South Africa has a robust constitution, one that guarantees and enshrines certain rights that simply did not exist for all citizens during Apartheid.
With the fall of Apartheid and the subsequent free and fair elections in 1994, South Africa has tried to forge a new path for itself and for its citizens. One of the guiding elements on this journey of rediscovery has been the country’s constitution.
Of course, along the way there have been some stumbling blocks and challenges that have faced both leaders and residents alike. Among these challenges has been the right to freedom of expression and just how far it should go.
Under the country’s constitution, Chapter 2, Section 16 lays out exactly what is freedom of expression as well as the limitations. It is the list of limitations that is most interesting. To paraphrase, you can say what you want as long as you do not incite war or violence. Likewise, you may not say things that advocate hatred of another person or group based on race, ethnicity, gender or religion. And finally, you cannot say things that will, through hatred, lead to harm.
Short and sweet, fairly easy to understand.
To understand the importance of Section 16 and the right to freedom of expression, one must have a brief understanding of South Africa’s history. Pre-1994 the country was ruled under a system of racial exclusion. This period is known as Apartheid and was characterised by segregation and different laws for black people and white people. Additionally, the government would routinely interfere with the freedom of the press and free speech. This carried over into the performing arts and music, not just newspapers.
In fact, government interference in the arts became so terrible that even certain bands were prohibited from airtime in South Africa. This included the Beatles. To listen to the awesome-foursome, fans would have to tune in to pirate radio stations or radio stations that broadcast from neighbouring countries. One such example of this was LM Radio, or Lourenço Marques Radio. Today, Lourenço Marques is known as Maputo, the capital city of Mozambique but back in the Apartheid era, young fans in South Africa would be forced to listen to this radio station to remain up-to-date with the number one billboard chart hits.
Fast forward several decades and we now have a country that protects the rights of all people, regardless of skin colour. Or does it? Over the years there have been several notable cases in which freedom of expression transgressed the limitations as laid down in the constitution.
Two of the most notable examples involve white women who made racist comments in public. One involved a Twitter post and the second incident involved a furious woman in public who had just been mugged. These two cases serve as a great starting point for several reasons, but most importantly there was a legal ruling on the cases in question. This means a legal precedent has been established.
First is the case of Penny Sparrow, a former real estate agent, who caused great uproar over a post in which she called black people monkeys. After being charged at a police station, she went through several court appearances. The verdict was a fine, instead of time in jail and an additional penalty fee as punishment for her actions. In total she was ordered to pay just over $10,000. The problem is that her legal representation costs bankrupted her. She lost her house and eventually the courts accepted that she simply did not have the means to pay the penalties, as she had been rendered homeless.
The second case involves a woman who had just been the victim of a violent mugging. In the wake of the crime, Vicki Momberg referred to black people with a derogatory word, South Africa’s equivalent of the N-word. She too was taken to court and eventually found guilty. She was sentenced to time in prison for her comments.
That people who make racist comments in public have been exposed in public is good and correct. There should be a zero tolerance for the act of purveying hatred. But in the South African context, has this been evenly applied?
Take for example Velaphi Khumalo, a former provincial government employee who stated on Facebook that he wanted to cleanse South Africa of white people and, “we must act as Hitler did to the Jews.” He then went on to add that white people remained racist and, “deserve to be hacked and killed like Jews.”
His comments were posted in response to the comments posted by Penny Sparrow and his punishment – a penalty of $2,100. In coming to a ruling, the judge took into account that Khumalo had been a victim of racism himself.
Judge Roland Sutherland stated, “the idea that in a given society, members of a ‘subaltern’ group who disparage members of the ‘ascendant’ group should be treated differently from the circumstances were it the other way around has no place in the application of the Equality Act and would indeed subvert its very purpose.”
But the real punishment was vastly different in application. Nearly $8,000 difference, with no prison time. Likewise, his financial future was not impacted at all. After a brief suspension he continued his work.
For continuation and Part 2 of this article please click here.
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