Hate Speech & Freedom of Expression

Hate Speech & Freedom of Expression

Question: Did Julius Malema's conduct amount to hate speech that falls beyond the protection of the right to freedom of expression as envisaged in section 16(2)(c) of the Constitution?

Answer:

In order to better understand Malema's conduct and to determine whether it fell beyond the protection of the right to freedom of expression as per the Constitution of South Africa. We first need to analyze the case thoroughly and also consider the legalities that were involved. Hate speech refers to “any communication that is demeaning to a specific person or a group based on their ethnicity, sexual orientation, colour, religion or gender etc (Joubart et. al, 2004, pp.6). It could also involve any distinct conduct or gestures that are not socially acceptable and could hurt the feelings of a person or group. The laws that refer to hate speech usually tend to identify “a protected individual or group” due to their ethnicity, race, nationality or religion (Dubois, 2007, n.d.).

If we analyze the section 16 (2) (c) of the Constitution, it clearly states that “advocacy of hatred based on ethnicity, race, religion or gender that constitutes incitement to cause harm.” In the light of the provision, it is clear that any act or speech that advocates hatred for people based on their race, religion, ethnicity or gender is unlawful.

Julius Malema's conduct

Julius Malema was convicted by the Equality Court on the charges of hate speech on March 15, 2010 (Mohlalana, 2010, n.d.). Mr. Julius was fined R50, 000 and was asked to apologise. The incident occurred when he said to a group of students from Cape Town at the South African Students' Congress (SASCO) meeting that the lady who accused ANC President Jacob Zuma of rape did not bear a good character because she asked him for money. The incident created quite a stir and Julius Malema was charged with hate speech (Deacon, 2011, pp. 9).

Overview of the Incident

In March 2010, Julius Malema a South African Politician, sang a song named “"shoot the Boer" i.e. Dubul' ibhunu which was taken from another song “Ayasab amagwala” which means that the coward people are always scared. In Afrikaan language; the word “farmer” is used as a derogatory word for white people. His singing of the song created quite fervour and was widely compared to Peter Mokaba's chants against white people. "Kill the boer" is a song that has been identified by the South African Human Rights Commission as demeaning and constituting hate speech (Thompson,2011, pp. 384).

The incident led to a series of complaints against him both to the commission and to the Police. The ANC responded by saying that they wouldn't tolerate any statements against the members of their society. They maintained that White people were also South Africans and deserved equal respect. Later on 26th March, 2010 the High Court in Southern Gauteng ruled out that Julius Malema's song was “unlawful and unconstitutional”. The court also explained in the detailed ruling that “any individual ...