The Ongoing Erosion of Free Speech in South Africa

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It is a rare week wherein the hypocrisies and selection biases attendant to a particular phenomenon are so glaringly in evidence. Yet so it was that three separate events transpiring over the last few days of April and the first few ones of May provided almost perfectly illustrative examples of what has become such a one-sided trend in South Africa of state censure and media opprobrium vis-à-vis speech by white people that only the wilfully blind or immensely ignorant can continue remaining in denial.

The first example resuscitates a long-standing debate on the former, or “old,” South African flag. On the 29th and 30th April oral arguments were presented at the Equality Court by the Nelson Mandela Foundation (NMF), joined by the South African Human Rights Commission (SAHRC), arguing that “gratuitous displays” of the old flag “constituted hate speech, unfair discrimination and harassment based on race.” Afriforum countered this position as a “reluctant respondent” by claiming such a ban would infringe on constitutionally protected free speech rights. In an official statement by the NMF when they first launched their application to the Equality Court in late February, the Foundation described the flag as the official one for “apartheid South Africa,” which ignores its initial appearance in 1928, some twenty years prior to the National Party’s ascent to power. The NMF even equated the flag with the Nazi swastika, claiming both symbols “signify only oppression and hatred.” That the former South African flag has become indelibly associated with the oppressively violent and repulsively racist former regime is hardly in dispute, yet also not sufficient grounds for the flag’s banning, as I have argued elsewhere.

Moving onto the next “case study,” on Tuesday 30th April, many media outlets were aflutter with the announcement by Multichoice, the owner of South Africa’s largest satellite television service, DSTV, that they would no longer be airing any content featuring popular and controversial Afrikaans musician, Steve Hofmeyr. The pay-TV company not only refuses to air future music videos he might produce, but all content in which the singer is included. Furthermore, it was reported that Multichoice “will try to prevent the broadcast of any archive material in which he features,” adding to a decision expected to have a cumulatively “wide-ranging” impact on his revenue and career. Some of the reasons for the company’s new exclusionary policy include a social media post in which Hofmeyr absurdly averred that “blacks are the architects of apartheid,” his insistence on singing the previous national anthem, Die Stem (part of which remains in the current one), during concerts and festivals, and his defence of the old South African flag.

Needless to say, nary a peep was uttered in his defence on free speech grounds by the bien pensant commentariat, with the general tone one of gloating schadenfreude that this awful person has had a significant avenue of revenue and exposure forever closed to him. For instance, while describing himself as a long-time “freedom of speech campaigner,” journalism professor Anton Harber’s response to Hofmeyr’s ban was to say “good for them!” Noted Constitutional law expert Pierre de Vos opined that if someone believes “Hofmeyr’s utterances are racist,” as he does, then “not giving him a platform is not an ethical problem,” adding that he thinks the Multichoice ban’s impact on Hofmeyr is “not that dramatic.”

The final installment of the sorry triumvirate involves Democratic Alliance MP Diane Kohler Barnard. Near the end of the same week it was reported that this prominent DA figure was “expected to appear in the Equality Court .. on Friday morning,” 3rd May, after she allegedly made “xenophobic, racist and sexist” comments during a staff workshop held in February 2018, as claimed by Louw Nel, the party’s Parliamentary operations manager, in an affidavit. A few hours later it was revealed that Barnard’s case would be postponed until next month.

While all three of these incidents raise various issues, and are not amenable to precisely the same type of analysis, they are united by principle, that of freedom of expression, and race, as all three either feature white figures, or have implications for the kind of speech likely to be expressed by whites. The racial dimension becomes clearer by taking into account the wider context, which will be further expanded upon, and is inseparable from how such incidents are generally handled by the state and treated by the mainstream media. The fundamental issue of free speech would be of pre-eminent importance with or without the obvious prejudice at play, and is irrelevant to the characteristics of those making pronouncements deemed hateful or offensive. The two facets therefore should be separated out, yet, alas, in South Africa they are almost always intertwined.

