LOSING WICKET OP-ED
David Teeger, Cricket SA and freedom of speech — what a tangled web we weave
What the Teeger case illustrates is just how difficult it is to devise (and consistently apply) a clear set of free speech principles to ensure the fair and consistent regulation of controversial statements made by members and captains of national sporting teams in accordance with democratic values of dignity, freedom and equality.
The decision by Cricket South Africa (CSA) to relieve David Teeger of his captaincy of the South African Under-19 cricket team, ostensibly because of a risk that protests about the Israeli war on Gaza could “result in conflict or even violence” at the Under-19 World Cup tournament starting on Friday has been widely (but wrongly) condemned as a flagrant and outrageous breach of Mr Teeger’s right to freedom of expression.
Controversy erupted late last year after Teeger – then still a schoolboy – in off-the-cuff remarks at the Jewish Achiever Awards ceremony dedicated his “Rising Star” award to “the state of Israel and to every single soldier fighting so that we can live and thrive in the diaspora”, saying that the “true rising stars are the young soldiers in Israel”.
Wim Trengove, an independent arbiter appointed by CSA to deal with complaints made against Mr Teeger, later found that Mr Teeger’s statements were not in breach of the relevant provisions of the CSA and Lions Codes of Conduct that prohibits cricketers – among others – from making statements “that are detrimental to the game of cricket in general”, notably because the remarks were not made on a “cricket platform” and thus did not purport “to associate and align the game of cricket with a divisive cause”.
I am rather sceptical about the claim by CSA that Teeger was relieved of the captaincy because of concerns about security at the Under-19 World Cup tournament, and am willing to assume (without making a definitive claim) that Mr Teeger was in fact removed as captain because of his controversial statements in support of Israel and its soldiers fighting in Gaza, and thus that freedom of expression does come into play in this case.
But while CSA deserves criticism for the manner in which it has handled the matter, many of those who criticised CSA’s decision on free speech grounds entirely missed the point, often by making sweeping claims about freedom of expression whose consistent application they themselves could not possibly support – although some might very well not realise how flawed their reasoning is.
What this case illustrates is just how difficult it is to devise (and consistently apply) a clear set of free speech principles to ensure the fair and consistent regulation of controversial statements made by members and captains of national sporting teams in accordance with democratic values of dignity, freedom and equality (similar issues also arise in the workplace.)
Read more in Daily Maverick: Cricket SA never took a principled stance on Teeger situation, and it backfired
Members of national sporting teams are usually required to abide by a code of conduct that invariably places limits on what they can and cannot say and do, thus limiting their right to freedom of expression. Any restrictions on speech imposed by such a code as well as the manner in which the code is enforced must also be constitutionally compliant.
In practical terms this means that such restrictions must be reasonable and justifiable, weighing up the importance of the purpose of the restriction against the seriousness of the limitation. There must also be a rational connection between the limitation and its purpose. Moreover, where restrictions on speech are overbroad, the code (or a specific application of the code) might not pass constitutional muster.
Such codes often contain entirely uncontroversial general clauses prohibiting players, for example, from saying or doing anything that would bring the sport or the team into disrepute. It is the application of such clauses that creates difficulties.
From this, it must be clear that claims that members of national sporting teams have (or should have) an absolute right to say what they wished as long as the speech did not fall foul of the prohibition on hate speech (as some have claimed with regards to Mr Teeger), is obvious nonsense, both as a matter of constitutional law and as a matter of common sense.
Let me provide a few examples to illustrate my point.
A Springbok rugby captain who calls the Hamas militants who – on 7 October 2023 – killed Israeli civilians, including children, “true heroes”; expresses admiration for his heroes, Adolf Hitler or HF Verwoerd; or is caught on video using the “k” word with reference to the president of the country or the leader of an opposition party, would – in my view – rightly be in trouble. Removing him as captain (and as a team member) in line with the relevant code of conduct would constitute an entirely permissible limitation on his right to freedom of expression.
As a citizen, the specific rugby player would continue to have a right to express these views, but as a captain of the Springboks – representing the sport of rugby, the team, and the entire nation – he would not.
