HATE SPEECH IN SOUTH AFRICA

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THE CONSTITUTIONAL TREATMENT OF HATE SPEECH IN SOUTH AFRICA 1

Christa van Wyk, BA, LLB, LLM, LLD

Professor, Department of Jurisprudence

University of South Africa

XVIth Congress of the International Academy of Comparative Law

Brisbane, 14th - 20th July 2002

The Constitutional Treatment of Hate Speech (IV.C.1)

1. Introduction

This contribution is devoted to a discussion of the constitutional treatment of hate speech in South Africa. Statutory implementation of the Constitutional provision in this respect will also be discussed, while the common-law protection of the freedom of expression/communication and its limitations,2 will only be referred to briefly.

Before the promulgation of the interim South African Constitution in 1993,3 freedom of expression was a residual common law (Roman Dutch) freedom. Although the right to freedom of expression and speech "has always been recognised in South African common law"4 Parliament could enact any law, provided that the formal requirements for legislation were adhered to. This was in accordance with the doctrine of parliamentary supremacy which prevailed until April 1994, when the interim Constitution of the Republic of South Africa became operative. Parliament could abridge, limit or suspend rights and the courts had no power to test the material content of parliamentary legislation against standards such as equality. A number of laws dealing with hate speech were passed by Parliament in the apartheid era. Some dealt with the prevention of racial hostility, others with criminal prosecution of hate speech, and others were aimed at preventing racial hatred on the part of the disenfranchised majority.5 These laws in general kept tight control of expression of ideas and restricted anti-apartheid views and expressions.6

The interim Constitution of 1993 and the final Constitution of 19967 brought about a constitutional state. The Constitution introduced constitutional supremacy instead of parliamentary supremacy which obtained previously. The law now reigns supreme, and the Constitution is the measure against which all other law (including common law) is tested by the courts. Laws are invalid to the extent that they are inconsistent with the Constitution. The powers of Parliament and the administration have thus been fundamentally altered. The Constitution contains a Bill of Rights which protects certain rights against the unrestricted exercise of government powers, and the legislature, the executive, the judiciary and other organs of state8 - even individuals under certain circumstances9 - are bound by the Bill of Rights.

The right to freedom of expression, which can be regarded as one of the essential foundations of a democratic society, is one of the fundamental rights entrenched in the Bill of Rights.

Section 16 provides that

(1) Everyone has the right to freedom of expression, which includes -

(a) freedom of the press and other media;

(b) freedom to receive or impart information or ideas;

(d) academic freedom and freedom of scientific research.

(2) The right in subsection (1) does not extend to -

(a) propaganda for war;

(b) incitement of imminent violence; or

(c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.

Freedom of expression is generally deemed necessary to promote scientific, artistic and cultural progress. Even the expression of false ideas (false speech) provokes further debate and the search for truth. Expression is seen as a means of fulfillment of the human personality, and is closely related to other fundamental rights and freedoms, such as the freedom of religion, belief and opinion10; the right to dignity11; the right to freedom of association12; the right to vote and to stand for public office,13 and the right to assembly.14 It is seen as a prerequisite for free political activity, and recognises the importance, both for a democratic society and individuals, of the ability to express opinions, even when those views are controversial.15 Even unpopular views are tolerated in the marketplace of ideas, and society needs to be able to hear, form and express opinions and views on a wide range of matters. One of the goals of freedom of expression is therefore to assist in the democratic decision-making and to aid the process of stability and change in society.16 This is all the more important in a country such as South Africa where the democracy is not yet firmly established and where there is a commitment to a society based on a "constitutionally protected culture of openness and democracy and universal human rights for South Africans of all ages, classes and colours".17

2 Section 16(1) of the South African Constitution: Freedom of expression

Section 16(1) of the Constitution provides for freedom of expression:

"Everyone has the right to freedom of expression, which includes -

(a) freedom of the press and other media;

(b) freedom to receive or impart information or ideas;

(d) academic freedom and freedom of scientific research.

Any limitation of this category of expression must satisfy the requirements of the general limitations clause contained in section 36(1) - discussed below - to be constitutionally valid.

Section 16(1) of the South African Constitution protects free expression generally. Freedom of expression includes verbal, written, pictorial and physical expression as well as expression via visual images. It therefore includes speech and activities such as displaying posters, painting and sculpting, dancing, the publication of photographs, symbolic acts such as flag burning, the wearing of certain items of clothing, physical gestures - in principle every act by which a person attempts to express some emotion, opinion, idea, belief or grievance. However, the closer the expression comes to action, and the further it drifts from conveying ideas and opinions, the less protection it will receive under the right to freedom of expression.18

Section 16(1) makes specific reference to certain forms of expression, such as freedom of the press and media, and academic freedom and freedom of scientific research. The notion that this special reference means that these forms of expression enjoy a higher degree of protection than other forms not specifically mentioned, has been rejected by academic writers.19 They remark that if anything, the expression of political opinion, which is not listed, should rather be given this honour.20 The idea that the press or journalists must enjoy special constitutional protection has emphatically been rejected by South African courts.21

3 Limitations on freedom of expression

No right, including fundamental rights, is absolute. They are limited by common-law rules (such as the law of defamation in the case of freedom of expression) to the extent that these are consistent with the Bill of Rights,22 and by state interests, such as national security, public order, the constitutional order, the pursuit of national unity and reconciliation, public safety, public health, public morals and democratic values.23 The right to freedom of expression is also limited by the rights of others, and conflicting rights often have to be balanced. Freedom of expression does not enjoy superior status in South African law and does not automatically trump the right to human dignity,24 or the right to equality. Furthermore, like other rights, freedom of expression as entrenched in section 16(1) may be limited by complying with the provisions of the general limitations clause (section 36) of the Constitution.

