I recently wrote a column for City Press titled, “Exploring the constitutional definition of hate speech”, wherein I set out the definition of hate speech as contained in section 16(2)(c) of the Constitution in a way that ordinary South Africans can understand. I recommend reading the short City Press column before starting this article, but, in brief, this is what section 16(2)(c) provides:
“The right [to freedom of expression] does not extend to advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.”
Bearing in mind that City Press column lengths are limited, I am confident that I captured the legal position correctly, although that is not to say that I would not have added more detail were that possible.
University of Cape Town law professor, Pierre de Vos, tweeted and responded (snidely) to my column:
If you cannot view the image, De Vos said: “Free [M]arket [F]oundation analyst seems not to be aware that there is a limitation clause in the Bill of Rights and forgot to mention it in analysis….”
The condescending tone of this tweet was obviously uncalled for, but not surprising. Were De Vos interested in engagement, he would certainly have phrased it far differently than to imply that I am ignorant and/or forgetful. In choosing the latter route, he effectively called into question my (cred)ability to engage on the subject. As a result, I have decided to write this article to expand on the (equally snide) tweet I made in response:
“University of social justice professor seems not to be aware that there’s already a limitations provision in section 16 which section 36 does not simply override based on convenience. Legal interpretation 101: The particular takes precedence over the general.”
This is the second article I have written in response to De Vos and his views on the Constitution and constitutionalism. You can read the first article here.
The problem in dispute
For non-jurists, it is worth clarifying what the dispute alluded to above actually is.
The Bill of Rights — Chapter 2 of the Constitution — contains the right to freedom of expression in section 16(1). Section 16(2) lists situations to which the protection of freedom of expression does not extend, namely, propaganda for war, incitement of imminent violence, and lastly, hate speech. My City Press column concerned this lack of constitutional protection for hate speech.
My conclusion, which De Vos finds issue with, is that a prohibition on expression beyond hate speech (and the other two limitations mentioned in section 16(2)) is unconstitutional, and I make specific reference in this regard to the Promotion of Equality and Prevention of Unfair Discrimination Act (the Equality Act), the Films and Publications Act, and to crimen injuria. As far as I am concerned, these three laws’ infringement of free expression falls foul of the Constitution and its description of what kinds of speech may be prohibited.
I also conclude that there’s a difference between “hate speech” and “hateful speech” — echoing Adv Mark Oppenheimer, who I believe first articulated this idea — where hate speech is that which is defined in section 16(2)(c) and can be lawfully prohibited, and where hateful speech is expression that is still hateful, offensive, racist, sexist, ageist, bigoted, or whatever, but that remains constitutionally protected.
De Vos’ issue with this line of reasoning is that, to him, I appear to be ignorant of section 36 of the Constitution. This section, often called the general limitation clause, says that the rights in the Bill of Rights may be limited in terms of a law of general application only to the extent that the proposed limitation is reasonable and justifiable in an open and democratic society based on freedom, dignity, and equality. It goes on to list some factors a court may take into account to decide whether a limitation is justifiable.
According to De Vos, laws like the Equality Act and presumably the new Prevention and Combating of Hate Crimes and Hate Speech Bill (the Hate Speech Bill), are constitutionally sound, because while they may fall foul of the definition of hate speech in section 16(2)(c), they comply with section 36, and therefore my criticism is incorrect. He would likely argue that even “hateful speech” (as opposed to hate speech) can lawfully be prohibited if it is justified in terms of section 36. His position, in other words, is that even though section 16(2) — a specific/particular limitation clause — and other provisions like it attached to other rights exist, they can always be overridden by application of section 36 — a general limitation clause.
I have several issues with this line of argument, most of which have to do with constitutional interpretation, that I will address below.
