2.2.1 Words or expressions of hate speech

Section 10(1) of the PEPUDA, in its original format, referred to hate speech in the form of "words". An utterance which can potentially qualify as hate speech can take on several forms: it can consist of a verbal expression;54 be reduced to writing;55 or be contained in the lyrics of songs.56 Hate speech can even consist of symbols or take the form of other types of expression, such as waiving, burning or saluting a flag.57 This is illustrated by the recent hate speech case concerning the old South African flag. Mojapelo DJP in the Mandela Foundation case considered section 10(1) in its original format and held that "words" must be interpreted generously58 to extend beyond verbal representations.59 The Equality Court accepted that the old flag is a

50 Notably, this case was decided before Qwelane SCA. 51 Mandela Foundation case para 1. For a discussion of the case, see Herd 2019

PSLR. 52 Mandela Foundation case para 167. 53 Mandela Foundation case paras 167-168. 54 In the Masuku case the equality court found that Anti-Zionist statements made by

Masuku while he was delivering a speech at the University of the Witwatersrand qualified as hate speech. However, on appeal the Supreme Court of Appeal held that Masuku's right to freedom of expression ensured in s 16 of the Constitution trumped the statements made. Even though his statements were hurtful of people's feelings, or wounding, offensive, politically inflammatory or blatantly offensive, they did not constitute hate speech given the circumstances that prevailed at the time and the place where they were made. Therefore, he could not be deprived of his constitutional protection. Masuku v South African Human Rights Commission obo South African Jewish Board of Deputies 2019 2 SA 194 (SCA) paras 27 and 31; also see the discussion in fn 263.

55 For instance, in the Qwelane case the offending utterances were made in an article in the Sunday Sun newspaper.

56 See for instance Duncanmec (Pty) Limited v Gaylard 2018 6 SA 335 (CC) (hereafter the Duncanmec case); Human Rights Commission of South Africa v SABC 2003 1 BCLR 92 (BCCSA); AfriForum v Malema 2011 6 SA 240 (EqC) (hereafter the Afriforum case).

57 West Virginia State Board of Education v Barnette 319 US 624 1943 632. 58 Mandela Foundation case para 128. 59 Mandela Foundation case para 141.

demeaning symbol, the embodiment of the oppression of black South Africans by whites and of racial segregation during apartheid.60 The court noted further that the old flag is used internationally as a symbol of white supremacy.61 In the result the Equality Court held that gratuitously62 displaying the old South African flag constitutes hate speech,63 harassment64 and unfair discrimination65 as intended in the PEPUDA.

The fact that so many different types of acts can qualify as an utterance that can potentially be hate speech is a consequence of the wide construction afforded to "words" as used in the initial version of section 10(1) of the PEPUDA. Botha and Kok contend that in order for that version of section 10 to pass constitutional muster, non-verbal communication should not be considered as falling under the hate speech prohibition.66 However, the wide construction that is preferred is aligned with international and foreign law regulating hate speech that bans not only words but also all expressions that expose target groups to hatred.67 Therefore, Botha and Govindjee are correct that "words" in section 10(1) of the PEPUDA ought to be replaced by or interpreted as "expressions".68 The interim amended version of section 10(1) omits the term "words" and merely provides "[n]o person may advocate". This is more open-ended, potentially embracing all qualifying expressions. This amendment is better aligned with international and foreign law.

2.2.2 The value attached to the expression

From a foreign law perspective, not all expressions are considered equal. In each case the court must assess whether the expression (a) advances democratic discourse, and/or (b) has been expressed in the process of truth-finding and/or (c) is made as a means of self-fulfilment.69 The more of these purposes an expression is found to advance, the more value should be attached to it.70 A "valuable form" of expression should carry more weight in the balancing of the constitutional rights at play.71

However, in De Reuck v Director of Public Prosecutions, Witwatersrand Local Division72 the Constitutional Court indicated that the right to freedom of expression in the Constitution is subject to the rationality test in section 36 of the Constitution only, and not also to a threshold test considering the traditional value attached to the expression, as mentioned above, that is viewed as forming the basis of the right.73 The PEPUDA forbids "categories of expression" that fall beyond the constitutional protection in section 16.74 Consequently, to prove that an expression constitutes hate speech as envisaged in section 10(1) of the PEPUDA, it must be proven that the expression oversteps the bounds of the right to freedom of expression.75

In the Qwelane Equality Court case76 the court concluded that the contents of Qwelane's article in the Sunday Sun entitled "Call me names -but gay is not okay'' constituted hate speech in terms of section 10(1) of the PEPUDA in its original formulation. In the statement concerning homosexuals,77 Qwelane had compared their sexual conduct to bestiality.78 The court held that inviting homophobia had no constitutional value.79 The court based this finding on the fact that the utterance had not on the face of it, or on the evidence presented to the court, been made to spark a debate on lesbians and gays.80 Rather, in the view of the Equality Court Qwelane had made the utterance to persuade the readers to support his homophobic views. The Equality Court found that the utterances against homosexuals were hurtful, incited harm and propagated hatred and accordingly amounted to hate speech. Therefore, it could not be argued that the utterance fell within the realm of the protection of freedom of speech.81 On appeal, the Supreme Court of Appeal82 declared section 10 of the PEPUDA unconstitutional and invalid.83 In terms of the interim section 10 Qwelane's utterances did not constitute hate speech. Accordingly, the judgment of the Equality Court was overturned.84

Generally, it can be said that if an utterance is made to spark a debate, it would be protected. Moreover, in terms of the Recommendation85 if the purpose for the making of the utterance is to protect or to defend human rights, the conduct should not be sanctionable as hate speech.

