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A recent judgment in the case of Masuku and Cosatu v the Human Rights Commission has brought the issue of hate speech into focus, writes Serjeant at the Bar.
The balance between freedom of speech and hate speech, which falls outside the protection of the constitutional guarantee, is increasingly being tested.
A toxic political discourse fuelled by the exploitation of social media needs to curbed but it must be done without curbing the oxygen of democracy: the right to speak.
A recent judgment in the case of Masuku and Cosatu v the Human Rights Commission has again brought this issue into focus. The case involved statements made by Mr Masuku of Cosatu which were part of an acrimonious exchange concerning the seemingly intractable dispute between Israel and the Palestinian people.
Three statements were held by the Equality Court to constitute hate speech. They were the following : "… Cosatu has got members here on this campus, we can make sure that for that side it will be hell …"; "…the following things are going to apply: any South African family, I want to repeat it so that it is clear for everyone, any South African family who sends its son or daughter to be part of the Israeli Defence Force must not blame us when something happens to them with immediate effect …" and "…Cosatu is with you, we will do everything to make sure that whether it is at Wits, whether it is at Orange Grove, anyone who does not support equality and dignity, who does not support the rights of other people must face the consequences even if we will do something that may necessarily be regarded as harm…"
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The Supreme Court of Appeal (SCA) overturned the finding of the Equality Court, holding that the offending statements did not constitute hate speech in terms of Section 16(2) of the Constitution and hence did not fall outside the zone of protected speech. The approach of the court has been heavily criticised by legal commentators, primarily because the court appeared to ignore the applicable statute that governs these disputes, being Section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act (Pepuda).
As Parliament had passed Pepuda, inter alia, to govern questions of hate speech, the court should have decided the case on the basis of Section 10 rather than ground its decision on the Constitution. Technically, this is known as the doctrine of subsidiarity, meaning that once legislation is passed to give effect to a constitutional provision, the former applies in all cases, save if it can be shown that the legislation itself does not pass constitutional muster.
In Masuku the SCA did not consider the dispute in terms of Section 10 of Pepuda, seemingly on the basis that the parties had eschewed reliance thereon.
On the basis of this doctrine, the SCA was obliged to decide the case in terms of the applicable law, being Section 10 of Pepuda. If, as was clear from the judgment, the court was concerned about the constitutionality of Section 10 then it should have considered that option.
Why this judgment has raised legal eyebrows is that it was delivered by a court in which four of the judges who sat in this case had acted previously as members of the Constitutional Court and the fifth is an equally distinguished jurist. Contrary to the observation of one commentator, these judges know constitutional law; hence the search for a more cogent justification for this decision.
Section 10 of Pepuda, to the extent relevant, provides that speech which can reasonably be construed to demonstrate a clear intention to promote or propagate hatred is prohibited. This is a far wider formulation than is the wording of Section 16(2) of the Constitution where the advocacy of hatred must constitute incitement to cause harm and contains a more restrictive class of protected groups being only race, ethnicity, gender or religion.
Presumably anxious not to trigger an argument about the constitutionality of Section 10 of Pepuda, which would have hardly achieved the purpose of the case, namely to uphold the complaint, counsel for the Human Rights Commission disavowed reliance on Section 10 and argued that the speech fell within the scope of Section 16 of the Constitution and thus was not protected because of the operation of Section 16(2).
In its reasoning for overturning the Equality Court, the SCA said the following: "the starting point for the enquiry in this case was that the Constitution in s16(1) protects freedom of expression. The boundaries of that protection are delimited in s16(2). The fact that particular expression may be hurtful of people's feelings, or wounding, distasteful, politically inflammatory or downright offensive, does not exclude it from protection.
"Public debate is noisy and there are many areas of dispute in our society that can provoke powerful emotions. The bounds of constitutional protection are only overstepped when the speech involves propaganda for war; the incitement of imminent violence; or the advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.
"Nothing that Mr Masuku wrote or said transgressed those boundaries, however hurtful or distasteful they may have seemed to members of the Jewish and wider community. Many may deplore them, but that does not deprive them of constitutional protection."
This reasoning which is predicated correctly on the default position that freedom of speech is a precious right and should not be given up simply when the exercise thereof causes offence to some people. More speech rather than the heavy hand of prohibition is critical to the democratic enterprise and thus the protection of minorities possessed of less political clout.
For this reason the order of the SCA is surely correct, however upsetting Mr Masuku's statement might have proved to some. In therefore circumventing constitutional challenges to Section 10, the court appeared to have placed substance over the doctrine of subsidiarity.
While this approach is controversial, the court's attitude to speech does strike the correct balance. After all, if free speech is only protected when it is pleasant to everyone's ear, what would be the point of its protection?
- Serjeant at the Bar is a senior legal practitioner with a special interest in constitutional law.
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