It has to be noted, however, that freedom of expression is also limited "internally" in terms of section 16(2) of the Constitution, which limitation operates independently of section 36. Section 16(2) introduces a curtailment of the right of freedom of expression and can therefore be regarded as an exception to the right of freedom of expression, which must be interpreted restrictively.

4 Section 16(2) as an internal limitation

Section 16(2) defines the boundaries beyond which the right to freedom of expression contained in subsection (1) does not extend. Freedom of expression does not extend to-

(a) propaganda for war;

(b) incitement of imminent violence; or

(c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.

Section 16(2) places certain forms of expression - including certain forms of "hate speech" - outside the right to freedom of expression and removes them from the ambit of constitutional protection. The right to freedom of expression does not extend to the listed categories of speech, which have in advance been singled out by the framers of the South African Constitution as not deserving constitutional protection, since they have, among other things, the potential to impinge adversely on the dignity (one of the core values of the Constitution)25 of others and cause them harm.26

Burns remarks that, unlike people in many other countries, South Africans do not have to examine, analyse and agonise over the question whether or not to prohibit "hate speech".27 There is no need to debate issues such as whether hate speech should be heard and the consequences dealt with, or whether censorship should be applied, with the danger that the ideas of bigots may be driven underground, sympathy for their views increased and resentment towards minority groups - who are seen as benefitting from the censorship -fuelled.28 The debate which has been raging elsewhere, namely whether hate speech should be protected as expressions of thought, or whether it should be repressed as infringements on the right to equality - in short whether equality or freedom of expression should be considered as the most important constitutional value - has to a large extent been made unnecessary in South Africa. By excluding advocacy of hatred from constitutional protection, South Africa has also implemented various international documents which demand that hate speech should be proscribed.29 Although South Africa has signed some, but has not ratified any of the international hate speech conventions, it nevertheless respects the spirit of international law,30 which in turns has a deep influence on the South African Constitution and its interpretation.31

The internal limitation contained in section 16(2) has the effect that parliament can introduce hate speech legislation or regulation for the class of speech listed in section 16(2). Such legislation would not be subject to a general limitation analysis in terms of section 36, since it would not amount to a limitation of the right contained in section 16(1). In short, a statute prohibiting hate speech as defined in the Constitution cannot be subject to a freedom of expression challenge, because there is not constitutional right to speech of this nature.

For precisely this reason Johannessen32 submits that section 16(2) is a serious denigration of the right to freedom of expression which may be abused by governments to restrict speech. Hate speech is moved beyond the scope of constitutional scrutiny and of a general limitations analysis, and is moved into the area of parliamentary supremacy discussed above. He would have preferred a "very carefully drafted statute" dealing with hate speech, but subject to constitutional review, instead of the internal constitutional limitation which currently pertains. He argues that if a person were to be prosecuted under a statute which targets speech within the ambit of section 16(2), he or she would not be able to raise as a defence that the law is an unreasonable or unjustifiable restriction on the constitutional freedom of expression, since there is no right that could be infringed. He or she could only try to prove that the words in question do not advocate hatred based on the grounds listed in the Constitution.

If the state extends the scope of regulation beyond expression envisaged in section 16(2), it encroaches on the terrain of protected expression and can do so only if such regulation meets the justification criteria in section 36(1) of the Constitution. The normal two-stage process outlined below, would then proceed. In that case the speech could still be outlawed by statute, but the state will have to show that the limitation is justified in terms of section 36.

Burns,33 on the other hand, welcomes the internal limitation as a clear message to all living in South Africa that hate speech will not be tolerated. She argues that hate speech is of nature insulting, degrading and of low value and does not advance any of the goals of freedom of expression mentioned above. She points to the fact that many people in diverse societies encounter the very real problem of hate speech, often in the form of racist speech, in their daily lives.34 Hate speech, which is often regarded as synonymous with expressions of racial hatred and racism,35 has a destabilising and divisive effect on society. It encourages discrimination between groups which may lead to violence and a breakdown in public order.36 Hate speech not so much amounts to hostility between individuals, but rather involves groups or the individual's membership of a racial, ethnic, gender or religious group is involved. Burns nevertheless submits that section 16(2)(c) is aimed at all forms of hate speech, whether directed at individuals or specifically identifiable groups or categories of people.

The Constitutional Court has recently emphasised the interest of the state in regulating hate speech, since hate speech may pose harm to the constitutionally mandated objective of building a non-racial and non-sexist society based on human dignity and the achievement of equality.37

5 Section 16(2)(c) analysed

According to section 16(2)(c) of the Constitution the right to freedom of expression does not extend to

(1) advocacy of hatred that is based on race, ethnicity, gender or religion, and

(2) that constitutes incitement to cause harm.

Both the above elements - the advocacy of hatred and the incitement to cause harm - must be present before an expression will amount to advocacy of hatred or hate speech. The constitutional test whether speech is to be judged as hate speech, can therefore be considered to be a stringent one.

5.1 Advocacy of hatred that is based on race, ethnicity, gender or religion

"Advocacy" probably implies more than merely a statement, and includes an element of exhortation, pleading for, supporting or coercion.38

"Hatred" may be interpreted to mean an intense, passionate or active dislike, ill-will, malevolence, or feeling of antipathy or enmity connected with a disposition to injure.39

Specific forms of hate speech are listed in section 16(2)(c). They are "race, ethnicity, gender or religion". De Waal, Currie and Erasmus submit that they are a numerus clausus, and will not extend to analogous forms of hate speech, such as homophobic and perhaps even xenophobic speech.40 This view is in accordance with the view that exceptions, such as section 16(2), are to be restrictively interpreted, and support for their view may be found in the Constitutional Court decision in The Islamic Unity Convention v The Independent Broadcasting Authority and Others41 discussed below. However, when one tries to find workable definitions for the prohibited bases for hate speech, the line between race and nationality, for example, becomes blurred.

