Hate Speech and Racial Slurs in the South Afican Context: Where to Start?

Abstract

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.

Dismissals for Social Media Hate Speech in South Africa: Animalistic Dehumanisation and the Circulation of Racist Words and Images

“…Animalistic dehumanisation, ‘simianisation’ and the animalising of black bodies through metaphorically likening these individuals to ‘baboons,’ ‘monkeys’ or ‘apes’ reveals racialised animality discourse in South Africa [ 3 : Khalil, 58 : 2, 117 : 25–64, 233 : 65]. Yet, animalistic ‘othering’ is not unique to South Africa [ 211 : 91].…”

“…The second distinct finding was the use of specific words in the South African lexicon which objectively seem to be racially neutral, bear ‘historical’ or ‘cultural’ connections that ‘qualify them as hate speech’ [ 114 , 58 : 26–31]. These racial slurs were part of the apartheid-era vocabulary used to denigrate and debase individuals, and their continued use is ‘offensive and demeaning,’ effectively ‘re-opening old wounds’ [ 168 : Mooi F [169]].…”

“…The Court found that the s 10(1)(a) was an unjustified limitation of the right to freedom of expression enshrined in the Constitution [ 166 : Majiedt, J [198]]. See also Geldenhuys and Kelly-Louw [ 58 : 3], Mchangama and Alkiviadou [ 125 : 563–564; 570–574].…”

“…The Employment Equity Act [ 47 ] does not define ‘hate speech,’ but prohibits ‘unfair discrimination’ based on ‘race’ in s 6. Geldenhuys and Kelly-Louw note that ‘racial slurs’ in the employment context would qualify as ‘hate speech’ as racial slurs ‘advocate hatred based on race’ [ 58 : 8].…”

“… 36 However, see Duncanmec v Gaylard [ 43 : [37]] in which case the decision-maker held that ‘boer’ is not racially offensive. See further Geldenhuys and Kelly Louw [ 58 ]. …”