WHAT YOU CAN AND CAN'T SAY IN SOUTH AFRICA Freedom of Expression

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Abstract
Freedom of Expression is guaranteed in s 16 of the Constitution of the Republic of South Africa 1996 which provides: 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; (c) freedom of artistic creativity; and (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. All rights in the Bill of Rights can be limited in terms of the Limitation Clause. 2
1
WHAT YOU CAN AND CAN'T SAY IN SOUTH AFRICA
Professor Victoria Bronstein1
Freedom of Expression
Freedom of Expression is guaranteed in s 16 of the Constitution of the
Republic of South Africa 1996 which provides:
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;
(c) freedom of artistic creativity; and
(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.
All rights in the Bill of Rights can be limited in terms of the Limitation
Clause.2
In the first decade of democracy South African courts have spoken of
freedom of expression in expansive terms. In South African National Defence
Union v Minister of Defence, 3 O'Regan J stated:
Freedom of expression lies at the heart of a democracy. It is valuable
for many reasons, including its instrumental function as a guarantor of
democracy, its implicit recognition and protection of the moral agency
of individuals in our society and its facilitation of the search for truth
by individuals and society generally. The Constitution recognises that
individuals in our society need to be able to hear, form and express
1 Associate Professor of Law, University of the Witwatersrand, Johannesburg. The author would like to
thank Dene Smuts for her generous assistance and insight. The author is also grateful for conversations
with Daryl Glaser, John Campbell, Jane Duncan, Guy Berger and Gilbert Marcus. Thanks also to the
Advertising Standards Authority.
2Limitation of rights
36 (1) The rights in the Bill of 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;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.
36 (2) Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit
any right entrenched in the Bill of Rights.
31999 (4) SA 469 (CC).
2
opinions and views freely on a wide range of matters.
As Mokgoro J observed in Case and another v Minister of Safety and
Security and others; Curtis v Minister of Safety and Security and
Others 1996 (3) SA 617 (CC);1996 (5) BCLR 609 (CC) at para 27,
freedom of expression is one of a 'web of mutually supporting rights'
in the Constitution. It is closely related to freedom of religion, belief
and opinion (section 15), the right to dignity (section 10), as well as
the right to freedom of association (section 18), the right to vote and
to
stand for public office (section 19) and the right to assembly (section
17). These rights taken together protect the rights of individuals not
only individually to form and express opinions, of whatever nature, but
to establish associations and groups of like-minded people to foster
and propagate such opinions. The rights implicitly recognise the
importance, both for a democratic society and for individuals
personally, of the ability to form and express opinions, whether
individually or collectively, even where those views are controversial.
The corollary of the freedom of expression and its related rights is
tolerance by society of different views. Tolerance, of course, does
not require approbation of a particular view. In essence, it requires the
acceptance of the public airing of disagreements and the refusal to
silence unpopular views.'4
Cameron J elaborated on the rationale for freedom of expression in Holomisa
v Argus Newspapers Ltd:5
'In the South African Constitution, the guaranteed right to freedom of
speech and expression expressly includes freedom of the press and
other media (as well as freedom of artistic creativity and scientific
research); but is by no means limited to them. The rationale for this
wide freedom must clearly extend beyond instrumental justifications
which depend on whether the freedom to speak and communicate
advance the democratic process. As Ronald Dworkin, the legal
philosopher and activist, states (The Coming Battles over Free Speech
New York Review of Books (11 June 1992) 55 at 56...) there is a
second, further justification for such an encompassing protection of
free speech: The second kind of justification of free speech supposes
that freedom of speech is valuable, not just in virtue of the
consequences it has, but because it is an essential and constitutive
feature of a just political society that government treat all its adult
members, except those who are incompetent, as responsible moral
agents. In a system of democracy dedicated to openness and
accountability, as ours is, the especially important role of the media,
4Above paras 7-8.
51996 (2) SA 588 (W) at 608G – 609D.
3
both publicly and privately owned, must in my view be recognised.
The success of our constitutional venture depends upon robust
criticism of the exercise of power. This requires alert and critical
citizens. But strong and independent newspapers, journals and
broadcast media are needed also, if those criticisms are to be
effectively voiced, and if they are to be informed with the factual
content and critical perspectives that investigative journalism may
provide. ... It is for this very reason that the Constitution recognises
the especial importance and role of the media in nurturing and
strengthening our democracy. This recognition is obvious in s 15(1),
which expressly states that freedom of speech and expression shall
include freedom of the press and other media'.
Similar sentiments were expressed by the Supreme Court of Appeal in
National Media Ltd & Others v. Bogoshi.6 Freedom of expression is
'essential in any attempt to build a democratic social and political
order. Elsewhere it has been referred to as the matrix, the
indispensable condition of nearly every other form of freedom (Palko
v. State of Connecticut 302 US 319 (1937) at 327); and in the
majority judgment of the European Court of Human Rights in
Handyside v. United Kingdom (1976) 1 EHRR 737 at 754 it was said
that freedom of expression constitutes one of the essential
foundations of a democratic society and is one of the basic conditions
for its progress and the development of man. That this was not an
overstatement appears from McIntyre J's reminder in Retail, Wholesale
& Department Store Union, Local 580 et al v. Dolphin Delivery Limited
(1987) 33 DLR (4th) 174 (SCC) at 183 that freedom of expression ...
is one of the fundamental concepts that has formed the basis for the
historical development of the political, social and educational
institutions of Western society. 7
A contrary trend in the lower courts and tribunals
Over the last decade the right to freedom of speech has been rigorously
upheld by the higher courts but in lower courts and tribunals freedom of
expression invariably loses out to dignity and equality. It seems that although
there is symbolic deference to free speech, there is a growing quasi-legal
tendency to erode its importance. Underlying the idea that free speech is not
actually that important appears to be the belief that South Africa is still
fragile and that individual South Africans cannot be relied upon to exercise
any type of discernment.
61998 (4) SA 1196 (SCA).
7 Above at 1207J – 1208C.
4
Important Issues Beyond the Scope of this Report
There are many things which are beyond the scope of this report although
they are both controversial and relevant to the topic. Institutional issues
about ownership, concentration and transformation of the media8 are beyond
the scope of the paper. The control, composition, editorial policies and
personnel of the SABC are also not dealt with here. The same is true of
threats to the independence of the Independent Communications Authority
of South Africa (ICASA).
The Freedom of Expression Institute has consistently been concerned with
almost all of the themes in this paper and provides comprehensive
information. The Institute has also consistently supported citizen's rights to
demonstrate. For example it has supported organisations like the Landless
Peoples' Movement who have complained that the Regulation of Gatherings
Act has been used as a censorship device to prevent legitimate
demonstrations. Organs of civil society have also been effective in getting
concerns about a new Anti-Terrorism Bill heeded. These issues also do not
feature in this report.
DIGNITY: DEFAMATION
Defamation- Developing a New Constitutional Defence
The South African press is rated as ‘free’ by international rating agency
Freedom House.9 (The World Bank relies upon the Freedom House statistics.)
Press freedom is a value that needs to be vigilantly protected in any society
as there are always powerful actors that have an interest in having a docile
press. One of South Africa's great assets is a press that is institutionally
strong and that has a powerful self-perception of its role in a democratic
South Africa.
Defamation law is a focal point for conflict between the right to freedom of
expression and the right to dignity which includes legal protection of
reputation and personality. The principles underlying the law of defamation
are uncontroversial. We all agree that a free press is an indispensable part of
an open and democratic society. At the same time false or unjustifiable
attacks on an individual's reputation are damaging and wrong.
The problem with applying these basic principles is that we don't live in a
world where journalists have perfect information. The investigative process
8See for example Guy Berger 'Deracialisation, Democracy and Development: Transformation of the South
African Media 1994-2000 '(28 February 2000) Paper prepared for the Political Economy of the Media
in Southern Africa Seminar, 24-29 April 2000 (http://journ.ru.ac.za/staff/guy/Research/Racism in the
media/derace.htm).
9See http://www.freedomhouse.org/template.cfm?page=16&year=2005&country=6834.
5
is complex and nuanced as reporters strive to gather stories. Editors
constantly make sophisticated judgment calls when they decide whether to
publish or whether to remain silent. These editorial decisions are made in the
shadow of the law of defamation.
The structure of South Africa's defamation law has changed substantially
over the last decade. (The paragraphs below try to communicate the spirit of
recent judgments on defamation without getting bogged down in the
intricacies of the inelegant relationship between unlawfulness and fault set
out by the Appellate Division in National Media Ltd and Others v Bogoshi.10)
A defamatory statement impugns a person's reputation which is legally
protected. There are however a number of traditional defences that
newspapers can use to justify their statements and avoid liability for
defamation. Until recently, the most usual defence was that the statement
was true and made for the public benefit.
In Neethling v Du Preez,11 the leading pre-constitutional judgment on the
press and defamation, two newspapers, the Weekly Mail and the Vrye
Weekblad, published allegations that Lieutenant-General Lothar Neetling had
supplied poison for political assassinations of anti-apartheid activists. The
allegations were made by Dirk Coetzee who was previously a Captain in the
South African Police. He revealed key information on hit-squad activity in the
upper reaches of the apartheid security services. Neethling sued the Vrye
Weekblad and the Weekly Mail for publishing Coetzee's revelations. The
Court did not accept Captain Coetzee's word and consequently the
newspapers were unable to prove that the allegations against Neethling were
true. The damages award against the Vrye Weekblad was reputed to have
caused the demise of the newspaper.
The Vrye Weekblad and the Weekly Mail were two newspapers that played a
critical social role in the late 1980s and early 1990s when they consistently
revealed information about the apartheid state's campaign of extra-legal
assassinations and intimidation. It was an extraordinary feat of investigative
journalism to acquire and publish so much of this deeply hidden information.
The strict terms of the Neethling judgment were perceived as a major
inhibition on freedom of expression in South Africa. The implications of the
judgment were that an editor deciding whether to publish a story needed be
satisfied that the newspaper could prove that the statement was true on a
101998 (4) SA 1196 (SCA). In that judgment the Court attempted to change the law while remaining within
the analytical constraints of their previous judgments.
111994 (1) SA 708 (A).
6
balance of probabilities. One also has to remember that there are occasions
where an editor may be convinced that his or her facts are correct, but if the
newspaper is relying on confidential sources, it may not be ethically possible
for it to present all the evidence in court.
The approach in Neethling gave maximum protection to the plaintiff's
reputation at the expense of the newspaper. Consequently editors were
warned to be super-cautious when making decisions. The problem is that
this caution is not neutral. It has an impact on the public because it means
that less information gets into the public domain. Certainly false information
is less likely to be published. The difficulty is that true information that is of
compelling public importance is also less likely to see the light of day.
The controversy about the Neethling judgment simmered until after the
interim Constitution came into force. The precursor to legal change was the
breakthrough judgment Holomisa v Argus Newspaper Ltd12 where Cameron
J recast the law of defamation in the light of the interim Constitution.
He held that newspapermen and women would not always be liable in cases
where they erroneously published a false defamatory statement in the course
of political reporting.'13 He developed a new defence that became available
to the press. The newspaper could avoid liability for damages if the decision
to publish was reasonably made. (Cameron J put the onus on the plaintiff to
show that the publication had been unreasonable.)
In the Supreme Court of Appeal case National Media Ltd and Others v
Bogoshi14, Hefer JA also adopted the attitude that although 'there is no
constitutional value in false statements of fact', an 'erroneous statement of
fact is nevertheless inevitable in free debate'.15 He continued 'the publication
in the press of a false defamatory allegation of fact will not be regarded as
unlawful if, upon a consideration of all the circumstances of the case, it is
found to have been reasonable to publish the particular facts in the particular
way at the particular time'.16 When a court considers the reasonableness of
the publication it will take account of 'the nature, extent and tone of the
allegations'17 and 'greater latitude' will usually be allowed in 'respect of
12 Above.
13Above 616I. This links to interim constitution limitation clause which gave primacy to political speech.
14 Above.
15 Above at 1209H. Not everyone agrees. See Buthelezi v South African Broadcasting Corporation 1997
(12) BCLR 1733 (D) where Thirion J stated:
'I must say that I find the proposition as the test implies, that a false defamatory statement can,
even notionally, relate to free and fair political activity, one that is jarring on the senses.'... '[T]here
is no constitutional value in false statement' at 1739G.
16Above at 1212G.
17Above at 1212H.
7
political discussion'.18
The Court held that the press should bear the onus of showing that the
publication was reasonable in the circumstances. This seems fair because
the history of the decision to publish is 'peculiarly within' the knowledge of
the newspaper. Hence the paper should be responsible for proving that the
publication was not negligent. The rule set out in Pakendorf v De Flamingh 19
which had provided that the media was strictly liable for defamation, or
would be liable even in the absence of fault, was also overruled.
The consequence of the Bogoshi judgment is that if a newspaper can show
that a decision to publish was reasonable and justifiable, it will be able to
avoid liability even in circumstances where the statements are false. The
reasoning was developed further in Sankie Mthembi-Mahanyele v Mail &
Guardian Limited 20 where it was held that
'justifiability is to be determined by having regard to all relevant
circumstances, including the interest of the public in being informed;
the manner of publication; the tone of the material published; the
extent of public concern in the information; the reliability of the
source; the steps taken to verify the truth of the information (this
factor would play an important role too in considering the distinct
question whether there was negligence on the part of the press,
assuming that the publication was found to be defamatory); and
whether the person defamed has been given the opportunity to
comment on the statement before publication. In cases where
information is crucial to the public, and is urgent, it may be justifiable
to publish without giving an opportunity to comment. '21
Burchell22 has pointed out that an important 'synergy' has been created
between the new defamation law and 'sound journalistic practice'.23 This
'can only help re-establish respect for legal principles'.24
Political Public Figures and Defamation
One of the consequences of robust political debate is that politicians are
continually under scrutiny. Over the last decade legal battles have been
18Ibid.
191982 (3) SA 146 (A). Pakendorf which had imposed strict liability on the press and made newspaper
owners, publishers, editors and printers liable for defamatory statements irrespective of whether they
were at fault or not was overruled in Bogoshi's case.
202004 (6) SA 329 (SCA).
21Above at para 68.
22Jonathan Burchell 'Media Freedom of Expression Scores as Strict Liability Receives the Red Card:
National Media Ltd v Bogoshi' (1999) 116 SALJ 1.
23 Burchell above page 8. See online resources for journalism ethics at
http://www.journalism.co.za/modules.php?op=modload&name=News&file=article&sid=1759
24Burchell above page 8.
8
fought over the conditions under which senior politicians can sue for
defamation.
There were two critical cases in which these matters were aired. The first
was Holomisa v Khumalo.25 The facts were that the the Sunday World
published defamatory statements about Bantu Holomisa. The newspaper
stated that Holmisa was under police investigation as he had been involved
in Colin Chauke's heist gang (which was responsible for heists totalling R100
000 000 over two years). Holomisa was said to have have assisted in
planning robberies, supplying ammunition, discouraging robbers from hitting
small targets and telling them to focus on a cash transport company. He was
also reported to have discussed plans to rob an armoured car as well as
supplying six former military men from Transkei with arms for a robbery on a
Gauteng freeway. According to the newspaper he chastised a certain person
for going to the police and warned him that his family was not safe. 26
The second case was Sankie Mthembi-Mahanyele v Mail & Guardian
Limited.27 Mthembi-Mahanyele sued the Weekly Mail and Guardian for
defamation on the basis of a minister's report card which was published in
the newspaper at the end of 1998. It read:
' ‘SANKIE MTHEMBI-MAHANYELE
Minister of Housing
Grade: F
Why is she still in the Cabinet? She has shown she cannot deliver in
one of our key delivery ministries. Her award of a massive housing
contract to a close friend and her sacking of her former director
general, Billy Cobbett, continue to haunt the public perception of her .
Prognosis: A coupé on the gravy train would do nicely, thank you very
much.’ (Own Emphasis)
The contentious statement in this clearly semi-satirical article was the
allegation that she had awarded a massive housing contract to a close friend.
Joffe J was the trial judge in the case. He took the novel view that a cabinet
minister cannot sue for defamation (or does not have locus standi to sue)
'where the statement complained of [relates] to the performance of her work
as a member of government and was made without malice'. 28 The
inspiration for this approach came from Die Spoorbond v SAR & H; Van
25 2002 (3) SA 38 (T) and Khumalo v Holomisa 2002 (5) SA 401 (CC).
26 At 45 A-C.
27Above.
28At para 5.
9
Heerden v SAR & H29 which held that the state cannot sue for defamation.
Joffe J's attempt to extend this principle to cabinet ministers was rejected
by the Appellate Division. Lewis AJA held that Joffe J went too far in
elevating freedom of expression above dignity.30 She held that a blanket
immunity for defaming cabinet ministers would undermine protection of their
dignity. 'It would give the public, and the media in particular, a licence to
publish defamatory material unless the plaintiff [could] prove malice.'31
Consequently she held that cabinet ministers are also entitled to reasonable
and justifiable treatment by the press. Burchell explains
‘politicians or public figures do not simply have to endure every
infringement of their personality rights as a price for entering the
political or public arena, although they do have to be more resilient to
slings and arrows than non-political, private mortals.’32
It is worth returning to the basic principles underlying the law of defamation.
First, freedom of expression, especially political expression, is fundamentally
important in a democratic society. This means that the behaviour of political
public figures should be held up to scrutiny. On the other hand it is wrong to
falsely impugn a person’s reputation. False defamatory statements are
unhealthy for democracy and they are also bad for the press. There is
however another principle that can perhaps be discerned. It is arguable that
when information or disinformation comes into the public domain, powerful
politicians should not instigate a cover-up. Rather they should use their
considerable power to open up the issue and dispel false information.