If "race" is given a meaning in accordance with the definition of "racial discrimination" contained in article 1(1) of the Convention on the Elimination of All Forms of Racial Discrimination (1965), namely "colour, descent, or national or ethnic origin",42 it is clear that race is not confined to biological criteria, but includes elements of a social and cultural nature.43 If this definition is accepted as the correct one, it could probably be argued that language groups and groups of a specific national origin would be included under the category of "race".

"Ethnicity" is defined by dictionaries44 to relate to races or large groups of people classed according to common traits and customs. Again, if one were to accept this definition as a correct one, it is clear that "common traits and customs" would probably include language and national groups.

"Gender" refers to male and female, but will it include categorisation on the ground of sexual orientation as well? As mentioned above, De Waal, Currie and Erasmus submit that the forms of hate speech contained in the Constitution will not extend to analogous forms of hate speech, such as homophobic speech. Burns, on the other hand, argues that the concept of gender will indeed include sexual preference or sexual orientation. Although she admits that the wording of section 9 of the Constitution (the equality clause) which names both gender, sex, and sexual orientation as prohibited grounds of unfair discrimination,45 indicates that the drafters of the Constitution were at liberty to adopt a similar approach in section 16 by expressly including categories such as sex and sexual orientation, she relies on the judicial approach to the interpretation of the Constitution, which calls for a generous and purposive interpretation "primarily concerned with the recognition and application of constitutional values and not with finding the literal meaning of statutes" and which "requires the courts to play a proactive role in changing society in accordance with the aims and spirit of the Constitution".46 She consequently submits that a purposive approach to section 16 will mean that hate speech directed as lesbians and gays will also be prohibited.47 In view of the decision by the Constitutional Court in The Islamic Unity Convention v The Independent Broadcasting Authority and Others48 discussed below, preference must be given to the more restrictive view of De Waal, Currie and Erasmus, namely that analogous forms of hate speech will not be covered by section 16(2)(c).

With regard to "religion", it must be mentioned that hate speech based on religion is underscored by the common-law criminal offence of blasphemy.49 Although hatred resulting from belonging to different religions has never been of great concern in South Africa, it may become so in future with the rise of fundamentalism.

Language, nationality or culture as prohibited bases of hate speech is not listed, neither is social or marital status or class mentioned. If one takes the approach of De Waal, Currie and Erasmus, it would seem that hate speech based on any one of these criteria would not enjoy constitutional protection. However, if one has regard to the approach of Burns, and the definitions discussed above, one would probably be inclined to include all or some of these criteria as unprotected forms of hate speech. They, along with some others, have indeed been included as prohibited bases for hate speech in the Promotion of Equality and Prevention of Unfair Discrimination Act50 discussed below. On the other hand, the Films and Publications Act51 contains a prohibition of hate speech based squarely on section 16(2) of the Constitution and lists only religion, race, ethnicity and gender.

5.2 Advocacy of hatred that constitutes incitement to cause harm

"Incitement" means to call for, urge, or persuade. Burns argues that "incitement" means to rouse, stimulate, put in motion, to move to action, to spur or to move on.52 She quotes two South African decisions relating to the Riotous Assemblies Act53 in which it was held that "incitement" connotes an element of persuasion by which some measure of reluctance or hesitation on the party incited is overcome, or which seeks to influence the mind of another to commit a crime. However, it has to be borne in mind that section 16(2)(c) deals with incitement to cause harm. De Waal, Currie and Erasmus argue that "incitement" should be interpreted to mean "directed" to cause the types of harm mentioned above, and not so much to encourage an audience to cause harm to the target(s) of the hate speech. It is the speech itself, and not what an audience may do in response to it, which causes the harm.

The concept of "harm" generally includes physical violence, and financial and emotional harm. Whether it will also include broad psychologically and socially harmful effects on the target(s) of the hate speech has been discussed by South African academics. De Waal, Currie and Erasmus54 submit that a broad concept of harm, as described by the Canadian Supreme Court in R v Keegstra,55 should be adopted as this better corresponds to the purpose of the hate speech exception. In the Canadian case the court stated that emotional damage caused by words may have grave psychological and social consequences, such as humiliation, degradation, a loss of self-worth and dignity, which are undesirable consequences in a society that values tolerance. The harm of hate speech matters to individuals, to the groups they belong to, to society generally, and to democracy.56 De Waal, Currie and Erasmus come to their conclusion despite the fact that the categories listed in section 16(2)(c) constitute exceptions to the right conferred in section 16(1) and that exceptions are usually restrictively interpreted. Burns also submits that the harm envisaged in section 16(2)(c) will generally be of a psychological nature, although physical assault and violence may be the ultimate result of hate speech. In this respect she refers to the "critical race theorists" (mostly writing from an 51 65 of 1996. American perspective) who argue that insults based on race are more threatening and consequently more psychologically harmful than other insults.57 This broad interpretation of the concept of "harm"view was recently adopted by the Broadcasting Complaints Commission of South Africa.58

6 The general limitations clause: section 36

All the rights in the Bill of Rights, including the freedom of speech, are subject to the limitations clause in section 36. Section 36(2) provides that no law may limit any right entrenched in the Bill of Rights, except as provided in subsection (1) or in any other provision of the Constitution. Section 36(1) provides that fundamental rights may be limited only

- in terms of law of general application

- to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom

- taking into account all relevant factors, including-

(a) the nature of the right;

(b) the importance of the purpose of the limitation;

(d) the relation between the limitation and its purpose; and

(e) less restrictive means to achieve the purpose.59

When an infringement of fundamental rights is alleged - and a classic example would be censorship laws - the courts will apply a two-stage analysis.

The courts will first establish whether there is any conflict or repugnancy between the law/measure contested and the Bill of Rights. The right's claimant shoulders the burden of establishing that there is indeed an infringement on his or her ability to exercise a fundamental right. The inquiry is whether the activity complained of falls within the ambit of the right. The first questions to be addressed are therefore the following: what is the content of the right that appears on the face of it to have been infringed, which constitutional values are entrenched in this right, which interests does the right aim to protect, and what is the purpose of the guarantee? In short, what are the content, ambit and boundaries of the right in question?

