Equality Court provides guidance on the purpose and ambit of the prohibition against hate speech3 min read
Date of judgment: 31 October 2019
Court: High Court of South Africa (Gauteng Local Division, Johannesburg)
The relevance of the case
In this matter, the applicant argued that utterances made by the respondent constituted hate speech in terms of section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (PEPUDA). While the Equality Court accepted that the content and tenor of the utterances were clearly intended to be hurtful and to promote hatred of the applicant, the key issue was whether the utterances were discriminatory within the meaning and purpose of PEPUDA. In this regard, the Equality Court held that the effect of an utterance on a particular person which vilifies that person but does not vilify that person on the ground of a personal attribute as defined in PEPUDA is not the subject matter of section 10. Accordingly, as the attack on the applicant was personal in nature only, the application was dismissed.
On 20 November 2018, Mr Malema made the following utterances to a crowd of supporters regarding the Minister of Public Enterprises, Mr Gordhan:
Our attack on Pravin Gordhan is an attack on White Monopoly Capital because Pravin is a dog of White Monopoly Capital. We must hit the dog until the owner comes out, and once the owner comes out, we must deal decisively with the owner.
Pravin is a cabal that belongs to the UDF and destroyed all good African comrades … he’s no good this guy. He has destroyed Peter Mokaba, he has destroyed Winnie Mandela, he has destroyed everyone else that stood for the truth against the apartheid regime. His shenanigans are not new.
Pravin has gone in to all [state-owned enterprises] and removed all black excellence because he hates Africans, he doesn’t like Africans. Any African that speaks back to Pravin, Pravin threatens those people.
Once you make a decision to go after Pravin, you must be ready. If you are not ready, don’t come to the EFF. We’ve now taken a decision to fight Pravin, and therefore you must know Pravin is going to fight dirty… There will be casualties. There can even be a loss of life. If you are not ready for that, stand aside. I’m not scared. I’m ready. I’m prepared to confront them one by one.
The statement was made outside the venue for the Zondo Commission of Inquiry into State Capture, shortly after Gordhan had testified and criticised Malema and his political party, the Economic Freedom Fighters. Gordhan instituted a case of hate speech against Malema in terms of section 10 of PEPUDA.
The judgment of the Equality Court
Section 10(1) of PEPUDA provides as follows:
Prohibition of hate speech
(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.
The parties agreed that the provisions of section 10(1) of PEPUDA must be read conjunctively. The Equality Court summarised the test as follows: “The test, as set out in section 10, whether the utterances could reasonably be construed to demonstrate a clear intention to be hurtful, harmful or incite harm, promote or propagate hatred is objective in that the effect of the words on hearers or readers is what is relevant. Mindful of this dimension of the test, the test seeks out the dominant impression reasonably created by hearing or reading these words.”
The Equality Court noted that, in this case, the words were orally delivered in a speech and heard by its primary audience only once, and were also broadcast to a wider audience. Further, the Equality Court noted that the utterance contained a mix of fact and opinion.
In applying the test in terms of section 10(1) of PEPUDA, the Equality Court held that the content and tenor of the utterances were clearly intended to be hurtful towards Gordhan, and to promote hatred of Gordhan for the reasons advanced in the speech. The key issue before the Equality Court, therefore, was whether the utterances were discriminatory within the meaning and purpose of PEPUDA.
Gordhan contended that the utterances invoked his race or ethnicity as an Indian South Africa, and therefore fell within the defined prohibited grounds. This, however, was rejected by the Equality Court, finding that the context did not support the contention that the applicant was being vilified for being Indian.
The Equality Court held that the passages that speak to “hitting” the dog and the “attack” on the applicant were plainly metaphorical. With regard to the words “casualty” and “loss of life”, the Equality Court held that in the passage, read as a whole, the literal meaning was not the meaning that the reasonable person would attribute to the utterances. According to the Equality Court:
It is plain that the allusion to the loss of life is a mere example of an extravagant juvenile rant stretching hyperbole to the extreme in the course of a demonstrably demagogic speech. Its function was to proclaim the speaker as brave and steadfast in the face of any foe however mighty and that the space to stand at his right hand is reserved only for the sturdiest of fellows. The dominant impression is that it is puerile self-aggrandisement, not a threat to the applicant or anyone else.
The Equality Court noted that the objectives of PEPUDA are to create measures to address the injustice that result from social inequalities by combating unfair discrimination. In conclusion, the Equality Court held that the effect of an utterance on a particular person which vilifies that person but does not vilify that person on the ground of a personal attribute as defined in PEPUDA is not the subject matter of section 10.
Accordingly, as the attack on Gordhan was personal in nature only, the application was dismissed.
The full judgment is accessible (via SAFLII) here.
Please note: The information contained in this note is for general guidance on matters of interest, and does not constitute legal advice. For any enquiries, please contact us at [email protected].