On the other extreme are those who argue that there is no place for politics in sport and that it would (or should) be entirely permissible to prohibit members of national sporting teams from doing or saying anything “political” in public.
This view, too, is nothing more than nonsense on stilts, not only because such a sweeping prohibition would unjustifiably limit the right to freedom of expression, but also because national sport is political and it is therefore impossible to maintain an absolute separation between sport and politics.
Any South African who had paid any attention to the Springbok World Cup campaign would be hard-pressed to disagree with this claim.
The assessment of whether a specific statement or act of a captain or other member of a national sporting team had brought the sport or team into disrepute, taking into account freedom of expression concerns, would often be difficult to make. How an individual viewed the particular statement or conduct may well influence their view on whether action against the individual would be warranted or not.
One of the benefits of playing the freedom of expression card is that it allows one to defend shocking or highly unpopular statements with which one has sympathy without having to admit to it.
Individuals with a benevolent view of what was said or done would be more likely to claim that action taken against the captain or other member of a national sporting team constituted an outrageous breach of the sportsperson’s right to freedom of expression.
This is even more so because individuals defending an impugned statement with which they agree or at least do not find shocking or unconscionable, often make abstract claims about a breach of the right to freedom of expression to avoid having to defend the objectionable statement itself. By doing so, they attempt to avoid having to engage in the politics/ethics of the statement.
One of the benefits of playing the freedom of expression card is that it allows one to defend shocking or highly unpopular statements with which one has sympathy without having to admit to it.
This is why it would often be unhelpful to use (or exclusively rely on) a freedom of expression framework to discuss or assess controversies sparked by the kind of statement made by David Teeger.
Read more in Daily Maverick: Jewish Board of Deputies calls for Teeger’s reinstatement, accuses Cricket SA of antisemitism
If we assume that Mr Teeger was relieved of his captaincy of South Africa’s Under-19 cricket team, at least in part because he praised “every single soldier” of the Israeli army fighting in the war on the Palestinians in Gaza, it would be impossible to take a position on this decision, so it seems to me, without reference to one’s own view of the opinion and of what is happening in Gaza, and without engaging with the factors of the specific case.
In his arbitration award in favour of Mr Teeger, Wim Trengove does engage with some of the relevant factors which must have influenced his decision. These include: That Mr Teeger was a schoolboy at the time; that the statements were made off-the-cuff and in good faith at a private event unrelated to cricket; and that many across the globe – including the governments of the US and the UK – “support Israel in its conduct in Gaza as being in legitimate self-defence”. (He could have added that the remarks were made a mere two weeks after the Hamas attack, when the full scale of the horror unleashed on Palestinians in Gaza was not yet widely known.)
But this is where things get tricky. While acknowledging that some might find Mr Teeger’s statements “offensive”, Trengove concludes that these remain protected because a “minority opinion, sincerely held and honestly expressed on an issue of high public interest, but entirely unrelated to cricket, is not detrimental to the game of cricket in the eyes of those who respect Mr Teeger’s right to freedom of expression”.
In my view, as a general statement of principle, this cannot be right. This is so because it seems obvious to me that the expression of some opinions on issues of high public interest by members of a national sporting team, even if sincerely held and honestly expressed, would be detrimental to the game of cricket in the eyes of those who respect the right to freedom of expression.
Blind support for the Israeli army and its soldiers… could no longer be said to fall within the range of opinions on which reasonable people in South Africa could differ.
Would the expression of an opinion celebrating the killing of Israeli civilians by Hamas militants not be detrimental to the game of cricket? Lambasting affirmative action as “reverse discrimination”, or claiming that a white genocide was unfolding in South Africa? Praising the Ugandan government for taking decisive action against “perverted homosexuals”? Repeating Operation Dudula’s xenophobic talking points?
Surely not. The reason being that these opinions are beyond the pale; they shock the conscience, show a lack of basic decency and humanity, and are potentially profoundly harmful. (Of course, if you happen to be a rabid homophobe, racist or xenophobe, or deeply anti-Semitic – or even if you are not – you might disagree with me on this.)
