A Cape Town hip-hop group recently succeeded in their attempts to achieve fame by being racist. In the past week, substantial media coverage was provided to a group who wrote a song that contains lyrics in which the listener is incited to join in the burning down of the farm of a symbolic farmer. The lyrics are packed with a variety of creative insults against white people, and the chorus is a repeated chanting of the words “Jou p**s, my larney”. The music video even concludes with trespassing and an arson attack on a farm.
Initially, AfriForum responded only to media enquiries and decided not to issue a statement on the matter, as it could result in a boosting of the group’s popularity. However, between Sunday and Tuesday the group received what our media analysts estimate to be more than R1 million worth of media coverage, elevating the matter to a national debate. In light thereof, we issued a press statement, indicating that a complaint had been filed with the South African Human Rights Commission (SAHRC).
De Vos’ flawed perspective
Professor Pierre de Vos was one of the first to respond to AfriForum’s initiative. However, his reaction was quite shocking. Instead of sticking to a legal interpretation of the law, he chose to resort to personal insults and outdated political reasoning. De Vos clearly has no regard for the realities on South Africa’s farms, where farmers are being attacked, killed and even tortured in abnormally disproportionate numbers. Instead, he sits comfortably in his Cape Town office and questions the integrity of what he regards as his intellectually inferior white compatriots, who feel seriously aggrieved by this piece of racial hatred and who demand that it be declared hate speech.
The problem with De Vos’ reaction is that he has become so restricted by his own anomalous ideological worldview that his judgment on legal issues appears to have become clouded. As a result, he typifies those who share a view different from his as being not as lucky as he is to be blessed with what he regards as a superior level of intellectual capacity.
He states that the high court has not interpreted hate speech contextually “as it was supposed to do” – not because the courts have not ruled on the matter, but because the judgments provided by the courts do not fit well with his political ideology.
He falsely depicts AfriForum as the protector of white privilege and concludes that AfriForum’s actions are inconsistent, as AfriForum is “not concerned about the words or actions of ‘white’ racists. Instead it is concerned about the words and actions of those who criticise ‘white’ racists; of those who challenge ‘white’ privilege; of those who threaten the social status and economic dominance of ‘white’ people who identify themselves as ‘Afrikaners’ (a political term for a certain group of Afrikaans-speaking ‘whites’ who strongly identify with a romanticised version of the history of ‘white’ Afrikaans-speakers).”
De Vos further argues that the song is not directed at white people, and states that Cyril Ramaphosa might just as well be the ‘larney’ referred to in the song. What he conveniently ignores is the lyrics that state: “You came here in 1652” and “Look at your founding father’s curriculum vitae – Jan van Riebeeck was the fucking Ernie Lastag of his day”. Now, I am not sure if the Honourable Member Cyril Ramaphosa would refer to Jan van Riebeeck as his founding father. Any attempt to argue that the song is not an attack on white people is disingenuous, to say the least.
He refers to the song as “very clever” and a bona fide engagement of artistic creativity and suggests that it is racist to regard this brilliant piece of art as hate speech.
Well, I am not a professor of law, and I am sure that De Vos believes that as a representative of AfriForum I will never reach his level of intellectual capacity (not that I am complaining), but let me respond by explaining why his interpretation of the law on hate speech is wrong.
The Constitution on hate speech
Firstly, the Constitution is all about context. The very first section of the Constitution states that South Africa is a democratic state that is founded on the principles of freedom, human dignity, the achievement of equality, non-racialism and so forth.
The right to freedom of expression is indeed enshrined in Section 16(1) of the Constitution, and rightly so. Section 16(1)(c) explicitly protects the right to artistic creativity. However, immediately thereafter, Section 16(2) states that the right in Subsection (1) does not extend to (my own emphasis) propaganda for war; incitement of imminent violence; or advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm. This effectively means that, regardless of what other legislation states on the matter, any form of expression that meets any of these criteria will not be protected by the right to freedom of expression.
Section 36 of the Constitution deals with the limitation of the rights that are protected by the Constitution and states that even the rights that are protected can be limited to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. It then lists some factors that should be taken into account, such as the nature of the right and the importance of the purpose of the limitation.
The Equality Act on hate speech and artistic creativity
In addition to what is stated in the Constitution, hate speech is also dealt with in the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000, often simply known as the ‘Equality Act’ or by its acronym, PEPUDA.
Hate speech is defined in Section 10:
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 incite harm;
(c) Promote or propagate hatred.
