Hate Speech - the lay of the land

By Daniela Ellerbeck, Legal Advisor for FOR SA

Thecontroversial area of hate speech remains highly topical, with Parliamenthaving agreed to hold over passing the Preventionof Hate Crimes and Hate Speech Bill until the new Parliament sits after theMay elections.  It is very important tokeep abreast of developments in this fast-moving field because every time thedefinition of hate speech is extended beyond section 16(2)(c) of theConstitution, the foundational democratic right to freedom of speech is limited. 

In orderto protect this very freedom, the Constitution places narrow limitations on theright to free speech, only prohibiting speech which amounts to propaganda forwar (section 16(2)(a)); incitement of imminent violence (section 16(2)(b)); orhate speech, which is narrowly defined as the advocacy of hatred oncertain grounds, which constitutes an incitement to cause harm (section16(2)(c)).  

Theproblem is that this constitutional definition of hate speech has beenbroadened by legislation and some court decisions, with the result that thereis now legal uncertainty. 

Existing laws dealing with hate speech

Currently in South Africa, there are three (3) laws dealing with hate speech, which is part of the reason why there has been such opposition to a further Hate Speech Bill by Parliament.

As already mentioned, the Constitution prohibits hate speech, but has a narrow definition ofwhat hate speech is. The EqualityAct, 2000 (known as PEPUDA) broadened the definition of hate speechby defining it (in section 10) as speech that could reasonably be construed todemonstrate a clear intention to be hurtful and harmful (or to incite harm) andto promote or propagate hatred. The penalties for being found guilty of hatespeech in terms of the Equality Act, are of a civil nature and include (amongstothers) offering an apology, a prohibitive interdict, or the payment ofcompensation to an appropriate body or organisation.

However, there is also a common law action of crimen iniuria, where a person can be charged with a crime for willfully and seriously injuring someone’s dignity. Upon a finding of guilt, the Court can order the convicted person to pay a fine or serve a prison sentence. This crime – where hate speech can potentially land you in jail – came to the fore in 2016 and 2017 with the convictions of Penny Sparrow and Vicky Momberg respectively. Both were found guilty of crimen iniuria for making racists statements. In the case of Sparrow, she was fined R5 000,00 and sentenced to two years’ imprisonment, suspended for five years. In addition, she was found guilty of hate speech under the Equality Act and ordered to pay R150 000,00 in compensation to the Oliver and Adelaide Tambo Trust. In the case of Momberg, she was sentenced to three years’ imprisonment, of which one year was suspended. (Momberg’s case is currently on appeal to a higher court).

However, there appears to be inconsistency in the way that the courts are ruling on hate speech cases. Both Sparrow and Momberg’s speech was undoubtedly racist and derogatory in nature, but neither incited violence. By contrast, earlier this year the South African Human Rights Commission (SAHRC) decided that Julius Malema’s comments (that he was “not calling for the slaughtering of white people, at least for now”) were not hate speech. This controversial decision was based on the fact that the SAHRC did not regard Malema’s incitement as incitement to “imminent” violence as per section 16(2)(c) of the Constitution, or foreseen at the time when the utterances were made. Moreover, the SAHRC said that, viewed in its context, the statement deals with the subject matter of land dispossession and redistribution, and is not aimed at inciting harm to white people.

In another case in 2017, the Johannesburg High Court (sitting as an Equality Court) considered whether Bongani Masuku’s alleged anti-Semitic statements amounted to hate speech in terms of the Equality Act. The Court found that the statements were “hurtful; harmful, incited harm and propagated hatred” and Masuku was ordered to tender an unconditional apology to the Jewish community. Masuku subsequently appealed to the Supreme Court of Appeal (SCA). The SCA overturned the High Court’s decision in December 2018, because it found that Masuku’s speech had nothing to do with Jews. Instead, it was a political speech focused against supporters of the State of Israel. It said that nothing Masuku did or said, qualified as hate speech in terms of the Constitution, however hurtful or distasteful they might seem. Importantly, in its judgment the SCA said there is cause for concern that the definition of hate speech in the Equality Act is broader than the definition of hate speech in the Constitution. For that reason, the SCA decided Masuku’s case under the Constitution and found that “a hostile statement is not necessarily hateful in the sense envisaged under s 16(2)(c) of the Constitution”. Likewise, “the fact that a particular expression may be hurtful of people’s feelings, or wounding, distasteful, politically inflammatory or downright offensive, does not exclude it from protection”.