The difference between hateful and hurtful speech
Let me state it unambiguously. In terms of Section 16 of the Constitution, the phrase "Kill the Boer" that features so prominently in Julius Malema's favourite song, is hate speech.
It is, therefore, not protected by the right to freedom of expression. This right, which is central to any democracy, does not extend to "advocacy of hatred that is based on race, ethnicity or religion, and that constitutes incitement to cause harm." (my emphasis)
If words mean anything, "Kill the Boer" in this song (and particularly in the context in which it is sung by the ANC Youth League), advocates hatred based on ethnicity and constitutes incitement to cause harm.
So why was the DA reported as questioning Judge Colin Lamont's recent judgment in the Equality Court in which he found the words, in all contexts, to constitute "hate speech"?
Dene Smuts, the DA's spokesperson on Justice and Constitutional Affairs described the judgment as "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", she said. "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."
That, in a nutshell, summarises the DA's position.
Our concern lies elsewhere. We have problems with aspects of the Equality Act of 2000 which purport to give effect to Clause 16 of the Constitution.
Our key problem is this: The Equality Act waters down the Constitution's definition of "hate speech" to mere "hurtfulness". This diluted definition, we believe, erodes the right to freedom of expression.
Hurtful speech is not the same as hate speech. The real test for our commitment to free speech is whether we support people's rights to say things that offend us. If we believe they have gone too far, we can sue for defamation.
We are all familiar with the famous dictum: "I may not agree with what you say, but I will fight to the death for your right to say it." It is far easier to quote these words than to put them into practice. Judge Lamout had little other option, within the parameters of the Equality Act, to apply the wide definition of "hurtfulness". Indeed, he went so far as to say that "in the spirit of Ubuntu" language experienced as hurtful by any group (particularly a minority) fell foul of the Act.
There is a rich irony here. Julius Malema himself summed it up when he complained: "Ubuntu is now being used against us!" Well, what did you expect? In a democracy, where all are equal before the law, you cannot use the law selectively to target your enemies and exempt yourself.
We may feel repelled by hurtful speech. But it must nevertheless be protected by the freedom of speech clauses in the Constitution. Otherwise political correctness soon determines what is "hurtful". And then we are on the slippery slope to the point where a ruling party determines what we may or may not say. Julius Malema put it in so many words: We meant this law to be used against those being hurtful to us. Now it is being used against us! Exactly.
When I tweeted that I would write this newsletter on the ‘Hate Speech' ruling, some tweeple asked me when I would write on the Bees Roux plea bargain.
There is a widespread perception that a miscarriage of justice occurred when Bees Roux escaped jail because he pleaded guilty to culpable homicide and agreed to pay R750,000 to the family of the Metro Policeman he murdered. This caused outrage, particularly at a time when Robert MacBride was given a jail term (without the option of a fine) for drunk driving and attempting to defeat the ends of justice. As usual, "race" featured prominently in the acrimonious interchange.
A plea bargain is an agreement in a criminal case whereby the prosecutor offers the defendant the opportunity to plead guilty, usually to a lesser charge or to the original criminal charge with a recommendation of a lighter than the maximum sentence. Before making the offer, the prosecutor must determine, on the basis of the evidence, what chance there is of making the original charge stick in court. The victim and their legal representatives must be involved, and agree to the terms of the proposed plea bargain. And it must finally be ratified by the magistrate or judge to ensure that a plea bargain is not a way of defeating the ends of justice.
Nevertheless, I am very uncomfortable with plea bargains. Perhaps the most notorious plea bargain in SA's recent history involved the deal that allowed Glenn Agliotti and the assassins of Brett Kebble to walk free, so that the state could get the evidence they needed from Agliotti to convict and jail former Police Commissioner Jackie Selebi for corruption. The scales of justice seemed badly out of alignment. Surely our criminal justice system could have gathered the evidence to put them all behind bars? Did the deal take place because Jackie Selebi became a target because he had been closely aligned with Thabo Mbeki during the political feud with Jacob Zuma?
This case, and others, have made me question plea bargains, although they are an integral part of criminal justice systems in many parts of the world. Indeed, in the United States some 90% of criminal cases are apparently resolved through plea bargains. In South Africa it is less than 1%.
In the Bees Roux case, the family of the deceased chose to accept the plea bargain, probably because their breadwinner had been murdered. And it gave rise to the unavoidable perception that a person can buy his way out of jail in a murder case, if he can raise the money.
If plea bargains are to be used in South Africa's criminal cases, they must be applied more equitably to avoid the perception that they only favour the wealthy.
This article by Helen Zille first appeared in SA Today, the weekly online newsletter of the leader of the Democratic Alliance.
Click here to sign up to receive our free daily headline email newsletter