At the second stage of the inquiry the limitation of the right is tested. It is investigated whether the prima facie infringement on or limitation of the right is reasonable and justifiable in terms of section 36(1) of the Constitution, in other words, whether it is a "permissible" limitation under section 36 of the Constitution. Determining what is fair and reasonable has been called an exercise in proportionality, involving the weighing up of various factors in a balancing exercise.60 The factors listed in section 36(1) all have to be taken into account to determine whether a right may be reasonably and justifiably limited. section 36(1) therefore provides a mechanism which permits the government or some other party to undertake actions which, though prima facie unconstitutional, serve pressing public interests. The importance of the constitutional values guaranteed by the right in question is now tested against the strength of the justification offered for the infringement, namely the social objectives. It is investigated whether the law/measure complained of falls within the permissible restriction or limitation. The party seeking to uphold the limitation, usually the state, must show that the limitation is justifiable. It should be noted that "law of general application" does not necessarily amount to legislation published in the Government Gazette, but means any law/measure/rule, which is general, accessible to the public, precisely formulated and non-arbitrary in its application.61

As pointed out above, if parliament made legislation which limited freedom of expression contained in section 16(1) or which extended beyond expression envisaged in section 16(2), it would encroach on the terrain of protected speech and could do so only if the legislation met the justification criteria in section 36(1) of the Constitution. The state would have to show that the limitation is justified in terms of the limitations clause.

7 The Promotion of Equality and Prevention of Unfair Discrimination Act

Parliament did make legislation which limits freedom of expression. The Promotion of Equality and Prevention of Unfair Discrimination Act62 was passed, not only to give effect to section 9 (the equality clause)63 of the Constitution of 1996 but also to prohibit hate speech,64 making clear that equality and the prohibition of hate speech are closely related. The act was partly brought into effect on 1 September 200065.

This act implements and clarifies the constitutional hate speech provision. While the Constitution puts these forms of expression outside constitutional protection, the act clearly prohibits hate speech and creates rights. It provides remedies, apart from existing Roman-Dutch common law offences66 and other remedies67 to counter the harmful effects of hate speech. Although not in operation yet, special "equality courts" for various areas are created for the purposes of the act. Every magistrates' court and every High Court is an equality court for the area of its jurisdiction and within the monetary limits of its jurisdiction. These courts will be run by experienced staff68 designated by reason of their training, experience, expertise and suitability in the field of equality and human rights.69 No proceedings may be instituted unless a presiding officer, who has been designated, and one or more trained clerks are available70. The presiding officer of an equality court may refer a complainant to another institution, body, court, tribunal or forum, if it can deal more appropriately with the matter.71

Proceedings under the act may be instituted by any person acting in his or her own interest, any person acting on behalf of another person who cannot act in their own name, any person acting as a member of, or in the interests of, a group or class of persons, any person acting in the public interest, any association acting in the interests of its member, and the South African Human Rights Commission, or the Commission for Gender Equality.72

Equality courts will have wide-ranging powers of enforcement, including an interim order; a declaratory order; an order making the settlement between the parties to the proceedings an order of court; an order for the payment of any damages in respect of any proven financial loss, including future loss, or in respect of impairment of dignity, pain and suffering or emotional and psychological suffering which result from the hate speech; an order directing that specific steps be taken to stop the hate speech; an order for the implementation of special measures to address the hate speech; an order that an unconditional apology be made; an appropriate order of a deterrent nature; a directive requiring the respondent to make regular progress reports regarding the implementation of the court's order, and an order to comply with provisions of the act.73 Various remedies may be combined to give effective relief to the complainant. The act does not create any criminal offences, but provides that an equality court may, where appropriate, refer any case dealing with the publication, advocacy, propagation or communication of hate speech to the Director of Public Prosecutions for the institution of criminal proceedings in terms of the common law or relevant legislation.74 Criminal prosecution for hate speech is therefore a possibility.75

The act binds the state and all persons.76 Section 10(1) deals specifically with hate speech, and prohibits the publication, propagation, advocacy or communication of words based on one or more of the "prohibited grounds" against any person, which could reasonably be construed to demonstrate a clear intention to be hurtful, be harmful or to incite harm, promote or propagate hatred. This section therefore sets two requirements for hate speech:

(1) it must be based on a prohibited ground, namely race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth, or any other ground where discrimination based on that other ground causes or perpetuates systemic disadvantage, undermines human dignity or adversely affects the equal enjoyment of a person's rights and freedoms in a serious manner that is comparable to discrimination on a ground specifically listed.77

(2) it must be reasonably construed to demonstrate a clear intention to be hurtful, be harmful or to incite harm, or to promote or propagate hatred. The harm contemplated in this provision, probably has the same meaning as "harm" contemplated in section 16(2)(c) of the Constitution.78

Section 10(1) of the Promotion of Equality and Prevention of Unfair Discrimination Act is subject to an important proviso.79 The bona fide engagement in artistic creativity, academic and scientific inquiry, fair and accurate reporting in the public interest or publication of any information, and advertisement or notice in accordance with section 16 of the Constitution, is not precluded by this section.80

It is important to note that the act uses categories of expression which go further than those excluded from constitutional protection in section 16(2). The "prohibited" grounds for hate speech have been vastly extended and are similar to those on which unfair discrimination is prohibited in section 9(3) of the Constitution.81 They now include inter alia language, culture, marital status, sexual orientation, and birth. Since the provisions of the act go beyond the categories of expression envisaged in section 16(2), the act will be subject to constitutional scrutiny and the two-stage limitations analysis referred to above.82 The state will have to show that the limitation is justified in terms of section 36(1). Johannessen argues that, given the strong constitutional emphasis on values such as human dignity, equality, non-racism and non-sexism, it should not be difficult to justify hate speech limitations. On the other hand, it may be argued that exceptions to freedom of expression should be restrictively interpreted, as was done in the case of The Islam Unity Convention v The Independent Broadcasting Authority and Others.83 This could mean that the act will not pass constitutional scrutiny.