The structure of the law of defamation does not require a plaintiff to allege
and prove that the defamatory statement complained of is false. In theory it
is possible for a public figure to get damages from a newspaper even in
circumstances where the statement concerns a matter of public importance
and it is true. This would typically be the case if the paper has not been
cautious enough or has published unreasonably.
In Holomisa v Khumalo33 it was argued that in the light of the Constitution,
the law should be altered to require plaintiffs who are political public figures
to allege and prove the falsity of a defamatory statement before recovering
damages. If this argument had been accepted it would have raised the bar
for some plaintiffs wishing to sue newspapers. In some cases it would have
given the newspapers a strategic advantage as 'publishers or journalists
frequently depend on confidential sources and they are often unable to prove
291946 AD 999.
30At para 40.
31At para 40.
32Quoted at para 67.
33 Above.
10
the truth of their statements with admissible evidence, but they would be
able to examine a witness to destroy a plaintiff's claim of falsity'.34 The
Constitutional Court rejected the argument in Holomisa. Consequently there
are no plaintiffs that are formally required to show that the defamatory
statements about which they complain are false.
It was perhaps a pity that the Supreme Court of Appeal did not get an
opportunity to consider the arguments in Holomisa. The case was also
decided on exception which is a very abstract legal exercise where the Court
does not consider the law in the context of the facts of the case. By the
time that Sankie Mthembi-Mahanyele's case came to Court, the argument in
Holomisa had been foreclosed by an authoritative judgment of the
Constitutional Court. The Minister responded by adducing no evidence.35
This did not stop the same disturbing question of whether the defamatory
statements were true or false from raising its head in Mthembi-Mahanyele
albeit in a different guise. The majority of the Court almost seemed to infer a
duty for a Minister in her circumstances to hold the truth or the falsity of the
statement up to the light of day. The majority of the Court was strongly
influenced by the idea that
'the public is entitled to call on such officials, or members of
government, to explain their conduct. When they fail to do so, without
justification, they must bear the criticism and comment that their
conduct attracts, provided of course that it is warranted in the
circumstances and not actuated by malice'. 36
The minister's failure to explain in circumstances where she had a privileged
opportunity to exonerate herself weighed with the judges. This can be seen
from the following quotation:
'.. the press, including the M&G, repeatedly called for an explanation
from the appellant of a contract awarded under her auspices as
National Minister of Housing. It is common cause that the contract
was concluded without the necessary procedures having been
followed. The Board that purported to award it was not quorate when
the decision to make the award was taken. The company to which it
was awarded did not yet exist, let alone have any track record of
building houses. The person (Gibb of Nedcor) who had undertaken to
fund the project in part was, to the knowledge of the appellant, under
suspicion. The Auditor-General reported adversely on the contract, as
34611-62A See Selamela v Independent Newspaper Group Ltd and Others 2002 (2) BCLR 197 (NC). It is
not necessary for a plaintiff in a defamation case to prove that a published statement is false (forerunner
of Holomisa v Khumalo above).
35Dario Milo Cabinet Ministers Have no Right to Sue for Defamation: Sankie Mthembi-Mahanyele v Mail
& Guardian Ltd (2003) 120 SALJ 282 at 284.
36At para 66.
11
did the Dreyer commission of inquiry. The press called for explanations
from the appellant, especially as to why she had fired Mr Cobbett, and
received no response. They called for an inquiry that would focus on
her role in the award to Motheo. There was no response. They knew
she was in overall charge of housing nationwide and could and should
have stopped the contract at the outset. The call for a commission of
inquiry had been dismissed. There was no point in again seeking a
response from the appellant. She had stated publicly more than once
that she had had nothing to do with the award'.37
The judgment continues:
‘... it was reasonable for the M&G to believe that the appellant had
influenced the choice of Motheo, Ndlovu’s company, as the housing
developer. And it could not have been expected of the M&G to hold its
own commission of inquiry. The respondents’ publication of the
defamatory statement was, in all the circumstances, justifiable'. 38
In his concurring judgment Ponnan AJA also referred to the 'minister's
evasive and contradictory responses'.39
After Holomisa it is clearly not necessary for politicians to prove the falsity
of defamatory statements in order to make their case. It does however seem
fair to say that Mthembi-Mahanyele is authority for the view that politicians
are at risk when they sue for defamation and at the same time they illustrate
reluctance to fully ventilate the issues at stake in the case.
It is important to remember that in Mthembi-Mahanyele Mthiyane JA and
Mpati JA dissented on the facts. They held that the newspaper 'could never
have held a reasonable belief that the appellant had influenced the award of
the contract to Motheo. They [had] accordingly failed to bring themselves
within the Bogoshi defence'.40 In an analysis of the dissenting judgement,
Dario Milo argues that in effect the dissenting judges require the newspaper
to 'prove the truth' of the defamatory statement.41 One wonders if the
factual disagreement between the judges conceals a deeper conscientious
disagreement about the relative importance of dignity and freedom of
expression. Is there an impulse in the Supreme Court of Appeal that wishes
to go back full circle to the authority of the Neethling case?
SATIRE AND COMMERCIAL SPEECH
37 At para 70 (own emphasis).
38 At para 70-71.
39At para 85.
40At para 116.
41Dario Milo 'The Cabinet Minister, the Mail and Guardian, and the Report Card: The Supreme Court of
Appeal's Decision in the Mthembi-Mahanyele case' (2005) 121 SALJ 28 at 41.
12
In 2001 South African Breweries discovered that Laugh It Off Promotions, a
small close corporation controlled by Justin Nurse was producing T-shirts
that lampooned one of its trademarks. The wording of the original trademark
was the following:
“America’s lusty, lively beer
Carling
Black Label
Beer
Brewed in South Africa”.
The T-shirts were printed to look like the Carling Black Label logo. They said:
“Africa’s lusty, lively exploitation since 1652
White
Black Labour
Guilt
No regard given worldwide”.'42
Nurse's T-shirts had a two-fold aim. ‘The one [was] to create a close
association with well recognised branded materials and the other [was] to
make fun of them.’43
South African Breweries got an interdict preventing Laugh It Off from
distributing the T-shirts from the High Court. They also successfully argued
that Laugh It Off infringed their trade mark in the Supreme Court of Appeal.
This accorded with the most obvious interpretation of section 34(1)(c) of the
Trade Marks Act44 which provides:
“Infringement of registered trade mark.–
(1) The rights acquired by registration of a trade mark shall be
infringed by–
. . . .
(c) the unauthorized use in the course of trade in relation to any
goods or services of a mark which is identical or similar to a trade
mark registered, if such trade mark is well known in the Republic
and the use of the said mark would be likely to take unfair
advantage of, or be detrimental to, the distinctive character or the
repute of the registered trade mark, notwithstanding the absence of
confusion or deception: Provided that the provisions of this
paragraph shall not apply to a trade mark referred to in section
70(2).”
42 http://www.constitutionalcourt.org.za/site/laughitoff.html
43 Laugh It Off Promotions CC v South African Breweries International (Finance) b.v. t/a Sabmark
International and Freedom of Expression Institute as amicus curiae 2006 (1) SA 144 (CC) at para 10.
44 194 of 1993
13
The Supreme Court of Appeal held that Laugh It Off was responsible for
tarnishment of the trade mark which occurs ‘where unfavourable
associations are created between a well-known registered trade mark and
the mark of the unauthorised user.’45
Justin Nurse and Laugh It Off had a clear political agenda and they
forcefully advanced their freedom of expression concerns. When the case
reached the Constitutional Court, Laugh It Off argued that:
‘[P]roperly construed, section 34(1)(c) does not oust its constitutional right
to comment on, lampoon or make fun of any trade mark and its associated
brand. Brands... are often put to work by powerful corporations to crowd out
equally legitimate expression. They tend to stifle the open and free flow of
ideas. Brand building ... sets out to occupy cultural space, social space and
even one’s own “headspace”. Since, in time, marketing brands graduate to
cultural icons, they should not be beyond the reach of public disclaim or
indeed applause. The purpose of copyright and trade mark laws in an open
and democratic society is not to shut out critical expression or to throttle
artistic and other expressive acts in a manner that gives way to inordinate
brand sway.’46
The Constitutional Court construed s 34(1)(c) in the light of the freedom of
expression clause in the Constitution. It gave generous protection to freedom
of expression and held that
'a party that seeks to oust an expressive conduct protected under the
Constitution must, on the facts, establish a likelihood of substantial
economic detriment to the claimant’s mark... In an open democracy
valuable expressive acts in public ought not to be lightly trampled
upon by marginal detriment or harm unrelated to the commercial value
that vests in the mark itself.' 47
The Court vindicated the right of Laugh It Off to produce and distribute the
T-shirts on the basis that South African Breweries could show no likelihood
of economic prejudice flowing from the shirts. The judgment was seen as a
powerful symbolic victory for freedom of expression as Nurse and Laugh It
Off were seen as having won a David and Goliath48 like contest against SAB
with the help of the Constitutional Court.
It is clear that satirists need to be given latitude to speak. Justice Sachs
made the following comment in his separate concurring opinion:
'Laughter too has its context. It can be derisory and punitive, imposing
indignity on the weak at the hands of the powerful. On the other
hand, it can be consolatory, even subversive in the service of the
45 Laugh it off at para 41.
46 Laugh It Off at para 13.
47 Laugh It Off at para 56.
48Laugh It Off at para 80.
14
marginalised social critics. What has been relevant in the present
matter is that the context was one of laughter being used as a means
of challenging economic power, resisting ideological hegemony and
advancing human dignity. We are not called upon to be arbiters of the
taste displayed or judges of the humour offered. Nor are we required
to say how successful Laugh it Off has been in hitting its parodic
mark. Whatever our individual sensibilities or personal opinions about
the T-shirts might be, we are obliged to interpret the law in a manner
which protects the right of bodies such as Laugh it Off to advance
subversive humour. The protection must be there whether the humour
is expressed by mimicry in drag, or cartooning in the press, or the
production of lampoons on T-shirts. The fact that the comedian is paid
and the newspaper and T-shirts are sold, does not in itself convert the
expression involved into a mere commodity. Nor does the fact that
parodists could have voiced their discontent by phoning into a talk
show rather than employ the trademark remove their protection. They
chose parody as a means, and invited young acolytes to join their
gadfly laughter. A society that takes itself too seriously risks bottling
up its tensions and treating every example of irreverence as a threat to
its existence. Humour is one of the great solvents of democracy. It
permits the ambiguities and contradictions of public life to be
articulated in non-violent forms. It promotes diversity. It enables a
multitude of discontents to be expressed in a myriad of spontaneous
ways. It is an elixir of constitutional health.49
PRIVACY VS PUBLIC IMPORTANCE
Acquiring Information
The question of the way in which information had been obtained by the
press played a role in the important case Sandi Majali and Invume
Management Pty Ltd v Mail and Guardian Media Ltd.50 The Weekly Mail had
previously alleged that Majali and Imvume diverted 'state oil funds to the
African National Congress before the 2004 elections'. The newspaper
disclosed that 'Majali pursued his Iraqi oil business with the backing of top
ANC officials, including secretary general Kgalema Motlanthe and treasurer
general Mendi Msimang, that Iraq had been promised the ANC’s “friendship”,
and that Majali’s Iraqi oil trades were partly meant to fund the ANC.'51 Hence
one would think that this investigation constituted a matter of compelling
public importance.
The background to the court case was that Mail and Guardian had acquired
49Laugh It Off at 108-9 (own emphasis).
50WLD 9236/05 2005-05-26
51Stefaans Brümmer and Sam Sole 'Oil-for-food probe ducks politics' (17 February 2006 07:09).
15
information about the operation of Majali's bank accounts. Majali and Invume
sought to prevent publication of this information and argued that the Mail
and Guardian had invaded the applicant's privacy by improperly obtaining the
information and hence the information should not be published.52 Soni J gave
an interim order suppressing the information despite the fact that its truth
was not really in dispute as it had been corroborated by other sources. In
these circumstances it was strange that in a matter of compelling public
importance, the right to dignity and privacy trumped the right to publish true
information. Soni J was extremely concerned about the dignity of affected
parties saying
'... we are not talking about members of the government, or persons
holding public office. We are talking about persons who may well be
close to them and family members. If the allegation is made that a
family member of a member of government has benefited from some
financial deal, then clearly the public interest cannot be as overriding
as if that allegation were made about a public figure or public official
concerned. Consequently in that sense the public interest must be
somewhat diminished... In a democracy as young as ours, it is
essential that there is vigorous and robust debate about all matters
relating to clean government. Nevertheless, ordinary citizens such as
for example the applicant are entitled to have their constitutional
rights, such as the right to privacy and reputation protected. It is in my
view the overriding consideration'. 53
On the other hand the conduct of the newspaper came in for strong
criticism:
'It would have been much easier for me had I known the basis on
which the respondents had acquired the information. It would have
allowed me to weigh, on the one hand, the conduct of the
respondents in invading the privacy of the applicants, and on the other
hand to balance that against the public interest that would obviously
emanate from a report like the one intended to be published. The
respondents have chosen not to place such material before me.
Consequently, the conclusion is overwhelming that the conduct of the
applicants falls to be condemned.'54
The newspaper was thus restrained from publishing the information. Soni J
gives a symbolic superficial nod to freedom of expression, but dignity and
privacy instantly prevail. In the light of the fact that the truth of the
information was not in dispute, Soni's approach seems to even go beyond
the attitude in the Neethling judgment.
52Unreported judgment at 3.
53Unreported judgment at 10-11.
54Unreported judgment at 14.
16
Improper acquisition of information by the press was also an issue in Prinsloo
v RCP Media Ltd t/a Rapport.55 In that case it is arguable that the Court was
not resolute enough in disciplining the newspaper. Two advocates took
pornographic photographs of themselves and another woman and sent them
to a commercial firm for development. One of the firm's employees stole the
pictures and gave them to Rapport. It was clear that this was the type of
photographic material that a newspaper like Rapport does not carry.
However the editor refused to simply return the index prints arguing that it is
a 'fundamental principle of a free press' 'that a worthwhile newspaper would
not summarily give away information or documentation entrusted to it'.56
The ludicrous argument was also made that the public had an interest in the
sexual conduct of advocates because of their prominent position in society.
In a fairly long and complicated judgment Van Der Westhuisen J wrote
'I cannot help being slightly sceptical, or perhaps cynical, about the
respondent's reliance on the revered general principle of press
freedom. As I have stated before, I accept this principle fully and I
think that it should be respected, but at the same time I am of the
view that the principle should be treated with care and caution and not
be abused'. 57
It is interesting that the judge did not simply order the return of the
photographs forthwith which was probably the appropriate response in the
circumstances. He did however recognize that 'when it comes to the
publication of pictures of sexual conduct between consenting adults in the
privacy of their own homes, the concerns of press freedom and the public
interest would have to be of an extremely serious and important nature to
outweigh the privacy and dignity of individuals'. 58
DIGNITY: SATIRE
Cartoons of the Prophet Mohammed
The Sunday Times was interdicted from publishing controversial Danish
cartoons of the Prophet Mohammed. Jajbhay J briefly considered the
importance of freedom of expression but immediately abandoned it in the
interests of human dignity:
‘The deponent to the affidavit specifies in no uncertain terms that
Islam does not know a depiction of the Prophet Mohammed. He
55 2003 (4) SA 456 (T).
56 Above at 474J-475A.
57 Above at 475C.
58Above at 476A.
17
further states that it is a fundamental principle of Islam that a
reproduction of the Holy Prophet in drawings, paintings etc. are
blasphemous. To my mind, and upon a proper consideration of the
cartoon, the drawing does overstep the bounds of a simple
reproductive drawing. It is characterised by an insulting message and
the innuendo that in fact does ridicule Islam and its founder. It will be
recalled that the Prophet Mohammed is the cornerstone of every
Muslim's existence. The cartoon depicts what to my mind appears to
be the Prophet Mohammed who is stating "stop, stop, we ran out of
virgins". This is not only demeaning but also undignified.
Here, the limitation of the right to freedom of expression is to my mind
justifiable in the interest of human dignity, which constitutes a
founding value of our Constitution. The limitation will further foster
national unity. The critical need for our South African community is to
promote and protect human dignity, equality and freedom, the healing
of the divisions of the past and the building of a united society. We
are a diverse society. For many centuries, we have been bitterly
divided through laws and practices which encouraged hatred and fear.
Caricatures such as those depicting the Prophet Mohammed as a
terrorist shows a lack of human sensibility and in some cases
constitute unacceptable provocation. These expressions advocate
hatred and stereotyping of Muslims on the basis of immutable
characteristics that is particularly harmful to the achievement of our
core values as a nation, and reinforces and perpetuates patterns of
discrimination and inequality.' (own emphasis)
Jajbhay J conceptualizes his role as nation builder. He avoids the issue of
whether there is a threat of imminent violence if the cartoons are published
which is a powerful moral argument for preventing publication. If his
argument is that the cartoons are ‘advocacy of hatred … based on …
religion, … that constitutes incitement to cause harm’ then he should have
explained exactly how the cartoons fit under these heads. Rather he skirts
the issue and bases his argument on hurt feelings and provocation. The
cartoons were certainly deeply offensive to many Muslims but that is not the
same as saying that all of them advocate hatred.
It is interesting to contrast this case with the cases about images of the
Prophet Mohammed that had been decided by the BCCSA a number of years
before (see below). This change probably reflects the change in Islamic
consciousness and resistance over the last decade.