2.2.3 Political statements

In most of the jurisdictions that were evaluated in Memorandum 2012, political speech is viewed as carrying more value in the process of balancing free speech and the rights to equality and dignity.86 Particular value is also attached by the ECtHR to political speech which is viewed as an important vehicle for democratic discourse.87 However, whether these types of utterances will be absolved from scrutiny in relation to constituting possible hate speech depends on whether they add value to truth-finding, or whether they in fact bear no truth.88

The SAHRC found that the "white slaughter" remark of the leader of the Economic Freedom Front (the EFF), Julius Malema,89 did not qualify as hate speech and reasoned that the statement had been made by Malema in the context of the land debate.90 The SAHRC’s ruling in Malema's favour rested at least in part on the fact that there was a measure of truth to the premise that white South Africans still occupy land belonging to black South Africans, and that whites enjoy substantial economic power.91 The other reason for finding the statement to be permissible92 was that it did not according to the

93

SAHRC contain a threat of imminent violence.

However, in the Masuku case the Equality Court rejected the defence against the hate speech charge that the utterance was true, fair comment or in the public interest.94 Truth and public interest are defences accepted against charges of defamation, not to avoid liability against hate speech.95 We agree with the finding in the Masuku case that it is inappropriate to excuse hate speech on the basis that an utterance holds a measure of truth. The purpose of the protection offered by section 10(1) of the PEPUDA differs significantly from the protection against defamation, which is to address the injury to the plaintiff's reputation. If the defendant in a defamation case made a statement which is true and if it is in the public interest that he made the statement, the utterance can be viewed as merited and deserved.96 The same cannot be said in a hate speech case.97 The SAHRC appears to have introduced a defence that is out of place in the context of hate speech, which is not recognised in the same way by the Equality Court.

The fact that the "white slaughter" remark made by Malema did not convey a threat of imminent physical harm would also not exclude liability based on hate speech. The "harm" envisaged in the PEPUDA is not restricted to physical violence only. Other legislation caters for threats of physical harm, besides the PEPUDA.98 Harm can also be emotional harm,99 but its impact would need to be "more than merely 'hurtful' in the dictionary sense".100 As was held in the Khumalo case, the rehabilitative objective of the PEPUDA suggests that harm could also relate to the reaction to the utterances,101 i.e.

91 SAHRC Findings para 16. 92 SAHRC Findings para 16.2; Hotz v University of Cape Town 2017 2 SA 485 (SCA)

(hereafter the Hotz case) para 67. 93 SAHRC Findings para 17. 94 Masuku case para 45; Botha and Govindjee 2017 PELJ 28. 95 Masuku case para 45; Botha and Govindjee 2017 PELJ 28 for similar reasons do

not support importing a "truth" defence for use in hate speech cases. 96 Borgin v De Villiers 1980 3 SA 556 (A); also see Iyer 2018 Speculum Juris 126, 130. 97 For an opposing view to the effect that truth seeking and self-fulfilment are

incremental considerations in assessing an utterance, see Herd 2019 PSLR 134

135. 98 Khumalo case para 93. 99 Freedom Front v South African Human Rights Commission 2003 11 BCLR 1283

(SAHRC). 100 Qwelane SCA para 70. 101 Khumalo case para 94. Also see Qwelane SCA para 70, where the court agreed that

the "harm" envisaged s 10(1) of the PEPUDA (as also is the case in s 16(2)(c) of the Constitution) need not necessarily be physical but may include psychological harm.

the negative effect it has on the nation-building project in that it does not promote non-racialism.102 The Labour Appeal Court in Crown Chickens (Pty) Ltd t/a Rockland Poultry v Kapp103 made it clear that the courts must conspicuously safeguard the fragile relationships between the different population groups in South Africa.104 This duty extends to the SAHRC too. The amended wording of section 10(1) of the PEPUDA as formulated in Qwelane SCA still supports the premise in the Qwelane Equality Court case that to qualify as hate speech an utterance must "be hurtful and harmful and have the potential of inciting harm and plainly propagating hatred."105 In our opinion the "white slaughter" remark ticks all the boxes to qualify as hate speech under either version of section 10(1).

2.2.4 Historical value

In South Africa, as in other jurisdictions, if the alleged perpetrator is a member of a previously disadvantaged group which was subject to historical oppression, offensive speech is tolerated more readily, for reasons explained below. Offensive utterances that can be viewed as venting frustration with historically dominant groups is considered as a "form of self-fulfilment".106 The LRC also indicated that struggle songs, like Dubula ibhunu (Xhosa: "Shoot the Boer") are arguably political expression bearing a historical value. Singing them remains relevant to vulnerable groups. They are used to invoke solidarity and courage to face current challenges too.107

In the Duncanmec case,108 black workers, members of a trade union, during an unprotected strike sang an isiZulu struggle song. The lyrics translated into English are: "Climb on top of the roof and tell them that my mother is

102 Khumalo case para 102. 103 Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Kapp 2002 6 BLLR 493 (LAC)

para 35. 104 Also see the Duncanmec case para 7. 105 Qwelane Equality Court case para 53. However, the proposal in the Qwelane

Equality Court case to read the requirements as "hurtful and harmful and promote hatred" has not been applied in this manner by the SAHRC. The SAHRC in 2019 noted that no precedent exists as to whether a conjunctive reading or a disjunctive reading is preferable. See SAHRC Findings 7-15.

106 LRC Memorandum paras 22-24. 107 LRC Memorandum para 17. 108 Even though this case was not a hate speech case under the PEPUDA and other

considerations may apply in the employment context, it provides valuable insight. The PEPUDA expressly excludes considerations of fairness from the test for hate speech (see ss 14 and 15 of the PEPUDA). However, the fact that the expression in this case was not hate speech based on race was argued to be a reason why the dismissal of the workers for singing the struggle song was unfair. Duncanmec case para 24.

rejoicing when we hit the boer."109 Following a disciplinary enquiry, they were dismissed for misconduct.