8 South African hate speech jurisprudence

In The Islamic Unity Convention v The Independent Broadcasting Authority and Others84 the Constitutional Court had to deal with an application to grant an order declaring clause 2(a) of the Code of Conduct for Broadcasting Services85 unconstitutional and therefore invalid because of its inconsistency with the right to freedom of expression contained in section 16 of the Constitution. It was claimed that the clause was vague and overly broad.

Clause 2(a) of the Code of Conduct for Broadcasting Services provides that:

"Broadcasting licensees shall ... not broadcast any material which is indecent or obscene or offensive to public morals or offensive to the religious convictions or feelings of any section of a population or likely to prejudice the safety of the State or the public order or relations between sections of the population."

The applicant, the Islamic Unity Convention, ran a community radio station known as Radio 786 under a broadcasting licence issued to it by the first respondent, the Independent Broadcasting Authority (IBA). In May 1998 the station broadcast a programme entitled "Zionism and Israel: An in-depth analysis" in which an interview with one Dr Yaqub Zaki was featured. In the interview, Dr Zaki expressed views which, among other things, questioned the legitimacy of the state of Israel and Zionism as a political ideology, and asserted that Jewish people had not been gassed in concentration camps during the Second World War, but died of infectious diseases, particularly typhus, and furthermore that only a million Jews had died.

Following the broadcast, the South African Jewish Board of Deputies (the fourth respondent) lodged a formal complaint with the second respondent, the Head: Monitoring and Complaints Unit (a unit within the IBA), claiming that the material that had been broadcast contravened clause 2(a) of the Code of Conduct for Broadcasting Services, in that it was "likely to prejudice relations between sections of the population, i.e. Jews and other communities".

The court did not deal with the constitutionality of the whole clause, but focused on the latter part of clause 2(a) - "likely to prejudice the relations between section of the population" - in its judgment. The court first dealt with the enquiry whether clause 2(a) was consistent with the provisions of section 16(2). It found that the phrase "section of the population" was less specific than "race, ethnicity, gender or religion" as spelt out in section 16(2), and that the prohibition contained in the clause went beyond the categories of expression enumerated in section 16(2). Not every expression that is likely to prejudice relations between sections of the population would be advocacy of hatred that is based on race, ethnicity, gender or religion which constitutes incitement to cause harm. Clause 2(a) prohibited that which is not excluded from the protection of section 16(1) and was therefore found to be unconstitutional.

The court then turned to the justification enquiry in terms of section 36. The court accepted that in the context of broadcasting, freedom of expression has special relevance and that it is in the public interest that people be free to speak their minds openly and robustly, and, in turn, to receive information, views and ideas. The court recognised the powerful role of the media in shaping public opinion and providing the public with information on current events. The court also accepted that it was in the public interest that reasonable limitations be applied and that broadcasting serves be regulated in order to promote and protect human dignity, equality, and freedom, and to heal the divisions of the past and build a united society. The court recognised that expressions that advocate hatred and the stereotyping of people on the basis of immutable characteristics are particularly harmful to the achievements of these values as they reinforce and perpetuate patterns of discrimination and inequality, and have the potential to further divide the South African society.86 However, inroads on the right to freedom of expression protected by section 16(1) had to be consistent with the limitations clause and the Constitution.87 The court found that no grounds of justification were advanced by the IBA and the Minister of Communications (the fifth respondent), and that it had not been shown that the need to protect dignity, equality and the development of national unity could not be served by less restrictive means, namely the enactment of a provision which is appropriately tailored and more narrowly focused. The court found that the relevant portion of clause 2(a) of the Code of Conduct for Broadcasting Services was unconstitutional and inconsistent with section 16.

In Human Rights Commission of South Africa v SABC88 the Broadcasting Complaints Commission of South Africa (BCCSA) recently enquired whether the broadcast of the song "AmanNdiya" amounted to the advocacy of hatred based on race or ethnicity that constitutes incitement to harm, which is prohibited in terms of the Constitution and the Broadcasting Code. The broadcast of the song, and not the distribution of the CD or live performances of the song, was at stake.89

The BCCSA has jurisdiction over all TV channels and more than 40 radio stations insofar as the Code of Conduct for Broadcasting Services is concerned.90 Ukhozi FM - a KwaZulu-Natal radio station which falls under the umbrella of the South African Broadcasting Corporation - broadcast the song "AmaNdiya", written by Mbongeni Ngema, during a current affairs programme in which this controversial song was discussed. The Human Rights Commission filed a complaint with the BCCSA on the basis that the song amounted to hate speech against Indians, a minority group comprising some 2,6% of the South African population of whom a substantial number live in KwaZulu-Natal.

The song goes along the following lines (translated from the Zulu)91:

Oh men, oh strong men!

We need a courageous man to confront the Indians

Indians don't want to change ... it was better with whites...

Zulus do not have money and are squatting in shacks as chattels of Indians ...

We have been dispossessed by Indians who are suppressing our people...

I have never seen a Dlamini emigrating to Bombay

yet Indians arrive in Durban everyday - they pack the airport...

No Indian wants to see a black-owned shop ...

The BCCSA based its judgment on the Constitutional Court's interpretation of section 16(2) of the Constitution in The Islamic Unity Convention v The Independent Broadcasting Authority and Others discussed above. The BCCSA based its reasoning on the constitutional treatment of hate speech, and accepted that, since its Broadcasting Code was similar to the Code of Conduct for Broadcasting Services discussed in the Islam case, it was bound by this decision. Its own code had to be conform to the Constitution, and it considered the Constitution to be part of the BCCSA Broadcasting Code.