DIGNITY: INJURIA
18
Personal Insults
The common law delictual remedy of the actio injuriarum has always been
available in cases where someone has wrongfully and intentionally impaired a
person's dignity or reputation. The actio injuriarum is a civil claim where a
wronged party sues for monetary compensation. Race based insults that
are directed at individuals have traditionally been dealt with under this head.
For example, compensation was given to a victim for derogatory use of the
word 'kaffir' in Mbatha v Van Staden.59
Racist insults can also be criminal and result in criminal penalties and a
criminal record. '[P]rovided the required intention is proved, ... calling a
person a 'kaffir' is a violation of that person's dignitas and constitutes the
crime of crimen injuria'. 60 In order to succeed in either a criminal case of
crimen injuria or a civil case based on the actio injuriarum, it is necessary to
show intention on the part of the wrongdoer. Negligent speech has
traditionally not been punishable in criminal law or delict.
In S v Steenberg61 the view was expressed that the decision to criminalise
intentional degrading use of the word 'kaffir' is 'today under the new
dispensation even more valid' than it was under apartheid.62 This is a
controversial statement. While derogatory language is reprehensible and
reflects appallingly on the perpetrator rather than the victim, it seems that
the more disempowered a group, the more its members need legal
protection. As South African society transforms, one hopes that insults of
this type will be regarded as less wounding.
The idea that prominent people should be able to bear insults with fortitude
is supported by Stegmann and Southwood JJ in S v Molewa.63 Mr Molewa
was found guilty of swearing at a preacher during a dispute about animals
that had strayed into the congregation's crops. Molewa addressed him 'by
his penis and testicles' and said that his wife 'was full of shit'.64 The
magistrate imposed a fine of R1 000 or four months imprisonment and
Molewa went to prison as he could not pay the fine.
The Judge compared the case with S v Steenberg 65 where a white accused
insulted a black complainant by calling him a 'kaffir' and was sentenced to
R1 000 or six months conditionally suspended for five years. The Steenberg
591982 (2) SA 260 (N).
60 S v Steenberg 1999 (1) SACR 594 (N) at 597B.
61 Above.
62Above at 597B.
63 2001 (1) SACR 321 (T).
64 Above at 322I.
651999 (1) SACR 594 (N).
19
case was regarded as more serious because
'Steenberg was of a previously advantaged class who gratuitously
without any kind of provocation from the complainant, delivered a
stinging insult to a man of previously disadvantaged class who was
bound to feel severely hurt by it. There is no reason to doubt that if
the suspended sentence were to be put into operation, Steenkamp
was in a position to pay the fine and escape the alternative prison
sentence... In the present case, on the other hand, the accused was a
young man and the complainant, a preacher in the community, was a
more senior man of much higher standing in the eyes of the
community. Of course it was wrong for the accused to insult such a
man. That is why the matter was serious enough to warrant his
conviction of this crime. But the delivery of insults often says more
about the person who delivers them than about the person to whom
they are delivered. Having due regard to the complainant's high
standing, this was in my view a clear case in which he was well
placed to withstand the insults on the basis that they reflected much
greater discredit on the accused than on the complainant. The
magistrate appears to me to have overlooked this circumstance.'66
The accused was released from prison and the sentence was reduced.
Racial insults are considered very serious67 but when it comes to other
insults the complainant may simply be required to toughen up. Crimen injuria
is an interesting crime because 'in deciding whether the injuria in the
circumstances of a particular case merits a conviction of crimen injuria, the
Court has to some extent to pass a value judgment in regard to the
reprehensibility of the offending conduct, viewed in the light of the
principles of morality and conduct generally accepted as the norm in
society'.68
This is well illustrated by S v Seweya 69 where the conviction of an accused
for saying that the station-commander of the local police station 'speaks like
a three months' pregnant woman' was overturned. The Court acknowledged
66 Above at 324 G—H.
67Lebowa Platinum Mines Ltd v Hill [1998] 7 BLLR (LAC) Hill was alleged to have called a worker a
'bobejaan kaffir'. A disciplinary hearing at the mine found that he called him a Bobbejaan. Hill was given a
warning but the National Union of Mineworkers threatened industrial action unless Hill was dismissed
from his position. There were also anonymous letters threatening Hill's physical safety circulating in the
workplace. Hill refused a transfer and was dismissed. It was held that
'It was the respondents own reprehensible conduct which was the fons et origo of the situation that
developed. Second, the respondent could not possibly be retained in his position. Third, it was the
respondent's own unreasonable decision in refusing the transfer that resulted in the then inevitable
dismissal.' (para 74).
68S v Steenberg above at 596E Relying on Wassenaar Praktyck Judicieel.
692004 (1) SACR 387 (T).
20
that South Africa is culturally diverse but took the policy decision that
'the law will not countenace or lend any credibility to any act, custom
or view that will denigrate its citizens because of their sex or whether
such persons are pregnant. If a male is offended by being called a
female of the species, such insult is personal and cannot be elevated
to an offence.' 70
In S v Sharp 71 Ebrahim J and Peko AJ acquitted an accused who swore at a
female police officer by calling her a bitch 'from the charge office to the
cells' in the presence of her colleagues. The Court held that
'... the dignity of the complainant was ... not impaired. By the very
nature of her work as an inspector in the SA Police Services it is more
than likely that she had been exposed to situations previously where
individuals had used rude and abusive language in her presence and
probably even directed it at her. Such language, I dare say, may even
have made a sailor blush. One of the meanings in The Concise Oxford
Dictionary (10th ed, 1999) ascribed to the word 'bitch' is that it refers
to 'a woman who one dislikes or considers to be malicious or
unpleasant; Further, the word bitch is now also part of everyday
parlance and scarcely raises an eye-brow in conversations. If (as the
magistrate claims) the accused had been subject to a body search at
the police station by the complainant it is hardly surprising that the
accused called the complainant a 'bitch'. The utterance, it seems, was
made in anger and is nothing more than idle abuse by the accused or a
forthright, if unflattering, description of the complainant. ' 72
In both these cases the Courts are correct to regard cases of crimen injuria
brought by police officers with caution. Police work in difficult circumstances
and being robust is part of the job.
THE EQUALITY ACT 73
Crimen Injuria and the actio injuriarum now overlap with the expression
clauses in the Promotion of Equality and Prevention of Unfair Discrimination
Act74 (hereafter referred to as the Equality Act). One of its aims is the
prevention and prohibition of hate speech.75 The Act contains a number of
70Above para 23.
712002 (1) SACR 360 (Ck).
72Above para 13.
73This discussion of the Act draws on a report called Legislation Infringing Freedom of Expression: A Call
for Amendment which I wrote for the South African National Editors Forum and the Centre for Applied
Legal Studies (23 January 1996).
74 Act 4 of 2000 (referred to below as the Equality Act).
75Section 2 of the Equality Act. The objects of the Act set out in section 2 are inter alia—
` to give effect to the letter and the spirit of the Constitution, in particular the prohibition of advocacy of
hatred, based on race, ethnicity, gender or religion, that constitutes incitement to cause harm as
contemplated in section 16(2)(c) of the Constitution and section 12 of this Act;… to provide for
21
legislative provisions that raise freedom of expression concerns. Sections 10
and 12 of the Equality Act are important provisions that purport to regulate
hate speech. They provide:
`Prohibition of hate speech
10 (1) Subject to the proviso in section 12, no person may publish,
propagate, advocate or communicate words based on one or more of
the prohibited grounds, against any person, that could reasonably be
construed to demonstrate a clear intention to—
(a) be hurtful;
(b) be harmful or to incite harm;
(c) promote or propagate hatred.
(2) Without prejudice to any remedies of a civil nature under this Act,
the court may, in accordance with section 21(2)(n) and where
appropriate, refer any case dealing with the publication, advocacy,
propagation or communication of hate speech as contemplated in
subsection (1), to the Director of Public Prosecutions having
jurisdiction for the institution of criminal proceedings in terms of the
common law or relevant legislation.
Prohibition of dissemination and publication of information that unfairly
discriminates
12 No person may—
(a) disseminate or broadcast any information;
(b) publish or display any advertisement or notice,
that could reasonably be construed or reasonably be understood to
demonstrate a clear intention to unfairly discriminate against any
person: Provided that bona fide engagement in artistic creativity,
academic and scientific inquiry, fair and accurate reporting in the
public interest or publication of any information, advertisement or
notice in accordance with section 16 of the Constitution, is not
precluded by this section.’
Sections 10 and 12 are extremely constitutionally vulnerable in whole or in
part as they unreasonably restrict freedom of expression in our society.
measures to facilitate the eradication of unfair discrimination, hate speech and harassment, particularly
on the grounds of race, gender and disability;…to provide for measures to educate the public and raise
public awareness on the importance of promoting equality and overcoming unfair discrimination, hate
speech and harassment;…to provide remedies for victims of unfair discrimination, hate speech and
harassment and persons whose right to equality has been infringed’ (s2(b)(v); 2(c); 2(e)and 2(f)
respectively).
22
This report discusses sections 10 and 12 in turn. After that the proviso that
applies to both sections is examined.
Section 10 of the Equality Act
Section 10 of the Act has a number of important features. Firstly, it states
that no person may `publish, propagate, advocate or communicate words
based on one or more of the prohibited grounds…’. The Act is surprising in
that it does not distinguish statements made in private conversation from
public utterances. It aims to regulate all speech.
Secondly, although section 10 purports to regulate hate speech, the
provision is much more far-reaching than that. It aims to prevent words that
`could reasonably be construed to demonstrate a clear intention to (a) be
hurtful; (b) be harmful or to incite harm; (c) promote or propagate hatred’.
Courts in different democratic societies have dealt with attempts to regulate
hate speech in different ways. In the United States of America hate speech
can generally only be forbidden if the speech 'is directed to inciting or
producing imminent lawless action and is likely to incite or produce such
action’.76
The Canadian courts are far more sympathetic to legislative measures which
aim to prohibit hate speech. It is instructive to examine the Canadian
Supreme Court case R v Keegstra77 which dealt with the constitutionality of
a legislative provision that prohibited non-private communications that
wilfully promoted hatred against an identifiable group.78 The Court found that
the legislation was constitutionally acceptable. One of the reasons for the
decision was that the provision was narrowly tailored to prevent “hate
speech”. Dickson C J C held:
`In my opinion the term “hatred” connotes emotion of an intense and
extreme nature that is clearly associated with vilification and
detestation. As Cory J.A. stated in R. v Andrews…: “Hatred is not a
word of casual connotation. To promote hatred is to instill detestation,
enmity, ill-will and malevolence in another. Clearly an expression must
go a long way before it qualifies within the definition….” … Hatred in
this sense is a most extreme emotion that belies reason; an emotion
that if exercised against members of an identifiable group, implies that
those individuals are to be despised, scorned, denied respect and
76 Brandenburg v Ohio 395 US 444 (1968) at 447. Also see Chaplinsky v New Hamshire 315 U.S. 568
(1942) and R.A.V. v St Paul 505 US 377 (1992).
77[1990] 3 SCR 697, 3 CRR (2d) 193.
78 3 CRR (2d) 193 at 205.
23
made subject to ill-treatment on the basis of group affiliation.’79
Section 10 of the Equality Act goes much further than proscribing hate
speech. It also regulates hurtful and harmful speech.
The provision under review in Keegstra’s case was also found to be
constitutionally acceptable because in order for a hatemonger to be
convicted under the section, he or she had to `intend or foresee as
substantially certain a direct and active stimulation of hatred against an
identifiable group’.80 Our Act does not contain these safeguards. Section 10
targets language that could reasonably be construed to demonstrate a clear
intention to be hurtful, harmful or to incite harm or to promote or propagate
hatred. Consequently a speaker, publisher or communicator can contravene
this law even when he or she has no subjective intention to be hurtful,
harmful or to propagate hatred. An unwitting communicator could fall foul of
this provision simply because his or her statement could reasonably be
construed to demonstrate a clear intention to be hurtful.
Finally, in our modern and complex society language or images have a range
of meanings. Some material clearly promotes or propagates hatred, but in
less stark situations it is often difficult to predict whether a member of a
targeted group will find a particular advert or report hurtful or harmful. One
member of the group might be offended by a particular statement, another
might not care about it and a third might find it amusing. Section 10 is
disturbingly wide as it effectively strives to protect citizens from speech
which may offend them. This also illustrates the very real problems of
creating laws against group defamation. Some members of a group may well
be offended by a particular statement but it is often difficult to logically
support a claim that depends on defamation of an entire group.
Section 12 of the Equality Act
Section 12 of the Act is aimed at information, advertisements or notices that
`could reasonably be construed or reasonably be understood to demonstrate
a clear intention to unfairly discriminate against any person’. This provision is
also very wide as it also prohibits speech in instances where the
communicator has no subjective intention to discriminate. The section seems
to be aimed partly at discriminatory advertisements like adverts that
pronounce ‘only white men need apply’, but a cursory look at the provision
shows that its ambit is far wider than this. When one examines the wording
of the section it is very difficult to imagine what the outer limits of the
prohibition would be.
79 Ibid at 249-250.
80 Ibid at 249.
24
The Proviso
One cannot comment upon the difficulties inherent in these provisions
without taking into account the proviso to which both sections 10 and 12
are subject. The proviso excludes certain expression from the ambit of
sections 10 and 12 by effectively creating a number of ‘defences’ for those
‘accused’ of breaching the sections. The proviso has to be read with section
13 which shifts the burden of proof. In cases where a complainant makes
out a prima facie case that he or she is the victim of discrimination on a
listed ground, the onus shifts onto the respondent to show that his or her
conduct was not discriminatory or that it was not unfairly discriminatory.81
(It is however arguable that section 13 does not apply to cases of hate
speech.)
The proviso ensures that expression that fits into the following categories
will be allowed:
bona fide engagement in artistic creativity, or
bona fide engagement in academic and scientific inquiry, or
bona fide engagement in fair and accurate reporting in the public interest
, or
publication of any information, advertisement or notice in accordance
with section 16 of the Constitution.
A consequence of this proviso is that in a specific case a newspaper could
argue that a particular article does not contravene sections 10 or 12 because
the journalist was engaged in `bona fide fair and accurate reporting in the
public interest’.
On one interpretation, the proviso is drafted in a way that gives narrow
protection to the press. It is useful to compare the ‘defences’ that the
proviso makes available, to the common law defences in standard
defamation cases. In cases where a plaintiff appears to have been defamed
in the press, the defendant has recourse to a number of defences, such as
fair comment, truth and public benefit and qualified privilege.82 Additionally
publication of `false defamatory allegations of fact will not be regarded as
unlawful if, upon a consideration of all the circumstances of the case, it is
found to have been reasonable to publish the particular facts in the particular
way and at the particular time.’83 This formulation differs from the proviso in
section 12 which states that reports must be ‘accurate’ in order for liability
to be avoided under the Act. (A further complication with this requirement is
that the type of reports that could attract attention under these sections
often don’t lend themselves to a simple pronouncement upon whether they
are true or false.) One could argue that the Equality Act aims to protect
81 Section 13.
82 National Media Limited and Others v Bogoshi above at 1209A-B.
83 Ibid at 1212 F-G.
25
groups against hurt more than the common law protects particular
individuals whose dignity has been specifically assailed.
In the context of defamation our courts have conceded that the press should
not automatically be held liable for any defamatory statement that they
cannot prove is true.84 The proviso should be interpreted consistently with
this principle of the law of defamation which has been developed in the light
of the Bill of Rights. 'Fair and accurate reporting' can also be read as
requiring a high standard of reporting as opposed to truth on every issue.
A strong democracy requires a vigorous press and as the Supreme Court of
Appeal emphasised in National Media Limited v Bogoshi `nothing can be
more chilling than the prospect of being mulcted in damages for even the
slightest error’.85 The fact that legal costs are exorbitant will have a further
chilling effect because editors will be reluctant to risk publishing things that
may result in litigation.
The last part of the proviso provides that sections 10 and 12 do not preclude
publication `of any information, advertisement or notice in accordance with
section 16 of the Constitution’. Section 16 is the freedom of expression
clause. It is not obvious what qualifies as communication in accordance with
the freedom of expression clause, but the last part of the proviso could be
interpreted to make a range of constitutionally necessary defences available.
This formulation may help to insulate sections 10 and 12 from constitutional
attack.
The main problem with sections 10 and 12 is the powerful chilling effect
that they are likely to have on the media. The impact on ordinary citizens is
likely to be less as most people don't have the energy or the desire to
approach a court the moment that they feel offended.
The example of the Braude Report commissioned by the Human Rights
Commission shows that charges of racism can be controversial and
unexpected. In marginal cases it will be difficult for editors and other
individuals to anticipate whether a segment of society would find a particular
article or particular speech hurtful or harmful. Charges of sexism are likely to
be especially controversial. If editors and individuals are cautious about
complying with the Equality Act, they will keep much material from the
public. This approach will inevitably erode the public’s right to know, and
ordinary South Africans will again be kept behind a veil of ignorance.
84This was the result of a hard fought battle by the press and it is instructive to remember the case of
Neetling v Du Preez and Others; Neethling v the Weekly Mail and Others 1994 (1) SA 708 (A) which
financially crippled the Vrye Weekblad.
