Anyone who grew up with Dr Seuss’ best-selling children’s books, would have been amused to hear a legal analyst compare a recent judgment in the North Gauteng High Court with “Green Eggs and Ham”, the most famous book in the series.
This book, which uses only 50 words for beginner readers, has sold 8-million copies worldwide and is the fourth best-selling hardcover English children’s book of all time.
A bemused colleague told me this week how she had heard the analyst, on radio, comparing this whimsical book with the judgment handed down by Judge Malebo Habedi, dismissing my application to set aside the public protector’s finding that my tweet of 16 March 2017 amounted to hate speech because it constituted “incitement to imminent harm” under section 16 (2) of the constitution.
The tweet read: “For those claiming the legacy of colonialism was ONLY negative, think of our independent judiciary, transport infrastructure, piped water, etc”.
When I read the 28-page judgment, I was at first puzzled by the comparison with Dr Seuss, but I soon realised how apt it was.
The crux of the judgment is just 49-words long (one word fewer than the total number of words used in Green Eggs and Ham).
“The Premier is no longer the Premier of the Western Cape and it means the Provincial Legislature cannot sanction her as such. The issues in this application have thereby been rendered moot. Judicial review does not lie against moot matters, and the Constitutional Court has confirmed this principle repeatedly.”
This conclusion requires some explanation. When an issue before a court is “moot” it means that further legal proceedings with regard to that matter can have no effect. So it is not necessary to make a further finding or prescribe remedial action.
The crucial point is therefore as follows: The judgment did NOT uphold the Public Protector’s finding that my tweet was hate speech.
It avoided making any finding at all.
It did so by saying the point was moot because I am no longer Premier.
As a consequence, the Public Protector’s report remains un-reviewed.
This is a rather crucial point missed by every analysis I have read on the judgment.
One can only conclude that the Judge realised that declaring the matter “moot” was a safer option, because it would be rather difficult to define the tweet as “hate speech” on the basis of a rational interpretation of the ordinary meaning of words.
So the best way out was to conclude that it was not necessary to reach a conclusion on the matter because I am no longer the Premier.
That is a legally questionable conclusion, to put it mildly, for two main reasons:
1) The issue of “mootness” was not raised once, by my legal team, the public protector, or the judge himself throughout the entire proceedings. It is a well-established legal principle that a Judge cannot make a finding on an issue that was not raised before the court.
2) The issue cannot be described as moot by any means. It deals with the limits to free speech in political discourse. Every political office bearer has an interest in understanding what these limits are. If the words I used violated the constitution and the executive ethics act, then the parameters of free speech would, overnight, have become drastically curtailed.
If the Public Protector’s finding that my tweet indeed constitutes hate speech is allowed to stand (because the Judge studiously avoided making a finding on it), it would be inconsistent with a range of other cases, where the courts have defended rather than curtailed free speech (of a far more extreme variety).
What’s more, if I am guilty of hate speech because of this tweet, I find myself in good company because a range of prominent people, from Nelson Mandela to Moeletsi Mbeki to Julius Malema, have made very similar points, only far more emphatically.
What’s more, it would be necessary to withdraw from schools the history textbook that asks the question: “Did colonization have any positive effects?”
It gives the following answer:
“Although most historians emphasize the negative effects that colonization had on Africa, some also show that it did have some positive effects. For example, the colonization of East Africa at last put an end to the slave trade there, which had continued to exist long after it had come to an end in West Africa.
“Colonization also brought with it Western education, medicine and technology as well as language, cultural, and sporting links that have enabled Africa to interact with the rest of the world. Part of the legacy of colonization has been the development of Africa into a network of modern, independent states.” (In Search of History sixth impression 2005 page 182)
Given the fact that the Public Protector’s findings are now binding, this history textbook is propagating hate speech in our schools, and should immediately be withdrawn.
Come to think of it, almost all respected historians are guilty of the same offence.
What makes the judgment particularly interesting, is that after dispensing with the legal crux of the matter in a mere 49 words, the Judge then sets off on personal ruminations for a further 24 pages.
His thoughts range far and wide.
In a section referring to the Bengal Famine of 1943, the Judge notes “it was further reported that in typical colonial master fashion Winston Churchill at the loftiest heights of his folly, said Indians were to blame for their own deaths for breeding like rabbits”.
To assist any reader who may question the relevance of this, the Judge provides a footnote, in which he explains that this statement constitutes “My own spicing up of the words about Churchill: apt!”
Referring to a photograph, apparently taken in the Congo, of a white man being carried by black men, the judge notes: “One can expect this of colonial masters, and we have always known that colonial masters will not lift a finger to do a thing with the colonised around.”
Referring to another photograph, the location of which is not given, the judge notes:
“At first glance, it appeared as though I was looking at dead creatures but on a closer look I realised that it was dead people whose bodies, because of the vultures on the walls, must have heavily decomposed. I have in my life seen gruesome pictures, particularly those depicting what happened in the Rwanda and Burundi genocide; Beirut in Lebanon during the wars there; the famine in Ethiopia. But this picture is something else.
I do not know a lot about history because I spent my formative education battling Mathematics and Science but there are many international tragedies and genocides that were always being talked about, yet one only discovers this now. Not that I can’t not know but rather that, due to its magnitude, people should know this history. A well-orchestrated genocide indeed. God Almighty please deliver the earth, particularly the Pan African people of Africa and its Diaspora, from this evil called colonialism!”
Apart from these (and many other) personal observations, the judge accepts at face value that the Twitter outcry that followed my tweet reflected genuine outrage, despite the analysis submitted by my lawyers showing the extensive involvement of fake accounts -- bot-networks and sock-puppets -- in deliberately whipping up a tsunami of offense-taking.
This was months before this form of social media abuse had been identified and exposed in various scandals, ranging from the Mueller indictments in the United States to our own Bell Pottinger scandal.
We didn’t realise what was going on back then. We do now. Surely that should place the outcry into a different context?
But this is all irrelevant to the judicial ruminations. The Judge creates his own context, because he says, it “will be of interest to other judges”.
De-contextualisation is indeed an issue that should be of great interest to all judges and journalists alike. It is the stock-in-trade of social media and the outrage manufacturers.
If people’s words are manipulated and taken out of context to serve political agendas, and if this leads to findings of hate speech, then free speech is in jeopardy indeed. The issues are fundamental. And they require proper judicial adjudication.
This article first appeared in Rapport newspaper.