The BCCSA recognised song as a form of artistic creativity which is protected by section 16(1), yet it realised that artistic creativity can also advocate hatred, and that the medium of song can enhance the effect of the words on those who are targeted. The BCCSA found that the broadcast of the song "AmaNdiya" constituted hate speech as defined in section 16(2) of the Constitution and in the Broadcasting Code. It found that the song promoted hate in sweeping, generalising and emotive language and described Indians as a race as oppressive, humiliating and exploitative. It further found that the combination of the accusations constituted an incitement to harm and led to the inference by Indians their safety was at stake, that Indians were likely to fear for their security, and that it was irrelevant whether a real attack was likely92. In this respect the BCCSA was influenced by the Canadian case R v Keegstra93 in which the potential emotional and psychological harm, as well as the threat to dignity resulting from racist speech, was emphasised. Although the BCCSA held that the song constituted hate speech, it did not, however, uphold the complaint against the radio station since the broadcast of the song took place during a bona fide current affairs programme to inform public debate. Although not a court of law, the BCCSA interpretation of section 16(2) is of importance.

In Ramesh Dharamshee Jethalal v Mbongeni Ngema and Universal Music (Case No: 3524/2002, 28 June 2002) the Durban and Coastal Local Division of the High Court recently declined to extend an interim interdict which prohibited the publishing, marketing, distributing and selling of the same song "Amandiya" - being track sixteen in the CD "Jive Madlokovu". The song had been on the market for three months prior to the granting of the interim interdict. The court referred to the fact that there had not been a single documented case of violent action by Blacks against Indians which could be ascribed to the song during that time, and found that the fear expressed by the applicant that the song would lead to race riots and bloodshed was founded merely on his own opinion and was not borne out by any fact. Although the court had little doubt that the song was racist - since it contrasts one race (Blacks) with another race (Indians) in a very generalised and unspecific way - it emphasised that section 16(2) of the Constitution is not aimed at the advocacy of hatred based on race as such, but at advocacy of hatred based on race which also constitutes incitement to cause harm. Both elements - advocacy of hatred based on race, and incitement to cause harm - had to be present. Since there had been no violent actions against Indians, the targets of the racist song, the court declined to extent the interdict. The court did not enquire further whether or not the song fell within the purview of section 16(2). Whether this is indeed the case, will have to decided by the court which deals with the substantive application which is based on an alleged infringement of section 16(2) of the Constitution (The substantive application will only be heard towards the end of 2002). It will be interesting to see whether such court will agree with the finding of the BCCSA discussed above, which includes that a wide interpretation (embracing potential emotional and psychological harm) should be given to the concept of "harm".

9 Conclusion

The right of freedom of expression lies at the basis of a democratic society. Section 16(2) of the Constitution limits this right and places certain forms of expression - including "hate speech" - outside constitutional protection. Section 16(2) sets a stringent test for speech to be classified as hate speech. So far South African courts dealing with the hate speech provision have interpreted this limitation strictly. This augurs well for freedom of expression in South Africa.

Notes

1 This article is an updated version of a national report on the topic presented to the XVIth Quadrennial Congress of the International Academy of Comparative Law held in Brisbane, Australia, from 14 to 20 July 2002. The author wishes to thank the National Research Foundation and the University of South Africa for financial assistance which enabled her to attend the congress.

2 Freedom of speech, for example, did not extend to slander, for which common law remedies were (and still are) available.

3 The Constitution of the Republic of South Africa Act 200 of 1993 came into operation on 27 April 1994.

4 The Islamic Unity Convention v The Independent Broadcasting Authority and Others 2002(4) SA 294 (CC) para 27 and cases quoted.

5 Eg the Black Administration Act 38 of 1927 which made it a criminal offence to utter words or commit acts with the intent to promote feelings of hostility between "Natives" and "Europeans". S 29 of the Black Administration Act has since been repealed by the Abolition of Restrictions on Free Activity Act 206 of 1993. The Publications Act 42 of 1974 prohibited publications or objects, films, and public entertainments which brought any section of the inhabitants of South Africa into ridicule or contempt, or harmed the relations between sections of the inhabitants of South Africa. This act has since been repealed by the Films and Publications Act 65 of 1996. Burns "Hate speech and constitutional values: the limits of freedom of expression" in Carpenter (ed) Suprema Lex: Essays on the Constitution Presented to Marinus Wiechers (1998) 35 54 argues that apartheid laws, such as the Group Areas Act 36 of 1966, the Prohibition of Mixed Marriages Act 55 of 1949, and the Population Registration Act 30 of 1950 - all since repealed - were examples of "hate laws".

6 Johannessen "A critical view of the constitutional hate speech provision: section 16" 1997 South African Journal on Human Rights 135 137.

7 The Constitution of the Republic of South Africa 108 of 1996.

8 S 8(1) of the Constitution.

9 S 8(2) provides: "A provision in the Bill of Rights binds a natural or juristic person if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right."

10 S 15 of the Constitution.

11 S 10 of the Constitution.

12 S 18 of the Constitution.

13 S 19 of the Constitution.

14 S 17 of the Constitution.

15 South African National Defence Force Union v Minister of Defence 1999 (4) SA 469 (CC) para 8.

16 Burns Suprema Lex: Essays on the Constitution Presented to Marinus Wiechers 35 46.

17 S v Mamabolo (E TV, Business Day and the Freedom of Expression Institute Intervening) 2001(3) SA 409 (CC) para 37; Shabalala and Others v Attorney-General, Transvaal and Another 1996(1) SA 725 (CC) para 26.