If the inevitable collapsing of an intrinsically significant, indeed indispensable, right meant to safeguard individual freedom into the morass of identity politics was not bad enough, the South African Constitution has bequeathed society a problematic clause in Section 16 of the Bill of Rights providing a justification to curtail free expression. The offending section claims free expression “does not extend to,” among other qualifications, the “advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.”

So when Gareth Cliff tweeted in response to the Penny Sparrow brouhaha in early 2016 that South Africans “really don’t understand free speech at all,” a statement that has only been further vindicated in the intervening years, and which cost him his job as an Idols judge on M-Net, he received a response in the form of a Mail & Guardian article by Dr Musawenkosi W Ndlovu, then Senior Lecturer in media studies at the University of Cape Town, highlighting the legal limits to free speech in South Africa. Acknowledging that there is as yet “no formal definition of hate speech in South Africa” to “appraise [Sparrow’s] racist rant,” the Constitution and the Promotion of Equality and Prevention of Unfair Discrimination Act (Equality Act) are two pieces of legislation to guide any assessment of her remarks. Dr Ndlovu admitted that the Constitution’s Section 16 could not be effectively applied to Sparrow’s post as “she did not ‘incite’ anyone else to cause black people harm,” but it did, according to the academic, “violate section 10(1) of the Equality Act.” In his conclusion, the author affirmed Cliff’s “right to freedom of expression,” but declared it impermissible for him to designate Sparrow’s “fundamentally illegal” act a form of “freedom of expression.”

This may be the South African legal reality, but anyone with a modicum of appreciation for what a robust commitment to freedom of expression ideally entails would have unreservedly called for the scrapping of any laws punishing someone for the thought crime of labelling unruly black beach-goers monkeys, regardless of this epithet’s racial insensitivity, on her own Facebook page. Instead, the ANC decided to make political hay out of Sparrow’s post by hauling her before the increasingly infamous and Orwellian Equality Court, which forced her to pay a hefty R150 000 fine, leaving the woman all but bankrupt.

This disgraceful episode, hardly the worst one by any stretch, foregrounds the crucial issues at stake, while vindicating Cliff’s remarks. The same issues are at play in the three examples cited earlier. For free speech to mean anything at all, it must allow for the public articulation of views that many, or even most, people find offensive. In fact, it could be argued that a meaningful conception of free speech hinges precisely on protecting the least popular views. To declare a commitment to free speech limited to those with whom one agrees is not to believe in it at all.

Armed with this understanding, which admittedly goes against the Constitutional and legal grain established in South Africa where extreme (and selective) political correctness has been allowed to claim the day, the old South African flag, Steve Hofmeyr, and Diane Kohler Barnard should be defended not because they cause no offence, but precisely because they do so. The apocryphal line attributed to Voltaire vividly captures this vital sentiment: “I disapprove of what you say, but I will defend to the death your right to say it.”

Although it might seem to be belabouring the point, it simply cannot be said often enough that someone’s attitude towards views they find offensive is the surest test of their free speech bona fides. The worst tyrants in history, after all, loved it when others agreed with them. Seen in this clarifying light, a stance defending the DA MP, or the South African singer, is not a defence of their views, but of their fundamental right to make them. It can be objected that the Hofmeyr case is distinct from the other two in that a private company took a decision to no longer air his content, as opposed to the government limiting his speech rights, but the basic point still stands. No defence of Hofmeyr’s right to free expression should be equated with an endorsement of any of his views, a crucial distinction invariably elided in this type of discussion to tar free speech advocates as racists and sexists, or any of the innumerable insults du jour conjured up by regressive “progressives.”