In the Bargaining Council where the workers challenged their dismissal,110 the arbitrator concluded that although the singing of the song was inappropriate, it did not constitute racism.111 Having looked at a video of the singing and dancing workers, she remarked that the singing was not violent, but rather "peaceful and short-lived".112 She found the employees' dismissal substantively unfair and ordered the employer to reinstate them.113

On review, the trade union acting on behalf of its dismissed members explained to the Labour Court that the song was not hate speech against whites, but a struggle song that black workers had sung during apartheid.114 The Labour Court accepted this explanation, and the factual finding which had been made by the bargaining council arbitrator that singing a struggle song is different from making a crude racist remark to someone.115 The workers conceded that the singing of this song was more appropriate in the currency of apartheid, and that the Constitution currently affords workers rights that they were denied under the old order. Notwithstanding, they argued that the effects of apartheid continue to affect them in the workplace. They explained that the economic structure had not changed, and that in many instances whites fulfil management functions whereas black workers are employed in the lower ranks.116 They contended that the motivation for singing struggle songs was to achieve "solidarity and defiance of the authority of the employer" and not racial hatred.117

The court agreed, noting that a distinction ought to be drawn between the singing of struggle songs and making other racially loaded utterances because of the history attached to struggle songs. The court found unconvincing the reasoning that the singing of struggle songs should be

109 Duncanmec case paras 1, 10. 110 Duncanmec case para 16. 111 Duncanmec case para 17. 112 Duncanmec case para 18. This serves as an example of how the manner in which

the expression is made is considered in assigning meaning. See the discussion

under 2.5. 113 Duncanmec case paras 18-19. 114 Duncanmec case para 21. 115 Duncanmec case para 17. 116 Duncanmec case para 24. 117 Duncanmec case para 25.

sanctionable as hate speech because it infringes on the victim/s right to dignity.118

In the final round of litigation, the Constitutional Court pointed out as to the lyrics that the only word in the song that referred to race was "boer", which could mean "farmer" or a "white person", neither of which is racially offensive.119 The employer argued that it was the context in which the word "boer" was used that could hurt or offend those who heard it.120 As the employer and the trade union had both accepted the arbitrator's factual finding that the song did not contain racist words, but that singing it at work was inappropriate, the Constitutional Court accepted the arbitrator's finding that the employee's conduct was "racially offensive" but not racism justifying dismissal.121

In the AfriForum case Lamont J found that Malema, then president of the African National Congress Youth League, had acted in contravention of the hate speech provision in the PEPUDA for singing "Shoot the Boer" at political rallies. The court held that if he were to sing the song in future, he would face criminal charges and a potential prison spell. After the judgment Malema simply replaced the word "shoot" with the word "kiss" and sang

122

"Kiss the Boer".

The SAHRC has also received several other complaints of alleged hate speech made by Malema and other EFF members. On 27 March 2019 the SAHRC ruled on four comments made by Malema and one by the EFF's general secretary at the time, Godrich Gardee. The SAHRC found that, although the statements were "quite offensive", they did not qualify as hate speech.123 Besides the contentious "white slaughter" comment124 and the singing of "Kiss the Boer", Malema had made the following statement concerning Indians and Coloureds:125

118 Duncanmec case para 27. 119 Duncanmec case para 37. 120 Duncanmec case paras 17, 37. 121 Duncanmec case paras 38-39. 122 Laing 2011 https://www.telegraph.co.uk/news/worldnews/africaandindianocean/

southafrica/8757630/Julius-Malema-found-guilty-of-hate-speech-for-singing-Shoot

the-Boer.html. 123 SAHRC Findings para 13.2; see also Naidoo 2019 https://city-

press.news24.com/Voices/hate-speech-human-rights-commission-did-not

consider-malemas-influence-20190409. 124 Discussed under 2.2.3. 125 SAHRC Findings para 10.1.

We were not all oppressed the same. Indians had all sorts of resources Africans didn't have, Coloureds as well... The majority of Indians hate Africans. The majority of Indians are racist. I'm not saying all, I'm saying majority.

Gardee on Twitter had referred to the former leader of the DA, Mmusi Maimane, as "a garden boy".126

As to the statement concerning Indians, the SAHRC again perceived some truth in Malema's utterance. It found that on an "objective and contextual assessment" the statements indicate that although both of the population groups mentioned were disadvantaged during apartheid, the African group was and remains more vulnerable than Indians. Moreover, the SAHRC remarked that under apartheid Indians had enjoyed certain political and economic privileges from which black Africans were excluded.127 The SAHRC continued that "although a minority, the white population group is socio-economically powerful"128 and that Malema belongs to the vulnerable black population group.129 The SAHRC found that the statements made by Malema130 may have been offensive and disturbing, but that they bore constitutional value for dealing with land reform and race relations. Likewise, the SAHRC found Gardee's statement on twitter "offensive and demeaning", but not constituting hate speech. The SAHRC ruled that there would be "no political or constitutional value" in affording a remedy for this statement.131

As to Malema's statement that the majority of Indians are racist, the SAHRC pointed out that he did not say that all Indians are racist. This finding is problematic. The SAHRC failed to indicate whether it would have been hate speech if Malema stated that all Indians were racists. If so, we agree with Naidoo. The SAHRC's ruling "sets a problematic precedent by adopting a hierarchical approach to the racial status of the alleged offender and the target of the speech."132 Naidoo asks if this means that if the song "Kill the Boer" was sung by someone other than a black African it could be hate speech, or whether if a white person had made the statement concerning

126 SAHRC Findings para 5.7; Naidoo 2019 https://city-press.news24.com/Voices/hate

speech-human-rights-commission-did-not-consider-malemas-influence-20190409. 127 SAHRC Findings para 8.1.2. 128 SAHRC Findings para 9.4.2. 129 Naidoo 2019 https://city-press.news24.com/Voices/hate-speech-human-rights

commission-did-not-consider-malemas-influence-20190409. 130 SAHRC Findings para 12.1. 131 SAHRC Findings para 12.2. 132 Naidoo 2019 https://city-press.news24.com/Voices/hate-speech-human-rights

commission-did-not-consider-malemas-influence-20190409.