18 De Waal, Currie and Erasmus The Bill of Rights Handbook (2000) 311-312.

19 De Waal, Currie and Erasmus op cit 311.

20 S 16 of the Constitution does not distinguish between political and non-political speech.

21 Holomisa v Argus Newspapers 1996 (2) SA 588 (W). In Khumalo and Others v Holomisa (CCT 53/01, 14 June 2002) the Constitutional Court held that the common law of defamation (according to which it is not necessary for a plaintiff to assert that defamatory material was false) did not unjustifiably limit the right of freedom of expression enjoyed by the media.

22 S 39(3) of the Constitution.

23 S 37 of the Constitution deals with states of emergency when the life of the nation is threatened by war, invasion, general insurrection, disorder, natural disaster or other public emergency, and the declaration of a state of emergency is necessary to restore peace and order. Some rights may not be suspended during an emergency, such as equality and human dignity. The right to equality and the right to dignity (together with the right to life) are considered to form the core values of the South African Constitution. They inform the interpretation the interpretation of possibly all other fundamental rights. The right to freedom of expression is not listed in the table of non-derogable rights attached to s 37.

24 S v Mamabolo (E TV, Business Day and the Freedom of Expression Institute Intervening) 2001(3) SA 409 (CC) para 41.

25 The others being equality and freedom.

26 The Islamic Unity Convention v The Independent Broadcasting Authority and Others 2002(4) SA 294 (CC) para 32.

27 Burns Suprema Lex: Essays on the Constitution Presented to Marinus Wiechers 53.

28 Hate speech brings the viewpoint of certain people to the public arena and acts as a safety valve. Stossen "Regulating racist speech on campus: a modest proposal" 1990 Duke Law Journal 486 argues that the exchange of ideas about racism and other forms of bias is essential for reducing racism.

29 "Propaganda for war", for example, must be prohibited by law according to article 20(1) of the International Covenant on Civil and Political Rights (1966). According to Article 20(2) any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence "shall be prohibited by law". Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination (1965) condemns all propaganda and all organisations which are based on ideas or theories of superiority of one race or group of persons or one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination, in any form. This article obliges States Parties to punish the dissemination of ideas based on racial superiority or hatred, with due regard to the principles embodied in the Universal Declaration of Human Rights (1948).

30 Johannessen 1997 South African Journal on Human Rights 142, however, argues that s 16(2) goes beyond what is required from international human rights instruments, since it fails to incorporate safeguards against abuse.

31 S 39 of the Constitution provides that, when interpreting the Bill of Rights, a court, tribunal or forum must consider international law.

32 Johannessen 1997 South African Journal on Human Rights 136 138.

33 Suprema Lex: Essays on the Constitution Presented to Marinus Wiechers 54.

34 Racial incidents and hate speech are, for example, recurring problems in secondary and tertiary institutions in South Africa.

35 Racism is essentially a belief that one race is superior to another and that a man's behaviour is determined by stable inherited characteristics (Burns "Constitutional limitations to freedom of expression/communication" in Communications Law (2001) para 5.3.4).

36 Javaid "The freedom of expression debate in Britain"1995 African LR 40.

37 The Islamic Unity Convention v The Independent Broadcasting Authority and Others 2002(4) SA 294 (CC) para 33.

38 See Burns Suprema Lex:Essays on the Constitution Presented to Marinus Wiechers 47. She nevertheless admits that the unofficial Afrikaans version of the Constitution translates "advocacy" with "verkondiging", which has a much more limited meaning and indicates a mere enunciation which does not include the element of pleading. See also The Shorter Oxford English Dictionary (1991).

39 See, eg, Partsch "Racial speech and human rights: Article 4 of the Convention on the Elimination of All Forms of Racial Discrimination" in Coliver (ed) Striking a Balance: Hate Speech, Freeedom of Expression and Non-discrimination (1992) 21, quoted by Burns Suprema Lex: Essays on the Constitution Presented to Marinus Wiechers 47. See also the Shorter Oxford English Dictionary.

40 De Waal, Currie and Erasmus op cit 319.

41 2002(4) SA 294 (CC).

42 Article 1(1) states that the term "racial discrimination" shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect on nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.

43 Burns Suprema Lex: Essays on the Constitution Presented to Marinus Wiechers 47.

44 Webster's Seventh New Collegiate Dictionary; The Shorter Oxford English Dictionary.

45 S (3) provides that the state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth. S 9(4) provides that no person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3), and that national legislation must be enacted to prevent or prohibit unfair discrimination.

46 Suprema Lex: Essays on the Constitution Presented to Marinus Wiechers 48-49.

47 Burns also quotes feminist writers who believe that a category of sexually explicit speech (certain forms of pornography) can be equated with hate speech or "rape speech" which should not enjoy constitutional protection. These writers are of the opinion that pornography is a form of sexual power, which subordinates women and violates their right to equality. Sexual harassment in the work environment has also been called "the hate speech of the workplace", and has been found by American courts to undermine equality, which lies at the heart of Title VII of the 1964 Civil Rights Act. (See Roberts v United States Jaycees 468 US 609 628.) It must, however, be borne in mind that the above emphasis by American authors on the right to equality, stems from the fact that the US fiercely protects the freedom of speech and has no comparable jurisprudence on hate speech. De Waal, Currie and Erasmus op cit 319 note that while the Canadian Supreme Court has accepted the legitimacy of controls on hate speech, the freedom of speech is so robustly protected in the US that no comparable jurisprudence on hate speech has developed. As was mentioned above, the debate on whether equality or freedom of expression should triumph, has to a large extent been made unnecessary in South Africa by the Constitution.

48 2002(4) SA 294 (CC).

49 Blasphemy has been defined as the unlawful and intentional publication of words or conduct whereby God is slandered, or contempt is shown towards God (R v Webb 1934 AD 493 496).

50 4 of 2000.

52 Burns Suprema Lex: Essays on the Constitution Presented to Marinus Wiechers 51. See also The Shorter English Dictionary.

53 17 of 1956.

