Why waving the apartheid flag is hate speech

posted in Equality Act, Hate speech, Media law, Musings on Media on by

Lavanya Pillay, an associate in my team at Webber Wentzel, and I recently acted for the South African Human Rights Commission who – with the Nelson Mandela Foundation – applied to the Equality Court for an order that gratuitous displays of the old South African flag – the apartheid flag – constitutes hate speech under the Equality Act, as it is known in its short-hand version.

We penned an article which appeared in Sunday Times on 1 September 2019, and which was based on our analysis below.

On Wednesday 21 August 2019, Phineas Mojapelo, the Deputy Judge President of the South Gauteng Division of the High Court, ruled that the display of the pre-1994 South African flag – the apartheid flag – constitutes hate speech. It was a powerful ruling and is one in a series of high profile hate speech cases which our courts have recently had to grapple with.  You can read the decision here.

Earlier this month, SANEF and a number of journalists argued in the Equality Court that the EFF’s targeting of them amounted to hate speech.

Jon Qwelane is bringing a constitutional challenge before the Supreme Court of Appeal (SCA) to the hate speech provisions in the Equality Act following the publication of his article, “Call me names – but gay is not okay“.

And most recently, on Tuesday 27 August 2019, the Constitutional Court heard argument as to whether Cosatu’s Bongani Masuku had engaged in hate speech against Jews when he made threatening comments directed at “Zionists”.  Judgment is awaited in all these other cases.

The challenge to the apartheid flag before the Equality Court was brought by the Nelson Mandela Foundation and the South African Human Rights Commission (SAHRC) following nationwide public demonstrations in October 2017, organised by Afriforum, against farm murders. During these demonstrations, some protestors displayed the apartheid flag.

The applicants sought an order declaring gratuitous displays of the apartheid flag to be hate speech, unfair discrimination and harassment under the Equality Act. ‘Gratuitous’ displays are those that do not serve any genuine academic, scientific, artistic or journalistic purpose – these receive protection in the Equality Act itself

Afriforum, who opposed the application, claimed that the Equality Act, in terms, only prohibits “words” which could reasonably be construed to be hate speech. According to Afriforum, the apartheid flag (a symbol) could not constitute hate speech as defined in the Equality Act as it did not amount to “words”. Afriforum had a point, if “words” is to be interpreted literally.

But in a demonstration of the potency of principles of constitutional interpretation, this literal approach was rejected by Mojapelo. The reference to “words” in the Equality Act must be given a generous meaning going beyond mere verbal representations. It is obvious that hate speech can extend beyond words. To hold otherwise would be irrational, would run contrary to the letter and spirit of the Constitution and the main purpose of the Equality Act which is to prohibit all hate speech (and not just “words”). So “words” does not only mean “words” but extends to non-verbal acts – such as displaying a flag.

The next step was for the court to unpack the meaning of waving the apartheid flag. Its dominant meaning was clear – these acts were an endorsement of the system of apartheid. In a particularly poignant paragraph of the judgment, Mojapelo said: “Those who display the Old Flag choose deliberately not only to display the apartheid discriminatory, divisive and oppressive flag; they also consciously and deliberately choose not to display the new democratic all-uniting non-racial flag. They choose an oppression symbol over a liberation symbol. … They intend to incite and awaken feelings of white supremacy against black people … They wish to remind black people of the oppression, humiliation, indignity and dehumanisation that they moved away from and do not wish to relive or return to.”

Mojapelo concluded that gratuitous displays of the apartheid flag satisfied the hate speech test in the Equality Act: a clear intention to be hurtful, harmful and to propagate hatred against black South Africans. It was therefore prohibited hate speech.

There are some – including Afriforum which is applying for permission to appeal the judgment – who say that the ruling undermines freedom of expression. But this is not so. Our courts have never held that the right to freedom of expression is absolute and trumps all others. It is expressly limited by the constitutional rights to human dignity and equality. Hate speech cases require courts to balance these rights in the context of the facts of the case and with an appreciation of South Africa’s repressive and ugly history. The apartheid flag case clearly struck that balance correctly. Gratuitous displays of the flag constitute hate speech, as Mojapelo held – even if all three requirements – hurtful, harmful and propagating hatred – are necessary for such a finding. On the free speech side of the balance, displays of the flag that are not gratuitous – such as using it to illustrate a news story on the case itself or in a satirical cartoon mocking Afriforum for losing the case would not constitute hate speech under the Equality Act.

But beyond the law, gratuitously displaying the apartheid flag is a callous act that has no place in South Africa. It is as bad, as Mojapelo said, as uttering the ‘k’ word. The apartheid flag case has made a significant contribution to our emerging hate speech jurisprudence. Judgements in the cases involving SANEF, Qwelane and Masuku will provide further clarity. Ultimately, the question in all these case is the same – has the legal line been crossed between free speech and hate speech.

[In the SANEF case and in the Masuku case, we act for the NGO Media Monitoring Africa, intervening as amicus in each case].

The Hate Speech Bill and satire

posted in Freedom of expression, Hate speech, Parliament on by

At the end of January 2017, comments on the Prevention and Combating of Hate Crimes and Hate Speech Bill were due.  I acted for some of our  leading stand-up comedians and satirists (including the cartoonist Zapiro) in making submissions on the harm posed by the Bill for legitimate satire.

I penned a piece for the Business Day, which was published on 21 February, and which summarized the issues that we dealt with in our submission (prepared by myself and two junior counsel at Group 621, Advocates Stuart Scott (until he left for the Bar, an associate in my team), and Itumeleng Phalane).   You can find the submission itself here, published on Columbia University’s Global Freedom of Expression and Information website (I am fortunate to be the South African free speech expert in this project).

Here’s my Business Day piece if you missed it:

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Media law and free speech in 2015 and 2016 so far

Welcome to my first blog of 2016.  It has been a very busy start to the year, which is why this blog comes later than I would have liked. The aim, this year, is to blog far more regularly than last year.  That’s my media law new year’s resolution.  Wish me luck.  First, my traditional summary of media law last year, and then I discuss a few developments in the first two months of this year.

I penned a piece for Business Day in mid-January summarizing, in 1,100 words (how different blogging is!), what the key developments in media law were in 2015.

Here it is in case you missed it: SANRAL and SAA cases gave weight to media freedom.

In the Business Day piece, I discuss the most important case of the year for the media (even though it didn’t involve the media directly) – City of Cape Town v Sanral, as a result of which, once court documents are filed in court, we can now generally regard them as public documents.  There was also the futile attempt by South African Airways to silence the media from publishing a legally privileged report into its financial affairs : South African Airways Soc v BDFM Publishers.  I also discussed the disappointing Western Cape Full Bench decision in Primedia v Speaker of Parliament, where a majority of the court held that parliament’s broadcasting policy – which resulted in images of the Economic Freedom Fighters being ejected from parliament, not being shown on TV; and the signal jamming that took place at the State of the Nation address last year, not being declared unlawful (this case is on appeal to the Supreme Court of Appeal).

I mentioned the decision by the African National Congress – yet to be implemented – to abolish criminal defamation law, the Film and Publication’s Board’s disastrous draft online regulation policy,  and the Press Council’s new Code of Conduct which has been updated to take into account digital speech, including members’ liability for user-generated content. Continue reading