Indians it would constitute hate speech.133 The SAHRC's chairperson explained that freedom of speech would be endangered if the SAHRC were quick to deem robust and offensive speech to be hate speech. Finding that Malema had contravened the prohibition against hate speech in the PEPUDA based solely on the hurt caused would threaten the constitutional right.134

A senior researcher of the SAHRC commented that although Malema's "white slaughter" utterance could be interpreted as hurtful by a white audience, the reasonable listener would have realised that the utterance concerned land reform, and that it was not intended to harm white people.135 Her view is that136

[t]he historical context in which the speech is made is one of unjust land dispossessions by both colonialists and the Apartheid government. Reference to slaughtering is made within this context. The statement calls for the peaceful invasion of land. Malema explicitly stated that he is not calling for a slaughter of white people.

While Malema's utterance was again viewed by the SAHRC to be a permissible "political statement",137 the posting of Helen Zille, who was formerly the Western Cape Premier (now the chairperson of the federal executive) of the official political opposition party, the Democratic Alliance (the DA), was not for the same reason absolved from further scrutiny.138 She had posted on Twitter:

For those claiming that the legacy of colonialism was only negative, think of our independent judiciary, transport infrastructure, piped water etc.

133 Naidoo 2019 https://city-press.news24.com/Voices/hate-speech-human-rightscommission-did-not-consider-malemas-influence-20190409.

134 Feketha 2019 https://www.iol.co.za/news/politics/malema-hate-speech-rulingfurore-20131591.

135 Feketha 2019 https://www.iol.co.za/news/politics/malema-hate-speech-rulingfurore-20131591.

136 Feketha 2019 https://www.iol.co.za/news/politics/malema-hate-speech-rulingfurore-20131591.

137 Jana 2019 https://www.politicsweb.co.za/documents/malemas-white-slaughter-remarks-the-sahrcs-finding.

138 The Public Protector is currently investigating this matter further, even though Zille no longer holds office. Maughan 2019 https://www.businesslive.co.za/ bd/politics/2019-08-07-helen-zille-and-busisiwe-mkhwebane-to-square-off-overcolonialism-tweets/.

Here the approach accepted in international law was preferred, i.e. to be stricter against politicians and individuals holding status positions in so far as statements that they make are racially divisive.139

This was not the last from Malema. Following the death of the previous president of Zimbabwe, Robert Mugabe, he posted on Twitter: "the only white man you can trust is a dead white man". The SAHRC has indicated its intention to refer the matter to the Equality Court as a possible instance of hate speech.140

The fact that the SAHRC is lethargic in acting against these types of serious and repeated utterances by certain politicians could have devastating consequences. In the Masuku case141 the SAHRC led the evidence of a doctor, Dr Stanton, who has done extensive research on the topic of the prevention of genocide. In his research Stanton analysed the processes that lead to genocide. He has discovered that there is a pattern. The first stage of genocide starts with words having consequences. It is repetition of these utterances that incites genocide. The fact that Malema has been allowed to make repeated negative, racial utterances revolving around the same theme and that they have gone unpunished could in our view be considered the allowance of this first step of genocide against the race groups that he targets.

The identity and status of the perpetrator can potentially increase the likelihood, and the extent of the harm suffered.142 How well known and influential the perpetrator is also impacts on the size of the audience who will take note of the expression and the value placed on it.143 For these reasons, the ECtHR places a higher premium on utterances made by politicians.144 The European Council's case law suggests that the court is more inclined to find politicians guilty of hate speech.145 This principle does not appear to be consistently applied, particularly by the SAHRC. The "defences" that appear to be accepted by the SAHRC have syphoned through to the Equality Courts, where they are raised as defences against charges of having uttered hate speech.

139 Maughan 2019 https://www.businesslive.co.za/bd/politics/2019-08-07-helen-zille

and-busisiwe-mkhwebane-to-square-off-over-colonialism-tweets/. 140 Eyewitness News 2019 https://www.msn.com/en-za/news/politics/sahrc-to-take

malema-to-court-for-hate-speech/ar-AAHt7Fp?li=BBqfP3n. 141 Masuku case para 11. 142 LRC Memorandum para 41. 143 LRC Memorandum paras 20-22. 144 LRC Memorandum paras 20-22. 145 Weber Manual on Hate Speech 37; LRC Memorandum paras 20-22.

Black First Land First (the BLF), a political party which has since been deregistered, often used slogans emanating from the apartheid era, including "kill the farmer‚ kill the boer", "one settler‚ one bullet" and "land or death".146 Andile Mngxitama, the president of the BLF, answering to charges of alleged hate speech, observed that the slogans were responses to the historic and current land dispossession.147 The Equality Court disagreed and declared the slogan "land or death" to be hate speech.148

On 8 December 2018 at a rally in Potchefstroom Mngxitama stated:149

You kill one of us (black Africans), we will kill five of you (whites). We will kill their women, we will kill their children, we will kill their dogs, we will kill their cats, we kill anything that comes for us.

The BLF denied that this was hate speech, arguing that supporters were only being instructed to defend themselves should they be attacked and killed by whites.150 Even if this is so, no provision is made in the PEPUDA for any defences besides the threshold test for the application of section 10(1) of the PEPUDA.

In 2019 a fatal tragedy occurred at the high school Driehoek in Vanderbijlpark. Four white pupils died after an overhead walkway caved in. Various other pupils, mostly white, were seriously injured. Following the tragedy, the BLF spokesperson posted on social media that the death of the young children should be celebrated.151 Someone responded: "minus three land criminals -great news" and "[d]on't have heart to feel pain for white kids. Minus 3 future problems." The BLF spokesperson responded, "God is responding, why should we frown on the ancestors' petitions to punish the land thieves including their offspring."152 The SAHRC received several complaints and indicated that it would refer the matter to the Equality Court.

146 Strydom v Black First Land First 2019 ZAEQC 1 (6 May 2019). 147 Mabuza 2019 https://www.sowetanlive.co.za/news/south-africa/2019-01-29-blfhate-speech-accusations-to-be-heard-in-equality-court/.