54 Op cit 320-321.

55 [1990] 3 SCR 697; (1990) 61 CCC (3rd) 1 (SCC).

56 Mahoney "Hate speech: affirmation or contradiction of freedom of expression" 1996 University of Illinois UP 789 792.

57 They argue further that hate speech promotes discrimination and violence against those it describes. From this perspective hate speech is regarded as a form of unfair discrimination, which should be punished just like any other behaviour that harms people. It is harmful because it insults people and causes emotional distress, creates unequal opportunities, silences the victims of hate speech, deprives them of their freedom to speak, and shows disrespect for its targets. Hate speech is consequently not regarded as legitimate speech, but rather as a form of assault which constitutes a delict (i e the intentional infliction of emotional distress), as an infringement of the principle of equality, or as the subordination of groups or classes of people against whom acts of aggression are deemed to be less serious.

58 See Human Rights Commission of South Africa v SABC Case No: 31/2002, 13 June 2002 discussed below.

59 The factors to be considered were discussed in S v Makwanyane 1995 (3) SA 391 (CC) 436 and included in the 1996 Constitution.

60 The Islamic Convention v The Independent Broadcasting Authority and Others 2002(4) SA 294 (CC) para 38.

61 De Lille v Speaker of the National Assembly 1998 (3) SA 430 (CC); Mokgoro J in President of the Republic of South Africa v Hugo 1997 (4) SA 1 (CC); Van Wyk "Guidelines on medical research ethics, medical 'experimentation' and the Constitution" 2001 Tydskrif vir Hedendaagse Romeins-Hollandse Reg 3.

62 4 of 2000.

63 Read with item 23(1) of Schedule 6 .

64 The act states that it was passed "so as to prevent and prohibit unfair discrimination and harassment; to promote equality and eliminate unfair discrimination; to prohibit hate speech; and to provide for matters connected therewith".

65 Proclamation R54, Government Gazette 21517 of 1 September 2000. Ss 1-3, 4(2), 5, 6, 29 (with the exception of s 29(2)), 32, 33, 34(1) came into effect on that date.

66 Crimen injuria consists in the serious, unlawful and intentional infringement of the dignity (dignitas) of another, and criminal defamation consists in the unlawful and intentional publication of matter which tends to injure another person's reputation (fama). See Burchell and Milton Principles of Criminal Law(1997) 513.

67 The Roman-Dutch law of delict may be used to claim damages. To be able to claim under the actio injuriarum the plaintiff will have to show that the hate speech was made with intent and knowledge of wrongfulness (animus injuriandi), and that defendant caused injury to the plaintiff's personality. In order to succeed with the action for pain and suffering, negligence (and not intent) on the part of the defendant has to be shown. A further possibility may be to make use of a constitutional delictual action. See Neethling, Potgieter and Visser Deliktereg (3rd ed) 21.

68 The act provides that any magistrate, additional magistrate and judge may be designated to be a presiding officer of an equality court. He or she may be designated by the Minister for Justice and Constitutional Development, after consultation with the Judge President or the head of an administrative region as defined in the Magistrates' Courts Act 32 of 1944. The argument that the power of the Minister to designate presiding officers violates the independence of the judiciary, is unlikely to succeed. De Waal, Currie and Erasmus op cit 228 mention that the decisions of judges often turn out to be quite different from that envisaged by the politician who appoint them. They cite Ex parte Chairperson of the Constitutional Assembly: in re Certification of the Constitution of the Republic of South Africa, 1996 1996 (4) SA 744 (CC).

69 S 31(a).

70 S 31.

71 S 20(3)(a).

72 S 20 (1).

73 S 21(2).

74 S 10(2), read with s 21(2)(n).

75 This may be done, for example, where hate speech amounts to crimen injuria. The act states that this provision does not detract from any remedies of a civil nature which may be available.

76 To the extent that the Employment Equity Act 55 of 1998 does not apply. See s 5 of the Promotion of Equality and Prevention of Unfair Discrimination Act.

77 S 1 of Act 4 of 2000.

78 S 2(v) of the act.

79 Contained in s 12(b).

80 See s 29(4) of the Films and Publications Act 65 of 1996 for a similar proviso.

81 Cf footnote 45.

82 See also Johannessen 1997 South African Journal of Human Rights 135 140; De Waal, Currie and Erasmus The Bill of Rights Handbook 228.

83 2002(4) SA 294 (CC).

84 2002(4) SA 294 (CC).

85 which is contained in Schedule 1 to the Independent Broadcasting Act 153 of 1993.

86 para 45.

87 para 37.

88 Case No: 31/2002, 13 June 2002.

89 S 29 the Films and Publications Act 65 of 1996 expressly prohibits knowingly distributing hate speech in publications, and the broadcast, distribution and exhibition of films in public, public entertainment or play, which judged within its context, advocates hatred that is based on race, ethnicity, gender or religion, and which constitutes incitement to cause harm. S 29 of the act also contains a hate speech offence and the courts may impose sanctions provided for in the act. S 29(4) exempts certain materials from this provision, such as bona fide artistic material, discussion, argument or opinion on a matter pertaining to religion, belief or conscience or on a matter of public interest. The BCCSA could express itself on the broadcast of the song, while the courts would have to deal with the distribution of the CD in terms of the act.

90 The BCCSA is a self-regulating body and deals with complaints against broadcasters as a result of the latters' consent to such jurisdiction.

91 The preamble to the song states that the song represents the way many Africans feel about the behaviour of Indians in South Africa, and that it was intended to bring about a discussion which would lead to a true reconciliation between Indians and Africans.

92 The Commission referred to the fact that Indians belong to a vulnerable minority and to the violent clashes between the Indian and Zulu communities in 1949.

93 [1990] 3 SCR 697; (1990) 61 CCC (3rd) 1 (SCC).keywords:

The Constitutional Treatment of Hate Speech SOUTH AFRICA Christa van Wyk Academy of Comparative Law

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