I would therefore argue that the principle enunciated above could only apply to sincerely held and honestly expressed opinions on issues of high public interest, when those opinions, even when deeply offensive to others, are viewed in the particular society as being within the range of opinions on which reasonable people could differ.
As things stand now, my own view on the Israeli war on Gaza is that blind support for the Israeli army and its soldiers (which would signal support for the commissioning of war crimes and, most likely, genocide) could no longer be said to fall within the range of opinions on which reasonable people in South Africa could differ.
For this reason I contend that it would be entirely permissible for a sporting body to remove any member of a national sporting team who now expresses such a view from the team as the statements in all likelihood would bring the sport, the team and the country into disrepute.
Some would no doubt vehemently disagree with me on the latter point. This is to be expected. While some might be tempted to frame their disagreement as being exclusively about freedom of expression and its limits, they would be mistaken.
This is so because when we argue about the scope and content of free expression, we mostly also argue about our different views about the content of that speech. DM
Pierre de Vos is the Claude Leon Foundation Chair in Constitutional Governance at UCT and author of the blog, Constitutionally Speaking.
201% spot on. When you get an award and that award is based mostly on your national representation achievements and presence, the national government reserves the right to ensure anyone who represents the nation does not openly and blatantly goes against national policy and sentiment. It’s not personal, it’s national.
No I strongly disagree – what you punt is a form of moral/political fascism. Using ‘national’ as your criteria for obedience does well in the eyes of governments like Communist China, the old NATS here is SA and the like.
That’s where you’re wrong, he was being honoured by his community for his outstanding achievements, it was a private function not a public one and he spoke on behalf of himself and NOT CSA or the national Cricket Team. You’ve missed the point by a country mile
Yes!
North Korea much?
100% agree with you.
I GUARANTEE if Rabada was merely just a vocal supporter and active member of thee EFF, they would want him to not be part of the team, nevermind him saying k*ll the Boer.
The people here are hypocrites.
I think Vos made it clear that the timing of the statement should be considered relevant. At that time, two weeks after the attack by Hamas, he was not “openly and blatantly going against national policy and sentiment.” Such a policy and sentiment did not exist. He was pretty much expressing what most people were feeling at that time, in SA and elsewhere around the world.
Seems more like you are trying to put 1 over on Trengrove as regards interpretation of the law
Can only be “wrongly” interpreted if you are antisemtic. Jew haters Pierre will use any excuse and any reason to justify their actions. FACT: He was selected as captain because of his skill. FACT: He was replaced because he is Jewish, no other reason or facts are relevant. You and this kind of comment is the reason I left South Africa.
No he was NOT replaced because he is Jewish, if he had not made the comment he did then he would not have been replaced. If a non Jew had made the same statement the result would probably have been the same.
I think the whole thing is an over reaction by the ANC and by CSA and is now actually causing more harm to cricket than if they had just kept out of it.
A non Jew wouldn’t have got the award.
What a lot of words to disagree! One wonders why Teeger was made captain. Qualities of leadership maybe? Excellent sportsmanship? And then the honour of being captain just stripped away – but still in the team. So is the danger not still there? I’m disappointed that the whole team did not resign in protest, but understand that they are all -19 and reluctant to relinquish their chance at cricket glory. This incident leaves a sour taste and disillusionment of ‘fair play’ in what’s left of pride in SA and its sports officials.
Where would the author stand on a sporting governing body forcing its “Take the Knee” directive in support of a political statement? If the Captain of a team then has an opinion contrary to this policy/directive, or feels the directive is forcing him/her to express a political opinion, and feels he/she should not be forced to use the sportsfield for political statements, would the author of this article feel it appropriate for that captain to be stripped of his/her role?
Yes, please give us your viewpoint on that Mr de Vos. As it was it was also Lawson Naidoo who made the call
We don’t know for certain it was Naidoo, it could well have been Kodwa the Sports Minister
Oh but you see that isn’t restricting someone’s speech, it’s compelling it along with a bit of progressive panto for good measure. That makes it A OK, obviously.
Jews support Israel. It was a personal award given by his community. Moslem would have dedicated the award to Hamas. Double standard. Freedom of speech is enshrined unless you’re Jewish? Moslems threaten violence again. We have learnt nothing.
