Not all hurtful speech is hate speech – SA Human Rights Commission finds
The South African Human Rights Commission (SAHRC) has outlined what constitutes hate speech, saying that there is a widespread misunderstanding on the subject. The commission released its findings on the investigation into complaints of hate speech against EFF leader Julius Malema on Wednesday. Five complaints were logged with the commission, including one of a tweet by EFF secretary general Godrich Gardee.
The commission found that all five statements did not constitute hate speech. Malema was under fire for his statements against the Indian community. He was also being investigated for singing a version of the struggle song "Kill the Boer", changing the lyrics to "Kiss the Boer". Comments 'did not prompt any harm' Speaking to the media at the commission's head office in Braamfontein in Johannesburg, legal expert Shanelle van der Berg said the commission was guided by the courts and the Constitution in its findings. She explained that there needs to be a sufficiently high threshold for speech to amount to hate speech. Referencing SAHRC vs Kwelani, she said the Equality Court determined that hateful speech had promoted severe psychological impact. "This did not prompt any harm," she said.
"The definition of hate speech is circular and has been open to a lot of academic critic but there is consensus that that is subject to an objective test. Our context in South Africa is not mutual. We suffer from hundreds of years of marginalisation and exclusion based on race. We still today live with the legacy of colonial and apartheid past. From the Constitutional Court we must take our societal and historical context into account when we try to determine whether something amounts to racism," she said.
Van der Berg stated that the Constitutional Court takes into account who uttered the speech, adding that the identity of the perpetrator makes a difference in cases such as the use of the k-word.
"The Constitutional Court is of the view that certain words or expression will depend on whether [they are] uttered by a white person or a black person and against a white person or a black person. In accordance to the ConCourt jurisprudence, the identity of the offender and target group as belonging to a vulnerable group will have an impact in determining hate speech and robust speech must be protected so that marginalised persons can convey anger and frustration at the systems of social injustice."
Mngxitama's statements 'constituted hate speech'
Commission CEO Tseliso Thipanyane said while Malema's statements did not constitute hate speech, "we are really appealing to all South Africans to conduct themselves in a manner which actually builds our culture of human rights and yields ubuntu'. The EFF welcomed the ruling with party spokesperson Mbuyiseni Ndlozi saying the complainants wanted to suppress legitimate criticism that should help society confront its ills.
"Those who want to shut down the land expropriation debate want to silence voices that are critical of white privilege. They also seek to shut down debate about the abusive treatment African people receive at the hands of many Indian bosses," Ndlozi said. The SAHRC said it had launched an application with the Equality Court against BLF president Andile Mngxitama. The commission's legal expert, Osmond Mngomezulu, said Mngxitama's statements in December during a party rally that whites must be killed constituted hate speech.
"It's calling [for], it's inciting violence, it's inciting harm, so those are quite distinguishable. The commission takes a view that these amount to hate speech. We have seen that courts agree with us in some of these matters. It shows that when we make those decisions they are carefully considered," Mngomezulu said. News24