Protecting people against hate speech and racist slurs requires weighing up several fundamental rights. To maintain legitimacy in enforcing the legislative protection, a fine balance must be struck between the rights to equality and dignity on the one hand and freedom of speech on the other hand. An analysis of the legislative framework ousting hate speech and unfair discrimination on the basis of race and the manner in which the different relevant provisions have been applied by the courts shows that there are discrepancies that must be addressed. Despite the differences between the policy that facilitated the adoption of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 and the Employment Equity Act 55 of 1998, an alignment must be achieved in the starting point for an objective enquiry dealing with racism. To excuse serious cases of hate speech perpetrated by one population group while presuming that the other population group is racist from the outset does not promote South Africa's nation-building project. On the flipside, to address the unbalanced method of interpretation and implementation of the legislative provisions by adjusting the vantage point from which the assessment into whether an utterance is racist and derogatory is commenced would advance the constitutional value of non-racialism.
During 2018, the South African Human Rights Commission (SAHRC) was requested to hold investigation hearings at the University of South Africa (Unisa). The purpose was, among other things, to provide solutions to problems relating to the lack of meaningful transformation in employment in the institution. Before the finalisation of the investigation hearings, Unisa management began the process of amending the institution's Employment Equity plan. This contribution, against the setting of the recommendations made for Unisa, considers the different measures that could be implemented to speed up the transformation of the academic workforce in South African universities. After scrutinising the relevant pedagogic, legal and social implications of the implementation of different affirmative action measures, several potential pitfalls or potentially negative consequences of affirmative action measures not promoting the academic project are identified. It is concluded that developing an individual into a mature academic should not be forced or fast-tracked because of the possible negative consequences for both individuals and the academic project as a whole. Moreover, making academic appointments and promotions without considering crucial factors such as experience, publications and knowledge is bound to have a devastatingly negative impact. Enhancing the skills of employees in the designated groups would appear to be the best way of levelling the academic playing field.
The factual matrix that is considered in each hate speech case differs from that in the next. However, certain factors always remain key in the process of balancing the different constitutional rights at play: who the victim is, who the perpetrator is and the nature of the expression. Additional factors to be considered in deciding whether an expression constitutes hate speech include: historical associations; who the utterer is as against the victim(s); the audience that is addressed and where the utterance is made; and the prevailing social conditions. How South African courts and the South African Human Rights Commission factor in these specific issues in assessing whether an utterance constitutes hate speech is examined in this contribution. Applicable international law principles and comparable foreign law reveal certain areas of the South African hate speech protection requiring refinement.
The SBV Services (Pty) Ltd case brought a novel concept into the labour dispute resolution arena: arbitrators must inform employees who succeed in proving that they were dismissed for an unfair reason of the implications of a reinstatement or compensation order in terms of the Labour Relations Act 66 of 1995 before making an award. This case discussion highlights how the court, under the pennant of the interests of justice, made injudicious errors in the interpretation and application of accepted legal principles, and the potential negative effects that enforcement of this principle could have. KeywordsSection 193 of the Labour Relations Act; section 194 of the Labour Relations Act; compensation; reinstatement; re-employment; unfair dismissal; waiver of reinstatement; non-patrimonial loss; backpay.
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