expression. These categories were not intended to describe the core of protected expression, however. If anything, that honour probably belongs to the expression of political opinion. At the core of the right to freedom of expression lies political expression. In Holomisa v Argus Newspaper Ltd, Cameron J, in balancing the freedom of expression against the right to reputation, held that publications in newspapers about political activities are protected, even if false, unless the plaintiff was able to establish that the publication was unreasonable.
The Supreme Court of Appeal in the case of Mthembi-Mahanyele, asked the question:
"When dealing with freedom of expression in a political context (political speech), should a member of government's right to protect her reputation be eclipsed by the need for robust criticism and comment in a democratic state where the public's right to be informed, and to free debate, is vital? The right to a good name and reputation forms part of the right to human dignity, but does not lie at the heart of it. Where the expression is of a political nature and it impairs the reputation of a person, the rules cannot be the same as when the statement is non-political and it strikes at the dignity of the individual. Therefore, greater protection must attach to expression in the context of ‘political activity'".
In the case of Golding v Torch Printing and Publishing Co. (Pty) Ltd, it was found that a cartoon may have been crude and in bad taste, however: "a public man must pay the price of his activities and expect his standpoint and his policies to be the subject of adverse criticism".
In the Laugh It Off Promotions case, Justice Sachs emphasised the importance of satire and parody in a constitutional democracy:
"parodic illustrations in satirical columns, or editorial cartoons in newspapers or magazines, or a satirical progamme on TV, are likely in an open society to enjoy a large measure protection".
Certain forms of expression fall outside the scope of protection of section 16 however. Propaganda for war, incitement of imminent violence and certain forms of hate speech are not constitutionally protected in terms of section 16(2).
- Hate Speech
Section 16(2) (c) of the Constitution
Section 16(2) of the Constitution is an internal modifier which provides that the constitutional protection afforded to freedom of expression does not extend to propaganda for war, incitement of imminent violence and the advocacy of hatred. It is a constitutional affirmation that expression which falls within the categories listed in section 16(2), is not worthy of protection.
One of the main issues before the SAHRC was whether the cartoon drawn by the Respondent amounted to hate speech as provided in section 16(2) (c) of the Constitution and thus section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 ("PEPUDA"). The meaning of the two sections is thus central to this matter.
The SAHRC has stated that "to accuse a person of engaging in hate speech is in effect to accuse them of acting in a manner that is contrary to the broader objectives and values of our Constitution".  Any test suggested for interpreting section 16(2) (c) must recognize that the section is an exception and that the protection of the freedom of expression is the norm.
In the Freedom Front finding of the Commission, it was held that:
"In terms of section 16(2) (c), expression will amount to hate speech if it is advocacy of hatred that is based on race, ethnicity, gender or religion and that constitutes incitement to cause harm. The harm must be caused by the advocacy of hatred on the stipulated grounds."
In the case of R v Andrews, Cory JA defined ‘'hatred'' in the following terms:
"Hatred is not a word of casual connotation. To promote hatred is to
instil detestation, enmity, ill-will and malevolence in another. Clearly an
expression must go a long way before it qualifies within the definition"..."Hatred is predicated on destruction, and hatred against identifiable groups therefore thrives on insensitivity, bigotry and destruction of both the target group and of the values of our society. Hatred in this sense is a most extreme emotion that belies reason; an emotion that, if exercised against members of an identifiable group, implies that those individuals are to be despised, scorned, denied respect and made subject to ill-treatment on the basis of group affiliation".
- Incitement to cause harm
Advocacy of hatred does not rise to the level of hate speech unless there is also incitement to cause harm. The speech must be intended to incite or produce imminent action and must be likely to incite or produce such action. "Incited" should be taken to mean ‘directed at' or ‘intended'.
In addition, "harm" is not confined to physical harm and includes emotional or psychological harm, as well as harm to dignity. In R v Keegstra the concept was described as follows:
"A response of humiliation and degradation from the individual targeted by hate propaganda is to be expected. A person's sense of human dignity and belonging to a community at large is closely linked to the concern and respect accorded the groups to which he or she belongs. The derision, hostility and abuse encouraged by hate propaganda therefore have a severely negative impact on the individual's sense of self-worth and acceptance".
