Two weeks ago Judge Colin Lamont ruled that the “Dubula Ibhunu” (shoot the boer) songs were hate speech, and prohibited anyone from singing them. Since that day, just about everyone who doesn’t belong to Afriforum has joined together in kicking Lamont as hard as they could. And they are all right to be furious and angry. We ourselves have huge problems with this judgment. But we are all kicking the wrong target. By STEPHEN GROOTES.
Lamont must feel proud in one way. One of the objectives of the Equality Act is to create a sense of unity in South Africa. To bring together people who usually cannot stand each other. Well, he’s certainly done that. Before this ruling, the only thing that Malema and the chattering classes agreed on was that Ard Mathews and Ras Dumisani’s rendering of the national anthem was exactly that, a rendering. But now everyone’s agreed that the ruling banning everyone from singing the songs is too broad, over-reaching and has big implications for freedom of speech. And is unconstitutional.
But before we reach for the steel-toe boots once again, we need to make sure we’re kicking the right thing.
Judges are seen as very powerful individuals, indeed a class distinct from the rest of us. They alone have the power to remove someone’s liberty, to literally clap a person in irons for years at a time. Their decisions are weighty. For most people, a night out on the town can, at worst, end up in the clink. For a judge, it will end up on the front page. But they also have certain duties, and are restricted in ways that ordinary citizens are not. When a case arrives in front of a judge, he or she has a duty to rule on the case. They are not allowed not to rule on it, they have to make a decision. Their only option is to recuse themselves from it, and for that they need a legitimate legal reason. We can only think of one recent case in which a judge refused to make a decision, although there have been several in which they have delayed ruling for several years.
The other problem judges have is that they cannot – are not allowed to – publicly defend themselves. If a citizen or a political party feels they’ve been ruled against by a court unfairly, the Constitution guarantees them the right to go in front of the nearest microphone and shout it to the hills. They will still have to comply with the order, but they are at least allowed to vent their fury at the world. Not so a judge. So Lamont has been silent in the face of all of this criticism.
But if you look at the actual letter of the Equality Act, you will see that he had absolutely no choice but to rule in the way in which he did. Firstly the Act itself is hugely broad. Under the heading “Application of Act”, it states that:
5. (1) This Act binds the State and all persons.
(2) If any conflict relating to a matter dealt with in this Act arises between this Act and the provisions of any other law, other than the Constitution or an Act of Parliament 50 expressly amending this Act, the provisions of this Act must prevail.
In other words, this Act binds everyone in the Republic, be they animal, vegetable or mineral. So when the Equality Court rules on a matter relating to the Act, then we have to comply with it. Hence the ruling that no one can sing this song, even though Afriforum had only asked for Malema to be stopped from singing it.
Now let’s look again at how the Act defines hate speech. It’s in the small print, but that’s what judgments are made on.
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.
So Lamont has to rule that any words that are reasonably harmful or demonstrate an intention to harm are, in fact, hate speech. How can “shoot the boer” not be hate speech under that definition?
Then we have the case that Afriforum brought. The genius of it was the introduction of the treaties that South Africa has signed that define genocide. They include references to the “Seven Steps to Genocide” which include “public exhortations” – chants if you will. This was then defined as a chant, and thus this language was hate speech.
Where so much of the criticism of Lamont has been off the mark is in the claim that his order was “overbroad”. We ourselves have made this point as well. But on second thoughts, he had no choice. Once the utterances were hate speech, then they were banned, because the Act says: “No person may… communicate words that… are harmful”. So once the language is hate speech, it’s hate speech and thus banned. It’s as simple as that.
But, say the critics, this ruling is unconstitutional. Here they are on very strong ground indeed. But one of the duties of a judge is to make a ruling based only on the evidence, and on the arguments put in front of them. They are supposed to take into account the interest of society at large as well, but they cannot add their own arguments to a case if they are not presented. And here lawyers for Julius Malema and the ANC made a genuine legal error. They did not argue constitutionality. They didn’t say that the Equality Act was unconstitutional. So Lamont could not bring in that argument himself, and thus had to rule in the way he did.
Obviously there is a good political reason for this. The Equality Act was the ANC’s brainchild. It was introduced, debated and voted for by an ANC-dominated National Assembly. It was passed in 2000, back when the ANC had a majority of 66%. So it would have been rather embarrassing to argue in court that your own Act was unconstitutional. Thus it wasn’t argued, and now Lamont is the fall guy. So you have a situation in which the ANC created the law, fell foul of it, and then decided to blame the judge, rather than realising its mistake. At a time when it’s pretty handy for the party to have another judge to kick.
The other problem with all of this is that in the appeal, you are not really supposed to bring in new arguments. If this issue does go to the Supreme Court of Appeal, and constitutionality isn’t argued, judges there could well come to the same conclusion as Lamont – with the same result, and thus various politicians will have another go at the judiciary.
However it does seem that this case will go straight to the Constitutional Court and there things will be different. This means that the outcome could be different, and parts of the Equality Act as a whole could well be struck down. But what should really happen is that the ANC should introduce into Parliament its intention to either repeal it, or strike down parts of it – an option that would remove this entire problem. No doubt the commentariat that currently agrees with Malema on the songs, would then howl that an Act is being repealed simply because the ANC doesn’t like it. But that’s the way life goes sometimes.
Making mistakes with legislation happens in all countries. It happens here way too often. But the ANC could show it’s a mature revolutionary organisation by owning up to its mistakes. This would be a good place to start. And if the party were feeling in a particularly gracious mood, it could find a way to say sorry to Lamont for blaming him for its own mess. DM
"Take a chance, won't you? Knock down the fences which divide. Tear apart the walls that imprison you. Reach out. Freedom lies just on the other side." ~ Thurgood Marshall