Hate Speech Provisions and Provisos: A Response to Marais and Pretorius and Proposals for Reform

Botha, Joanna; Govindjee, Avinash

doi:10.17159/1727-3781/2017/v20i0a1395

Cited by 5 publications

(10 citation statements)

References 13 publications

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“…The ILO is of the view that people should not be treated like inanimate commodities, capital, another mere factor of production, or resources. 61 This view is further supported by Botha in that labour is not a commodity, because labour law is designed to protect workers against the economic logic of the commodification of labour, thus, labour is not a commodity. 62 However, Marx, correctly argues that labour is the measure of all value.…”

Section: Transportation Upington (Pty) Limited V Association Of Minew...mentioning

confidence: 98%

“…to understand that the concept of decolonisation has not yet been clearly defined. 61 At face value, decolonisation concerns the disruption of whiteness. 62 Decolonisation concerns moving away from a Eurocentric understanding of the law, connected to legal structures which traditionally stem from colonialism.…”

Section: (D) Decolonisationmentioning

confidence: 99%

“…The reasoning of the Labour Appeal Court was that under S 4(1)(b) of the LRA, the employee has a right to join a union, subject to its constitution, the constitution of the union in this instance did not allow for such. 61…”

Section: (C) Decision Of the Labour Appeal Courtmentioning

confidence: 99%

“…The majority ordered that the exclusion of domestic workers from the definition of employee under COIDA be declared constitutionally invalid. 61 VIII AN ANALYSIS OF THE MINORITY JUDGMENT Jafta J, writing for the minority, agreed with the majority that the exclusionary provision in COIDA is inconsistent with our Constitution; however, he cited different reasons from those of the majority judgement. Jafta J was of the view that the provision of COIDA in question does not meet the rationality test as it is not linked to a legitimate government purpose and it is then inconsistent with s 9(1) of the Constitution.…”

Section: (A) Order In the Majority Judgmentmentioning

confidence: 99%

“…60 These workers were to work in sugar plantations and were treated in a demeaning manner. 61 Then came the Native Act of 1870 of which the primary objective was to force African people into labour through the imposition of unreasonably high taxes. 62 Article 17 of this statute taxed African people who were not workers at ten shillings per year, those who were workers for white farmers but did not live on those farms were taxed at five shillings per year and those who worked and lived on white farms were only taxed at two shillings and six pence per annum.…”

Section: Africamentioning

confidence: 99%

See 4 more Smart Citations

A critical investigation into the reality of decolonising labour law: a South African perspective.

Mabaso

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A. The research reported in this thesis, except where otherwise indicated, is my original research. B. This thesis has not been submitted for any degree or examination at any other university. C. This thesis does not contain other persons' data, pictures, graphs or other information, unless specifically acknowledged as being sourced from other persons. D. This thesis does not contain other persons' writing, unless specifically acknowledged as being sourced from other researchers. Where other written sources have been quoted, then: a. their words have been re-written, but the general information attributed to them has been referenced; b. where their exact words have been used, their writing has been placed inside quotation marks, and referenced. E. Where I have reproduced a publication of which I am an author, co-author or editor, I have indicated in detail which part of the publication was written by myself alone and have fully referenced such publications.F. This thesis does not contain text, graphics or tables copied and pasted from the Internet, unless specifically acknowledged, and the sources being detailed in the thesis and in the References sections.

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Section: Transportation Upington (Pty) Limited V Association Of Minew...mentioning

confidence: 98%

Section: (D) Decolonisationmentioning

confidence: 99%

Section: (C) Decision Of the Labour Appeal Courtmentioning

confidence: 99%

Section: (A) Order In the Majority Judgmentmentioning

confidence: 99%

Section: Africamentioning

confidence: 99%

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A critical investigation into the reality of decolonising labour law: a South African perspective.

Mabaso

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The Constitutionality of the Prohibition of Hate Speech in terms of Section 10(1) of the Equality Act: A Reply to Botha and Govindjee

Marais

Pretorius

2019

PER

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This is a reply to a critique by Botha and Govindjee (2017 PELJ 1-32) of our interpretation of the hate speech provisions of the Equality Act (Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000) in Marais and Pretorius (2015 PELJ 901-942), in which we considered the constitutionality of section 10(1) of the Act, amongst other things. We address Botha and Govindjees' rejection of our view that hate speech is a form of unfair discrimination and that the most appropriate constitutional framework within which section 10(1) should be interpreted and assessed is sections 9 and 10 of the Constitution. We consider Botha and Govindjees' rejection of this point of departure, their opposing different interpretation of the role of the proviso in section 12 of the Act and, generally, their reasons for concluding that section 10(1) is unconstitutional. We maintain that Botha and Govindjee's proposals for reform unduly restrict the hate speech prohibition to cover exclusively expression that warrants criminalisation. In doing so, they fail to fully acknowledge the transformative obligation in terms of international law, the Constitution and the Equality Act, to prohibit and prevent unfair discrimination.

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

Geldenhuys

Kelly-Louw

2020

PER

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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.

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Hate Speech Provisions and Provisos: A Response to Marais and Pretorius and Proposals for Reform

Cited by 5 publications

References 13 publications

A critical investigation into the reality of decolonising labour law: a South African perspective.

A critical investigation into the reality of decolonising labour law: a South African perspective.

The Constitutionality of the Prohibition of Hate Speech in terms of Section 10(1) of the Equality Act: A Reply to Botha and Govindjee

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

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