Sutherland’s judgment in the Khumalo case radically narrows the scope of hate speech

What is it about hate speech cases about racial insults that trip up otherwise perfectly capable judges? In Afri-Forum v Malema Judge Colin Lamont took 120 strangely unorganised paragraphs to conclude that Julius Malema was guilty of hate speech when he sang the words roughly translated as “shoot the Boer/farmer”. Several articles published in law journals criticised the judgment for largely missing the point of the hate speech legislation.

Specifically, the honourable judge invoked the sexist standard of the “reasonable man” (as opposed to the reasonable person), and bizarrely argued that the test for hate speech was based on how a reasonable listener in “each portion of society” would view the utterances, instead of relying on the more appropriate standard of a reasonable South African, somebody who is not overly sensitive and has some knowledge of the history of the country.

The judgment implied that each time a group complains to a court that a person contravened the hate speech provision of the Promotion of Equality and Prevention of Unfair Discrimination Act (Pepuda), a court must ask whether a reasonable member of the complainant group could have believed that the person had the intention to commit hate speech. It would, absurdly, require every court to conjure up the reasonable black person, the reasonable white person, the reasonable man, the reasonable woman, the reasonable homosexual, the reasonable heterosexual, the reasonable Christian, the reasonable Jewish person – and on and on it goes.

By far the best hate speech judgment on race was written by a magistrate in the case of Cape Party/Kaapse Party v Iziko. In that case the magistrate held that an artwork by Dean Hutton entitled Fuck White People did not constitute hate speech because a reasonable person would not have concluded that the intention of the artist was to hurt white people or incite harm against them, but rather to spark debate and reflection on white privilege.

Few people would quibble with the conclusion reached by Judge Roland Sutherland in South African Human Rights Commission v Khumalo that the words uttered by Mr Velaphi Khumalo constituted hate speech in contravention of section 10 of Pepuda. Khumalo wrote shockingly hateful posts on his Facebook page back in 2016 (after the racist rant of Penny Sparrow came to light). Part of these posts read as follows:

“I want to cleans this country of all white people. we must act as Hitler did to the Jews….. u call us monkeys and we suppose to let it slide. white people in south Africa deserve to be hacked and killed like Jews. U have the same venom moss. look at Palestine. noo u must be bushed [burnt] alive and skinned and your off springs used as garden fertiliser.”

The court was called upon to address several technical legal questions, which I will leave aside, before it considered the scope and content of the hate speech provision in section 10 of Pepuda. This provision states that:

“[N]o 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: (a) be hurtful; (b) be harmful or to incite harm; (c) promote or propagate hatred.”

The prohibited grounds include enumerated grounds such as race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language, birth and HIV/AIDS status, and other grounds that are similar to these.

On the plus side, the judgment correctly notes that Pepuda requires a court to decide what a reasonable person would believe the intention of the speaker could be. It furthermore correctly points out that this is an objective test which means that the “subjective intention of the author is irrelevant”.

Moreover, the judgment – correctly in my view – rejects the reasoning of Judge Lamont in the Malema judgment (although Judge Sutherland does not appear to be aware that he is in effect overturning a decision of the same court) that a court should ask whether a reasonable listener in each portion of society could have concluded that the speaker had the intention to commit hate speech. Instead he holds that:

“... the category of the reasonable reader is not confined to being a member of the group being vilified; reasonable people anywhere and everywhere are envisaged, regardless of racial identity.”

The most interesting and potentially consequential aspect of judge Sutherland’s judgment in the Khumalo case is a finding that would radically narrow the scope of hate speech as regulated by section 10 of Pepuda.

Other judges (as well as most academic writers, myself included) have assumed that you would be guilty of hate speech if it could be shown that a reasonable person could believe you had the intention either to be hurtful; or to be harmful or to incite harm; or to promote or propagate hatred against somebody because of their race, sex, sexual orientation or other listed or analogous grounds.

In this view hate speech includes any speech that could reasonably be construed as being hurtful to somebody based on that person’s race, sex, sexual orientation or other listed and analogous grounds.

The Sutherland judgment radically narrows the scope of hate speech by deciding that you have to show that a reasonable person could believe the perpetrator had the intention to be hurtful; and to be harmful or to incite harm; and to promote or propagate hatred against somebody because of their race, sex, sexual orientation or other ground.

This would be far more difficult to do than to show a person could reasonably be construed to have had the intention to be hurtful to somebody based on their race, sex, sexual orientation and the like.

Apart from the fact that it is far from clear that the text of section 10 is reasonably capable of being interpreted in this way (which is the legal test that Judge Sutherland unfortunately does not refer to at all), the reasoning employed by Judge Sutherland appears to be unfamiliar with basic constitutional law principles.

The judgment argues that it is imperative that section 10 of Pepuda be read in the proposed way to narrow its scope to ensure that it does not conflict with the right to freedom of expression guaranteed in section 16 of the Constitution:

“Absent consistency with section 16 of the Constitution, the section 10(1) provisions would be unconstitutional.”

This is not correct.

First, just because legislation limits forms of expression protected by section 16 does not mean that the legislation is “unconstitutional” – as Judge Sutherland claims. This is because such legislation would only be unconstitutional if the limitation was not justifiable in terms of the limitation clause contained in section 36 of the Constitution. It is quite a rookie mistake to ignore the limitation clause before concluding that a legislative provision is “unconstitutional”.

Second, even if we accept the interpretation provided by Sutherland and even if we ignore the limitation clause, section 10 of Pepuda would not be consistent with section 16 of the Constitution. This is because section 16(2) excludes hate speech from constitutional protection only on the basis of race, ethnicity, gender or religion. Section 10, no matter how you interpret it, regulates hate speech based on all 16 as well as all applicable analogous grounds – not only on the basis of race, ethnicity, gender and religion as is the case in section 16(2).

This means the reasons provided for the specific reading of section 10 of Pepuda are based on a constitutionally faulty premise.

I am not arguing that section 10 of Pepuda is necessarily constitutionally compliant. Section 10 places limits on forms of expression that are clearly protected by section 16 of the Constitution. Furthermore, it is not clear whether it is justifiable in terms of the limitation clause to impose limits on all forms of expression that could reasonably be construed to have the intention to be hurtful to others based on their race, sex, sexual orientation or other factors; it might well be that the section is overbroad and unconstitutional.

Let me provide one example to illustrate why I cannot say with absolute confidence that section 10 of Pepuda is constitutionally compliant. Imagine a white AfriForum supporter tweets that Julius Malema is in cahoots with crooks. Imagine further that one of Malema’s supporters, angry at this criticism, decides to tweet back by attacking the AfriForum supporter in the following terms: “You stole the land, coloniser. We are coming for the land, whether you like it or not.” Another tweets, somewhat more rudely: “Fuck you, you racist white trash. Your mother should have aborted you.”

Depending on your political views, a reasonable person might well construe the latter tweeter, or (if your white fragility is on steroids) even the former tweeter, as having the intention to be hurtful to white people. If this is so, almost all honest discussion about the injustices of the past, or any discussion of structural racism might potentially become hate speech. This might well place an unjustifiable limit of the right to freedom of expression that is not permitted by the limitation clause.

But as this was not in issue in the case, the court was not called upon to decide the matter and was therefore not permitted to make a ruling on this by stealth. Meanwhile, we still await a definitive judgment from the Constitutional Court that could provide guidance on how to interpret section 10 of Pepuda and on whether section 10 is constitutionally compliant or not. DM