148 SAHRC 2019 https://sahrc.org.za/index.php/sahrc-media/news-2/item/1907-mediastatement-the-south-african-human-rights-commission-welcomes-the-equalitycourt-s-decision-on-the-blf-and-hate-speech; Shange 2018 https://www.heraldlive. co.za/news/2018-07-19-blf-in-court-for-hate-speech-against-whites/; Lindeque 2019 https://ewn.co.za/2019/05/06/blf-ordered-to-remove-slogan-after-equality-court-hate-speech-ruling.

149 Pijoos 2019 https://www.timeslive.co.za/news/south-africa/2018-12-10-watch--you-kill-one-black-person-we-kill-five-white-people-blf-president/. 150 Pijoos 2019 https://www.timeslive.co.za/news/south-africa/2018-12-10-watch--you-kill-one-black-person-we-kill-five-white-people-blf-president/. 151 ANA Reporter 2019 https://www.iol.co.za/news/politics/driehoekhighschool-dayouth-reports-blf-to-sahrc-over-most-vile-remarks-19095305. 152 Pijoos 2019 https://www.timeslive.co.za/politics/2019-02-03-blf-to-be-reported-to-human-rights-commission-over-racist-horskool-driehoek-remarks/.

Mngxitama responded that the country should rather have an open dialogue about why people hold such views.153

In the Johannesburg Equality Court, facing charges of hate speech along with other members of the BLF, Mngxitama, argued that the utterances should not be viewed as hate speech. Instead, he argued, they were a spontaneous reaction emanating from a place of pain. He contended that the history of the country should be considered and that the statement should be viewed from the perspective that if a black child falls into a pit toilet there would not be as much publicity as in the case of these white children who died. He argued that the utterances were posted out of historical anger against whites.154 Initially, Mokgoatlheng J found that the members' statements constituted hate speech, but this finding was nullified by Qwelane SCA in which section 10(1) of the PEPUDA was amended in the interim.155

It is not correct to apply the legislation differently to different population groups. It is also the incorrect position from which to start the assessment of whether or not an utterance constitutes hate speech. The PEPUDA expressly determines that in hate speech cases considerations of fairness, including the personal context of the victim and the perpetrator,156 do not play a role.157 However, the PEPUDA requires that the context in which an utterance is made should be considered. Factors that are considered part of the context are the social and historical context and whether on the facts the utterance was directed at a group or individual that is recognised as being vulnerable.158

In Canada (Human Rights Comm) v Taylor159 the Canadian court approached the prohibition against hate messages from the point of view of those affected.160 This orientation, that the court should view the equality guarantee from the view of the victim, appears to be correct. It makes sense

153 Penny and Nqola 2019 https://ewn.co.za/2019/02/05/sahrc-appalled-by-racistcomments-on-hoerskool-driehoek-tragedy. 154 Beukes 2019 https://www.pressreader.com/search?query=BLF%20vier%20die& languages=en&groupBy=Language&hideSimilar=0&type=1&state=1.

155 Unfortunately, the Equality Court case has not been reported. Consequently, we are reliant on news reports for information regarding the outcome of the case. See Mitchley 2019 https://www.news24.com/SouthAfrica/News/nullified-equality-courtjudgment-against-blf-leaders-paves-way-for-criminal-case-solidarity-20191204.

156 Section 14 of the PEPUDA. 157 Section 15 of the PEPUDA. 158 SAHRC Findings 15; also see Grootboom 2019 PSLR 101. 159 Canada (Human Rights Comm) v Taylor 1990 13 CHRR D/435 (SCC). 160 Compare Eatock v Bolt 2011 FCA 1130 (Eatock) paras 243-252. The court follows

a similar approach.

when considering the context in which the utterance is made to look at the act of alleged hate speech from the victim's point of view, taking into consideration the surrounding circumstances applicable to him or her at the time that the utterance is made. This approach conforms to the Critical Legal Theory which determines that in the context of equality one must deal with individuals in accordance with their true conditions of disadvantage.161 Further, the PEPUDA explicitly requires taking into consideration the disadvantage and the context of the complainant.162

The appeal court in Herselman v Geleba163 also preferred the view that "the perceptions of the receiver or listener" are determinative.164 The court reasoned that the expressed purpose of the PEPUDA to protect victims of hate speech dictates this approach.165 Similarly, in the Masuku case the court iterated that what is important is how the statement was perceived.166

2.3.1 Individual v group protection

Section 10(1) of the PEPUDA, as it stood before Qwelane SCA, prohibited the communication of words "against any person" on a prohibited ground. These words are no longer contained in the interim amended provision. Nevertheless, no effort was made in the interim to clarify that protection against hate speech is not applicable to individuals as opposed to vulnerable groups. South Africa's legislation is not the only hate speech regulation that can be interpreted as providing individual protection.167

However, to use it as a mechanism for the protection of individuals does not appear to accord with the purpose of the PEPUDA as a remedial human rights statute with the transformation of the South African society in mind.168

161 Bohler-Muller and Tait 2000 Obiter 406, 410. 162 Preamble and ss 3(1)(a), 4(2) and 14(2)(a) of the PEPUDA; also see Kok 2008

SAJHR 446 fn 26. 163 Herselman v Geleba 2011 ZAEQC 1 (1 September 2011). 164 See too Eatock paras 243-252, 273; LRC Memorandum para 39. 165 Carney 2014 Language Matters 330. 166 Masuku case para 3. Although the Supreme Court of Appeal in Masuku v South

African Human Rights Commission obo South African Jewish Board of Deputies

2019 2 SA 194 (SCA) did not expressly deal with this aspect, it appears from its judgment that this line of argument may not hold up.

167 Section 18C of the Australian Racial Discrimination Act 52 of 1975 declares it unlawful "to offend, insult, humiliate or intimidate another person or a group of people" based on race.

