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Fri, 22 Nov 2019 05:51 GMT

How Free is South Africa’s Speech? Part 2


Gary Potgieter

Thu, 23 May 2019 01:09 GMT

Recently, the leader of the Economic Freedom Fighters (EFF), Julius Malema, faced some challenges with regard to comments he made dating back to 2016. Malema was also taken to court. The South African Human Rights Commission (SAHRC) found that Malema’s comments, all those reported, did not constitute any overstepping of the limitations regarding freedom of expression. The comments reported included, “We are not calling for the slaughter of white people‚ at least for now." This was made at a political gathering. 

Malema was also ordered by a court to stop singing the song “Kill the Boer (farmer)”. He obeyed, changing the key phrase to “Kiss the Boer (farmer)” but keeping all the other lyrics in the song. This song is still sung on-stage at EFF political rallies. the change in lyrics was also reported, but the SAHRC found that it no longer amounted to hate speech and would not have any psychological impact on white Afrikaaners. 

Likewise, this political leader’s comments about Indian people was also protected by the SAHRC. Maleme was reported for the following comment, “Here in Durban, here in KZN [Kwazulu-Natal], everything strategic is given to Indians ... even big tenders ... they are the ones who own everything.” He continued, "They are ill-treating our people worse than the Boer Afrikaners treated our people. This is not anti-Indian, it's the truth. They must treat our people properly." 

Again, the commission ruled this comment was not hate speech. 

Another political party, Black First Land First (BLF), was ordered to drop its controversial statement,“Land or Death”. The order was made by the Johannesburg Equality Court in May 2019. The court ordered the BLF to remove the slogan from its website within one month. This included the party’s regalia, social media accounts and website. The order was made in an application which the SA Human Rights Commission (SAHRC) took to court. The party was also ordered to tender a written apology to all South Africans within the same time period. The apology would be published on the SAHRC's website. 

In response, the BLF’s leadership refused to follow the instruction. BLF deputy president Zanele Lwana said, “We are not going to do any of that. We are not going to apologise for having 'Land or Death' as a slogan. We are not going to remove 'Land or Death' from any of our platforms or T-shirts.” 

So, several cases but all with vastly differing outcomes. Worth noting about the Sparrow and Momberg comments is that neither woman called for harm. Neither of them called for violence. Were the comments racist? Yes. But, in a sharp twist of irony, almost no consideration was afforded to Momberg who had just experienced a traumatic robbery minutes before uttering her comments, unlike Khumalo, who had his emotive condition factored into his punishment. 

It remains a mystery as to how the statement, “deserve to be hacked and killed like Jews,” does not constitute a call to violence. In the defence offered, Khumalo’s lawyer Stuart Wilson said the comments did not harm anyone and could not reasonably be viewed as intending to incite violence and were meant only to respond to Sparrow’s insults.  

More shocking however was that the judge actually agreed with this, saying the posts could not literally be interpreted as a call for genocide against white South Africans, although he said it, “purports to legitimise violence towards whites.” 

Such cases of apparent double standards will not serve South Africa well at all. In fact, it serves to provide credence to claims from some sectors of South African society that certain groups receive preferential treatment and others feel the full weight of the law. It certainly does not bode well for the country’s future that there is political leadership supporting and indeed inferring, a call for violence – just not right now.  

One does not need a degree in law to identify the implicit threat evident in the tone that comes from a statement such as, “We are not calling for the slaughter of white people‚ at least for now". There is, without any doubt, an inference that at a later date there may very well be a call for violence. This amounts to little more than a deliberate application of the rule that the statement does not make a call for violence – ‘right now’, while ignoring the future context of such a statement. 

As The more local courts and commissions draw on “historical context” and “past suffering” in their judgements the further away from a fair application of the law they will be. In essence, what is happening is that ready-made excuses are being offered for crimes.  

It is for exactly this reason that the statue of Justice is always portrayed as wearing a blindfold and holding in one hand a set of scales. There should be no preferential treatment in the meting out of justice based upon skin colour or “historical context”. The simple reason is, who gets to decide whose historical context is more important than another’s? Who chooses which parts of history to accept and which parts to ignore? How is the commission to determine whose history carries a greater legal weight than someone else’s and ultimately, who is going to the be person to state that historical preference will be determined by skin colour? 

For part 1 of this article please click here.  

Disclaimer: Views expressed by writers in this section are their own and do not necessarily reflect the views of 7Dnews.