I believe in freedom of expression. Our Constitution protects the right to freedom of expression. That is why I cannot welcome the Equality Court’s ruling that Malema was guilty of hate speech when he commented on the young woman who had accused President Jacob Zuma of rape.
Please understand that I am not defending Malema. I am defending his right to freedom of expression, which is also mine and yours and which means nothing if it does not include the right to say things that offend other people.
This is what Malema said: “Those who had a nice time will wait until the sun comes out, request breakfast and ask for taxi money. In the morning, that lady requested breakfast and taxi money.”
He made his comment after Zuma had been acquitted of rape — so in the eyes of the law, the woman is not a rape survivor — but the words are nonetheless grossly offensive in the context of a society in which rape occurs frequently and survivors who get their day in court are often called upon to justify their sexual behaviour.
But do his words constitute hate speech?
Hate speech is defined in the Constitution as “advocacy of hatred that is based on race, ethnicity, gender or religion and that constitutes incitement to cause harm” (my italics). Malema’s words were undoubteldy hurtful to many people. They may, at a stretch, be construed as “advocacy of hatred” based on gender. But did they constitute incitement to cause harm? I think not. And so, offensive though the words were to our sensibilities, they should be protected by the the Bill of Rights.
The Promotion of Equality and Prevention of Unfair Discrimination Act, under which Malema was charged and convicted, has, however, complicated issues by adopting a far wider definition of hate speech than the Constitution. The Equality Act (for short) defines hate speech as words ”that could reasonably be construed to demonstrate a clear intention to be hurtful, cause harm or promote hatred on the basis of race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language or birth”.
Many legal commentators have argued that this definition is unconstitutional because it is too wide in its application. The constitutional definition applies to only four grounds: race, ethnicity, gender and religion. The Equality Act criminalises hate speech on seventeen grounds. Furthermore, the Constitution requires an intention to cause harm. That is an objective fact: in the absence of such an intention, words cannot constitute hate speech.
The Equality Act, however, requires only that words could be construed as having the intentiuon of being hurtful, harmful or hateful to constitute hate speech, regardless of the actual intention of the person who utters them. This conjures up, as one legal commentator noted, an image of highly sensitive individuals using the Equality Act to insulate themselves inside their own intolerant world. In Malema’s case, many people would undoubtedly construe his words as having the intention to be hurtful, and that explains his conviction of hate speech in terms of the Act. But what are the implications for us as a free society?
Am I to be denied the right, for argument’s sake, of criticising Jacob Zuma’s prediliction for polygamous marriages because that may be hurtful to people who subscribe to a particular culture? Is it verboten to publish a picture of the Prophet Muhammad because that would be hurtful to Muslims, or to teach evolutionary theory because that offends some Christians?
The hate speech provisions of the Equality Act have not yet been tested in the Constitutional Court. Perhaps this would be an opportunity. It would be a good test of how seriously we, as South Africans, take our right to freedom of expression.
(A version of this article also appears on Robert Brand’s personal blog at http://robertbrand.wordpress.com/.)
Rob whether people agree or disagree you have put forward a valid and well-reasoned argument.
The question here is not whether we think JM’s comments were despicable or not but rather whether Collis was right to convict him in light of the prevailing law.
That goes to protecting everyone’s rights in terms of the constitution, the Promotion of Equality and Prevention of Unfair Discrimination Act and other law applicable here.
Before dismissing your argument based on prejudice towards Malema people should rather think about whether they would want their rights curtailed upon the same basis in which Malema’s were.
From what I’ve read many legal analysts agree with you based upon reasoning developed along similar lines.
Malema may have a foul mouth but his right to express himself subject to it being within the bounds of the law must prevail.
Very nice article.
Why did he feel the need to bring this subject up to these boorish students? What was the hidden agenda? he said these comments for a reason, why did he feel the need to run women down.
Incidentally, if the woman said no, no means no! Anyway this was not seen as rape. However, what was the woman supposed to do, leave the house late at night because she didn’t want sex, and be at the mercy of all the other rapists running the streets while she looked for an elusive taxi? or should she stay, have a nice time and ask for taxi money in the morning? A real quandary that Juju never even considered. he sees women as commodities, and I fail to understand why the ANCWL do not pull this evil little soul over the coals. or, they also agree with him that this is how women sho act/react.