168 For a discussion of the drafting history, see Gutto Equality and Non-discrimination 17-95.

The purpose of the PEPUDA is to promote democracy, to reconcile South African society and to uphold the constitutional values.169 Moreover, to interpret section 10(1) as a mechanism to protect individual interests as opposed to group rights would be out of alignment with the hate speech regulation in other jurisdictions.170 The Canadian Supreme Court declared unconstitutional section 14(1)(b) of the Saskatchewan Human Rights Code,171 a provision which regulated offensive speech, but which was not aimed at the protection of a vulnerable group.172 The Canadian Supreme Court in Saskatchewan (Human Rights Commission) v Whatcott173 held:

[H]ate speech must rise to a level beyond merely impugning individuals: it must seek to marginalize the group by affecting its social status and acceptance in the eyes of the majority.

In Islamic Unity Convention v Independent Broadcasting Authority,174 the Constitutional Court confirmed that the purpose of regulating hate speech is to ban any expression which "reinforces and perpetuates patterns of discrimination and inequality" and undermines unity, tolerance and reconciliation.175 In the Qwelane Equality Court case it was also acknowledged that section 10(1) of the PEPUDA is supposed to protect vulnerable groups, to give effect to their rights to equality, and to prevent unfair discrimination against them.176 Although it is not irrelevant that individuals belonging to a group are offended and hurt, "[u]ltimately, it is the need to protect the societal standing of vulnerable groups that is the objective of legislation restricting hate speech".177

Lindsay Maasdorp, spokesperson of the BLF, posted on Facebook: "I really dislike Max Price! I want to deal with him. Please cadres, tell that clown I'm coming for him, and he should expect me!" On a different day he wrote:

169 Section 2 of the PEPUDA.

170 Botha and Govindjee identify as a shortcoming of the hate speech protection in the PEPUDA that to "communicate" hatred is insufficient to establish liability. They suggest replacing "communicate" with "advocate" and that instead of banning the "communication" of "words" that are "hurtful" directed at "individuals" the hate speech protection should protect vulnerable groups against utterances that promote hatred against them, and which are likely to cause harm. Botha and Govindjee 2017 PELJ 27.

171 Saskatchewan Human Rights Code SS 1979, c S-24.1. 172 Saskatchewan (Human Rights Commission) v Whatcott 2013 1 SCR 467 para 92 et

seq. 173 Saskatchewan (Human Rights Commission) v Whatcott 2013 1 SCR 467 para 80. 174 Islamic Unity Convention v Independent Broadcasting Authority 2002 4 SA 294 (CC). 175 Islamic Unity Convention v Independent Broadcasting Authority 2002 4 SA 294 (CC)

paras 29-30, 33, 46. 176 Islamic Unity Convention v Independent Broadcasting Authority 2002 4 SA 294 (CC) para 53. 177 Saskatchewan (Human Rights Commission) v Whatcott 2013 1 SCR 467 para 82.

"When will we kill them?" The next day he posted on Twitter and on Facebook: "I have aspirations to kill white people, and this must be achieved!" About two weeks later he posted: "Make sure the struggle implicates whiteness (white-power/white people)" and shortly thereafter: "Max Price must be dealt with personally!" and "The Price on your life has been set to Max!"178

The threats made against Max Price on social media by Maasdorp would in terms of foreign law and section 10(1) of the PEPUDA not qualify as hate speech. They were directed at Price as an individual and did not relate to one of the prohibited grounds enumerated in the PEPUDA.179 However, the references to whites could qualify as hate speech. The statements are directed at a target group and relate to race, one of the prohibited grounds.

2.3.2 The vulnerability of the target group

It is an accepted principle in foreign jurisdictions that the more vulnerable the target group is to which the racial utterance is directed, the more likely it is that the group will be harmed by and because of the hate speech.180 The potential harm that can be inflicted by a racial utterance also increases if a power disparity exists between the perpetrator and the victims.181 However, the likely effect of the utterance is less important in South Africa, as section 10(1) of the PEPUDA does not require of the victims to prove actual or potential harm.

In recognition of the obligation to uphold international obligations and to have regard to foreign law when interpreting and applying the legislation adopted under the Constitution, the interests of all of the population groups in South Africa should be taken into account.

It is trite in international law and on a national level that minorities are often defenceless against racial discrimination. The Equality Court recently iterated that South African equality courts, in the fulfilment of the obligations under the Constitution and the PEPUDA, cannot allow hate speech against minority groups.182 Therefore, it is incremental that the court must act in

178 GroundUp Staff 2016 https://www.groundup.org.za/article/max-price-Maasdorp-

assault-claims/. 179 Section 1 of the PEPUDA. 180 Waldron 2010 Harv L Rev 1596, 1626; LRC Memorandum paras 18, 27. 181 LRC Memorandum para 7. 182 Masuku para 54.

protection of minority groups, particularly those which historically have fallen victim to hate crimes.183

During March 2019 the Equality Court heard a hate speech case concerning postings on Facebook. This followed a Carte Blanche episode concerning the slaughtering and skinning of donkeys for use in Chinese traditional medicine. A spate of negative individual comments directed at Chinese people followed. For instance, "[t]hey (Chinese people) are the most despicable things on the planet! Hate the Chings"; "[th]ere are no more disgusting humans than the Chinese people. I wish they all just die!"; "[ca]n we stop these slant-eyed freaks from coming into the country"; and also "we should start killing their children for a cure of the common babalaas."184

The Chinese Association lodged an application to declare the statements of eleven people to be hate speech. Historically, the Chinese as a minority population group in South Africa, like black South Africans, were subjected to legislation that was unfairly discriminatory based on race.185 The Chinese were also required to fight a legal battle in order to secure recognition as falling within the "designated groups of employees" that are entitled to the benefits of affirmative action under the Employment Equity Act 55 of 1998 (the EEA).186 In 2008 the High Court of South Africa declared Chinese South Africans who became citizens of the Republic before 1994 and their descendants as being eligible for the benefits of affirmative action.187 The outcome of this pending hate speech case should provide meaningful insight as to the value that the Equality Court ascribes to the factor of the vulnerability and historical discrimination of a minority population group in South Africa.