Pierre, your article is generally good with sound arguments, although a lot of words to score a point against Wim Trengrove? Even if one were to agree with all of your arguments about the limitations placed on free speech, each case has to be dealt with on its merits. In this instance I view the following as pertinent:
1. Teeger is an inexperienced young man;
2. He was speeking at a private function;
3. the speech was about 2 weeks after the Hamas attack, and one might assume that emotions were very raw and high at the time.
Still, I accept that CSA had the right to remove his captaincy according to your reasoning. The Trengrove report, however, put a stick in that wheel. When they then subsequently raised the “security concerns” as motivation, it exposed the alternative motive – that is was done because he is a Jew and for no other reason. It is this evidence of hypocrisy that riles people.
We all know that if he had praised Hamas or expressed admiration for their bravery in ‘defending the Palestinians’ in the immediate aftermath of Oct 7 nothing beyond a wishy washy press statement from CSA would have resulted. No principle of any possible sort was applied in the sanction applied to Teeger.
This article is tangible proof that academics are as capable of inanity and error as anyone else. To blithely state that “as things stand now, my own view on the Israeli war on Gaza is that blind support for the Israeli army and its soldiers (which would signal support for the commissioning of war crimes and, most likely, genocide) could no longer be said to fall within the range of opinions on which reasonable people in South Africa could differ” serves to underscore that not only has the author lost his academic and journalistic integrity, but he is allowing both his, and the terrorist-loving ANC’s bias and prejudice to constrain free speech. Just because arrogant and self-opinionated cretins such as the author have a perspective on the Hamas/Israeli war does a) not make that opinion correct, b) lessen the validity of other people’s ( such as Mr Teeger’s ) opinion or c) weaken Mr Teeger’s right to express himself. The author has made a fool out of himself in the past by speaking out of turn, now, yet again, his smug arrogance and condescension, demonstrate that he still thinks himself superior to “common” folk because he is an academic. An academic he may be, but he remains a morally bankrupt sycophantic ANC lemming, following his dear leader straight off a cliff. We can only hope the rocks below that cliff permanently relieve us of his sanctimonious and odious opinions, or would an ANC style tyre necklace be more apropos ?
Wow, definitely rubbed you up the wrong way.
James 100%correct
Well don
Well put sir. De Vos stance is at least equally reprehensible as Teegers if one is critical of either.
Agree – and the author has already accused Israel of genocide, which is not a foregone conclusion.
Who the hell decided that the vitriol you posted “Looked good”?
Right on. Where does Pierre de Vos get off by arrogantly claiming to speak for “reasonable people” ?
“…. most likely genocide” he writes. What ? O K – Pierre de Vos has spoken so the ICJ can now pack up and go home. I am the most reasonable person I know and I can see that weaponizing and distorting well-meaning of terms such as Genocide (and Apartheid) against Israel is a cANCer with which South Africa is infected and Mr de Vos through evidence of this article seems to be a carrier. The language of Tik Tok has been legitimized and reached the ICJ.
What a mess for sure. Perhaps young Teeger who is a talented cricketer should have been guided by the powers that be to be a bit more subtle in his public comments. Look we all have our points of view however as a budding public figure representing his country he has to keep his views personal. Just my opinion.
BTW the DA government has been rather ruthless with banning the Palestinian flag. How would that fit into the argument by this respected journalist?
He did not make a public comment but a comment at a private function attended by Jewish people and a mere two weeks after the bloody Hamas attack on a Jewish settlement!
Two things
Firstly, Teeger did not make ANY public statements, he was at a private function being honoured by his own community, he was NOT representing his country
Secondly, the DA does not lend support to either side, it’s perspective is the entire conflict is wrong and both sides bear responsibility, n that stance they do not allow either flag to be displayed at any of their events, function or facilities, stating they “banned” the palestinian flag is a blatant lie
Thank you Prof de Vos for your well reasoned and incisive article. I am with you 100% of the way. I also respect Wim Trencove’s conclusion but, as indicated, only up to a point. I honestly believe that the young Mr Teeger made his statement out of a sense of patriotism towards the Jewish people as a nation and did not anticipate the explosive reaction that would result. He has learnt a hard lesson at such a tender age but I am sure, a very valuable one. He could probably not have foreseen that the Israeli government has overstepped the mark in the name of defense and we now await the decision of the ICJ in relation to South Africa’s case of genocide against Benjamin and his team. Under the circumstances I think that Cricket S A did what they had to do and your article explains why with razor blade precision.