Whether speech causes harm must be assessed objectively and the SAHRC has set out the test as follows: "whether a reasonable person assessing the advocacy of hatred on the stipulated grounds within its context and having regard to its impact and consequences would objectively conclude that there is a real likelihood that the expression causes harm". The focus is on whether the expression itself causes or is likely to cause harm and not on the subjective intention of the person articulating it.
The harm caused or likely to be caused must be serious and significant. This assessment is made on a case by case basis, having regard to the values
protected by our Constitution.
- Causal connection between the advocacy of hatred on the stipulated grounds and the harm caused
There must be a causal connection between the advocacy of hatred based on one of the listed grounds and the harm that is caused. The weaker the proximity or causal link, the less likely it is that the expression would be deemed to be hate speech. There must be a real likelihood that the expression causes harm before it can be deemed to be hate speech.
In Mamabolo, the court set out the following test to determine the effect of statements:
"Whether one is looking at an allegedly scandalizing statement, or an allegedly defamatory or fraudulent one, this particular part of the enquiry has to ask what the effect of the statement was likely to have been. It is an objective test, applied with the standard measure of reasonableness, in order to establish whether the harmful effect at which the law strikes came about or not. Therefore one does not ask - indeed it is not permissible for a party to try to prove - what the actual effect of the disputed statement was on one or more publishees. The law regards it as more reliable to infer from an interpretation of the statement what its consequences were."
A factor in this determination is whether the speech is directed at minorities or vulnerable groups in society. The more vulnerable the group, the more likely it is that it will be harmed by the advocacy of hatred. In Mamabolo, the decisiveness of the context in which the expression was uttered and its impact was emphasised.
Section 10 read with Section 12 of Promotion of Equality and Prevention Of Unfair Discrimination Act (PEPUDA) No. 4 of 2000
It provides that:
"10. (1) Subject to the proviso in section 12, no person may publish, propagate, advocate or communicate words based on one or more of the prohibited grounds, against any person, that could reasonably be construed to demonstrate a clear intention to -
(a) be hurtful;
(b) be harmful or to incite harm;
(c) promote or propagate hatred."
"12. No person may-
a) disseminate or broadcast any information;
b) publish or display any advertisement or notice, that could reasonably be construed or reasonably be understood to demonstrate a clear intention to unfairly discriminate against any person: Provided that bona fide engagement in artistic creativity, academic and scientific inquiry, fair and accurate reporting in the public interest or publication of any information, advertisement or notice in accordance with section 16 of the Constitution, is not precluded by this section."
It is important to examine whether the cartoon constitutes "hate speech" in terms of section 10 of PEPUDA. Whereas section 16 of the Constitution is not definitional in scope and does not itself prohibit hate speech, section 10 of PEPUDA provides a definition of hate speech that is broader than the concept contained in section 16 of the Constitution. The listed grounds upon which advocacy of hatred is prohibited is extended by section 16 of the Constitution to all seventeen (17) of the prohibited grounds and is not restricted to race, gender, ethnicity and religion.
Whereas section 10 narrowly defines hate speech as an expression only in "words", and does not include other forms of expression as such, the drawing of a cartoon etc, this complaint does not fall under the ambit of the section as, in our view, the words used in the cartoon, cannot reasonably be construed, in themselves and even when read with the cartoon, to be hurtful or harmful and cannot be said to be based on any of the prohibited grounds. However, it is also our view, as expounded in S v Mamabolo supra, that every act (including through a poster) by which a person expresses one's emotion or belief is an expression and can amount to hate speech. It is thus unnecessary to consider the section any further for the purposes of this case. Words can be interpreted widely to mean many other things. As in the case of Mamabolo, the law regards as more reliable to infer from an interpretation of the statement what its consequences were. Our finding is thus that, objectively, the words and the cartoon both fall short of an expression which can be construed as a clear intention to be hurtful, incite harm and or promote or propagate hatred. This is especially if we consider that the cartoons as well as the words contained are aimed at the justice system. If one were to take out the words "justice system" from the cartoon, then it could possibly be construed as aimed at a woman.
