Floyd Shivambu and ‘hate speech’ against Carien du Plessis

As published in Daily Maverick

The Equality Court has postponed the hate speech case against African National Congress Youth League spokesperson Floyd Shivambu. They should not however be hearing this case at all – regardless of the fact that Shivambu appears to be a sexist and a racist, and that his speech might be hurtful towards Carien du Plessis or other journalists he has targeted in the past.

As Mandy de Waal reported in the Mail & Guardian last week, the ANC Youth League (and Floyd Shivambu in particular) has a history of calling local political journalists names, frequently trading on race and gender in an attempt to make their jibes more hurtful.

And to be clear, this sort of behaviour would ideally not form part of our political discourse. Calling a journalist “stupid” and a “white bitch”, as Shivambu called Du Plessis, should be the sort of thing that results in an apology from the ANCYL spokesperson, and it could even be the sort of thing that results in his dismissal – if, that is, the ANCYL cared about mature political discourse. And we have no evidence which suggests that they do so care, especially not when one considers the actions of their President, Julius Malema.

So we can easily agree that people like Shivambu and Malema are fond of insulting those who disagree with them. We could perhaps even agree that they do so because attempting to stifle scrutiny through insult is often easier, and preferable, to being exposed by a journalist as incapable of defending yourself with actual evidence. .

Some of us might go further still, and say that these speech-acts are hateful, meriting intervention from the courts. But while speech might be perceived as hateful, that doesn’t make it hate speech (as defined in law). Furthermore, using the courts to teach someone a lesson about being polite can be an irresponsible and wasteful use of the court’s time.

Irresponsible, because in cases like this, we undermine the distinction between speech acts that are hurtful on the one hand, and genuine hate speech on the other. Lest we forget, the Bill of Rights refers to “advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm”. Mere advocacy of hatred is not sufficient to qualify speech as hate speech.

Some may believe that hateful speech – whether or not it is incites harm – should be a matter for the courts, but this would be far too easy a standard to meet and would result in an infinite number of potential lawsuits. Others (and I count myself among these) believe the existing hate speech provisions to be too strong. But if we simply play the legislative hand that is currently dealt, this particular case should not be before the Equality Court at all, and is arguably taking up time and other resources that could be deployed more usefully elsewhere.

The Bill of Rights is of course not the only relevant document. The Equality Court is also guided by the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (4 of 2000), and it is Section 10 of this Act that serves as the foundation of Du Plessis’ case. Section 10 reads as follows:

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.

Section 12, referenced above, makes sure to not preclude dissemination of information related to artistic creativity, and academic or scientific inquiry. The “prohibited grounds” in this legislation are:

a) race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth; or
b) any other ground where discrimination based on that other ground–
i. causes or perpetuates systemic disadvantage;
ii. undermines human dignity; or
iii. adversely affects the equal enjoyment of a person’s rights and freedoms in a serious manner that is comparable to discrimination on a ground in paragraph (a);

I’m no Constitutional lawyer – or lawyer of any sort, for that matter – so it is of course possible that I’m completely wrong in my interpretation of this Act. But if we read Section 10 as being inclusive (in other words, assume that all three conditions a, b and c need to be met), then the Equality Act appears to be unconstitutional. The Bill of Rights speaks of advocacy of hatred that also constitutes incitement to cause harm, whereas Section 10 allows for speech to “be harmful or to incite harm” – a clear lowering of the standard for what constitutes hate speech.

If, on the other hand, we read Section 10 as only requiring that one of a, b or c be satisfied, then we should all be in the Equality Court, all the time. Consider the prohibited grounds, detailing which sorts of harmful speech are outlawed. We may not “publish, propagate, advocate or communicate” hurtful words based on pregnancy – so if your parents keep pestering you as to when you’ll give them a grandchild, take them to the Equality Court. And if you find it harmful for me to tell you that your gods don’t exist, take me to the Equality Court too.

These are the sorts of dangers underlying my concern, and the concerns expressed by others in The Daily Maverick, around measures like the Bill of Responsibilities. Both that Bill, as well as possible interpretations of legislation such as the Promotion of Equality Act, contributes to citizens expecting that the law will protect them against being offended, or that the law should be used to teach people lessons about how to behave in polite society.

Free speech is a powerful and sometimes dangerous thing, and it is also sometimes a hurtful thing. Our reasons for attempting to sometimes limit what people say about us or about others are often good reasons – but they are very rarely, if ever, better than the reasons we have for allowing people to speak freely. Even if that person is as odious a representative of the species as Floyd Shivambu.

By Jacques Rousseau

Jacques Rousseau teaches critical thinking and ethics at the University of Cape Town, South Africa, and is the founder and director of the Free Society Institute, a non-profit organisation promoting secular humanism and scientific reasoning.