2.6.1 Private or public utterances

In terms of foreign jurisprudence, it is evident that hate speech regulation is not intended to censor ideas. Consequently, it is required that the utterance must be made in public to be sanctionable.230 To regulate hate speech which occurs in public sets a benchmark of what is acceptable behaviour and may assist in changing the mind-set of individuals too.231 Unfortunately, the PEPUDA is not clear that "publicity" of the expression is required for it to qualify as hate speech, as is the case in other jurisdictions.232

In terms of the Recommendation, if a racial utterance is disseminated via the mainstream media, or via the internet, or if it is repeated, it must be viewed as the fruit of a deliberate plan to instil hostility. It appears that the Equality Court considers how widely the utterance is publicised as a factor counting against the perpetrator. For instance, in the Dagane case the Labour Court considered the fact that the police officer had posted the racially loaded statements on a quasi-public forum [which is] accessible to potentially thousands of Facebook users.

However, the amount of publicity that hate speech attracts does not always depend on who the perpetrator is. Neither is it necessarily connected to his relative social standing and importance.

228 LRC Memorandum paras 44-46. 229 LRC Memorandum para 47. 230 R v Ahenakew 2006 SKQB 17-18; R v Bahr 2006 ABPC 360 para 30. 231 Minister of Home Affairs v Fourie 2006 1 SA 524 (CC) para 138. 232 Compare s 319(1) of the Canadian Criminal Code RSC 1985, c C-46, which sets as

a requirement for hate speech that the statements must be communicated "in a public place". In s 319(7) "public place" is defined as somewhere that the public has the right to access or where someone is in attendance by invitation, whether the invitation is expressed or implied. Section 18C of the Australian Racial Discrimination Act 52 of 1975 makes it an offense "otherwise than in private" to make offensive, insulting or humiliating statements.

There is a public interest dimension to hate speech cases.233 The PEPUDA requires that these cases must be heard in open court.234 In Khumalo the Roodepoort proceedings which had been instituted by the ANC were conducted in camera to evade publicity.235 Moreover, no press statement was made after these proceedings.236 The Johannesburg Equality Court lamented the fact that contrary to the prescripts of the PEPUDA the Roodepoort proceedings were not conducted in public.237 In the light of the lack of publicity, the Johannesburg Equality Court was not convinced that the public interest had been served.238

The research conducted by Brink and Mulder in 2017239 suggests that utterances made by whites against blacks enjoy more media coverage than those made by blacks against whites, even if what is said by the black perpetrators appears to be much more malignant.240 The black case studies referred to in the survey enjoyed markedly less media coverage than those of white transgressors. In fact, the largest number of media reports for a black transgressor (Malema, with 163) was reported on nearly 100 times fewer than the lowest number of reports concerning a white transgressor.241

Although one would expect that utterances made by individuals in influential positions would receive more media attention, this is not always the case. Angelo Agrizzi had made the utterance in which he referred to two Bosasa directors by the k-word, in the privacy of his home with only a few members of his family and a colleague present. The SAHRC stated in a newspaper report that this fact made no difference. A secret recording which was played at the 2019 Zondo Commission of Enquiry into State Capture was publicised widely.242 Penny Sparrow had posted her utterance on her private Facebook account, for the attention of a few of her personal friends

233 Khumalo case paras 20, 69. 234 Section 19 of the PEPUDA. 235 As mentioned above, this is a contravention of s 19(2) of the PEPUDA as highlighted

under 2.3. Khumalo case para 20. 236 Khumalo case para 69. 237 Khumalo case para 24.2. 238 Khumalo case para 69. 239 Brink and Mulder 2017 https://solidariteit.co.za/wp-content/uploads/2017

/10/Racism-hate-speech-and-double-standards-by-no-means-a-mere-matter-ofbla....pdf.

240 Brink and Mulder 2017 https://solidariteit.co.za/wp-content/uploads/2017 /10/Racism-hate-speech-and-double-standards-by-no-means-a-mere-matter-ofbla....pdf.

241 There were 251 reports concerning the utterance by Justin van Vuuren. Brink and Mulder 2017 https://solidariteit.co.za/wp-content/uploads/2017/10/Racism-hatespeech-and-double-standards-by-no-means-a-mere-matter-of-bla....pdf.

242 Daniels 2019 https://www.iol.co.za/news/south-africa/gauteng/agrizzi-sahrc-insettlement-talks-over-k-word-slur-24348287.

and family only. However, someone got a screenshot of it and disseminated the utterance further, and hers became the most thoroughly publicised case of hate speech in South Africa to date.243 Likewise, Adam Catzavelos' cases enjoyed a lot of publicity. His video went viral.244 Whereas Agrizzi was an executive businessman, Sparrow and Catzavelos were relatively unknown, working as an estate agent and in a family business respectively.245

The skewed numbers of media reports along racial lines could possibly emanate from the fact that it is not widely accepted that blacks can be guilty of racism against whites.246 It could also be attributable to the fact that the vast majority of South Africans are black and that reports concerning racism against blacks could increase newspaper sales.247 Whatever the reason, it is contrary to the Recommendation that the media coverage on hate speech should be so one-sided. It requires "[i]nformed, ethical and objective media" which “does not refer to race in a manner that may promote intolerance."248 The "Concluding observations on the combined fourth to eighth periodic reports of South Africa"249 indicate that the CERD is concerned about the governing party's racist pronouncements and that the media chooses to ignore them, which contributes to the general racial polarisation in South Africa.

243 An online search for "Penny Sparrow" and "monkeys" generated 27500 results. Sparrow's matter featured in 4501 media reports.

244 Catzavelos had stated on a video while on holiday in Greece: "Not a f***en [k-word] in sight. Heaven on earth". Lindeque 2018 https://ewn.co.za/2018/08/22/adamcatzavelos-fired-from-family-business-after-racist-video.

