Hate speech: How tolerant can SA afford to be?

David Saks responds to Matthew Kruger's critique of the SAJBD's call for the amending of 16(2)(c) of the Constitution


Civil libertarians are profoundly wary of any restrictions placed on the right to freedom of expression, and for understandable reasons. The road to dictatorship, after all, has routinely been paved by those in power taking it upon themselves to decide what the public can or cannot say or hear. That being said, even the most liberal freedom of speech advocates acknowledge that this right is not an absolute one, and that certain forms of expression should be proscribed.

As the saying goes, freedom of expression does not permit one to shout ‘Fire!’ in a crowded theatre when there is no fire. The same would apply to incitement of violence against other members of society, whether motivated by racial, religious or other forms of prejudice or simply for reasons of personal dislike against the individuals concerned.

Freedom of expression thus necessarily has limits. The question every democratic society must wrestle with is where – more or less - the line should be drawn. The qualification is necessary because an exact answer to the question can never be arrived at with any certainty; rather, a broad consensus regarding where the parameters lie must be sought.  

In its submission made earlier this year to the Constitutional Review committee, the South African Jewish Board of Deputies (SAJBD) made a number of suggestions as to how to approach this complex issue.

The first part of the submission dealt with section 16(2) of the Constitution, in which the right to freedom of expression is not held to 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.

Regarding this formulation, the SAJBD commented as follows:

“It is submitted that the above subsection takes an overly-narrow approach when it comes to defining and identifying proscribed forms of expression. As currently expressed under 16(2)(c), it would appear that ‘advocacy of hatred’ on the grounds listed would be proscribed only when it is coupled with ‘incitement to cause harm’.

Such a definition does not take into account the realities of how damaging racist hate speech is in and of itself, even though in most cases, such offensive discourse does not actually involve direct “incitement to cause harm”. In practice, the mere airing of racist or other unacceptable views in the public realm results in ‘harm’, even when harm is not explicitly advocated.”

To illustrate this contention, reference was made to the Penny Sparrow affair, in which a white woman generated nation-wide outrage with a Facebook post likening black holidaymakers on Durban’s beaches to ‘monkeys’.

There could be no doubt that Sparrow’s comment, in view of the enormous hurt and anger it had caused, had been harmful, even if, strictly speaking, she had not directly incited harm against black people. Just as significantly, it had led directly to a flurry of anti-white responses, many of which clearly did constitute such incitement, including to actual violence.

One comment that was widely reported on was that of Gauteng government employee Velaphi Khumalo, who wrote that blacks should “cleanse this country of all white people”, and “act as Hitler did to the Jews”. However, his was just one of dozens of similar comments that appeared in reaction to the Sparrow post, and that went all but unnoticed at the time.

They included, “They killed our children and raped our sisters kill the Boer nizozwa soon!!!” and “The annihilation of the White devil is the only thing that‘s heal this country.” This demonstrated, we contended, how demeaning racial comments, even when non-threatening, could easily lead in turn to statements that do incite harm, even to the extent of advocating mass murder on the basis of race.

In a two-part critique of the SAJBD’s proposal published on politicsweb, Matthew Kruger, Legal Researcher at the Helen Suzman Foundation, took strong issue to this aspect of the SAJBD’s submission. The proposal, he asserted was “based on a misunderstanding of section 16(2) of the Constitution”, which was in itself sufficient for it to be rejected. Moreover, he continued, if the proposal was accepted, it would “limit the right to free expression in unacceptable ways.

It will lay the foundation for yet greater censorship and suppression of unpopular ideas, and it will push us still further towards authoritarian forms of political rule and social control”. In Part II of his critique, he opines that “the SAJBD proposal amounts to a call to prohibit politics”. Further on, he sarcastically accuses the SAJBD of naïvely seeking to bring about “a world in which we are not always offending others”, which is not only an impossible “utopian ideal”, but which in its consequences would be “morally disastrous”.