The question then becomes whether the cartoon constituted unfair discrimination in terms of section 12 (PEPUDA). Section 12 contains a proviso that bona fide engagement in artistic creativity, inter alia, in accordance with section 16 of the Constitution, is not prohibited. The SAHRC has already found that the cartoon is in accordance with section 16 of the Constitution. Our view is that the Respondent acted with bona fides artistic creativity, in the public interest. In addition, it cannot be said that the Respondent, objectively, demonstrated a clear intention to unfairly discriminate against Zuma, women, or rape victims. It depicts Mr. Zuma in the context of the attack which was raised by the tri-partite alliance against the justice system and does not mention or refer to women and or rape victims at all.
The finding takes into consideration the cartoon and the wording as per the provisions of PEPUDA. One has to consider that the limitation on the freedom of expression is now so narrow, and the kind of language and/or conduct to which it applies will have to be so serious, that the balance of reasonable justification required by section 36(1) of the Constitution clearly tilts in favour of the Constitution. The words here are aimed at the justice system, thus, as it is not hate speech, it is not hurtful. The justice system is not a person, thus harm cannot be incited against an object. The words "lady justice" is clearly depicted.
4. Application of the law/legal principles to the facts
The Complainant's allegations are based on a particular interpretation of the cartoon. It is common knowledge that whilst at the time of the cartoon, Mr Zuma had been acquitted of a rape charge, the said then secretaries general and Mr Malema were unprecedentedly calling for a political solution to a criminal case instituted against Mr Zuma. The question has therefore been: accepting that Mr Zuma is not a rapist based on the acquittal, is the cartoon (which, inter alia, depicts "Lady Justice") in the context of a call for a political solution to a criminal case tantamount to depicting Mr Zuma as a rapist against a human being (a woman)?
Our view is that the answer to this question is negative and that the cartoon is, in any event, not based on any of the prohibited grounds referred to under sections 9(3) of the Constitution read with section 10 of PEPUDA. It merely expresses a level of free, open, robust and even unrestrained criticism of Politicians by a journalist. The Respondent's belief was that Zuma and the other men depicted had threatened the justice system in a serious manner. He responded to the allegations as follows:
"Julius Malema said that if the case went ahead, he would kill for Zuma. Zwelinzima Vavi echoed this pledge. Gwede Mantashe said there'd be anarchy if the case went ahead, and he called Constitutional Court judges counter-revolutionaries. All five were also pushing for a so-called ‘political solution' to his corruption case. I and many others do not consider Zuma to be above the law and thus see the potential imposition of a ‘political solution' as another kind of threat to the independence of the judiciary. I feel strongly that the very real intimidation of the judiciary and of individual judges justify my use of the potentially shocking rape metaphor. It is in the public interest that cartoonists and other satirists are able to make such robust interventions in public discourse."
In response to the Complainant's allegations that the cartoon infringed the right to dignity of women and rape victims, the Respondent described the cartoon as follows:
"The meaning of the cartoon is quite obviously metaphorical, not literal. That it is a metaphor is obvious because the central figure in the drawing is clearly not a real person, but rather the well-known symbolic figure, "Lady Justice". She is instantly recognizable by her blindfold...her balance scale...she has a sash labeled "Justice" (or as in the case of my cartoon, "Justice System")...And it follows that the caricatured representation of a real person (Jacob Zuma) who looks as if he is about to rape the woman, with the help and encouragement of the four other men, is by extension about to "rape" an abstract concept, the justice system."
"Incidentally, the Oxford Dictionary includes in its definition of the verb rape: to take (a thing) by force; seize... plunder, strip'. And for rape as a noun it includes: ‘the action or an act of taking a thing by force; esp. violent seizure of property etc. These meanings, which are not just about the forced violation of a person, add to the validity of the metaphor I've used".
Responding further to the use of the rape metaphor, the Respondent stated that:
"The last thing I would want to do is to demean women...I and sure to draw the woman in a way that was not at all demeaning or salacious. In fact, even in some of the complainant's submissions, it's clear they see her as a figure the viewer emphasizes with"....While I was speaking on radio shows, two rape survivors and even a gang-rape survivor phoned in to express their support. They felt that, far from demeaning women or trivializing rape, the cartoon on the contrary shows empathy with women and is an indictment of this country's prevalent male violence towards women".