To simplify, this means that the song in question can be deemed hate speech if, firstly, it is based on one or more of the prohibited grounds, which include race, ethnic and social origin, colour and culture. Secondly, it should be directed against any person, or in this case, a group of persons. Thirdly, the motive behind the speech is irrelevant, as the test lies not in what the ‘artist’ states to be his motive, but rather in whether a reasonable person believes that the song demonstrates a clear intention to be hurtful or harmful (physical injury is not required) or incite harm, or that it promotes or propagates hatred.
Consequently it is not necessary to determine whether the artist intended for the song to be an actual call to arms. It is also irrelevant whether supporters of the group interpret it as such. The test lies rather in whether the people against whom the song is directed can reasonably construe it to demonstrate a propagation of hatred. In my view, this is a no-brainer.
De Vos concedes that AfriForum has a strong case in convincing a court that the relevant factors existed and that the song constitutes hate speech in terms of Section 10 of PEPUDA. However, he then states that, because the speech in question is a ‘work of art’, AfriForum will not succeed in a case for the song to be declared hate speech in terms of Section 10, “because section 12 of PEPUDA excludes ‘bona fide engagement in artistic creativity’ from the hate speech prohibition in section 10.” This interpretation is also wrong.
Section 10 deals with the prohibition of hate speech and Section 12 deals with the prohibition of unfair discrimination. After explaining what is regarded as ‘unfair discrimination’, Section 12 continues by stating that bona fide engagement in artistic creativity, academic and scientific enquiry, fair and accurate reporting in the public interest or publication of any information, advertisement or notice in accordance with Section 16 of the Constitution is not precluded by this section. This provision is also applicable to Section 10.
De Vos’ interpretation could have been true, had the song indeed been protected by Section 16(1) of the Constitution. The fact is, however, that the song is not protected by the Constitution, as it is excluded from the definition of freedom of speech, as is stated in Section 16(2).
Furthermore, because of the content of the lyrics and the images depicted in the music video, I am convinced that this particular song is not a bona fide engagement in artistic creativity. The song and the video are clearly meant to provoke and clearly advocate hatred based on race and ethnicity. This was confirmed when the ‘artist’ expressed his disappointment on Algoa FM that nobody had started a petition against the song.
The realities on South Africa’s farms
As I said, the Constitution is all about context. Courts that have ruled on freedom of speech and hate speech have also emphasised the importance of context. Now let us look at the context.
Firstly, attacks on farmers are a harsh reality in South Africa. While some city slickers who appreciate their wines and other delicacies of foodstuffs might not fully comprehend the realities faced by those who are tasked with providing the food that we often take for granted, many of us have personal experience of the realities of farm murders.
The reality is that, in the past four years, 2,227 attacks took place on South African farms, during which 245 South African farmers were murdered (numbers provided by the National Police Commissioner to the South African Human Rights Commission).
However, the frequency of these attacks is a small matter compared to the brutality of the attacks. We can spend all day discussing case studies on torture during farm attacks, but I believe this to be common knowledge.
Secondly, this song was released about a week after the leadership of COSATU and the ANC in the Western Cape (also the province where the song was released) threatened to invade farms and even stated that the possibility of land grabs similar to those that had occurred in Zimbabwe was not excluded. Whether the timing of the song’s release was simply a coincidence remains unknown. It is, however, highly ironic that the song is protected as an innocent work of art, while political leaders in the province are threatening with exactly that which is encouraged by the lyrics of the song.
Thirdly, there are instances where South African farm murderers testified that they had been influenced by provocative music to commit murder. One example is that of 28-year-old Ntuthuko Chuene, who told the Truth and Reconciliation Commission that he had murdered a farmer, Godfrey Frederick Lanz Heuer, because he had been influenced by Peter Mokaba’s singing of the song ‘Kill the Boer, kill the farmer’. “The killing was not directed at Heuer, as he just happened to be a white farmer at the wrong time,” Chuene said.
AfriForum’s consistent approach to hate speech
The real inconsistency is actually to be found in De Vos’ very argument. Rather than taking a consistent approach similar to that of AfriForum, he chooses to rage against white South Africans who, without resorting to incitement to violence, express their disillusionment with the new South Africa that has let them down. At the same time he stands up for black South Africans who express their disillusionment by romanticising violence and encouraging racial hatred. AfriForum’s approach to hate speech has been applied consistently since we started speaking out about the matter.
In brief, our approach to hate speech is as follows:
The South African Human Rights Commission
In view of the fact that the SAHRC recently initiated a public hearing about farm attacks and farm murders in South Africa, we decided to file our complaint with the SAHRC and not with the Equality Court. The reason for this was that the SAHRC recently did their homework to determine the realities with which South Africa’s farmers are faced, and that they are better suited to provide judgment on the matter. DM
Ernst Roets, Deputy CEO of AfriForum. Follow Ernst on Twitter at @ernstroets
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