85 National Media Limited and Others v Bogoshi above at 1210 G.
26
Sections 10 and 12 also aim to regulate all speech. No private zone of
communication is acknowledged and exempted from its ambit. This is
symptomatic of another problem with the legislation. As Denise Meyerson
has written in another context:
'[T]o the extent that racial animosities will continue to plague us, it is
better to let them be played out at the level of words rather than to
bottle them up, thereby not only increasing their virulence, but also
making more likely a more dangerous kind of discharge. Forced, as we
are, to weigh up evils here, we should therefore conclude that
tolerance is more beneficial than costly.’86
Section 7(a) of the Equality Act
It is interesting to compare sections 10 and 12 of the Equality Act with the
much more tightly structured section 7(a) of the same Act which provides
`… no person may unfairly discriminate against any person on the ground of
race, including— (a) the dissemination of any propaganda or idea, which
propounds the racial superiority or inferiority of any person, including
incitement to, or participation in, any form of racial violence…’
The Equality Courts
In April 2005 it was reported that the Equality Courts that had been set up
throughout the country were being underutilized. This was perhaps a good
sign that illustrated that South Africans were succeeding in getting on with
things without recourse to courts. By that date about 33 hate speech cases
had come before the courts.87 Some of these cases were classic cases of
racial abuse which would probably always have been punishable under South
African law.88 Some illustrate racial sensitivities in the workplace for example
Advocate Lakhi from the Independent Complaints Directorate was alleged to
have told Nkonzwenhle Mqadi that she was 'fed up with Africans who
invade her office and that there were junior investigators who could deal
with them.'89 The outcome of the case was not reported.
86 ‘”No Platform for Racists”: What Should the View of Those on the Left Be?’ (6) SAJHR 394 at 397
(1990).
87 Edwin Naidu 'Equality courts are crying out for work ' Sunday Independent on April 10, 2005 at 7
http://www.iol.co.za/index.php?set_id=1&click_id=13&art_id=vn20050410124727705C815888
88One was an incident at Old Mutual where the remark 'Why did you put me next to the kaffirs.' was
overheard. A'eysha Kassiem 'Witness 'disgusted' by racial slur' 'Cape Times on May 12, 2005 at 3
http://www.iol.co.za/index.php?set_id=1&click_id=13&art_id=vn20050512072235965C323308 . Also
see Monica Laganparsad 'Magistrate finds father and teen daughter guilty of hate speech' Daily News
on February 23, 2006. 'B&B Owner Fined for Using Racist Language' (Legalbrief Today Tuesday 23
August 2005) including use of the word kaffir. The case between Senwamadi and Nashua which
involved an email 'recipe' on 'how to make a black person' would also have fallen into this category.
(Philippa Lane 'South Africa's Equality Courts: An Early Assessment' Race and Citizenship in
Transformation Series 2005 www.csvr.org.za/papers/paprctp5.htm.
89 'State Attorney Alleges Racial Snub' Legalbrief Today Monday 23 January 2006.
27
The judgments of the Equality Courts are not readily available as they are not
systematically reported. Consequently some of the information below has
come from the press.
One of the worrying things about the application of the Equality Act is that it
seems often to be used to clamp down on political speech with some
propositional value. The expression may be offensive and primitive but
attempts to ban it really encroach upon the core of freedom of expression.
The remedies under the Act range from an apology to an award of
damages.90
In an Equality Case a supervisor was alleged to have said
'Look at your government now. That government is a real monkey
government and does not provide anything for you. Thabo Mbeki is
the biggest baboon, controlling all the other monkeys like Jacob Zuma
who is stealing his money.'
After being cautioned for making the statement the supervisor 'was
dismissive and persisted that what he had said was true'.
90 21(2) After holding an inquiry, the court may make an appropriate order in the circumstances,
including-
a) an interim order;
b) a declaratory order;
c) an order making a settlement between the parties to the proceedings an order of court;
d) 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, as a result of the unfair discrimination, hate speech or harassment in question;
e) after hearing the views of the parties or, in the absence of the respondent, the views of the
complainant in the matter, an order for the payment of damages in the form of an award to an
appropriate body or organisation;
f) an order restraining unfair discriminatory practices or directing that specific steps be taken to stop
the unfair discrimination, hate speech or harassment;
g) an order to make specific opportunities and privileges unfairly denied in the circumstances, available
to the complainant in question;
h) an order for the implementation of special measures to address the unfair discrimination, hate speech
or harassment in question;
i) an order directing the reasonable accommodation of a group or class of persons by the respondent;
j) an order that an unconditional apology be made;
k) an order requiring the respondent to undergo an audit of specific policies or practices as determined
by the court;
l) an appropriate order of a deterrent nature, including the recommendation to the appropriate authority,
to suspend or revoke the licence of a person;
m) a directive requiring the respondent to make regular progress reports to the court or to the relevant
constitutional institution regarding the implementation of the court’s order;
n) an order directing the clerk of the equality court to submit the matter to the Director of Public
Prosecutions having jurisdiction for the possible institution of criminal proceedings in terms of the
common law or relevant legislation;
o) an appropriate order of costs against any party to the proceedings;
p) an order to comply with any provision of the Act.
28
The Durban Equality Court Magistrate Geoff Abrahams said 'that the
[equality] legislation did not allow the supervisor to use political criticism or
fair comment as a defence'. He held that the offence is serious 'when read in
the context of the preamble to the constitution.' The supervisor was required
to write an apology.91
The supervisor’s statement indicates disharmony and dissent between the
supervisor and the employee. It does not seem to contain the seeds of
imminent violence and it is not aimed at a disempowered group (at least in
the political context). In these circumstances the apology seems pointless. It
is also counter-productive to deal with dissent in this way. The chances are
that the speaker will feel vindicated by the attempt to clamp down on him
rather than chastised by the finding of the Court. It is necessary for South
Africans to be extremely cautious when censoring political expression even if
that expression is unsophisticated and offensive.
Ngoro's Apology
Another matter that attracted attention was the website of Roderick
Blackman Ngoro, media adviser to the then mayor of Cape Town, Nomaindia
Mfeketo. Ngoro published an editorial on an 'Afro Asia Rights Committee
website' that he had previously set up.
'The editorial, headed "Why Africans and coloureds are on the throats
of the other (sic) in the Western Cape and Cape Town", implied that
all coloured people were drunkards. It also said Africans were
"culturally superior" to coloureds.'92
Cape Town's citizens suggested different ways of dealing with the problem.
Some called for it to be referred to the Equality Court. The Cape Times
reported
' human rights organisations have slammed the editorial. Fanie du Toit,
programme manager at the Institute for Justice and Reconciliation,
termed the editorial "irresponsible" and said it was "dangerous when
people (particularly those in leadership positions) perpetuated
stereotypes".
Political researcher at the SA Institute for Race Relations, Frans
Cronje, said using terms like "superiority", in the way Ngoro had, was
91Tania Broughton 'KZN Man Guilty in Racial Slur Case ' The Mercury on June 3, 2004.
92A'eysha Kassiem 'Ngoro may face Equality Court as row over website race comments grows' (Cape
Times Online Edition July 22, 2005).
29
"dangerous and destructive".'93
The matter was referred to the Equality Court94 and settled. A sham apology
emerged as a result of the legal process:
'As part of an agreement reached at the Equality Court at the Cape
High Court, Ngoro, a Zimbabwean, undertook on Tuesday to be more
sensitive when commenting on racial issues in future and to take the
diversity of the South African population into consideration. He will
also not express himself in a way that can be construed as hurtful or
malicious. Judge Willem Louw ratified the agreement.
Kent Morkel, Western Cape DA leader, filed an official complaint with
the Equality Court in July after the controversial editorial entitled "Why
Africans and coloureds are on the throats of each Other in the
Western Cape and Cape Town" (sic) was published on behalf of a
group called Concerned persons against racism in the Western Cape.
'Coloured beggars, homeless and drunk on cheap wine'
In the agreement, Ngoro claimed he never intended offending or
hurting the coloured community. He placed an apology on his website
on July 20 and this apology still stands. Morkel accepted the apology
on Tuesday.
Ngoro said the phrase: "coloured beggars, homeless and drunk on
cheap wine" in the editorial referred to a certain section of and not to
the entire coloured community. He accepted the statement could be
interpreted in a way that made it sound as if it was referring to the
entire community.
Ngoro admitted the words: "how vastly superior Africans are" were
insulting and could encourage hatred. However, this was never his
intent, he said. He also admitted that the sentence: "Coloureds have
not yet realised that the time to be the cheerleaders for the white race
is long past and gone", (sic) was an unjustified generalisation because
coloured people have the same rights under the Constitution as other
ethnic groups and they also suffered under the previous dispensation.
Regarding the statement: "Coloureds must undergo ideological
transformation if their race is to prosper and not die a drunken death",
Ngoro accepted it was wrong to single out coloured people in this
regard. '95
The SAHRC's provincial co-ordinator, Ashraf Mahomed, correctly said that
93Ibid.
94 Llewellyn Prince 'Blackman says sorry' Die Burger (5/10/2005). Reported on News24
http://www.news24.com/News24/South_Africa/Politics/0,,2-7-12_1811544,00.html
95Ibid.
30
the statements could not be characterised as hate speech.
The staged apology turned out to be incidental in this case. The matter was
probably worked through in the political process where many voters in local
government elections may well have associated the Mayor with Ngoro's
views. It is sometimes useful for the democratic process to allow racism to
be vented where it can be seen. One of the most powerful responses to the
incident came from the Daily Voice. The Cape Times tells us:
'Meanwhile, Cape Town tabloid Daily Voice sent a group of minstrels,
in colourful attire, to protest outside the mayor's office at the civic
centre with posters proclaiming: "Jou ma se ..."
They also handed over a gatsby to security staff and asked that it be
passed to Ngoro. Daily Voice news editor Gasant Abarder said the
tabloid wanted to give Ngoro a "taste of coloured culture".'96
SOUTH AFRICAN HUMAN RIGHTS COMMISSION
Inquiry into Racism in the Media (2000)
The Human Rights Commission has had a vexed history of dealing with
freedom of expression. It famously launched an inquiry into Racism in the
Media in 2000. At the time the Commission chose to use its power to
subpoena journalists but the subpoenas were later withdrawn in a storm of
protest. (The Commission did however threaten to reinstate the subpoenas if
the journalists did not appear voluntarily).97 The inquiry revealed deep
divisions among black and white journalists. The inquiry was important
although dynamics within the press have changed rapidly and are very
different today.98
One of the major complaints that caused the Commission to launch the
inquiry were charges by the Black Lawyers Association (BLA) and the
Association of Black Accountants (ABLASA) that the press over-emphasised
corruption cases involving black suspects. ‘The BLA and ABASA accused …
96A'eysha Kassiem 'Ngoro may face Equality Court as row over website race comments grows' (Cape
Times Online Edition July 22, 2005). Also see Findings of the South African Human Rights
Commission Complaint against Mr A Rajbansi and the Minority Front Regarding an Advertorial
Published in the Tabloid Newspaper of the 11 January 2006 (15 February 2006).
97 See Daryl Glaser ‘The Media Inquiry Reports of the South African Human Rights Commission: A
Critique’ African Affairs (2000) 99, 373-393.
98 See Guy Berger ‘Seeing Past Race – The Politics of the HRC’s Inquiry into Racial Representation’
http://journ.ru.ac.za/staff/guy/
31
two newspapers of selective reporting and racially insensitive news
coverage. They [alleged] that the “Mail & Guardian” was reporting
allegations of criminal actions and misdemeanors of black people in
leadership in a distorted manner so as to create prejudice against all black
people’ 99
The inquiry culminated in a document entitled Faultlines: Inquiry into Racism
in the Media which reads like an academic article on language and power in
society rather than like a report by an official Commission. The Commission
had made an agreement with the press that there ‘would be no findings in
respect of individual journalists, publications or titles’.100 It was however
immediately clear that the commercial press could not be accused of
anything resembling hate speech. The report does not single out any specific
instances of racism. It does not even describe the nature of general
instances of racism. This creates a problem as the report is incurably vague
and it is impossible to really get to grips with the content of the behaviour
that the Commission is criticising.
In the absence of any concrete cases of specific racism, the Commission
continues to press its charge of subliminal racism. In a defensive paragraph,
the Commission writes:
‘It can be argued that only conscious behaviours and outcomes may
be the subject of public inquiry without attracting “thought police”
implications. Besides, by definition racism must have purpose or
effect. That means that there must be some objective criteria for
determining its nature, existence or visible effects. It need not be
discovered simply by some psycho-analytical manipulation. It is real. It
is felt and it is experienced. Subliminal, we suspect is simply
shorthand for unacknowledged or less crude and therefore subtle
forms of racism. The problem is that our behaviour and the outcome
of interactions may well be affected by subliminal ideas. Indeed, very
often our behaviour can be explained only by reference to unconscious
drives. And while no one can legitimately censure another’s thoughts,
we may all be involved in their consequences. Does that mean we
may have a legitimate interest in subliminal behaviour? Serial killers
and rapists are known to be subliminally driven. Should we therefore
desist from comment on the results?’101
The problem is that the Commission does not merely debate issues of
subliminal racism. The analysis masquerades as a legal analysis. The report
99South African Human Rights Commission Faultlines Inquiry into Racism in the Media (August 2000)
http://www.sahrc.org.za/faultlines.PDF at 76.
100Faultlines above at 88.
101 Faultlines above at 60.
32
writers draw on modes of analysis used by the Constitutional Court. This is
despite the fact that they readily concede ‘that … it is doubtful that the
aggrieved parties would have had a case to present to the courts.’102
The press was in a no-win situation. The more it protested and denied that it
was racist, the more that the Commission found that their denial was merely
a symptom of subliminal racism:
‘Although there was denial of both actual and intended differentiation
in the
treatment of various groups, yet there was a defence of justification
and,
critical race theory would say that assertions of colour-blind practice
are
often forms of denial.'103
If one engages in a parallel analysis of language and power encapsulated in
the report, it is easy to argue that the subconscious objective of the
Commission was to silence legitimate dissent in the country. That analysis
fits with the sentiments of the Commission in the following paragraph:
‘Earlier on we made two contradictory points. We said that the
allegations
we heard were not of the sort that could be described as extremist
hate
speech or propagation of racist violence. At the same time, we noted
that all
racist speech was prohibited by the Constitution and by law. We went
further and asserted that the extremity of the race speech was not
necessary
for the purposes of our investigation and we adopted Prof Eric
Neisser’s
broader definition of hate speech. In fact this requires further
elaboration.
The point is that what may appear as harmless speech or neutral
communication in the direct, immediate sense, may upon examination
reveal the deeply embedded forms of racism that lurk behind civility.
The consequences nonetheless would be as harmful to one’s dignity
and self-esteem and, more seriously, they could be the precursor to
the more violent
expressions of hate propaganda. We therefore accept Goldberg’s
notion of a
less severe understanding of domination and power.’ 104
102Faultlines above at 70.
103Faultlines above at 80.
104Faultlines above at 83.
33
This is not to say that the press was perfect at the time of the inquiry.
Journalists and editors were overwhelmingly white and the press was not
diverse enough to reflect a wide range of opinion. The way in which the
matter was handled by the Human Rights Commission was however
misconceived. The Commission decided to use its power of subpoena
although it stated that the Commission is ‘at its best’ when it ‘provides a
median mechanism to bring parties to a place where they [can] discuss and
debate their respective concerns about the exercise of rights.’105 It seems
that the Commission was having teething problems. (The recent Report of
Seminar on Freedom of Expression in the Context of Religious Diversity in
South Africa: How do we strike the Necessary Balance shows that the
Commission can play a valuable role in fostering debate between different
segments of South African society when it approaches issues in a different
way.)
Discussion Document: Freedom of Expression (2002)
On 21 November 2002, the Human Rights Commission released a document
called ‘Discussion Document: Freedom of Expression’106 where the values
implicated in freedom of expression were taken very seriously. The
discussion document argued
‘In a recent response to the utterances “kill the farmer, kill the Boer”
President
Thabo Mbeki confirmed that “nobody, whoever they are, has the right
to call for the killing of farmers or Boers, nor the right to threaten
violence to advance their particular goals.” His condemnation of these
utterances did not amount to a call for the banning of such
statements, nor the prosecution of the persons making these
utterances. President Mbeki resorted to a public shaming of those who
indulge in this form of speech, and in this way set the moral tone in
response to such amoral remarks.
It is respectfully submitted that, in the context of our current
circumstances, and our need to encourage free debate and expression,
the President’s response is the correct one. The strong condemnation
and public shaming attendant on these forms of speech, ensures that
we do not resort to a knee-jerk response of
demanding that free expression be curtailed, but rather we encourage
a
105 Faultlines above at 70.
106South African Human Rights Commission (21 November 2002)
http://www.school.za/PILP/themes/journalism1/docs/freedom_of_expression_discussion_document_no
v_.pdf
34
constructive debate around these issues, and allow the values of our
Constitutional democracy to shine through. We can express our
confidence in our growing Constitutional democracy, and trust that
society’s moral outrage will be correctly placed, as was evident in the
public debates around all of these complaints before the SAHRC. The
SAHRC may set the tone of these debates by issuing press statements
condemning them and placing them firmly within the context of
inappropriate speech for a democratic society.’ 107
The Discussion Document also attacks the use of the concept of
'hurtfulness' used in the Equality Act:
‘There is a view that holds that the test for admissible freedom of
expression should be that of ‘hurt’ or ‘hurtfulness’ in line with the
proposal found in the Equality Act. It holds that if a person feels hurt
as a result of utterances, those utterances should be disallowed. It is
submitted that a test based on hurt, besides not according with the
Constitutional provisions, may be far too subjective to make it
justiciable. It would, however, have application and could be taken
into account as an aspect to be weighed up during the limitation
process in the Bill of Rights.’ 108
Hate Speech Revisited
After this Discussion Document the Human Rights Commission tackled the
issue of hate speech carefully when it found that the slogan 'Kill the Farmer,
Kill the Boer' is advocacy of hatred ...that constitutes incitement to cause
harm when quoted in the context of political rallies and funerals.109 The
Commission stated that 'calling for the killing of people because they belong
to a particular community or race must amount to the advocacy of hatred,
unless the context clearly indicates otherwise'.110 Harm does not have to be
physical. 'Psychological or emotional harm' is sufficient... '[h]owever the
harm caused or likely to be caused must be serious and significant. This
assessment will have to be made on a case by case basis, having regard to
the values protected by our Constitution'. 111 'There must be a real likelyhood
that the expression causes harm before it can be deemed to be hate
speech.'112
107Discussion document above para 33-4.
