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Legislature has remained inactive and left the problem to the courts without giving them the appropriate tools to resolve such disputes, wrote Nelson Mandela Univerity Law lecturer, in BusinessLive on 10 October 2018.

Society is becoming increasingly polarised by racist speech, with fresh cases involving racial slurs occurring weekly.

Kessie Nair recently used the “k-word” to label President Cyril Ramaphosa and has been charged with crimen iniuria. In August, Adam Catzavelos posted a Facebook video (strangely reminiscent of Penny Sparrow’s 2015 “beach monkey” post), using the “k-word” to describe the demographics of a Greek beach.

Last week, a Hot91.9fm DJ, Sasha Martinengo, was fired for referring to Julius Malema as a monkey during a broadcast. Martinengo has apologised but has since tweeted: “I’m sorry … but … Anyone, irrespective of their race … who disrespects a woman is a monkey.” The EFF has retaliated. It will be pursuing a criminal case against Martinengo, because “racists belong in jail”.

Most of those who use racist language face criminal charges or lose their jobs. They generally apologise. Some do so unreservedly; others add the “I’m not a racist” rider. But these apologies have little impact. The damage is done.

The public reaction has been interesting. We have witnessed widespread condemnation. This is indicative of a society maturing and beginning to appreciate the harm caused by racist speech — to the victims and the constitutional vision of a united and diverse nation. We haven’t reached a stage, however, where public condemnation is sufficient to censor racist speech. A legal response is required.

Confusion is also a common reaction. Many people fail to appreciate that it is deeply offensive to refer to an African person as a “monkey”. Lack of exposure to sensitisation initiatives exacerbate the problem. The policymakers and the law are partly to blame. The Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (the Equality Act) contains a chapter obliging promotional and educational measures to overcome hate speech and discrimination. Government hasn’t enacted this chapter, despite calls for it to do so.

People complain that only the white racists are exposed. They forget, however, that the SA Human Rights Commission has referred BLF leader Andile Mngxitama’s use of slogans such as “land or death” to the Equality Court. Similarly, last week Velaphi Khumalo was found to have engaged in hate speech targeting white people.

Part of the problem may be that the media reports focus on racist slurs targeting African people. But context is an important factor here. The legacy of apartheid as a “racially charged present” cannot be ignored by those who complain that white racists face a raw deal.

At the same time, the overregulation of racist speech must not erode the guarantee to freedom of expression. How should the law treat racist speech? The Constitutional Court has recently addressed two incidents where it condemned racism and undertook to eliminate this scourge. But this is a reactionary role and is a limited legal response.

The first case involved the term “swart man”. According to the court the mere utterance of such words isn’t racist. The test is whether a reasonable, objective and informed person would consider the words to be racist. The court stressed, however, that it is incorrect to assume that terms such as “swart man” are automatically neutral as this fails to reflect the impact of apartheid’s legacy. We cannot allow the past’s predominant racist view to distort the objective enquiry.

The court ultimately found that the words were used in a “derogatorily subordinating” sense and not merely to identify an African person. So the employee’s dismissal was confirmed — he had breached the disciplinary code and didn’t demonstrate remorse.

The other Constitutional Court case concerned the dismissal of workers for singing struggle songs during a strike. The lyrics included the line “Climb on top of the roof and tell them that my mother is rejoicing when we hit the boer”. The Commission for Conciliation, Mediation and Arbitration arbitrator found that although the singing of the song was inappropriate, it was not racism, and that a dismissal was unfitting. She ordered a final written warning, reasoning that a distinction should be drawn between struggle songs and racist terms. The Constitutional Court held that the arbitrator’s award was reasonable. She balanced the interests of both parties and considered the context.

Unfortunately, many media reports failed to explain the context in which these cases were decided. These inaccuracies included reports that the court had found that the “hit the boer” song wasn’t racially offensive, resulting in claims that the court treats white racists more severely. This is untrue. The court wasn’t asked to decide whether the song constituted racist speech. It was confined to the question of whether the arbitrator’s decision was reasonable.

These cases demonstrate the limited ambit in which the courts operate when confronted with racist speech. Courts must resolve disputes within the boundaries of the facts before them. It isn’t the courts’ role to make laws setting the appropriate behavioural standards. The legislature must recognise that SA doesn’t have an appropriate legal mechanism to regulate racist slurs and therefore it should initiate legal reform.

Most incidents are decided in terms of the common law crime, crimen iniuria, defined as the unlawful, intentional and serious violation of the dignity of another. While there have been successful crimen iniuria cases involving the “k-word”, this isn’t a suitable legal remedy. Firstly, the harm caused by racial slurs causes more than individual distress. It violates the group targeted and undermines the societal well-being. Secondly, intention to harm the victim’s dignity is an element that is difficult to prove. This is why the Equality Act doesn’t require intention for discrimination and hate speech — the impact of the conduct is critical. Thirdly, it is debatable whether the criminal law should be used to regulate racist speech.

Crimen injuria wasn’t designed to overcome intergroup intolerance. An outdated (colonial) legal solution to fix a modern (African) problem won’t work. Precisely formulated laws regulating racist speech are needed. These create certainty. They inform us of the required behavioural standard and the consequences of infringement. It is therefore unfortunate that the legislature has failed to enact the promised Prevention and Combating of Hate Crimes and Hate Speech Bill.

It is even more worrying that the bill contains a poorly drafted hate speech offence. This is aggravated by the failure to enact the promotional measures in the Equality Act. It is true that the act prohibits hate speech as a human rights measure. However, this provision is also imprecisely drafted. A prior draft of the Equality Act prohibited the use of specific forms of abusive language, including the “k-word”, as a type of racism. This prohibition wasn’t retained, but its reintroduction could be beneficial. If many European countries have laws banning Holocaust denial, then it makes sense for SA to enact laws that regulate specific types of racist speech.

Finally, it’s alarming that despite an increase in racial slurs and the polarisation of society, the legislature has remained inactive and left the problem to the courts without giving them the appropriate tools to resolve such disputes. Government must accept that the ongoing use of racial epithets in SA reinforces patterns of prejudice and harms the constitutional mandate. It must take charge by using the law to set the appropriate standard.

• Dr Botha is with the law faculty at Nelson Mandela University.

Contact information
Professor Joanna Botha
Tel: 27 41 504 2635