Another ANC ploy. Creating diversion and chaos and we allowed it. What woukd be the outcone if Mr Teeger supported Hamas? Still be the captain?
As expected, the most vehement responses support de Vos’s contention: “One of the benefits of playing the freedom of expression card is that it allows one to defend shocking or highly unpopular statements with which one has sympathy without having to admit to it”.
as expected, along comes the cancel culture brigade
🙂
Well said Pierre. Very good analysis of the law and the moral challenges of a divided society. Just as Hansie was removed as captain for fraud / corruption – you cannot allow a person supporting / praising brutal Zionist occupation and genocide to lead a SA national team. Israeli soldiers are killing Palestinian women and children because of a deep hatred for “others”.
The criticism of your opinion come from the same people who are longing for apartheid where white people could make racist / insensitive comments without consequence. Just like their wonderful apartheid system ended, so will Zionist apartheid end – soon.
Never
Let’s turn things around a bit. What if Teeger had made comments praising the predominantly White Russian forces in Ukraine? Considering our own government has sympathies for Russia despite the atrocities they have committed in Ukraine, would any action be taken against Teeger?
So I suspect you are bringing racism into this argument when it really doesn’t belong.
I guess this just proves what Pierre de Vos said about it depending on whether you support the comments or not …
What a garbled and wordy piece, Mr De Vos. But your convoluted essay can be summarized by your words “his opinions could no longer be said to fall within the range of opinions on which reasonable people in South Africa could differ”.
I wonder, Mr de Vos if the people who disagree with you on this forum should similarly be stripped of their public positions? What if 90% of Jews agreed with him? Should they be too be kicked out of public life? Is it not even a REASONABLE opinion to hold that the soldiers might have been trying to prevent a repetition of the burning of babies, broadcast murder and the rape of women that happened that day. Or perhaps you don’t believe the reports were exagerated? I suggest you read Niall Fergusson’s article, The Treason of the Intellectuals.
“As things stand now, my own view on the Israeli war on Gaza is that blind support for the Israeli army and its soldiers (which would signal support for the commissioning of war crimes and, most likely, genocide) could no longer be said to fall within the range of opinions on which reasonable people in South Africa could differ,” says Vos without irony. Except that South Africa has taken Israel to the International Court of Justice where the opinion that Israeli soldiers are committing genocide is precisely the issue over which reasonable people differ – unless Vos is prejudging the case and calling into question the very integrity of the ICJ itself.
Mr de Vos, in the contest of your extensive constitutional law background, what is it about the Jewish Mr Teeger that energized your 2000 words of legal gymnastics support him being punished after being cleared?
Freedom of expression is freedom of expression. It doesn’t get limited when the expression offends you.
One way or another any perspective likely offends some person.
The only time expression becomes untenable is when it invites violence.
Those who complained about Teeger’s comments themselves support the organisation that the Isreal’s soldiers Teeger supports fight against. They support hat organisation for their own open expressed genocidal views.
That too is freedom of expression.
There is only one limit to freedom of expression and that incitement to violence. All unpopular views are free to be expressed.
Pierre, you are 100% correct. Reading all the dissenting comments below, it is clear that their dissent is not based on the right of freedom of speech, but on the commentor’s view of the underlying issue. One must also consider that one has a right to express any opinion on any public matter, but like all actions, whatever you say has consequences. And if the expressed opinion is so partisan and divisive, one of the consequences must be that you can no longer be a member, never mind captain, of a team that is supposed to represent all the people. This does not derogate from one’s right to hold and express any opinion, however outrageous or shocking it might be to reasonable people.
Doesn’t matter what he said or what side you support. The bottom line is that he is still playing in the team. So what happened to the security threats that are supposedly the reason for his being stripped of his captaincy?