108Discussion document above para 42.
109Freedom Front v South African Human Rights Commission and Another 2003 (11) BCLR 1283
(SAHRC).
110Above at 1290G.
111Above at 1295B.
112Above at 1298B.
35
The Human Rights Commission found that 'there can be no doubt that the
slogan, given its content, its history and the context in which it was
chanted, would harm the sense of well being, contribute directly to a feeling
of marginalisation, and adversely affect the dignity of Afrikaners.... There is
a real likelihood that this slogan causes harm'.113 The Human Rights
Commission perceived the need to distinguish 'expression that offends and
expression that harms or is likely to harm'.114 'The more vulnerable the
group, the more likely it is that it will be harmed by the advocacy of
hatred'.115
This judgment and the Discussion Document mentioned above are light years
away from the approach to speech evident at the time of the Inquiry into
Racism in the Media.
Other Reports
Other types of critical speech have also been reported to the Human Rights
Commission. Prakash Silal, a senior member of the Treasury was alleged to
have told an Imatu shop steward that it was well known that blacks do not
perform well in higher positions, especially finance.'116 This does not seem
like the type of remark that can helpfully be engaged with at the level of the
Human Rights Commission or an Equality Court. The outcome of that
complaint was not reported.
Democratic Alliance leader Tony Leon was reported to have been cleared of
hate speech by the Human Rights Commission for saying 'People accuse the
government of side-lining the so-called coloured people. ... Mr Leon then
singled out Mr Manuel saying: Why is his name not mentioned as the next
deputy president or even president of the country? Some people say that it is
only because he is a so-called coloured. I hope that it is not the case. The
commission found that was no advocacy of hatred and no incitement to
cause harm.'117
The Human Rights Commission was asked to adjudicate on a dispute
between a cricket fan and the United Cricket Board which refused to allow
him to wave an old South African flag at the cricket. The case was decided
on the basis that the rules printed on the ticket did not allow for old South
113Above at 1299C-E.
114Above at 1295F.
115Above at 1296C.
116'Race Remark Allegation Leads to Court'Threat' Legalbrief Today (21 October 2005).
117'Leon is Cleared of Hate Speech Charge' The Herald (9 September 2004)
36
African memorabilia.118 This seems to be a cop-out on the part of the Human
Rights Commission. Waving the South African flag is a bona-fide form of
political expression and it is not clear that the cricketing authorities can ban
expression of this type in the very public forum of a cricket match. It should
also be considered that the condition on the ticket is mere censorship which
aims to create a certain convenient image of South Africa. In a genuinely
confident and harmonious country it would be possible to shrug off the
sentiment. Very few cricket fans would have associated themselves with the
symbolic image. South African cricketing crowds are also not given to
violence of any type. The merits of the case might have been different if any
South African cricket match could be as highly charged as a match between
India and Pakistan. Still on the cricketing theme, and in the same vein, the
Commission inappropriately criticised sports Minister Ngconde Balfour for
making the statement that he preferred watching black cricketers Paul
Adams and Makhaya Ntini rather than their white teammates Mark Boucher
and Jacques Kallis.119
The Human Rights Commission has rightly condemned a magistrate for
saying
'You know what is funny, even animals... a male animal will never
f*** another male animal. Well unfortunately the Constitution of our
Country also says, itself, a male can f*** a male, a woman can f***
a woman, which is very unfortunately (sic).' 120
A military judge who said that he found official correspondence in Afrikaans
'disgusting' also gave rise to justified concern.121 The primary problem with
these statements is that they come from the heart of the judiciary or the
system of military tribunals. That changes their status and transforms
offensiveness into extreme inappropriateness as it creates the impression
that the judicial officer is biased.
Overall the Commission has generally shown an ability to distinguish hate
speech from other speech. However the Commission ruled that an
advertisement placed in a local newspaper and also distributed as a pamphlet
circulated by the Minority front during the 2005 local government elections
were racist and unacceptable. 'The pamphlet urged people to vote for the
Minority Front and ended with the following promise: ‘If the Minority Front
gets absolute power in Durban we promise to give all the Indians a house
who come to our office and leave their details'. That part of the pamphlet is
severely problematic because it is misleading. It would be illegal for the party
118Discussion with J Kollapen.
119'HRC roasts Balfour over racist comments' IOL on 2002-11-21.
120Derrick Spies 'Magistrate Censured for Views on Homosexuals' The Herald Online (25 Februry 2006)
121'Judge under Fire Over Criticism of Afrikaans' Mail and Guardian Online (30 January 2009)
37
to act in that way, but curiously that was not the part of the document that
seemed to cause the most offence. The part that did: 'blamed those living in
informal settlements for a variety of crimes, including murder and rape. The
language used sought to play on the insecurity of Indians concerned about
crime. Indians were portrayed as the victims ignored by those in authority.
The article also asserted that the MF was trying to keep Chatsworth closed
and safe and some double crosser is trying to open Chatsworth up.'
The Human Rights Commission took the view that the election message
implied that the MF was trying to keep the area 'exclusively Indian'. Rajbansi
was required to apologise for the pamphlet 'and acknowledge that it
impaired the dignity of blacks, particularly those in informal settlements in
the Chatsworth area'.
DIGNITY, EQUALITY OR OLD-FASHIONED OFFENSIVENESS: REGULATING
THE AIRWAVES
Unlike the print media, broadcasters are subject to licencing and legislated
Codes of Conduct because the scarcity of frequency makes it necessary to
ensure that those few broadcasters who do get access to the airwaves
practice fairness and reflect a diversity of views.122 Broadcasting, particularly
radio, has been very effectively diversified since democratic change in South
Africa. There are now numerous radio stations which have been registered
by the communications regulator ICASA.
ICASA is required to create a Code of Conduct for broadcasters. Industry
self-regulatory bodies such as the Broadcasting Complaints Commission of
South Africa whose codes are in compliance with the ICASA code are
allowed by law to conduct adjudication. In practice the BCCSA deals with all
broadcasting complaints. The broadcasters consent to comply with a code
of conduct and breaches of this code can result in reprimands or a fine of up
to R40 000. Serious or repeated breaches of the code might compromise the
standing of the broadcaster with ICASA and cause the station's licence to be
suspended for thirty days.123 The licence can also be endangered in the long
term. The Commission can also require a broadcaster to apologise or to give
a right of reply.124 As is appropriate in a rights-based constitutional state,
the commission cannot censor material prior to broadcast. It can only act on
complaints after the broadcast has taken place.125 The BCCSA cannot
122 Section 192 of the 1996 Constitution. For a very useful and interesting discussion of the relationship
between licensing itself and freedom of expression see Daniel Malan Pretorius 'Freedom of Expression
and the Regulation of Broadcasting' (2006) 22 SAJHR 47.
123 Islamic Unity Convention v Independent Broadcasting Authority 2002 (4) SA 294 (CC) at para 48.
124Article 14 of the Broadcasting Complaints Commission Constitution.
125Case No: 1996/02 SABC –Jihad in America.Ebrahim Suliman v SABC.
38
initiate complaints itself.
The Constitutional Court has stated
'that the appropriate regulation of broadcasting by the government and
its organs, in the public interest, serves an important and legitimate
purpose in a democratic society, particularly in view of the
constitutional duty to put such regulation in place. This is because of
the critical need, for the South African community, to promote and
protect human dignity, equality, freedom, the healing of the divisions
of the past and the building of a united society. South African society
is diverse and has for many centuries been sorely divided, not least
through laws and practices which encouraged hatred and fear.
Expression that advocates hatred and stereotyping of people on the
basis of immutable characteristics is particularly harmful to the
achievement of these values as it reinforces and perpetuates patterns
of discrimination and inequality. Left unregulated, such expression has
the potential to perpetuate the negative aspects of our past and
further divide our society. The Constitution accordingly demands that
regulation should ensure fairness and a diversity of views broadly
representing South African society, a mandate which is hardly
surprising in a country still riddled with a legacy of inequalities, and in
which not all have equal access to and control of resources, including
the electronic media.'126
Although the Constitutional Court envisages that the BCCSA will play a role
in preventing hate speech and stereotyping, the Court ruled that a provision
of the code which stated that 'broadcasting licensees shall . . . not
broadcast any material which... is... likely to prejudice ... relations between
sections of the population' was overbroad. It infringed the right to freedom
of expression in a way that was
'far too extensive .... As already stated, no grounds of justification
have been advanced by the IBA and the Minister for such a serious
infraction of the right guaranteed by section 16(1) of the Constitution.
It has also not been shown that the very real need to protect dignity,
equality and the development of national unity could not be served
adequately by the enactment of a provision which is appropriately
tailored and more narrowly focussed.' 127
Hence the clause was found to be unconstitutional and it was subsequently
amended.
126Islamic Unity above para 45 (own emphasis).
127Islamic Unity above at para 51.
39
The Constitutional Court referred to Handyside v The United Kingdom128
where the European Court of Human Rights stressed that freedom of
expression 'is applicable not only to information or ideas that are favourably
received or regarded as inoffensive or as a matter of indifference, but also to
those that offend, shock or disturb. Such are the demands of that pluralism,
tolerance and broadmindedness without which there is no democratic
society. 129
This paper will show that concerns expressed by the Constitutional Court
about freedom of expression are not really being reflected in the work of the
Broadcasting Complaints Commission. There have been some notable
changes in broadcasting content over the last decade. For instance the
Commission shows a remarkable tolerance for sexual content as long as it is
shown late at night during what is known as the watershed period (when
children are supposed to be asleep or supervised).
On the other hand the commission is extremely sensitive about offensive
speech which has racist, sexist, anti-religious or homophobic overtones. The
airwaves are becoming more and more sanitised as any type of hurtful joke
is subject to censure. The Commission has consistently found that the
speaker's intention is irrelevant. There have been cases where the
Commission has acknowledged that the speaker did not or may not have had
the intention to offend but has still found that 'the speech constitutes
advocacy of hatred that is based on race, ethnicity, gender or religion, and
that constitutes incitement to cause harm'. The commission's definition of
harm includes physical and emotional harm. In most cases harm would be
more frankly characterised as hurt. It is also not necessary for the targeted
group to feel threatened in any way. (This interpretation of hate speech is in
marked contrast to the Commission's most well known case the AmaNdiya
case where it did reveal a more limited and better analysed approach to the
meaning of hate speech.130) Recently the commission has stopped resorting
EVEN to its extremely wide definition of hate speech. It now simply
condemns speech on the ground of dignity. In some cases it uses the ground
of fair comment. There always seems to be an elastic ground available with
which to censure the speech.131
Initially the BCCSA was very concerned with freedom of expression. The
128 (1976) 1 EHRR 737 at 754.
129Islamic Unity above para 28.
130Human Rights Commission of SA v SABC 2003 (1) BCLR 92 (BCCSA).
131Section 35 of the code provides:
35.1 Licensees shall be entitled to broadcast comment on and criticism of any actions or events of public
importance.
35. 2Comment shall be an honest expression of opinion and shall be presented in such manner that it
appears clearly to be comment, and shall be made on facts truly stated or fairly indicated and referred to
40
BCCSA Annual Report of 1998-9 states 'within a freedom of expression era
it would be unacceptable for this Commission to adopt a hard line. Therefore
it has become characteristic of this commission that it prefers the light
touch, where the aim is rather to inspire its broadcasters to greater quality
than to subject them to rigorous control.'132 The present touch of the BCCSA
cannot be described as light. The body has become preoccupied with
stopping offensive speech while expressing a clear nation-building agenda.
The assumption seems to be that South Africans are incapable of critically
integrating the type of casual banter commonly found on breakfast shows or
talk shows. There is no suggestion that South Africans should toughen up or
simply deal with offence in the rough and tumble of everyday life.
Whereas mere offensive jokes and name calling are generally proscribed,
sensitive broadcasts that have some propositional value tend to be allowed.
This is the area where the BCCSA is most useful and displays its main
strength. It insists that broadcasting must be balanced and fair and
broadcasters must present the opposing view. In this context South African
citizens are treated as discerning adults who are entitled to formulate their
own position in a democratic society.
I have used generous quotes from the BCCSA to expose readers to its
reasoning. The emphasis in the quotes is mine.
Offensiveness
The 'broadcast of the explicit details of the beheading of a hostage in Iraq on
the Nguni TV news service' was held to have contravened the Broadcasting
Code.133 This was despite the fact that a warning was broadcast which
stated that the 'scene might be offensive to sensitive viewers'.134 The
Commission held that
'the explicit visual presentation of the beheading of a human being is
destructive of human dignity to the extent that it grossly exceeds
causing mere offence to a viewer in order to shock him or her into an
awareness of reality. The effect of this kind of visual presentation far
exceeds causing mere offence in that it affronts the dignity of human
life in a fundamentally cruel and inhuman manner. It shows the
destruction of an individual human life, violating the essential dignity
of the viewer.135
132Available on http://www.bccsa.co.za/
133Case No: 2004/39 SABC1 - News Item - Beheading of Iraqi hostage. Monitoring and Complaints Unit
(ICASA) v SABC1.
134Ibid
135Ibid
41
Truth, Accuracy and Fairness
The case above illustrates the useful role that the BCCSA plays in our
society. The Commission also ensures that licensees 'report news truthfully,
accurately and fairly'. Hence balance should be maintained in news reports,
mistakes should be corrected immediately and individuals and groups who
are the subject of reports should be given a right of reply. The Broadcasting
Complaints Commission tends to perform this function successfully.136
In I Polakow v Radio Islam137 the Tribunal was faced with the question of
whether 'a radio station may express unconditional support for suicide
bombers, who often kill civilians, including children. The commentator
conceded that the conduct was immoral, but he justified the conduct with
reference to, inter alia, the “killing of our people” by the Israelis. The concept
of a “just war” is, in effect, introduced in the argument.'138 The Commission
took the view that although
'[s]ome listeners might argue that one can never express a view on
radio or television that supports the plight of the suicide bomber. We,
however, believe that a broadcaster may broadcast its sympathetic
view to the listeners. However, when this is done, an additional
responsibility arises: to also publish an opposing view from the Israeli
side. A radio station, which has a public responsibility, cannot argue
that the suicide bombers are acting in the interests of a just cause
without conveying the contrary view.' 139
The Commission received a complaint that in the Vuyo Mbuli show the
presenter had read out the following email in unedited form:
: “…American leadership, funded and elected by Jewish interest
groups, are now after the huge oil reserves of Iraq …”.'140
The Complaint was 'that the comment is inaccurate and defamatory. ...It
implies ... that Jewish groups manipulate the United States to achieve their
own malevolent interests... This is a familiar theme in anti-Jewish conspiracy
theories.'141
The Commission held that
136Groups must be able to accept criticism. The opinion that a certain journalist's 'experience of
Christianity was male dominated and sexist, and hierarchically dictatorial' was held to be a statement within
her Constitutional rights and not 'advocacy of hatred based on religion that constitutes incitement to cause
harm'. Case No: 2005/44 SABC1 - "L'Attitude' – Comment. W & T Sandeman v SABC1.
137Case No: 2002/61 Radio Islam - Derogatory Comments. I Polakow v Radio Islam.
138Ibid.
139Ibid.
140Case No: 2003/22 SAfm - Vuyo Mbuli - Hate Speech. Pollak vs SAFM.
141Ibid
42
'Judging objectively, we are of the opinion that the words complained
of fall in the category of “the free and open exchange of ideas” which
constitutes the exercise of freedom of expression. They are the
subjective view of one person and they may be wrong, but the
presenter would have erred on the side of censorship, had he decided
to edit out the words complained of. They do not “incite grave feelings
of shock and indignation”.... Neither could it be said that, objectively
seen, it was of such inflammatory nature that it exceeded the bounds
of tolerance. There was no incitement to cause harm and therefore it
cannot be said to be a case of hate speech.'142
The commission reflected on the fact that there was only one complaint
against the broadcast and took this as an indication that the broadcast had
not 'been a clear case of hatred being advocated against the Jewish people
...' The words complained of were not of inflammatory nature and did not
'incite grave feelings of shock and indignation.' Hence it found that there
was no violation of the code.143
The latter consideration is problematic. The mere fact that a community
bears statements with fortitude does not mean that they are not
inflammatory. The fact that 'grave feelings of shock are not incited' is also
not relevant as the type of statement in this case is fairly routine. In theory
the more routine the statements, the more dangerous. It is however fair to
say that these opinions fall within the category of free and open exchange of
ideas. Callers are free to phone in and counter them.
The Commission required Cape Talk to broadcast an apology to members of
the Jewish community after Jani Allen interviewed a certain Mr Johnson.
