Malema hate speech case has ripened the Equality Act for higher scrutiny as the ANC falls foul of its own law
Judge Colin Lamont's judgment in the Julius Malema hate speech case is genuinely interesting and useful.
In the first place, it administers a well-aimed rebuke to an irresponsible young rabble-rouser who no one in their right mind believes was nostalgically intoning struggle songs.
The advocacy of hatred on the basis of (inter alia) race and ethnicity constituting incitement to cause harm is immunised from the protection of the free speech right in section 16 of the Constitution precisely because no utterance that could result in genocide (as in Rwanda) or in the instilling of fear and apprehension (as with the song Ama 'Ndiya) should be protected speech under the Constitution. The Broadcasting Complaints Commission of SA limited (but did not ban) the broadcast of the song on the grounds that Indian South Africans in KZN would feel fear given a past history of violence in that province.
However, that Constitutional immunisation is not self-executing. It governs the work of Parliament. Parliament in 2000 passed the problematic Equality Act, which chooses to reduce hate speech (in section 10) to mere hurtfulness or injuria. Judge Lamont had to interpret that statute. The public has had the benefit of hearing and reading and therefore knowing what Mr Malema has been saying all this time because the DA succeeded at least in effecting a proviso to the publishing of all this "hurtful" material in 2000 if it was fair and accurate reporting in the public interest, or publication in accordance with the rest of section 16, the free speech and media freedom right.
We believed during constitution-writing, as we believed in 2000, as we believe now, that it is better to know what people (including politicians) are telling their audiences than to live beneath a veil of censorship that purportes to pamper and save your feelings while threatening your actual safety.
Afrikaners are not "fragile," as the judge fears, and they know only too well from their own past history that laws pretending to prohibit bad vibes between population groups are simply an instrument of political majority control. The Constitutional Court has already struck down one such provision in the broadcasting code.
Judge Lamont's ruling is useful (if wrong, in our view) in the second place because it tries to extend the ban to all persons in all circumstances and in so doing renders the Equality Act ripe for challenge. The SA Human Rights Commission under the then Chairmanship of now Judge Jody Kollapen in 2002 wrote an opinion on the constitutionality of the Equality Act's hate speech provision, and like the DA found it wanting. In 2003 the SAHRC declared "Kill the Boer" to be hate speech. The two things are not mutually exclusive. A final Constitutional Court ruling is necessary, and in fact overdue.
Statement issued by Dene Smuts MP, DA Shadow Minister of Justice and Constitutional Development, September 13 2011
Click here to sign up to receive our free daily headline email newsletter