Sad state of affairs when students cheer on such comments, boorish behaviour all round.
The article is an eye openner and very objective for most people regarding our rights that are always abused by learned prosecutors in particular against people, who are under represented hence agree that appeal will do for Cde President.
I’m inclined to agree with you, Robert. But Malema’s musical rendition of ‘Kill the boer’ is another thing altogether. See:
‘One of Julius Malema’s supporters is placing “updates” of farm murders on the ANC Youth League leader’s Facebook page.’
http://www.news24.com/Content/SouthAfrica/News/1059/785296522b6c42d69a042d55be562e62/17-03-2010-07-50/Malema_fan_counts_dead_boere
Again…you are ignorant of the practises of the EC and instead compairing it to the Magistrate Court.
First of all the practitioners of this court got to know about its existence from me since I was the first to utilise its services or through the media.
There are no permanent staff for this court but the magistrate court staff preside over this court.
Now,this court is not supposed to sit for more than 45 minutes for the hearings let alone postponements since the other party is merely telling the other party that what you did to me hurt me and i demand apology.There`s no ground for this other party to contest this since only individuals know the feelings of an impaired dignity and if someone say the way you screamed at me in public impaired my dignity because it cheapened me the other party must concede and accept punishment.
Hey, give Juju all the free speech he wants. He’s just had more free speech with JubJub in jail and brought him some Nando’s as well, even though Juju said he’ll never support Nando’s again. He had no free speech with the victims of the drag racing Mini’s crash.
So let Juju have his say, he makes as many enemies as he makes friends………The “friends” are already ANC voters, and so are some of the folks who don’t like him
I reapeat:
The SA Constitution 0
Emotional sympathetic judge & her pressure group 1
Lady Justice 0
@Robert Brand – Thank you. Then, basically, do you agree that that could be a more correct assessment of Malema’s crime? Although the line is becoming rather blurred. If calling someone a K%$^r is hate speech then calling someone a woman who sleeps around could be construed as hate speech but only if you think being such a woman is a bad thing. All very silly really this legal nitpicking. We all know what he said sucked and must have hurt the woman in question on hearing it. The Castor Semenya case jumps to mind. Perhaps the concept “harm” should be more explicitly defined in law.
TIM, Did say concede and accept punishment for what?The struggle shall continue until all this institutions are fully transformed.Unapologetical most people who attended the hearing were from other race even those african ,who were holding posters might have been paid to participate on the hearing so that all south african can say this matter was supported by people of all race which this was contrary.
Even the complianent is like a lion in a sheep.We will fight side by side with our president.Another level I won’t be surprise to see the applicant canvacing for votes in the next coming elections because most people started to build their profile like him and currently their in parliament.
The EC was intended for the poor of the poorest who can`t reach the top guys to complain to use it to communicate with them directly about that which offended them and get direct response from them.
Its not a formal court but a mere forum.When parties sit for the final hearing it must merely to inform the presiding officer as to if they have reached any amicable solution{as they are given time to discuss it among each other}and if a solution has been reached then the court rubberstamp it and in five minutes its all over.
There`s no need for advocates to be brought into the picture.It was incumbent upon the HRC to embark on roadshows educating citizens about these statutory bodies but it instead concerned itself about migrants.
HEY-ROBERT…PAL,BUDDY…I WAS THINKING ABOUT YOU FEW YEARS AGO AFTER YOUR SUDDEN DISAPPEARANCE FROMN THE PAGES OF THE STAR BECAUSE I KNEW THE AA BUG HAS BITTEN AND ITS EXHALARATING TO KNOW THAT AA DID NOT AFFECT YOU IN ANY ADVERSE OR DEVASTATING WAY BUT CATAPULTED YOU TO THE HIGHEST ECHELONS.THIS THEREFORE ALSO DISPROVE THOSE WHO COUNTER THAT AA IS IMPOVERISHING WHITES…CHEERS MAN!