Johnson had said '...We are looking at a nation here that 4% of an ethnicity
is controlling 80% of all electorate governmental positions. Now how did
that happen? That is the question which I also have an answer for if I
could'.144 He referred to Israel as a 'litter-box' and said 'if you are practising
Judaism I know exactly what that filthy thing says, it says we should have
sex with three year old children and it will be alright.'145 The host made no
attempt to balance these statements.146
A number of Muslims complained that programming on the amputation of
142Ibid
143Ibid
144Case No: 1999/35 Cape Talk -Religious convictions or feelings of the Jewish community. SA Jewish
Board of Deputies v Cape Talk
145Ibid
146Ibid
43
limbs in Nigeria and Sudan as part of Sharia law 'created the impression that
Sharia consisted only of amputation'. The complaint was dismissed 'on the
basis that the programme and one that followed clearly showed that 'Sharia
encompassed the whole set of Rules which governed the life of a Muslim.'147
The Commission has not been particularly receptive to complaints about
taboos on images of the prophet Mohammed in news or documentaries. 'In
April 1996 there were complaints about the showing of a depiction of the
face and body of Mohammed followed by a mural that depicted the covered
face of the prophet'148 The images formed part of a documentary on
dreams. Although the tribunal realised that according to Islam no portrayal of
the Prophet was allowed, it came to the conclusion that the scene was not
legally offensive in view of the 'documentary nature of the scenes as well
as the absence of focus on the figure of the prophet'.149
'On 3 July 1997 a poster which was produced in Israel and depicted the
Prophet Mohammed as a pig with his foot on the Quran' was shown on
SABC.150 The complaint to the BCCSA was dismissed as the Commission
decided that 'the shot of the poster was necessary for the news item.
Viewers had a right to be informed why the clashes were taking place. The
poster also explained why Muslims were enraged at what had happened.
Without a copy of the poster in the news item, viewers could easily have
misunderstood the anger of the Muslims'.151
This case would probably not be decided in the same way today as the
nature of Islamic resistance has changed (see the Islamic cartoon case
above). However the principle stands that when 'a broadcaster broadcasts
speech that amounts to advocacy of hatred based on religion the broadcast
may be acceptable if it is set in the context of the news and educational
function of the SABC'.152 This is also the reasoning underlying the AmaNndya
case(below).
A complaint that the broadcast of a circumcision ceremony flouted Nguni
custom as it exposed a 'sacred, secret custom' was rejected by the
Commission.153 The Commission held that 'deeply held traditional cultural
values and opinions may have been offended' but they could not 'justify the
147BCCSA Bi-Annual Report 1999-2001.
148Case No: 1996/08 SABC - Power of Dreams. Imam Ahmed Raza Academy v SABC
149Ibid
150Case No: 1997/02 SABC - News Item - Poster of Prophet Mohammed in Hebron. MH Simjee v SABC.
151Ibid
152Case No: 1998/22 SABC-Nigerian Priest Attacking Hinduism. The SA Hindu Dharma Purohit Council v
SABC.
153Case No: 2004/08 SABC - Qula Kwedini - A Right of Passage – Ethnicity. Z Dlokovu v SABC1.
44
limitation of the right to freedom of expression 'especially in view of the
deaths that eventuate at some of these ceremonies':
'The right to freedom of expression encapsulates and guarantees even
unpopular controversial views and opinions which might incense the
values of a section of the population,which subscribes to different
views to those espoused. The Constitutional Court has held that “the
print, broadcast and electronic media has a particular role in the
protection of freedom of expression in our society… The media thus
rely on freedom of expression and must foster it. In this sense they are
both bearers of rights and constitutional obligations in relation to
freedom of expression. .... It is common cause that yearly there are
maimings and deaths at traditional circumcision schools, that these
happenings are a matter of great public debate and interest as to
whether there is any reasonable justification in continuing with these
customs, and shrouding the rituals in secrecy, given the deaths in
some of these ceremonies.'154
The commission often allows particular programs on the basis that the
broadcaster has a balanced approach to the issue as a whole. For example
an anti-homosexuality stance in the religious program 'Focus on the Family'
was found to be acceptable. It contained no advocacy of hatred and no
incitement to cause harm. An important consideration was that the SABC
has a generally balanced approach to homosexuality. 'Gay Pride marches are
covered in main news bulletins; sit-coms such as Will and Grace depict gay
relationships as natural and acceptable; programmes such as Below the Belt
celebrate homosexuality – and, indeed, pornography – without the opposite
(religious/moral) voice being given a chance to express an opinion'.155
A guest was invited to the Tim Modise show who expressed the view that
natural remedies could be effective against HIV/AIDs.156 The complainant
argued that these views were 'obviously false and deadly assertions' and
that it could not be in the public interest to broadcast 'material that
threatens the lives of thousands of South Africans'. The Commission found
that there was no contravention of the code. This was partly because the
opposing view had been aired in the same time slot. The interesting thing
about this case is that the Commission constructs the listener as a thinking
individual in a democratic society. It says:
'Our reaction is, accordingly, to tread with utter care when opinion is
154Ibid.
155Case No: 2003/35 SABC - Focus on the Family - Hate Speech. Hagan v SABC.
156Case No: 2005/56 702 Talk Radio - Tim Modise Show - Views on HIV and Aids. P de Vos v 702 Talk
Radio.
45
expressed - even opinion which is based on erroneous assumption or
error. The well-known approach of Holmes J in Abrams v The United
States 250 US 616(1919) that unjustified opinion should rather be left
for the market place of ideas to counter it, also carries special weight
in the opinion of the Commission... Ms Van der Mass’ views were
probably in the eyes of the Complainant “unjustified opinion” and
many people in South Africa would probably agree with him. However,
the nature of freedom of expression is that we should not, and cannot,
stop people from disseminating their ideas, however unacceptable it
may be. Let it be tested in the market place of ideas and let the
listeners decide for themselves. There are limits to the freedom of
expression where the expression amounts to propaganda for war,
advocacy of hatred based on race, religion, etcetera, but the limits to
this freedom have not been transgressed in this instance.'
This approach is in marked contrast to the Commission's approach to hatred,
meaningless abuse and other offensive speech discussed below.
Hatred, meaningless abuse and other offensive speech
The most well known BCCSA case Human Rights Commission of SA v SABC
157dealt with a song called AmaNdiya written by a well- known South African
songwriter Mbongeni Ngema. The Commission explained:
'The song polarises Zulus with Indians by demeaning the Indians: they
are a cause of poverty of Zulus, are worse than the Whites were, have
turned an important clan into clowns, have dispossessed them, have
suppressed them and play the fool with them. The Zulus are homeless
and squat in shacks as chattels of Indians, whose numbers are
constantly increasing. The demeaning of Indians has a strong hate
element to it ''158.
The SABC broadcast the song during a current affairs program after 9 o'
clock. The song was found to be inflammatory but the broadcast was
acceptable as it was set within the context of a bona-fide current affairs
program that problematised the nature of the song.
The well constructed judgment explains why it would not be acceptable to
broadcast the song in isolation. The Commission examines the history of
censorship in South Africa and attaches strong value to freedom of
expression. It then states that
'[t]he pluralism and broadmindedness that is central to an open and
democratic society can, however, be undermined by speech which
157 2003 (1) BCLR 92 (BCCSA).
158'Above para 35.
46
seriously threatens democratic pluralism itself... Thus, open and
democratic societies permit reasonable proscription of activity and
expression that pose a real and substantial threat to such values and
to the constitutional order itself'.159
The lyrics accuse Indians of oppression 'in a sweeping manner'.160 Indians
are a small vulnerable minority which should give rise to special protection.161
There is also a history of violence between Zulu and Indian communities that
is still real although it dates from 1949. The strength of this judgment is that
the conception of harm does not simply rest on emotional harm. The
Commission holds that
'there would , in our opinion, be a likelihood of fear – a fear based on
a reasonable inference.... a distinct sense of fear amongst a
substantial number of Indians. The inference of a risk to safety is a
reasonable inference, given the content and tone of the demeaning
language.' 162
Hence the BCCSA found that the song was hate-speech and infringed the
code.
Polako v Radio Islam163 was a case where the Broadcasting Complaints
Commission found that the nature and content of the speech was overtly
threatening. The complaint was about an interview where
'racist material was broadcast with racist stereotyping of Jews, with
incitement to violence in quoting antisemitic Islamic texts with calls in
Arabic code “Kutile al Yahoud!” translation: Kill the Jews, “The Jews
control the world and were responsible for the massacres that took
place in New York on 11th September 2001.”'164
The BCCSA found 'that the words uttered must constitute incitement to
harm. Incitement does not, in law, require that action should follow...
“Harm” is not limited to physical harm and... if it is likely that words could
lead to fear or a related psychological state, it would justify a finding of hate
speech'.'165
'...[T]he accent which is placed in the broadcast on the killing of the
Jews is nothing less than hate speech: it advocates the killing of the
Jews categorically and incites to harm in the sense that the Jewish
159Above para 25.
160 Above para 29.
161Above para 31.
162Above para 39.
163Case No: 2002/61 Radio Islam - Derogatory Comments. Polako v Radio Islam.
164Ibid.
165Ibid.
47
listener is likely to feel deeply concerned for his or her own safety and
for that of his or her family by what is said. To threaten people with
killing amounts to a severe and serious invasion of their rights of
personality. This constitutes a form of harm that is required by the
Code and the Constitution. One cannot argue that the material
amounted to a bona fide (genuine) discussion on a matter of public
interest. The very nature of the quote, which was used out of its
historical context in an interview that was seriously critical of modern
day Jews, counters any finding that the quote fell into the category of
a bona fide discussion. This result was probably not the intention of
the speaker, but it most certainly came across as inflammatory in the
extreme.'166
In these cases the Commission seemed to have a strong sense of its role and
function. The challenge is to work out how the commission rapidly moved
from the position in these cases to a view that includes all types of offence
under the ambit of hate speech.
Derogatory Names
The tribunal invariable finds that derogatory names like '“hotnot”, “kaffir”,
“rooinek”, “boer”, “coolie”' violate the code. 167 Use of the word 'chink' to
describe people of chinese origin came before the tribunal in :P Johnson v
94.7 Highveld Stereo: 168
'The question to be decided by the Tribunal is whether, objectively
seen, the word ['chink'] is derogatory of the Chinese people. The
question could be answered by referring to a comparable case where
the US Secretary of State Colin Powell was referred to in a radio
broadcast as a “house nigger”. See Hart v Radio 702, case no
48/2001. In that case this Tribunal found that the use of derogatory
language like “kaffer”, “meid”, “outa”, and “nigger” (and we think
“chink” should be included in this list) amounts to a step back into the
past, as far as South African history is concerned. These words are
bound to cause severe emotional pain. It amounts to a form of
advocacy of hatred based on race and should be outlawed. The
Chinese community, being part of South African society, would surely
regard reference to one of them in this manner as offensive.'
Jeremy Mansfield was reprimanded for saying 'Griek n*** meid' which
166Ibid.
167Case No: 2002/07 94.7 Highveld Stereo – Racism. P Johnson v 94.7 Highveld Stereo.
168Case No: 2002/07 94.7 Highveld Stereo – Racism
48
freely translated mans 'Greek f**** maid' as part of a friendly exchange. It
was held that 'the term meid expresses hate and in effect advocates hatred
based on race and gender and that it incites to harm. The word meid is so
derogatory that it is likely to cause deep pain for a black woman who hears
it. The hatred finds its roots in the segregated, white dominated past which
is rejected by our Constitution'.169
A spectator attacked an international referee on the field during a rugby
match in an incident which 'drew intense national and international
attention'. Certain sports commentators made 'very critical remarks' linking
the incident to “White Brandy and Coke” hooligans and the “old South
Africa”. The BCCSA held that although the remarks were in particularly
questionable taste they did not reach the level of hate speech.170
'A complaint was received from a listener about the reference to the regular
Highveld Stereo traffic joke on Thursdays as a "plank Traffic Joke". He
argued that the joke was derogatory to Afrikaners since "plank" implied that
Afrikaners had no brains.' The BCCSA held that the Afrikaans community
had to put up with this joke:
'Although the reference to “plank” does imply that the joke is based
on the simple-minded nature of the persons implicated, in this case the
Afrikaners, we are of the opinion that such jokes do not amount to the
advocacy of hatred. All nations have jokes which joke with other
nations. In South Africa, with its multicultural society, joking of this
nature has been going on for ages, also in broadcasting. Although
certain limits would apply in the broadcasting and other spheres, we
do not believe that by letting the characters speak in a language style
which indicates a lack of sophistication, which one would find in
Oxford English, implies that hate is advocated. We have no doubt that
Afrikaners would, generally, be tolerant of such jokes and would
simply laugh these jokes off. 171
Another incident occurred when a Capetalk presenter criticised the
performance of the South African rugby team saying that 'the problem with
the team is the “thick Dutchmen” in the team'. The offence was aggravated
by the fact that the presenter repeated the statement a number of days later
saying 'that Dutchmen are “thick” and that the word “thick” was equal to
169Case No: 2000 /18 94.7 Highveld Stereo – Derogatory Language. Fouche v 94.7 Highveld Stereo.
170 Case No: 2002/58 e-tv - Sports presenter - remarks about "White Brandy and Coke" hooligans and the
"old South Africa". Lategan, Van Lelyveld and Dalrymple )v e-tv
171Case No: 2002/50 94.7 Highveld Stereo-"plank Traffic Joke". Kleynhans v 94.7 Highveld Stereo
49
“Dutchmen”.'172 The Commission stated:
'When the presenter expressed the view the first time, we would
probably have found it to have been off the cuff and not calculated to
hurt. But when, a few days later, the presenter clearly expressed his
intention, and stated that the meaning of the word “thick” (in the
sense of stupid) was “equal” to “Dutchmen” (meaning Afrikaners), he
clearly overstepped the mark. The fact that a call-in debate was held
on the topic and several listeners criticized his view, did not detract
from the fact that the presenter had uttered the words, which
propagated the message that all Afrikaners are stupid. Although the
statement might be laughed off by many Afrikaners, one should bear
in mind that this was not said in private company but on the airwaves,
with thousands of listeners, including Afrikaners, listening. The hate
aspect lies in the seriousness with which it was stated that all
Afrikaners are “thick”, and here the statement has a bearing not only
on Afrikaners in the Springbok rugby team, but relates to all
Afrikaners. Afrikaners as a group are implicated and the statement
was not said in jest. That the words constituted incitement to cause
harm, emerges from the manner in which the words were uttered:
seriously, clearly and obviously without any respect shown towards
those involved. In the light of our approach that “harm” also includes
emotional harm, we are convinced that a substantial number of
listeners were seriously hurt by the callous attack on their intellect as
Afrikaners. It is mitigating to a certain extent that callers were allowed
to react in a phone-in debate. Nevertheless, there was no concession
by the presenter that his choice of language was degrading. The
remark must also be viewed within the wider context of establishing
democracy in South Africa. The pain suffered by the disenfranchised
majority in the period prior to the Constitution acts as a strong
reminder of the pain and suffering that such speech can inflict.
Although the remark under consideration pales in relation to the
suffering experienced under that dispensation, it is particularly
important that degrading remarks, based on race, should not be made
on air. South Africa is in a nation-building phase, and to allow this kind
of language on air is destructive of that process.'173
Here the Commission is clearly protecting a group from hurt but at least the
Commission believed that there was intention to hurt.
'On SABC3, during a regular overnight TV feed from BBC World, a
172Case No: 2003/34 567 CAPETALK - Nigel Pierce - Hate Speech. New National Party & Others v 567
CAPETALK
173Ibid
50
sports presenter from an independent (non-BBC) production house was
heard to comment that a Chinese person, who was taking part in a
golf tournament, was the first “Chinaman” to have taken part in such
an international golfing event. ... The BBC insert was fed to the SABC,
which broadcast it directly.' 174
The tribunal assessed the evidence and found that the term 'chinaman' is a
very derogatory term which is 'comprable to the word kaffir.' It then found
that use of the term amounted to hate speech 'within the definition and
although the “advocacy” was not explicit and pronounced, the mere
reference to a person as a “Chinaman” amounts to hate speech as a result of
its likely serious impact on the dignity of a Chinese person'. The judgment is
concerning because the tribunal concedes that the extreme speech that it
labels 'hate speech' may well have been completely unintentional. It found
that
'there was nothing in the broadcast which suggested that the term
was contextually used otherwise than in its derogatory sense.
Whether the person who used it knew that it was derogatory is
unknown. Nevertheless, objectively it is derogatory and is not the kind
of language which should be used in broadcasts, unless the broadcast
is in the public interest or the word is dramatically or documentarily
justified… We accept that the SABC will convey this judgment to the
BBC, which obviously does not fall within our jurisdiction. Whether the
person who said the word was malicious, or simply ill-informed as to
the term’s derogatory nature, remains open. We simply do not have
evidence before us of his intention or motive. We do not have the
authority, either, to subpoena such a person to appear before us or
relate his intention to us. We, in any case, do not issue subpoenas.'175
Hence neither intention nor incitement are required for a finding of hate
speech. This is a pity because in reality ordinary South Africans understand
the difference between intentional or reckless offence on the one hand and
unintentional harm on the other.
The ludicrous statement that “Behind every beaten and abused woman is a
big Afrikaner male”was also found to be a contravention of the code as it
was not fair comment:
'This statement was made without any factual basis and if there were
any factual basis, it was not truly stated or fairly indicated and
174Case No: 2004/15 SABC3 - BBC World Service - Hate Speech. Dr A Tam v SABC3
175Ibid
51
referred to. Should statements like this one be allowed over the
airwaves under the guise of freedom of expression, nothing would
stop other presenters to make the same kind of statement about the
males of the English, Xhosa, Indian, Zulu or any other racial or ethnic
group. There are limits to freedom of expression and this is an
example where a limit should be imposed.'176
The use of the phrase “buffalo bitch” by a presenter Mark Gillman, on the
SABC's 5fm was held to infringe the code despite the fact that Gillman had
no intention to insult. In this case there is no recourse to the idea of hate
speech. The Commission simply regards equality as the dominant
consideration in this context. In the words of the Commission:
Section 9 of the Constitution of the Republic guarantees equality to all
persons, and specifically rejects discrimination based on gender.