If the ongoing trampling upon free speech rights was not concerning enough, the constant targeting of whites for supposed infringements is especially alarming, suggesting that equality before the law, even if the legal framework in question is dubious in the extreme, is virtually a dead letter. Examples of selective prosecution are so abundant at this point that no catalogue could hope to be vaguely exhaustive in the limited space of a single article.

To take just the last few months, in late March the South African Human Rights Commission (SAHRC), after investigating five complaints against Economic Freedom Fights (EFF) leader Julius Malema since 2016, determined that he was not guilty of hate speech. Setting aside how problematic it is formulate an unambiguous definition of hate speech, which almost invariably has a subjective element, if the term means anything at all it surely applies to such statements as expressing a desire to “cut the throat of whiteness,” or evoking the spectre of genocide targeting whites, among the utterances investigated by the SAHRC. Compare this with the three year jail sentence, one year suspended, meted out to an unknown real estate agent in Johannesburg, Vicky Momberg, who was caught on camera using the k-word repeatedly to a police officer after she was the victim of a smash-and-grab. On the other hand, the EFF is the third largest political party in Parliament and Malema is a major national figure whose words are deeply consequential.

Another example of a racially-inflected dual legal track in the area of free speech from earlier this year came in the wake of a walkway collapsing at Hoërskool Driehoek in Vanderbijlpark, causing the death of three students at the scene, with a fourth latersuccumbing to his injuries in hospital. The tragedy received extensive media coverage and an outpouring of sympathy and grief for the victims and their families. Not everyone was so moved by the death of school children, however, as Lindsay Maasdorp, the spokesperson for the disgustingly racist outfit, Black First Land First (BLF), which is contesting this year’s elections, declared his support for a Facebook post by Siyanda Gumede who wrote that he did not “have a heart to feel pain” for the three learners, assuming they were white even though this was not known at the time. Maasdrop stated that Gumede’s position was “correct,” and added in a tweet that the awful event at the dual-language high school demonstrated “God is responding,” rhetorically asking, “Why should we frown on the ancestors’ petitions to punish the land thieves including their offspring.”

To date, neither the reprehensibly foul Maasdorp, nor anyone from his revolting organisation, has appeared before the Equality Court to account for these despicable statements. The same applies to even worse ones Maasdorp made on Facebook and Twitter in 2016 where he wrote, “I have aspirations to kill white people, and this must be achieved!” Does anyone really think a similar evasion of responsibility would have occurred had a white person openly professed happiness that mostly black children had died due to collapsing school infrastructure, or publically expressed an aim to kill black people? To have been even mildly conscious during the last three years allows that question to very easily answer itself.

However problematic the current situation is with regards a troubling Constitutional clause and a racially prejudicial government, it is only set to become considerably worse. The ANC government is on the verge of passing the Preventing and Combating of Hate Crimes and Hate Speech Bill that would not only further circumscribe free speech rights, but as repeatedly attested to over just the last three years, such legislation will be primarily used to target putatively offensive speech by whites. Anyone doubting this contention is at this stage either being obtuse or naïve.

In closing, there is as much a pragmatic case to defend fundamental free speech rights as there is a principled one. Certainly, it should never be forgotten that the right to express oneself freely is one of the most hard won rights in history, and which enables virtually all the other rights to enjoy practical realisation. So central is this right, that a democracy without free speech is a ludicrous contradiction in terms. For those who might still not be convinced, history provides ample examples of the dangers lurking in wait when the state is empowered to arbitrate on matters pertaining to what citizens can and cannot say, and by extension the sorts of ideas to which they are permitted exposure. As is often the case, states begin by targeting easy examples, for instance minority groups or views widely deemed unpopular, before further encroaching upon the rights of an ever larger share of the populace. To assume that the powers vested in the state today to target groups or perspectives one considers anathema will not be turned against oneself tomorrow is at the very least hopelessly short-sighted. Yes, this is a warning, and one all South Africans should heed before the erosion of a fundamental right, which all citizens in a free society should be guaranteed, has proceeded so far as to be irreversible.

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