5. Contextual Analysis
The SAHRC finds that the cartoon was indeed satirical and metaphorical. It is not based on gender and does not infringe the right to dignity of women or rape victims. The cartoon is a political expression, published in the public interest, and as such, deserves heightened protection. It has, in fact, stimulated valuable political debate. There is no reasonable basis/evidence to suggest that the cartoon incites imminent violence or constitutes incitement to cause harm. As such, the expression neither constitutes hate speech nor falls within the ambit of section 16(2).
The SAHRC further finds that, in this case, the right to freedom of expression outweighs Zuma's right to dignity. Whilst the cartoon may be insensitive, distasteful and highly offensive to Zuma and the other men depicted in the cartoon, the Respondent was entitled to express an opinion on the perceived behaviour of the political leaders and the SAHRC does not find this to be unreasonable. To condemn a legitimate expression of opinion such as this would constitute an invasion of the right to freedom of expression.
6. Conclusion & Finding
Although the SAHRC, indeed, finds the cartoon and the words used in relation thereto probably offensive and distasteful, same falls short of and does not constitute hate speech, unfair discrimination under PEPUDA or a violation of any fundamental human right contained in the Constitution.
Should you not be satisfied with this decision, you may appeal in writing to the Chairperson of the SAHRC, Advocate M L Mushwana, stating the grounds of your Appeal, within 45 days from the date of receiving this finding.
Prepared by: Eric Mokonyama - Legal Services Programme
Approved: ______________________Date: ___________________
Per: Commissioner B Malatji
Dated: May 12 2010. Source: South African Human Rights Commission.
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 Section 1 of The Constitution of the Republic of South Africa, Act 108 of 1996.
 A Chaskalson ‘Human Dignity as a Foundational Value of our Constitutional Order' (2000) 16 SAJHR 193, 204.
 Chaskalson (note 2 above) 198.
 S v Dodo 2001 (3) SA 382 (CC) para 38.
 S v Makwanyane 1995 (3) SA 391 (CC).
 Ibid para 328.
 Federal Council of the National Party v Maharaj Kasrils and Mokaba, (SAHRC) 1997.
 Holomisa v Argus Newspapers 1996 (6) BCLR 836.
 Federal Council of the National Party v Maharaj Kasrils and Mokaba (note 7 above).
 South African National Defence Force Union v Minister of Defence 1999 (4) SA 469 (CC) at para 8.
 Ronald Dworkin Freedom's Law (1996) 200.
 S v Mamabolo 2001 (3) SA 409 (CC) para 37.
 Ibid. 362.
 De Reuck v Director of Public prosecutions (WLD) 2004 (1) SA 406 (CC) para 49 and Laugh It Off Promotions CC v SAB International (Finance) BV t/a Sabmark International 2006 (1) SA 144 (CC).
 Khumalo v Holomisa 2002 (5) (SA) 401 (CC) para 35.
 I Currie and J de Waal. Supra 370.
 Ibid 362.
 Mahanyele v Mail & Guardian Ltd 2004 (6) SA 329 (SCA) para 6.
 Khumalo v Holomisa para 864.
 Golding v Torch Printing and Publishing Co. (Pty) Ltd 1949 (4) SA 150 (C).
 Laugh It Off Promotions CC v SAB International (Finance) BV t/a Sabmark International.
 Islamic Unity Convention v Independent Broadcasting Authority 2002 (4) SA 294 (CC) para 32 In: I Currie and J de Waal 370.
 Yusuf Abramjee and Kienno Kammies v Jon Qwelane and Others Case No. GP/2008/0161 (SAHRC) 2008.
 S v Mamabolo (note 12 above) para 50.
 Freedom Front v SAHRC 2003 (11) BCLR 1283 (SAHRC), p 1297 para F.
 R v Andrews 43 CCC (3rd) 193 para 211.
 R v Keegstra  3 SCR 697.
 Van Loggerenburg v 94.7 Highveld Stereo 2004 (5) BCLR 561 (T) para 6.
 Ibid 377.
 Freedom Front v SAHRC (note 26) 377.
 R v Keegstra (note 28) referred to by the SAHRC in the Freedom Front case.
 Freedom Front v SAHRC Supra.
 Freedom Front v SAHRC (note 26).