Whilst a term such as "bitch" with reference to a woman might, in
certain circumstances, have gained a secondary meaning, and would
probably be acceptable in the context of a bona fide drama or bona
fide literary work, or even in the lyrics of certain songs, e.g. rap
songs, it nevertheless amounts to the stereotyping of females as lewd
(see Shorter Oxford Dictionary). Whilst we are convinced that it was
not Mark Gillman's intention to use the word in order to negatively
stereotype females, it is necessary to put an end to this kind of
derogatory language on the airwaves, even if the intention behind the
use of such language is not to discriminate against a group. This kind
of language denigrates women, and in this particular instance it
dehumanises women, relegating them to an inferior status. The use of
such language treats women - as previously disadvantaged persons in
terms of section 9 of the Constitution - unfairly. It is a matter of public
importance that an end should be put to the use of such language in
everyday verbal exchanges between people on the air. Broadcasters
should contribute towards setting this standard. Freedom of speech is
no excuse in such a case: the achievement of equal status between
the sexes is more important than freedom of expression within this
context.. 177
The term 'Diesel Dykes' which refers to a stereotype of a lesbian women
was also held to contravene the code but on the basis that the term was not
fair and balanced comment and was an unfair stereotype. The Commission
176Case No: 2005/28 YFM - Statement - not promoting violence against a particular racial or ethnic group.
C Torline v YFM.
177Case No: 2004/36 5fm - Mark Gillman Show - Gender- Equality. S Du Toit v 5fm.
52
found
'We have no doubt that although the term “Diesel Dykes” falls within
the usual direct and often provocative style of the presenter, it was
tremendously hurtful to persons who fall within the sexual orientation
crudely referred to. Sexual orientation is expressly protected in section
9 of the Constitution, Act 108 of 1996. The term amounts to
stereotyping, which unfairly and crudely categorizes persons of that
sexual orientation by certain physical features. Sexual orientation is a
matter of “public importance” and when a presenter comments on it,
he or she should do so fairly. The said stereotyping is unfair in that it
does not rectify the image portrayed and attacks the right which gays
have to equality and the right not to be unfairly discriminated against.’
178
Unfair Stereotyping.
In Human Rights Commission, Poolman and Steffers v Radio Pulpit 179 the
Commission found that a morning program which aimed to bring racial
stereotypes and biases of South Africans to light was a violation of the code.
The transcript said:
'Long lives racism. You can take the Black man out of the bush, but
you cannot take the bush out of the black man. Forget it. You have to
explain things three times. he will still do it wrong. What about
stealing? It has cost us a fortune on garden equipment. They say they
have put the things away, but when you look for it next week, it is
nowhere to be found. No. Orania is my dream.' 180
The station said that the program aimed to bring people to repent and the
Commission conceded that there was no malice involved. The Commission
said that the limits had been overstepped. The insert 'is likely to be hurtful to
Black people and is also likely to harm their relations to White people, against
whom they are pitched in the Oupa insert'.181 This judgment causes concern
in as far as it means that some of the most difficult and salient issues in our
society cannot be ventilated for fear of falling foul of the code.
A joke that characterised Tamils as 'sexually depraved' was held to be a
violation of the code on the basis that it was 'advocacy of hatred that
constitutes incitement to cause harm.' The joke was also held to violate
dignity of Tamils.182
178Case No: 2004/32 5FM - Mark Gillman - Sexual Orientation. Prinsloo v 5fm.
179Case No:2001/01 Radio Pulpit -Racism
180Ibid
181Ibid. The code has since been amended.
182Case No: 2005/64 5fm - Mark Gillman Show - "Racially inspired joke". M Pillay v 5fm.
53
Recent judgments of the Commission do not rely on the ground of hate
speech. The Commission simply seems to resort to the ground that the
dignity of the complainant has been infringed. The following offensive joke
was found to be a violation of the code:
'The presenter Clayton Robbertze commenting about the traffic,
reported that a truck loaded with fruit and vegetables had overturned,
that this had caused a traffic jam. Cynically he added that he did not
want all the “Porras” - pejoratively referring to persons of Portuguese
descent - to run to the scene. The presenter immediately, tongue in
check, proferred a cynical apology to the listeners.'183
Curiously the commission seemed more concerned about use of the word
'Porra' than the demeaning stereotyping of Portuguese South Africans. The
Commission stated:
'In our view the word “Porra”, objectively viewed, is racially
pejorative, unreasonable, offensive and degrading of persons of
Portuguese descent. This word negates one of the foundational tenets
of our Constitution; the promotion of dignity, non racialism and
discrimination that is based on race ethnicity, religion or creed.'184
The censure of the phrase 'white trash from Brakpan' convinces one that the
Commission is floundering. That judgment did not resort to the idea of hate
speech. It said:
‘Complaints were received about the use of “white trash” by a presenter
on Highveld Stereo. He referred to people living in Brakpan. Highveld
Stereo is well known for its outspoken comments by some of its
presenters and this should not be stifled. A society without humour is
likely to become stagnant and depressive and the radio assists in keeping
listeners not only informed but also entertained. Our racially divided past
makes it necessary that this past be discussed in the public interest. To
ignore it would be reminiscent of an ostrich which places its head in the
sand. Section 36 of the Constitution, however, permits that fundamental
right may be limited 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. The
repetitive reference by the presenter to white trash and white noise
justifies the inference that the words were not merely used in jest or as a
mere throwaway phrase. In any case, whatever his intention might have
183Case No: 2005/65 Jacaranda 94.2 FM - Ethnic based joke – Dignity. JF Heydenrych v Jacaranda 94.2
FM.
184Ibid.
54
been, the “trash” aspect is dominant. People of Brakpan are likened to
trash, which must be degrading in the extreme to a substantial number of
listeners in Brakpan. The test is, of course, an objective one measured
against the standard of reasonableness in our society. This standard is
also defined by the ideals of the Constitution. Non-racialism is stated to be
a founding provision in section one of the Constitution. The conclusion of
the Tribunal is that the repetitive use of white trash in the insert amounts
to an unreasonable and shocking intrusion of the right of dignity of White
people living in Brakpan. No joke can save it and no tolerant attitudes of
listeners excuses this flagrant abuse of freedom of expression. It goes
further than being merely offensive, it hits at one of the very roots of our
democratic society: dignity and non-racialism. There are no compelling
circumstances which would justify the broadcast. It was also not in the
public interest.’185
Clearly in the Commission's view South Africa is not a society in which
people should be required to put up with any degree of offence. The
Commission is dedicated to protecting the sensitivities of all South Africans.
The intention of the broadcaster is irrelevant in determining whether the code
is infringed and broadcasters must take extreme care not to offend anyone.
Some jokes do survive scrutiny. Jokes that stereotype Irish people as stupid
and naive have escaped the Commissions censure.186 In a judgment
uncharacteristic of the commission Mr Ratha Mokgoatlheng dismissed a
complaint about the following ‘traffic joke’: “There was a blackout in our
area last night, but the police nabbed him before he could commit a
crime.”187 He said:
'In analysing and assessing the joke, the Tribunal has to have recourse
to the tone, accent, the surrounding circumstances, the motivation,
and the audience receiving or hearing the joke. There is no doubt with
the Tribunal that racist jokes in general are offensive, repugnant and
insulting. In this case, although the joke was offensive to the
sensibilities of the Complainant, it is the Tribunal’s view that the
presenter did not go so far that the likely reasonable listener who is
not overtly sensitive would conclude that the presenter was
advocating hatred that is based on race or ethnicity and that
constitutes incitement to cause harm.
185Case No: 2005/53 94.7 Highveld Stereo - Rude Awakening - Dignity Invaded. S Lubbe and L Moyse vs
94.7 Highveld Stereo.
186Case No: 2004/18 SABc (Safm) - Will Bernard Show - Hate Speech. Mr Kevin Allan vs Safm.
187Case No: 2004/22 94.7 Highveld Stereo, Racist Joke. C Eatock v 94.7 Highveld Stereo.
55
The Tribunal, in analysing the joke within the context of the
programme, cannot find that the joke (although tasteless and ill
conceived) is beyond the contemporary South African standard of
tolerance and that it can be said to amount to hate speech.'188
This judgment runs against the grain of recent judgments as it distinguishes
the 'tasteless and ill conceived' from hate speech. In another complaint
'John Robbie was accused as having made a racist remark amounting
to hate speech in an interview with Gaye-Derby-Lewis, a well known
politician known for her conservative stance in politics of the past.
When she described that three Black people had hugged her while
leaving the court after charges had been withdrawn, Robbie observed
whether she had checked whether she still had her wallet after the
hugs. He immediately added that he was “just kidding”.... The
Tribunal held that John Robbie did not intend to hurt anyone by his
observation. Nor was it objectively of such a nature that it could be
regarded as racist or as amounting to hate speech based on race. The
accent was on the hug and that if persons who do not know you
suddenly hug you, you should be suspicious. The problem is, of
course, that he was sailing close to the wind, since the stereotype
was, unfortunately, ready to pounce upon him. He must have realized
this and immediately corrected the situation by observing that he was
“just kidding”. Another possible explanation was that he might have
included the off the cuff reference because of the interviewee’s
conservative stance in her past political career....The complaint was
not upheld.'189
Mocking Religion
'On the “Rude awakening” show ... one of the Appellant’s presenters,
Darren Simpson, made mention of Yom Kippur. This is the Day of
Atonement, the holiest of days for adherents of the Jewish faith and a
day on which they fast. This point is a salient one for this case
because the presenter made prank telephone calls on the air to a
fictitious Mr Cohen, who, as the surname implies, is a typical surname
for a Jewish person. During the conversation with the fictitious Mr
Cohen, the presenter made sounds as if he was eating and he made
repeated references to milk shakes, hamburgers and “kosher pizzas”.
Four complaints were received by the Broadcasting Complaints
Commission of South Africa against what was perceived to be a
188Ibid
189Case No: 2003/33 702 Talk Radio - John Robbie – Biased. Sithole v 702 Talk Radio
56
mocking of the Jewish faith.'190
The tribunal initially found that this was an instance of hate speech.
Although this finding was held to be clearly wrong on appeal, the appeal
tribunal held that s 35 had been violated. The section states
35.1 Licensees shall be entitled to broadcast comment on and
criticism of any actions or events of public importance.
35.2 Comment shall be an honest expression of opinion and shall be
presented in such manner that it appears clearly to be comment, and
shall be made on facts truly stated or fairly indicated and referred to.
The Commission stated that 'in this case we are dealing with a matter of
improbity, in the sense of lack of moral integrity, rather than a case of bad
taste that ought not to have been broadcast'.191 This is also a case that
illustrates the problem of anticipating how a joke appears to an entire group.
It would be interesting to know whether the joke would cause as much
offence to Jews as it did to the Commission.
Gay Offense
The statement by John Quelane 'that he thought it was ludicrous for one
man to pay lobola for another man, as this "made a mockery of African
culture"' was held not to infringe the code .192 Homophobic jokes are often
found to infringe the code. For example:
'During the Gareth Cliff show on Monday October 11 at 15:30, Cliff was
telling a joke about a girl who came across 2 scorpions while mating. The girl
then questioned her dad about the mating. Her father then replied by telling
her that the 2 scorpions are actually both male. The girl then killed the 2
scorpions. Her dad asked her why she killed them. She then replied “I killed
them cause we don’t want this moffie shit in our yard.”193
The Tribunal said that
'although the term “moffie” might be seen as part and parcel of a direct
and provocative style on the part of the presenter, the joke was likely to
have been tremendously hurtful to persons who fall within the sexual
orientation crudely referred to as “moffies”. The term amounts to
190Case No: 2004/27 Appeal Judgment 94.7 Higveld Stereo 94.7 Highveld Stereo v JA Du Plessis, Pastor
CWP Venter and M Orchison, Wallis, Suskin, Cotton and Byrne.
191Ibid
192Case No: 2003/36 702 Talk Radio - Jon Qwelane Show - Anti-gay bias. Miller v 702 Talk Radio.
193Case No: 2004/45 5fm - Gareth Cliff Show - Unfair discrimatory remarks against gays in joke. Gay and
Lesbian Alliance v 5fm
57
stereotyping, and it unfairly and crudely categorizes persons who are gay
by denigrating them and relegating them to the status of being unnatural
or queer. Sexual orientation is a matter of “public importance” in terms of
clause 35 of the Code, and when a presenter comments on it, even in a
joke, he or she should do so fairly. The said stereotyping is unfair in that it
does not rectify the negative image and attacks the right which gays have
to equality and the right not to be unfairly discriminated against. This right
is also protected in clause 35 of the Code. The public airwaves may not
be abused for the purpose of unfair discrimination. It might be said, and it
has been argued, that after 10 years of democracy we should be able to
laugh at each other and also at ourselves. But broadcasting does not
necessarily lead to a laughing of one person at another who may then
laugh back at the one who laughed in the first place, i.e. a healthy
laughing “at each other”; instead, it offers the opportunity for the derisive
laughter of one person (the presenter) in his studio at a specific group in
his audience, in this case, gays. The crude joke makes no attempt at
rectifying the negative stereotype, but rather strengthens it in a derisive
and irresponsible manner. An argument that invokes freedom of
expression as a “pillar of democratic society” and as the “heart of
democracy” can only be used to excuse the derogatory joke if the joke
also informs, or criticizes the negative stereotype. By no stretch of the
imagination could the joke told on air be regarded as having any value in
improving the plight of gays.'194
The Commission took the same approach to a statement by a particular
character in the soap opera EGOLI despite the fact that the language fitted
with the construction of the well known character. 'During the ... EGOLI
episode the character “Joe” made the following remark : “dink jy ek gaan
soos ‘n moffie op my hande sit terwyl sy by ‘n ander man se bed kiep?”
TRANSLATED: “do you think think I will sit on my hands like a faggart while
my wife is in bed with another man?”'195
'The Tribunal held that the function which the use of the word
“moffie” had in the Egoli sequence complained about was meagre
compared to the fundamental importance which should be attached to
the protection of the dignity of Gays. The Tribunal is convinced that a
substantial number of gay viewers were seriously hurt in their sense of
self worth and that, objectively, the invasion was serious. No
legitimate public interest was served and the slight dramatic merit
which it had, was clearly overridden by the serious invasion to the
dignity of gays.
194Ibid
195Case No: 2005/57 M-Net - Egoli – Dignity. Gay and Lebian Alliance v M-Net.
58
The crude joke makes no attempt at rectifying the negative
stereotype, but rather strengthens it in a derisive and irresponsible
manner. An argument that invokes freedom of expression as a “pillar
of democratic society” and as the “heart of democracy” can only be
used to excuse the derogatory joke if the joke also informs, or
criticizes the negative stereotype. By no stretch of the imagination
could the expression in the widely watched Egoli be regarded as
having any value in improving the plight of gays.'196
These jokes may be offensive but the idea that jokes should be fair,
informative and criticize the negative stereotype in order to be acceptable is
a quite unrealistically demanding standard which severely erodes freedom of
expression. This is even more problematic in the context of a bona fide
drama which aims to give an authentic view of South African life.
The Commission correctly found that 'outing' of gay people on the radio is
not acceptable although it was not made explicit which provision of the code
applies.197
Religion
The Commission gets many complaints about religious offence. 198 The
following sketch broadcast on the Phat Joe Show was held to have been
advocacy of hatred based on religion that constitutes incitement to cause
harm.199 The transcript of the sketch reads as follows:
Mr Weinstein: “Well I am telling you this is going to be bigger than ‘Brave
Heart’”
Secretary: “Mr Christ, Mr Weinstein is here to see you”
Christ: “Send him in”
Mr Weinstein: “Jesus baby”
196Ibid
197Case No: 2004/56 Metro Fm - Hemophobic Rhetoric. B Selane v Metro FM.
198Case No: 2003/15 702 Talk Radio - Jon Qwelane - Blasphemous Language. Carelsen v 702 Talk Radio.
The BCCSA has the following approach to the taking of the Lord's name in vain:” (1) in children’s
programmes no taking in vain of the Lord’s name is allowed; (2) in family viewing time, taking in vain in
the form of “Jesus” and/or “Christ” is not allowed; (3) in family time the functional use of “God”, as a
manner of speech, is allowed; (4) after the watershed, all forms are allowed in bona fide dramatic or
documentary works, with due classification as to language and age restriction, where the nature or
frequency of use calls for such classification and/or age restriction; (5) where, even after the watershed, the
taking in vain amounts to a crude mixture of coarse and profane language, the material will have to be cut
unless dramatically, artistically or documentarily justified. Of course, ultimately, our decision will depend
on the facts of each case and we would not readily be inclined to interfere after the watershed.”
199Case No: 2004/19 SABC1 - Phat Joe Show – Religion2004/19. Cornerstone Church & Others v SABC1.
59
Christ: “Talk to me”
Mr Weinstein: “The movie is a hit, you haven’t been this big since you
walked on water.”
Christ: “What can I get for you.”
Mr Weinstein: “Some wine will be great. That is just water baby”
(“Jesus” dips his finger into the glass of water, which turns to wine)
Mr Weinstein: “One time, the chicks must love that, not bad, great, great.
Listen the guys at the studio want to make a sequel, you interested.”
Christ: “Do you have a script?”
Mr Weinstein: “We have a few ideas, how about this, ‘Passion of Christ Two
– Jesus Reloaded’”
Christ: “aah, aah”
Mr Weinstein: “No, No, Okay, how about ‘Passion of the Christ – Oh Shucks
it’s Jesus’”
Christ: “Very tacky”
Secretary: “Comedy is the way to go, sir.”
Mr Weinstein: “I’ll get Leon Schuster on the line, we’ll set up a meeting.
You, you going to be big, baby.”
Secretary: “Mr Christ, St Peter is on line two”
Christ: “I’m going to have to take this. My assistant will show you out.