The particular takes precedence over the general
One of the rules of statutory and constitutional interpretation is that the specific must take precedence over the general. Professor Lourens du Plessis describes the principle of “adjudicative subsidiarity”, especially as it related from the case of SANDF Union v Minister of Defence & Others 2007 (5) SA 400 (CC), as “a subordinate, less encompassing and more specific legal norm is relied on to adjudicate certain cases in preference to a superordinate, more encompassing and general constitutional norm.” (As quoted in Woolman S & Bishop M. Constitutional Law of South Africa. (2013, 2nd edition). Cape Town: Juta. 32-114.)
This is similar to to the doctrine of lex specialis, which means, essentially, that law governing or applying to a specific matter will overrule law governing or applying to a general matter. Stefan Ulrich Pieper, as discussed by Du Plessis in the same book quoted above, spoke of “logical subsidiarity”, which:
“… is a methodological criterion designating one of two competing legal norms for application in a given situation, and preferring, as a rule of thumb, the specific to the general norm. The latter ought to be applied only when the former is not applicable. Elsewhere, Pieper refers to this criterion as ‘the lex specialis rule’.” (32-144)
In fact, if the various provisions of the Constitution are taken as laws in and of themselves, as they should be (I am not saying the Constitution mustn’t be read as a whole, mind you!), this is a case of lex specialis in the Constitution itself.
Section 36 is a general provision whose blanket falls over the entirety of the Bill of Rights, and section 16(2) is a specific provision whose blanket falls only over section 16. It is a specific/particular limitation of freedom of expression, whereas section 36 is merely a tool that can be used to potentially invoke a limitation of a right if a process is followed. It does not limit rights, but allows government to limit them if it satisfies certain requirements. The distinction between the general and the specific here should be clear.
Section 16(2) cannot be considered redundant
This is related to the previous heading, but from a slightly different angle.
Section 16(2), as we know, already contains an internal limitation of the right to freedom of expression. This fact should lead any reasonable court to assign less weight to section 36 in any case regarding whether someone’s expression has been limited, and if so, whether it is justifiable. Indeed, if one engages in some kind of expression that is not limited by anything contained in section 16(2), and then section 36 is used (without any extraordinary ado) to limit that expression, then section 16(2) is effectively rendered redundant, and its inclusion in the Constitution is, as a result, useless.
Why have a provision like section 16(2) if section 36 will always trump it? De Vos’, and others’, view on this renders section 16(2) entirely ineffectual. There is no point in saying government may prohibit only the closed list of advocacy for war, incitement to imminent violence, and hate speech, if government can prohibit practically any expression by invoking section 36.
Given that a specific limitation already exists, it goes a long way to signifying that the Constitution and its drafters have already foreseen the necessary limitations to freedom of expression and provided for them. That does not mean section 36 does not apply, but should, and arguably can, only be applied in very rare circumstances and subject to far stricter scrutiny by the courts.
I do not deny that section 36 is applicable. Indeed, like section 16(2), section 36 cannot be considered redundant. Every word in the Constitution must be given effect to. I cannot emphasise this enough, as I know that the inevitable retort will be that I am somehow acting like section 36 does not exist: Section 36 applies. My argument is that the manner in which section 36 applies must, of necessity, change, if section 16(2) is to be given the respect it deserves.
In other words, when government attempts to justify a limitation of freedom of expression beyond the confines of section 16(2), it should satisfy a far higher standard of proof and reason than it ordinarily would need to when undertaking the section 36 procedure.
Section 36 does not allow government to defraud the Constitution
The final concern with De Vos’ position that I wish to highlight here is one of constitutional logic and coherence.
Section 36 provides for the limitation of rights, and nothing more. It does not, for instance, allow government to redefine the rights and concepts as they are defined in the Bill of Rights, which is the problem in question.
