Hate Speech and Racial Slurs in the South Afican Context: Where to Start?

Judith Geldenhuys,Michelle Kelly-Louw

doi:10.17159/1727-3781/2020/v23i0a7043

Judith Geldenhuys, Michelle Kelly-Louw

Open Access

https://doi.org/10.17159/1727-3781/2020/v23i0a7043

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Abstract

Protecting people against hate speech and racist slurs requires weighing up several fundamental rights. To maintain legitimacy in enforcing the legislative protection, a fine balance must be struck between the rights to equality and dignity on the one hand and freedom of speech on the other hand. An analysis of the legislative framework ousting hate speech and unfair discrimination on the basis of race and the manner in which the different relevant provisions have been applied by the courts shows that there are discrepancies that must be addressed. Despite the differences between the policy that facilitated the adoption of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 and the Employment Equity Act 55 of 1998, an alignment must be achieved in the starting point for an objective enquiry dealing with racism. To excuse serious cases of hate speech perpetrated by one population group while presuming that the other population group is racist from the outset does not promote South Africa's nation-building project. On the flipside, to address the unbalanced method of interpretation and implementation of the legislative provisions by adjusting the vantage point from which the assessment into whether an utterance is racist and derogatory is commenced would advance the constitutional value of non-racialism.

Highlights

In 2016 Penny Sparrow became infamous for posting on Facebook with reference to holiday makers at the beach that she will in future refer to black South Africans as "monkeys".1 She was found guilty of hate speech and of crimen injuria and received two harsh sentences.[2]
Despite the differences between the policy that facilitated the adoption of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 and the Employment Equity Act 55 of 1998, an alignment must be achieved in the starting point for an objective enquiry dealing with racism
In 2016 Benny Morota referred to white South Africans as cockroaches[5] and the leader of the Economic Freedom Front, Julius Malema, declared that "We are not calling for the slaughter of white people‚ at least for now..."

Summary

Introduction

Currie and De Waal[157] posit that the history and political context in the country play an incremental role in the manner in which the Bill of Rights, and the legislation enacted to give effect to its values, are interpreted They reason that the interpretation that is afforded should reflect "a ringing and decisive break with the past".158. Changes in social context mean that words directed against members of a particular racial or religious group could be found to have the relevant inciting effect at one time, which they would not have at another time.[166] This suggests that it would be wrong to set any kind of precedent, as has been done in Bester CC, as the prevailing norms of society or the public policy or good morals may change. Was the court in Bester CC correct in the light of the current views in practice of employers, the courts and the SAHRC in relation to the making of racist slurs? This is considered with reference to recent incidents described below

The rights in the Constitution and the definition of hate speech

The view of employers

The view of the SAHRC

The view of the courts

Observations and conclusion

Literature