Howzit baby! Hi Peter, my disciple, what is happening, my honey
Dinner tonight, I don’t know, you remember the last time I had supper with
you.” END
The Commission reasoned:
'Insofar as the sketch in the Phat Joe Show is concerned, this Tribunal
is of the view that the satirical elements in the sketch are minimal.
Although the joke is directed at those who were involved in the
production, the sketch also flippantly mocks elements which are held
to be sacred by millions of Christians in this country. When a mockery
is made on the airwaves of these deeply held religious beliefs, it
amounts to a promotion of nothing than an expression of hate against
these deeply held beliefs, even if not intended, as we accept to be the
case in the Phat Joe Show. The sketch also objectively amounts to
incitement to shock and pain a substantial number of Christians. The
Tribunal has had regard to the mitigating factors brought about by the
timing of the sketch well after the start of the watershed and also that
the Phat Joe Show draws a more modern-minded, mature viewer.
Nevertheless, there must have been a large number of Christians in the
tv audience. We have often stated that Christians must also
demonstrate tolerance and that the Tribunal would not enforce radical
or intolerant views. In the light of the very sensitive and sacred
elements included in this comical sketch, the Tribunal has come to the
60
conclusion that the mockery of these very elements in the sketch
promoted hate against Christian religion and incited to serious harm.
Such mockery was probably not intended, but the test as to mockery,
as a form of advocacy of hatred, is an objective one. The Tribunal
accordingly holds that the Code was contravened.'200
The following joke was broadcast in the Rude Awakening. God asks for
suggestions about where to go on holiday.
'Jeremy: Somebody says, what about going to Mars? He says no. I
went there 15000 years ago, no atmosphere, its dusty. Another
suggestion comes, what about Pluto? He says, no. 10 000 years ago I
went to Pluto, it is freezing. Ice-skating is the only thing you can do,
nothing else, and I am not that keen on ice-skating. Next suggestion
comes in: What about Mercury? He says no. I was there about 5000
years ago, burnt to a frazzle. I put on 50+ protection factor, still did
not work. Then the suggestion comes up, what about earth?
Sam: Okay.
Jeremy: No, not on. They ask why. He says, went there 2000 years
ago, had a scene with some Israeli chick, they are still talking about
it.'201
The majority of the Commission found that these statements passed muster
in the context of the Rude Awakening which 'is a programme well known for
satire, parody, sarcasm and jokes loaded with sexual innuendo... targeted at
a well-educated, sophisticated, cosmopolitan well-informed listenership. The
listeners of this programme know that it broadcasts controversial issues and
that its utilises robust, irreverent language, and ribald sexually risqué jokes'.
202 A minority opinion found that the joke did constitute advocacy of hatred
based on religion and that it also constituted incitement to cause harm.
A complaint about an episode of South Park entitled “Red Hot Catholic”
where priests were portrayed as peodophiles was held not to 'amount to
blasphemy or hate speech.' 203
Other Offense.
200Ibid.
201Case No: 2003/26 94.7 Highveld Stereo, Rude Awakening, Joke, Religious. S van Loggerenberg v 94.7
Highveld Stereo
202Ibid. Per Ratha Mokgoatlheng.
203Case No: 2003/43 M-Net - South Park – Religion. P Vanek and Others v M-Net
61
In the early years of the commission any level of offensiveness was
acceptable as long as it could not be linked to a listed ground from the
Constitution's equality clause which deals with unfair discrimination. Jokes
about Alzheimer's disease were held not to contravene the code in any
way.204 Reference to fat people as a 'bunch of pigs' also did not infringe the
code.205 The Commission distinguished between hate speech and bad taste.
On the other hand a joke about mastectomies was held to contravene the
code as the breast cancer can be linked to women, a disempowered
group.206 The following passage from the judgement makes one think that
the tribunal simply struggles to alleviate hurt:
'Insofar as the first complaint is concerned, some female listeners may
have breast cancer or a relative might be inflicted with this very
serious condition. Other listeners may themselves have had a
mastectomy or have a close relative who has had a mastectomy. But
even where the female listener is not affected herself or has no
contact with someone so affected, the mastectomy joke touches upon
the dignity of woman. There is, accordingly, no excuse for this kind of
“joke”. It amounts to the advocacy of hatred based on gender that
constitutes incitement to cause harm. The harm caused by this kind of
observation need not be physical and can lie in a feeling of severe
degradation in a woman.' 207
Like people with alzheimers, illegal immigrants who are perhaps the ultimate
disempowered group were also fair game initially. Jon Qwelane stated that
'the South African Government is guilty of gross dereliction of duty in its
handling of the “illegal immigration problem”, that a benevolent dictatorship
is desirable and preferable, that the South Africa Constitution should be
suspended; that illegal immigrants be ruthlessly hunted down, jailed and
deported; that they be shot on sight, that illegal immigrants are guilty of
perpetrating violent crimes against law abiding citizens, and do not deserve
to be treated as human beings.'
The tribunal found that 'Jon Qwelane’s utterances, although robust,
provocative and controversial, fall within his rights to freedom of expression
which includes freedom to receive or impart information or ideas and do not
extend to incitement to violence or advocacy of hatred based on race or
ethnicity that constitutes incitement to cause harm.'208 The irony is that
these statements are much closer to hate speech than almost any of the
204Case No: 2002/56 Radio 702 -Gareth Cliff -Alzheimers Disease. L Reeve v Radio 702.
205Case No: 2002/55 Radio 702 - Gareth Cliff - referring to Fat People as pigs. B Joubert v Radio 702
206Case No: 2002/47 Tuks FM-"Disgusting Jokes". Van Rensburg & Barnard v Tuks FM.
207Ibid.
208Case No: 2002/43 Radio 702-"Jon Qwelane"- Illegal Immigrants . Green v Radio 702.
62
statements characterised as such by the commission.
By 2004 the Commission was anxious to intervene to counteract generalised
offence. The statement that 'mentally ill people should be ‘chained up” in a
“padded cell” and be given “gruel” to eat' was held to be a violation of the
code.209 The Commission said: 'these comments were extremely offensive
towards people who have serious mental illnesses.” It continued:
It is clear that the presenter was intent upon furthering inhuman
treatment of people based on mental disability. It is irrelevant that he
limited his view to people in a “dangerous” category. Of course, the
view put forward by the presenter is a mediaeval one and and is
rejected by reasonable society. Yet it must have been extremely
hurting to persons who have loved ones who fall in this category and
are in Institutions. The test under clause 16.1 is, however, not
whether harm or hurt is caused or likely to have been caused. The test
is whether the presenter promoted violence based on mental disability.
It is no excuse to argue that the presenter’s tongue-in-cheek approach
to matters of public importance would exonerate the SABC. There is
also no place for humour here. Mental disability, even if of a
dangerous nature, is simply not a matter to make jokes about on air.
Of course, one could argue that these statements invite healthy
debate from callers and listeners. Yet, there is no evidence that the
presenter has broadcast his view within this mould. '210
Sensitivities of Foreign Heads of State
Two presenters made the following remarks about the President of the
Federal Republic of Nigeria when he came to South Africa to attend the
inauguration of President Thabo Mbeki. The context was a ' music
programme with some light-hearted, jocular discussion and remarks'211:
'John: Oh and there's Nigerian President Olos…um…Olusegun Obasanjo.
De Bruin: Oh! Was he here?
John: Ja! He arrived as well. There he is, there. Looking good in his suit.
De Bruin: I am sure he's looking good.
John: Looking sharp.
De Bruin: He must be one of the wealthiest presidents in the world.
John: Absolutely! Nigerian President Obasanjo came. Do you…How many
kilograms of cocaine do you think he managed to bring in?
209Case No: 2004/32 5fm - Gareth Cliff show – Comment. A Buchanan v SABC (5fm).
210Ibid.
211Case No: 2004/16 94.7 Highveld Stereo - Comments by presenters concerning the President of the
Federal Republic of Nigeria. High Commissioner of the Federal Republic of Nigeria, President of the
Republic of South Africa vs94.7 Highveld Stereo.
63
De Bruin: Whatever his bag could take.
John: I reckon.
De Bruin: Ja.
John: Do you think he paid a visit to the Nigerian embassy at Ponte Tower?
De Bruin: You mean the little Republic that is…
John: Nigeria in South Africa.
De Bruin: Ja.
John: I have no doubt! I have no doubt he paid them a quick visit”.212
'The Nigerian High Commissioner in South Africa, took grave exception to
these remarks and formally lodged a complaint with the Broadcasting
Complaints Commission of South Africa. In the complaint it was stated, inter
alia, that the Government of Nigeria was shocked at the disparaging remarks
made in regard to its President. The remark had caused enormous damage to
the person and integrity of their President.'213 The complaint was supported
by the South African president.
The BCCSA found that the remarks were not hate speech. They did however
find that they were a contravention the code as they 'amounted to
comment which was not based on facts truly stated or fairly indicated and
referred to. Broadcast of such untruthful material was found to amount to a
serious contravention of Clause 35 of the Broadcasting Code.' 214
In this case the Commission was under extreme political pressure. It should
however have resisted it. In a democratic country public political figures need
to be able to tolerate satire. This is a defining aspect of our society and there
is no duty on radio stations to treat foreign heads of state with kid gloves.
Children
The Commission is also tasked with the role of ensuring that television is
suitable for children. 'Programming on television which contains scenes of
violence, sexually explicit conduct and/or offensive language intended for
adult audiences shall not be broadcast before the watershed period.'215 The
"watershed period" means the period between 21h00 and 05h00. The
BCCSA is consistently relaxed about soft pornography and swearing as long
as it is broadcast during the watershed period. They also police the helpful
system of audience advisories that require broadcasters to provide age
guidelines when broadcasts contain violence, sexual conduct or offensive
language.
212 Ibid.
213Ibid.
214Ibid.
215Article 19 Code.
64
A sex scene between men on a drama program was found not to violate the
code.216 The same was true of a bizarre dance routine with a condom which
was found to be within the bounds of freedom of artistic creativity.217
Regulation of Broadcasting
One of the noticeable differences between apartheid South Africa and
current South Africa is the permissive attitude to soft pornography on
television late at night. It could be cogently argued without much loss to the
core principles that underlie freedom of expression that people who want
such material should hire it from the video/DVD-shop.218
In other areas, far from having a light touch, the Broadcasting Complaints
Commission is an active and interventionist censor. It is not a pre-control
body but its rulings impact on future broadcasts. The Commission sees no
distinction between language that is dangerous and should be proscribed and
the merely offensive.
The Commission expects South Africans to be discerning when it comes to
critical comment on the airwaves as it expects balance and fairness in the
reporting of news and information. This is the area in which the BCCSA
plays its most important role. However in the areas of racial, sexual,
religious or homophobic offence, the BCCSA gives little credit to ordinary
South Africans. Spontaneous light banter on radio is often described as
hateful. This creates an environment in which radio stations need to be
cautious to avoid offence to any group. The Commission is not concerned
with the intention of the broadcaster and the real or imagined feelings of the
group are given primacy. It is assumed that groups cannot laugh at
themselves and real South African issues are swept under the carpet. If we
take the numerous infringements of the code above, many of them are in
bad taste and they don't seem to add much to the value of freedom of
216Case No: 2003/17 e-tv - Six Feet Under - Nudity and Strong Language. M Sibiya, E van Eck & A
Bemath v e-tv.
217Case No: 2004/05 SABC1 - Jam Alley - Unsuitable for Children .The National House of Traditional
Leaders v SABC2
218Case and Curtis v Minister of Safety and Security1996 (3) SA 617 (CC) shows that possession of certain
types of pornography is allowed on privacy grounds: 'What erotic material I may choose to keep within the
privacy of my home, and only for my personal use there, is nobody's business but mine. It is certainly not
the business of society or the state. Any ban imposed on my possession of such material for that solitary
purpose invades the personal privacy which section 13 of the interim Constitution (Act 200 of 1993)
guarantees that I shall enjoy' (at para 91).
65
speech. They do however reflect an element of South African reality which
is not going to be stamped out by the BCCSA. A composite look at the
jurisprudence of the commission shows that it routinely gives a polite but
cursory nod to freedom of expression before systematically condemning
speech on the basis on mere hurt.
The Constitutional Court ruled that a provision of the code that stated that
'broadcasting licensees shall . . . not broadcast any material which... is...
likely to prejudice ... relations between sections of the population' was
overbroad and unconstitutional.219 The Commission seems to be enforcing
that provision even in its absence. There always seems to be a provision of
the code that can be stretched to deal with an offensive eventuality.
REGULATION OF ADVERTISING
The most well known discrimination case to come to the Advertising
Standards Authority was an advertisement where Charlize Theron says:
Hi, I'm Charlize Theron. People often ask me what the men are like in
South Africa. Well if you consider that more women are raped in
South Africa than in any other country in the world, that one out of
three women will be raped in their lifetime in South Africa, that every
26 seconds a woman is raped in South Africa and perhaps worst of all
that the rest of the men in South Africa seem to think that rape isn't
their problem. It is not that easy to say what the men in South Africa
are like because there seem to be so few of them out there.
There were complaints from groups of men objecting to the inferences about
men in the advert. Although the Committee found that the advert did
discriminate on the basis of gender, the Appeal Committee found that the
advert was did not infringe the code.
The Advertising Standard Authority rarely finds against adverts on
discrimination grounds. There are a number of reasons for this. The body has
a sense of humour. Advertisers don't tend to want to offend. Most
importantly discriminatory adverts tend to get withdrawn before a finding is
made against them. From the papers it is not clear whether withdrawal is
done spontaneously by advertisers or under pressure from the authority.
CONCLUSION
Over the last decade the right to freedom of speech has been rigorously
upheld by the higher courts but in lower courts and tribunals freedom of
expression invariably loses out to dignity and equality. It seems that although
219 Islamic Unity above
66
there is symbolic deference to free speech, there is a growing quasi-legal
tendency to erode its importance. Underlying the idea that free speech is not
actually that important appears to be the belief that South Africa is still
fragile and that individual South Africans cannot be relied upon to exercise
any type of discernment.
This paper reviews numerous court decisions, the work of the BCCSA,
rulings of the South African Human Rights Commission and the Equality
Courts in as far as information is available. It also examines the flabby
proscriptions of speech in the Promotion of Equality and Prevention of Unfair
Discrimination Act.220
I have argued that the BCCSA plays a useful role in ensuring balance in the
media. On the other hand it is active and interventionist in suppressing
speech. It consistently rules against any offensive speech. It also assumes
that despite the challenging environment in which we live, we wilt at the
slightest offence.
The paper is also concerned with suppression of political speech. Such cases
range from attempts to suppress legitimate criticism of corruption (see the
South African Human Rights Commission Inquiry into Racism in the Media)
to Equality cases about unsophisticated speech with some primitive political
propositional value. Legal bodies need to exercise care even when they
intervene to proscribe the latter type of speech. The remedy of an apology in
the Equality Act may well have been seen as a constructive remedy with a
light touch. In practice its use is more likely to be experienced as
infantalising and the results will invariably be counter-productive. South
Africans need to distinguish the dangerous from the merely offensive. It is
hoped that this paper will help lay a foundation for development of the
debate.
220 Act 4 of 2000 (referred to below as the Equality Act).
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    GISWatch 2011 looked at internet rights and democratisation, with a focus on freedom of expression and association online. This Special Edition picks up where GISWatch 2011 left off, analysing more than 60 country and thematic reports in order to better reveal and build understanding of the broad range of practical actions and strategies that activists are developing. Five clear themes emerge. The first is a strong emphasis on the need for collaborative networking, online and offline, to build multi-stakeholder engagement that can contribute to protection of internet-related human rights. Key ingredients include building a collaborative network structure, effective engagement with internet rights issues, network diversity, open network infrastructure, clear roles and responsibilities, and connection to offline mobilisation. Connected to this theme is the finding that although the internet is increasingly used as a space for dialogue and debate, democratic participation has not yet been fully realised and many groups remain marginalised both offline and online. There is a need to link online and offline democratic networks to build more meaningful and effective participation and to generate better internet-related public policy. A third theme is that advocacy efforts are most effective when based on robust evidence and research, but that there are research and information gaps in many areas, which may hinder activists’ advocacy campaigns and drive the need for innovative awareness-raising strategies. The continuing emergence and evolution of threats to internet freedoms is a major theme from the 2011 GISWatch reports, particularly around intellectual property laws, content filtering, cyber crime laws and anonymity. Strategies to resist these threats vary widely, but share a common element of being grounded in human rights and the use of rights to fight for wider social justice issues such as the need for the rule of law, affordable quality internet access, and freedom of expression. New forms of resistance are also emerging – for example, developing strategies for secure online communication to protect freedom of expression and freedom of association, including anonymity, particularly for women’s human rights defenders. The fifth theme that arose out of the 2011 GISWatch reports was that in many countries, internet rights advocates have clear, positive policy programmes. They seek to advance their objectives through concrete proposals in national and global policy spaces and through a mix of both online and offline strategies and actions. The policy proposals developed by local internet rights advocates are shaped by social, economic, environmental, political and other factors, but share commonalities. These include an emphasis on multi-stakeholder internet policy-making processes; coherence; a balanced approach to internet policy that responds to national contexts while also linking to global policy issues; and an emphasis on innovation in remedies for internet rights violations. The GISWatch 2011 reports highlighted a wide array of internet rights issues. We hope that this Special Edition will assist activists, civil society groups, human rights defenders, women’s human rights defenders and others, as well as the donors who fund them, to better understand the most effective strategies for practical resistance to threats to internet freedoms and the steps being taken to develop a positive internet rights and public policy agenda.
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