245 In the 2017 survey the persons who had made the offensive utterances in the black case studies were mostly highly placed individuals. Among them was the previous President of the Republic of South Africa, a leader of a political party, the rector of the University of the Free State, and the spokesperson of the Ngwathe Municipality. In the cases in which the alleged transgressor was white, media coverage was relatively extensive, even though besides Mabel Jansen, a judge, and Chris Hart, a senior economist, the utterers in the white category of the survey were not particularly influential. Brink and Mulder 2017 https://solidariteit.co.za/wp-content/uploads/2017/10/Racism-hate-speech-and-double-standards-by-nomeans-a-mere-matter-of-bla....pdf.

246 In Vodacom (Pty) Ltd v Byrne 2012 33 ILJ 2705 (LC) para 15 Van Niekerk J noted that it is believed that a black person cannot be racist. Also see Dlula 2014 https://m.news24.com/MyNews24/Black-people-cant-be-racist-20141124; Mzwakali 2015 https://www.pambazuka.org/governance/black-people-can%E2%80%99t-be-racist.

247 Black South Africans form an overwhelming majority. StatsSA 2019 http://www.statssa.gov.za/publications/P0302/MYPE%202019%20Presentation_fin al_for%20SG%2026_07%20static%20Pop_1.pdf.

248 The Recommendation paras 39-40. 249 The Recommendation para 12.

Australia

Eatock v Bolt 2011 FCA 1130 Hagan v Trustees of the Toowoomba Sports Grounds Trust 2000 FCA 1615

Canada

Canada (Human Rights Comm) v Taylor 1990 13 CHRR D/435 (SCC) Grant v Torstar Corporation 2009 3 SCR 640 R v Ahenakew 2006 SKQB 17-18 R v Bahr 2006 ABPC 360 Saskatchewan (Human Rights Commission) v Whatcott 2013 1 SCR 467

European Court of Human Rights

Fratanolo v Hungary App No 29459/10 (ECtHR 3 November 2011) Garaudy v France App No 65831/01 (ECtHR 3 July 2003) Vajnai v Hungary App No 33629/06 (ECtHR 8 July 2008)

South Africa

AfriForum v Malema 2011 6 SA 240 (EqC)

Borgin v De Villiers 1980 3 SA 556 (A)

Chinese Association of South Africa v Minister of Labour 2008 ZAGPHC 174 (18 June 2008) Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Kapp 2002 6 BLLR 493

(LAC) Dagane v SSSBC 2018 7 BLLR 669 (LC) Delange v Costa 1989 2 SA 857 (A) De Reuck v Director of Public Prosecutions, Witwatersrand Local Division

2004 1 SA 406 (CC) Duncanmec (Pty) Limited v Gaylard 2018 6 SA 335 (CC) Dyonashe v Siyaya Skills Institute (Pty) Ltd 2018 3 BALR 280 (CCMA) Freedom Front v South African Human Rights Commission 2003 11 BCLR

1283 (SAHRC) Herselman v Geleba 2011 ZAEQC 1 (1 September 2011) Hotz v University of Cape Town 2017 2 SA 485 (SCA) Human Rights Commission of South Africa v SABC 2003 1 BCLR 92

(BCCSA)

Islamic Unity Convention v Independent Broadcasting Authority 2002 4 SA 294 (CC) Lebowa Platinum Mines Ltd v Hill 1998 19 ILJ 1112 (LAC) Le Roux v Dey 2011 3 SA 274 (CC) Makhanya v St Gobain 2019 7 BALR 720 (NBCCI) Masuku v South African Human Rights Commission obo South African

Jewish Board of Deputies 2019 2 SA 194 (SCA) Minister of Home Affairs v Fourie 2006 1 SA 524 (CC) Modikwa Mining Personnel Services v CCMA 2012 ZALCJHB 61 (29 June

2012)

Mohammed v Jassiem 1996 1 SA 673 (SCA) Nelson Mandela Foundation Trust v AfriForum 2019 4 All SA 237 (EqC) Phillips v DPP, Witwatersrand Local Division 2003 3 SA 345 (CC) Qwelane v South African Human Rights Commission 2020 2 SA 124 (SCA) Rustenburg Platinum Mine and SAEWA obo Meyer Bester 2018 8 BCLR

951 (CC)

SAEWU v Rustenburg Platinum Mines (LAC) (unreported) case number JA 45/2016 of 3 May 2017 South African Breweries (Pty) Ltd v Hansen (unreported) case number

CA6/2016 of 25 May 2017

South African Human Rights Commission obo South African Jewish Board

of Deputies v Masuku 2018 3 SA 291 (GJ) South African Human Rights Commission v Khumalo 2019 1 All SA 254 (GJ)

South African Human Rights Commission v Qwelane 2018 2 SA 149 (GJ)

South African Revenue Service v Commission for Conciliation, Mediation and Arbitration 2017 38 ILJ 97 (CC) Strydom v Black First Land First 2019 ZAEQC 1 (6 May 2019) The Citizen 1978 (Pty) Ltd v McBride 2011 4 SA 191 (CC) Thembani v Swanepoel 2017 3 SA 70 (ECM) Vodacom (Pty) Ltd v Byrne 2012 33 ILJ 2705 (LC)

United States

West Virginia State Board of Education v Barnette 319 US 624 1943

Legislation

Australia

Racial Discrimination Act 52 of 1975

Canada

Canadian Criminal Code RSC 1985, c C-46 Saskatchewan Human Rights Code SS 1979, c S-24.1

Germany

Strafgesetzbuch, 1998

South Africa

Broad-Based Black Economic Empowerment Act 53 of 2003 Cape Chinese Exclusion Act, 1904 Constitution of the Republic of South Africa, 1996 Employment Equity Act 55 of 1998 Prevention and Combating of Hate Crimes and Hate Speech Bill, 2016 (B92018) Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 South African Human Rights Commission Act 40 of 2013 Transvaal Immigration Restriction Act, 1902

United Kingdom

Public Order Act, 1986