For example, imagine Parliament enacts a Death Penalty Act to reintroduce the death penalty after it was abolished by the Constitutional Court in 1995. In the preamble of the Act, Parliament says that it “recognises the right to life as contained in the Constitution”, but, in the definition section of the Act, defines “life” as “the ability of dogs and cats to roam freely without being threatened by eagles”. In this absurd example, government takes a concept from the Constitution — and thus all the constitutional safeguards and remedies associated with it — and changes its meaning so as to break it free from constitutional bounds. This is, clearly, obviously, and irrefutably unconstitutional. The right to life must be understood within its constitutional context and within the constitutional logic.
Another, less absurd example, is that of administrative action.
By the end of the Apartheid era, the term “administrative action” was understood legally to be a very wide concept. “Even prerogative powers,” writes Professor Cora Hoexter, “which were traditionally thought not to be justiciable owing to their highly political character, became reviewable toward the end of the apartheid era.”
Thus, when the Constitution was enacted in 1996, administrative action was understood as embracing a wide range of government conduct. In 2000, government enacted the Promotion of Administrative Justice Act (PAJA), which inserted a narrow definition of administrative action, thus freeing much of the government conduct that fell under the umbrella of the constitutional definition, from the control envisaged in section 33 of the Constitution.
“In short, there is no need for ‘administrative action’ to have quite so broad a definition as it was given at common law. […] The PAJA, however, goes too far in this regard. Its definition of administrative action is both complicated and narrow, thus creating an unfortunate disparity between the constitutional and statutory concepts of administrative action.” (As quoted in Hoexter C. Administrative Law in South Africa. (2012, 2nd edition). Cape Town: Juta. 173-174.)
Here, too, government took a concept with a particular constitutional meaning and understanding, and defined it out of the bounds — and thus the safeguards and remedies — created by the Constitution. I am not alone in considering PAJA to be a piece of legislation ripe for constitutional challenge.
In the case of my City Press column, I argue that the Hate Speech Bill intends to do just that: Define hate speech differently from how the Constitution understands it. One of the meanings ascribed to fraus legis (defrauding the law) is that one, usually government, goes about doing something indirectly which they cannot legally do directly.
The Hate Speech Bill proposes to add more than four grounds of hate speech, and it removes the necessary constitutional requirement of incitement to cause harm, replacing it with the vague notion of communication that could reasonably be construed to demonstrate a clear intention to be harmful. Clearly, it’s also a mouthful as compared to the Constitution’s definition; but read the City Press column for more explanation!
And this, I believe, is obviously unconstitutional and certainly against the spirit of constitutionalism.
The Constitution’s definition of hate speech cannot be departed from under the guise of section 36, because that is not what section 36 is about. This provision is not a method of avoiding or defrauding the Constitution by using clever sophistry and wording to get around its provisions (in this case, section 16(2)(c)). If government wishes to limit the rights in the Bill of Rights, it must interpret and define those rights as meaning exactly what they mean in the Constitution using the values, logic, and norms in the Constitution.
To summarise what might be considered a very bland and boring jurisprudential topic: Constitutional rights in South Africa are legally limited in two ways.
The first is the general limitation clause in section 36, and the second is the internal, specific, particular limitation clauses contained in specific rights. While the general limitation does apply to all rights, the specific limitations must be given preference when applied to those specific rights to which they are attached. As a result, if government wishes to also apply the general limitation formula to those rights, it can do so only in exceptional circumstances, subject to a far higher degree of scrutiny from the courts, and with far more justification than it would ordinarily need to when applying section 36.
In the case of the Hate Speech Bill, Parliament is trying to go beyond the expression that it is allowed to regulate in section 16(2) — the internal limitation of freedom of expression — and likely according to Parliament and certainly according to Professor Pierre de Vos, will attempt to get away with this in terms of section 36. In this case, no exceptional circumstances exist — indeed, there are already other laws dealing with hate speech — and on the current trajectory, government does not seem to plan to provide anything more than its usual motions of justification for an ordinary piece of legislation.
As a result, in my view, the current, second version of the Hate Speech Bill, although far better than its predecessor, is still constitutionally suspect, and should be reconsidered.