A curious right that has emerged from the rights culture of the past 70 years is the right to be not offended. This right is qualitatively different from the right not to be offended, which is a rule of ordinary civility, normally expressed as: "Please do not offend me"."hate speech"
The other is an assertive right: "If you dare offend me, there will be consequences and if I do not initiate those consequences then the normally inert National Prosecuting Authority (NPA) will do so on my behalf". The NPA demonstrated its enthusiasm to act in a case of this kind in the Penny Sparrow matter, where the prosecution was swift and efficient, although cases of far greater national importance had languished for years.
The Sparrow frenzy was caused by a foolish comment, made by a foolish woman on a foolish occasion. Far more serious was the scandalous command-in-suspension of Julius Malema, when he invoked his own authority to call upon his devotees not to slaughter the whites … yet. The unspoken menace lay in the perception that he would do so, if he did not get his way. In this case, which clearly amounted to hate speech under the Equality Act of 2000 and came close to an incitement to commit genocide, the inert NPA remained predictably unmoved.
This, and many other cases of unequal treatment under the law, demonstrates a violation of an important principle of the rule of law. Experience shows it would be naive to assume that the Hate Speech Bill, which is a vice dressed as a virtue, if enacted, will result in a more even-handed treatment of the miscreants.
In its quest to re-racialise the country, the Sparrow case was a godsend for the ANC. On that occasion it could, with justification, point to the zealotry of an "unreconstructed white racialist". In pursuit of its unprincipled quest for unchallenged political power, and with the enthusiastic support of the media, the ANC can, in future, be relied on to use the draconian provisions of the Hate Speech law to re-emphasise the perceived menace of white racism.
Racism, of any kind, is not a national problem, although the ANC makes it out to be so (but only when committed by whites). Several consecutive surveys, undertaken by the impeccable South African Institute of Race Relations, have shown racism to be a significant problem for only about 3% of the respondents, blacks included. Far more significant, at more than 40%, is the problem of unemployment. Personal experience and anecdotal reports tend to support these statistics.
Why does the ANC government persevere with the superfluous, and fundamentally flawed, Hate Speech Bill? Because it will enable the prosecution of a wide array of perceived "white racialists" targeted as the enemy of the people; a device well known to politicians in trouble when they seek to deflect attention from their innumerable failings. The Hate Speech Bill is fundamentally flawed. It manifests either an act of bad faith or of gross incompetence by those responsible for its creation.
It is well known within the legal fraternity that all law is subject to constitutional and rule of law scrutiny. The Constitution is a written document and its provisions, therefore, easily accessible. The rule of law, however, is an intangible concept; an idea whose essential principles have often been stated and re-stated, frequently with a negative construction, so that a predictable confusion has arisen. It is said that the rule of law requires there be no retrospective legislation; no capricious or arbitrary power; no unequal treatment under the law; no wide discretionary power; and no individual with a power greater than the law.
There are also certain requirements that are positively stated: a separation of powers; an independent judiciary; clear and consistent legislation; the right to free expression (a right derived from the natural law); and other rights of a similar kind. But, none of this provides a coherent picture of the idea of the rule of law.
This definition is therefore proposed": "The rule of law is the barrier that the law sets against tyranny." And if tyranny is thought to be implausible in established democracies such as the UK and the US — reconsider. The history of the rule of law, from the time of the Magna Carta, is replete with examples of the confrontation between liberty and authority.
Tyranny, it must be remembered, does not arrive all at once — it arrives in instalments, and it must be fought off in instalments. And each instalment of tyranny will likely engage a different principle of the rule of law. On one occasion, it may be met by a resort to the principle that the law may not have retrospective effect; on another that reliance will be placed on prohibition against unequal treatment; and, in yet another (as in this case) the right to the freedom of expression. Each of these, however, is part of the broader principle that the rule of law is the barrier the law sets against tyranny.
The constitution is very clear on the right of free expression. The Bill of Rights sets the limits of government authority in its relationship with the citizenry. Section 16 is the guarantor of the right of free expression. The section stipulates only three exceptions: propaganda for war; incitement of violence; and advocacy of hatred based on ethnicity, race, gender or religion AND constitutes incitement to cause harm. (Emphasis added.)
Only the last exception is relevant for present purposes.
The Constitution, however, also contains a general limitations clause in terms whereof rights (including those contained in the Bill of Rights) may be curtailed. This section (36) stipulates that such a law must be of general application and must be reasonable and justifiable in an open and democratic society. There are five separate stipulations, and the effect is that a law that limits any fundamental right may not eliminate the essential requirements of the right.
While government had an international obligation under the International Convention on the Elimination of all Forms of Racial Discrimination (ICERD) to adopt laws to criminalise racial discrimination, these already existed, both under the common law (crimen injuria), and under the statutory law (Equality Act).
The Hate Speech Bill goes much further than conceivably required by icerd. Section 4 (1) of the Bill stipulates that anyone who intentionally communicates:
1. The advocacy of hatred towards another; or
2. Is threatening, abusive or insulting towards another,
And demonstrates a clear intention to –
a. Incite others to harm another, or
b. …stir up violence or bring into contempt or ridicule another…
Is guilty of an offence. (Emphasis added)
The relevant sub-sections must be read both conjunctively and disjunctively (and/or). The effect is that point 2, together with the emboldened portion of sub-point b, can be read to create a separate offence for which an incitement to harm another or to stir up violence is no requirement. In addition, the Bill enumerates 17 different human characteristics (including occupation or trade) which are explicitly protected. The Bill of Rights, however, allows for only four and requires that the unprotected speech must have been intended as an incitement to cause harm.
The result is that the Bill, if passed into law, will outlaw, with criminal penalties, the richly deserved ridicule of a variety of politicians and other such individuals. Zapiro, and others like him, will, regrettably, be silenced or imprisoned. There are no defences.
No such law can ever be expected to pass the constitutional or the rule of law test. Why then has it been proposed? It is possible that the government proposed this extreme law as a stratagem; an opening gambit to allow for a slightly modified version to be enacted. However, even if significantly modified, the proposed law would negatively impact society.
In an article, written in January 2016 on the Penny Sparrow affair, Gwen Ngwenya wrote: "I do not trust someone who is too afraid to offend me, someone with whom I cannot make light of my insecurities." The American politician and philosopher Frank Meyer has written: "Men cannot be forced to be free, nor can they even be forced to be virtuous. To a certain extent, it is true, they can be forced to act as though they were virtuous. But virtue is the fruit of well-used freedom…"
If virtue cannot be legislated, it can be legislated out of existence.
• Van Schalkwyk is a former judge of the Supreme Court of SA and is the chairman of the FMF’s Rule of Law Board of Advisers. He is the author of three books
This article was first published in Business Day on 27 April 2017