Courts to deal with the reach of hate speech regulations in 2020

The Equality Court in 2019 dismissed two cases where hate speech was alleged against EFF leader Julius Malema.
The Equality Court in 2019 dismissed two cases where hate speech was alleged against EFF leader Julius Malema.
Image: Alaister Russell

The equality court had a busy year in defining provisions of the Promotion of Equality and Prevention of Unfair Discrimination Act (Equality Act) in 2019 - and its decisions will be deliberated on in 2020 as appeals are mounted.

One of the most prominent judgments passed by the court last year was on the question of whether displaying the old South African flag constituted hate speech.

The act’s provisions on hate speech only prohibited people publishing, propagating advocating or communicating words which could be construed to demonstrate a clear intention to be hurtful, be harmful, or promote hatred.

The Nelson Mandela Foundation, which brought an application after the display of the flag at the #Blackmonday demonstration in 2017 against farm murders, asked the court to declare that displaying the flag constituted hate speech. In its judgment in August, the Equality Court agreed with the foundation.

In his judgment, Gauteng deputy judge president Phineas Mojapelo said the main purpose of section 10 was prohibition of all hate speech, which could be communicated by forms of expression other than words. If hate speech was restricted to words only, Mojapelo said, it would mean victims of hate would not have recourse if the aggressor used non-verbal means.

Mojapelo said speech was not limited to words, but extended to conduct and gestures, adding that displaying the old flag gratuitously caused more than emotional stress to black people.

However, AfriForum, which opposed the application, said it would appeal against this finding. It has filed an application with the supreme court of appeal (SCA) to that effect.

AfriForum said last month that just because some people find the flag offensive was not sufficient reason for its display to be considered hate speech. AfriForum said the judgment passed by the SCA on November 29 supported its stance. The judgment ordered parliament to rewrite the “vague” and “overbroad” section 10 meant to protect against discrimination.

In that judgment, the SCA upheld an appeal by former high commissioner to Uganda, Jon Qwelane, against the equality court judgment passed in 2017. The appellate court dismissed the 2017 equality court finding that Qwelane - who wrote a column, “Call me names – but gay is NOT okay” - was guilty of hate speech. In essence, the SCA ruled that while the intentions of the Equality Act were noble, it overstepped the mark in curbing free speech.

The court held that an opinion like Qwelane's may be hurtful without being hate speech, and thus he was protected by his right to express a view.

The equality court last year also found itself dealing with the question in two cases on whether utterances made by EFF leader Julius Malema amounted to hate speech.

A number of journalists, together with the SA National Editors' Forum (Sanef), complained that Malema made remarks that they regarded as perpetuating hate speech against them. They said this was in contravention of section 10 of the Equality Act.

Malema told his supporters: “Where we meet the enemy, we must crush the enemy. On Facebook, Twitter, social media, be there, guard the revolution. When the enemy raises its ugly head, don’t hit the head, cut off the head.”

The equality court dismissed the journalists’ application and said Malema’s conduct did not qualify as hate speech, due to the absence of hatred and incitement of hatred of journalists as a whole.

“In my view, the complainants have failed to establish that being a journalist qualifies for the protection under sections 10 and 11 of the Equality Act directly or as an 'analogous' ground,” judge Daisy Molefe said in her judgment passed on October 24. Sanef indicated it would not appeal the judgment.

In another Equality Court case, cabinet minister Pravin Gordhan relied on the same section when he launched a complaint against Malema.

“Our attack on Pravin Gordhan is an attack on white monopoly capital because Pravin is a dog of white monopoly capital. We must hit the dog until the owner comes out, and once the owner comes out, we must deal decisively with the owner.”

Malema made this speech to a crowd of his supporters on November 20 2018, outside the venue where the hearings of the Zondo commission into state capture were being conducted.

Judge Roland Sutherland dismissed Gordhan’s application with costs. “Despite the fact that the utterances were indeed hateful and aimed at engendering hatred against (Gordhan), (he) has failed to bring his understandable grievances within the compass of the Equality Act,” Sutherland said.

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