Defend Truth


Freedom of speech is not an absolute right


In real life, Professor Balthazar is one of South Africa’s foremost legal minds. He chooses to remain anonymous, so it doesn’t interfere with his daily duties.

Although freedom of speech is indisputable, our courts here and abroad are clear: What is permitted is a public debate which does not amount to hate speech.

There is little doubt that the Promotion of Equality and Prevention of Unfair Discrimination Act of 2000 (Pepuda), which was designed to be a comprehensive anti-discrimination law including the prohibition of hate speech, was poorly conceived and drafted with exquisite lack of care.

Arguably, as a consequence thereof, there have been a series of cases alleging hate speech which have been unsuccessful. The coupling of speech uttered with a clear intention to be harmful or to incite harm on one of the prohibited grounds (which include race, gender, sexual orientation, religion, conscience, belief, and culture) has proved very problematic for parties seeking the protection of Pepuda.

Litigation based upon defamation appears to be a more fruitful legal strategy. That much was made clear in the successful defamation case brought by Trevor Manuel against members of the EFF.

Most recently, Dr Roy Jankielsohn, the leader of the DA in the Free State, was equally successful in his case against members of the ANC Youth League in the province. Jankielsohn made some very critical remarks about the award of an honorary doctorate to ANC Secretary-General Ace Magashule by a Turkish university; in particular, pointing to the context of the award in which the university obtained significant funding for the Free State at a time when Magashule was premier.

Whatever the merits of this accusation, the ANC Youth League was so incensed that it ignored this question and issued a statement in which Jankielsohn was referred to as a “racist”, political redneck and “irrelevant white supremacist”. This prompted Jankielsohn to launch defamation proceedings against the youth league. Much of the defence raised by the ANCYL turned on the argument that politics is robust and that metaphors are often used in political discourse. Judge Johann Daffue noted that “although freedom of expression is fundamental to our democratic society, it is not a paramount value. It must be construed in the context of the other values enshrined in our Constitution. In particular, the values of human dignity, freedom and equality.”

For this reason, he held that there were boundaries to the exercise of free speech in our constitutional state. It followed that:

Although freedom of speech is indisputable, our courts here and abroad are clear: what is permitted is public debate which does not amount to hate speech. It is important to understand that freedom of speech is not an absolute right. Cameron J, writing for the majority in McBride (in the Constitutional Court), acknowledged that public debate in this country has always been robust, but concluded that the Constitution does not extend freedom of expression to hate speech. Also, every person is afforded the legitimate protection of his/her dignity, including their reputation.”

The judge then applied these principles to the facts of the case before him. The critical paragraph of the judgment is the following:

There is no justification for the publication of untruths. The statement was published recklessly and with indifference as to whether it was true or false. They were actuated by malice and the sole purpose was a personal attack on the plaintiff. In his evidence (for the ANC Youth League) Mr Meeko made use of generalisations and placed emphasis on the DA’s programme since 1994 to allegedly return to apartheid in order to justify their attack.

Plaintiff is labelled and even stigmatised as a racist and white supremacist and it is highly probable that some people might have been incited to cause him and/or his family harm. We experience this on a regular basis in this country. The harm inflicted on foreigners based on rumours, or distorted facts being published, is just one example.”

This finding resulted in an award of R300,000 in damages together with costs. But its implications are far more significant. Racism is alive and sadly all too well in South Africa. The fight to eradicate racist practice and speech is a project that all who live in this country should take as his or her own if a non-racial and non-sexist democracy is to be attained. That should also target the white male norm that is all too often employed as the gold standard by which to judge conduct or performance.

But to use a racist slur to stifle criticism or debate on the merits and to label those who are political opponents as racist simply on the basis that there is disagreement is to perpetuate conduct or speech which undermines any viable possibility of fashioning a democracy in which everyone has an equal stake and opportunity to participate in public debate.

It has been suggested that courts are inappropriate fora for such disputes as these cases are the stuff of deep political difference. But the basis of robust critical remarks about one’s opponents is the exercise of freedom of speech. That is a claim based in law; hence it is the role of courts to assess such legal claims and to ensure that speech that is fundamentally at war with the Constitution, in particular dignity and equality, is not allowed to destroy the fabric of the constitutional society.

To be sure, these cases hold political implications – but does not most litigation in the public sphere? DM


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