Flickr / janinsanfran

The key differences between hate speech and free speech in South Africa

What you can and can’t say in South Africa remains a divisive issue. Hate speech and free speech are two entirely different things.


 Flickr / janinsanfran

This article on hate speech was originally published on 19 October 2018.

It’s an all-too-common practice in South Africa: Someone says something truly offensive, they have their trial by social media, and then find themselves facing charges of hate speech.

Momberg, Catzavelos, Sparrow, Nair, Khumalo, Malema and even Edward Zuma. These are people, from all walks of life and different ethnic backgrounds, who have fallen foul of hate speech laws – usually thanks to their own daft, shortsighted actions.

But at what point does “expressing yourself” become “exposing yourself”? We’ve had a look at the legalities separating free speech from its evil twin. Here’s what you need to know:

Hate speech vs free speech in South Africa

What “freedom of speech” is in South African law

Let’s clear this one up straight away. Freedom of expression is guaranteed by the South African Bill of Rights, within the Constitution. This is the absolute letter of the law:

Everyone has the right to freedom of expression, which includes:

  • Freedom of the press and other media
  • Freedom to receive or impart information or ideas
  • The freedom of artistic creativity.
  • Academic freedom and freedom of scientific research.

That means every South African is free to consume whatever media they desire, and in turn, all media publications should be allowed to publish whatever they want so long as it falls in line with proper and correct media law frameworks.

All South Africans are allowed to share any information they feel is necessary, and must be allowed their rights to express and access ideas. The Bill of Rights also allows the broad range of artists to paint, write or perform anything that they want to. Furthermore, no limits shall be placed on what we can and cannot research, whether that’s in a personal or educational capacity.

What counts as hate speech?

We’ve already stated that the laws on free speech allow people to express themselves in any manner they wish. However, the waters get a bit murkier here. These laws are effectively meant to regulate free speech, rather than limit it.

Here’s how the Promotion of Equality and Prevention of Unfair Discrimination Act 2000 describes hate speech:

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:

  • Be hurtful.
  • Be harmful or to incite harm.
  • Promote or propagate hatred.

The difference between free speech and hate speech

So where does the line get drawn? A pretty clear way to start defining hate speech is by looking at the most black and white part of it: If you are directly calling for the harm of a certain group of people, based on ethnicity, race, gender or religion, you are committing hate speech.

Using extremely derogatory terms (based on demographics mentioned in the last paragraph) to refer to an individual is also classed as hate speech. The Kessie Nair case is a good example, here. He’s lawfully being charged on the grounds of hate crimes, after ticking two boxes:

Not only did he refer to Cyril Ramaphosa as the “k*****-president”, but his social media posts in the week leading up to his racist rant encouraged locals in Chatsworth to engage in “sporadic acts of violence”, with obvious racial undertones.

Let’s put it this way: Hate speech is something that’s perhaps been over-complicated. And it’s something 99% of us will find incredibly easy to avoid. However, if you do use an extremely offensive word to convey your hatred of a certain type of person, or encourage violence against them, that’s when you’re in this territory.

If you express a displeasure or opposition to one of these groups – without calling for acts of violence or using grossly offensive terms – then you are covered by free speech.

Occasions where hate speech can be used

You could end up hearing elements of hate speech come from people who aren’t racist, homophobic, or xenophobic. A prime example is when a news outlet shares video footage of someone caught hurling racial abuse or using horrendous language.

As Business Tech report, this falls under “fair and accurate reporting or commentary in the public interest or publication of material in accordance with the Constitution”. Nadia Froneman, an associate at law firm Eversheds Sutherland, also told the publication hate speech can be used in:

  • Any good faith artistic creativity, performance or expression to the extent that it does not advocate hatred that constitutes incitement to cause harm based on one of the listed grounds;
  • Any academic or scientific enquiry;
  • The bona fide interpretation and proselytization or espousing of religious material to the extent that it does not advocate hatred that constitutes incitement to cause harm based on one of the listed grounds.

Hate speech “in context”

So if you watch a show that depicts life under apartheid, you’d expect to hear plenty of offensive terms and beliefs that quantify as hate speech. However, that is fine to use as it’s merely providing context to a story. If the show isn’t glorifying these ideals, it’s in the clear.

The point about religious materials is still a grey area, though. When proposals for a new Hate Speech Bill were circulated earlier this year, some theological groups argued that their holy books would fall foul of rules that limit opposition to homosexuality.

With gay relationships forbidden by some major religions, this has caused a bit of a headache. Religious texts – particularly newly-published ones – aren’t exempt from hate speech rules, however.