With respect to Kruger, this assessment appears to be, to say the least, somewhat alarmist, and that he is reading far more into the SAJBD’s submission than is actually there. It is already well established in South African law that any conduct related to a person’s membership (real or presumed) of “a group identified by one or more of the prohibited grounds” and which “demeans, humiliates or creates a hostile or intimidating environment” towards such a person constitutes unfair discrimination.

As listed in the Promotion of Equality and Prevention of Unfair Discrimination Act of 2000 (PEPUDA), included in those “prohibited grounds” are race, gender, ethnic or social origin, colour, religion, sexual orientation, age and disability. The intent of the SAJBD’s submission is to identify ways in which such laws can be better enforced. Nowhere is there any suggestion that restrictions on freedom of expression should be extended beyond the above grounds, such as politics, nor that “hate speech” of any kind is by definition always wrong.

One of the points at issue is whether the current wording in section 16(2) of the Constitution providing exceptions to the right to freedom of expression already adequately covers the types of cases of concern to the SAJBD (as Kruger argues), or whether it should be amended so as to make clear that racist hate speech need not involve an element of direct incitement to cause harm in order to be proscribed (as the SAJBD believes).

From the SAJBD’s own experience in pursuing hate speech cases, such as before the Broadcasting Monitoring and Complaints Commission, the “incitement to cause harm” requirement has indeed caused difficulties. It can – and has – resulted in rulings to the effect that while statements like “Kill the Jews” are not allowed, asserting that Jews nurse an inveterate hatred of gentiles, are of a fundamentally corrupt and immoral nature and unscrupulously manipulate global events to the detriment of humanity as a whole, falls within the parameters of freedom of expression. According to that reasoning Penny Sparrow, who in the end was ordered to pay a R150 000 fine by the Equality Court, should have gotten off scot-free.

Ultimately, of course, it is for those entrusted with the actual drafting of any changes to the Constitution to decide upon the technicalities of this question. What I would like to do here is expand on the why the SAJBD believes that laws prohibiting hate speech in South Africa need, for the good of society, to be made as effective as possible.

22 years into democracy, South Africa remains a profoundly complex society, one that continues to be seriously divided along both race and class lines. The country faces many critical challenges, and the widespread violent unrest that has been particularly prevalent this year shows that increasingly, it is failing to deal with them.

A house divided itself cannot stand, as Abraham Lincoln famously warned. If South Africans are to negotiate these difficult times – and continued failure to do so raises the all-too-real specter of sinking to failed state status, with all that that implies – they must do so together, as a united nation.

Simply put, our country cannot afford to embroil itself in bitterly divisive racial spats of the kind provoked by the Penny Sparrow incident. Such discourse only intensifies the already unhealthy levels of anger, hurt, mistrust, resentment and fear that permeate our society and militate so strongly against people working together for the common good.

Laws prohibiting hate speech are not aimed at curtailing freedom of debate, nor the right of people to disagree, even strenuously, with one another in public fora. Rather, they seek to discourage gratuitous and offensive attacks on people’s identities, whether based on racial, religious, ethnic, gender or other grounds listed above.

It is fine to describe a political party as venal and incompetent, and indeed to express outright hatred against it, but never to state (or clearly imply) that such failings are due to supposed negative racial character traits.

Attack the policies of the State of Israel as much as you like, but don’t (as so frequently happens) link this to grotesque notions of intrinsic Jewish evil. Those who scoffingly referred to Helen Zille as a “white madam” were going beyond attacking her political beliefs and policies to belittling her as a white woman.

The above are examples of the kind of abuses of the right to freedom of expression that the anti-hate speech provisions in the Constitution, and supporting legislation like PEPUDA, aim at preventing. It is in the interests of all South Africans that such laws be supported and adhered to, and that the necessary infrastructure is in place to deal appropriately with them when violations do occur.

David Saks is Associate Director of the SA Jewish Board of Deputies.