Thursday, 25 August 2011
By Commissioner Sandile Baai, SAHRC Commissioner responsible for the right to housing
On behalf of the Commission, I would like to thank you for responding to our invitation to attend this media briefing.
On the 08th of February 2010, the Commission received a complaint from Agri-SA against the Minister of Human Settlements, Mr Tokyo Sexwale, for the remarks he made during an interview on the SABC - Morning Live Programme, on the 03rd of November 2009.
During the interview the Minister made the following remarks: “….the growing number of squatter camps in South Africa is caused by people who are kicked out by very, very evil farmers from the farms, fearful of the fact that laws say that you got to provide these people with security of comfort….”
The complaint also related to the “Beeld” quote newspaper of the 29th of January 2010, wherein the Minister is reported to have told the Parliamentary Portfolio Committee on Human Settlements on the 28th of January 2010 that “baie van die mense wat hulle nou in plakkerskampe bevind is daar omdat baie boere miljoene swart mense van hulle plase afgejaag het”.
Agri-SA argued that the Minister’s utterances were accusations which were or can usually not be substantiated and were therefore harmful to the image of the commercial farming community.
Following our perusal of Section 09 and 16 of the Constitution, as well as Section 10, read with Section 12 of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000, including case law, we came to the conclusion that the Minister was merely expressing an opinion, without presenting facts, on some of what he perceived as the causes of the increase in squatter camps in the country.
Consequently, we therefore find that the Minister’s speech cannot reasonably be construed to have had the intention to make the members of the farming community feel marginalised, alienated or under attack.
We would like to point out that even though we find that the Minister’s utterances do not amount to hate or harmful speech, we are however of the view they were unpalatable.
In terms of legislation, advocacy of hatred does not rise to the level of hate speech unless there is also incitement to cause harm. The speech must be intended to incite or produce imminent action and must be likely to incite or produce such action. “Incited” should be taken to mean ‘directed at’ or ‘intended’.
There must be a causal connection between the advocacy of hatred based on one of the listed grounds and the harm that is caused. The weaker the proximity or causal link, the less likely it is that the expression would be deemed to be hate speech. There must be a real likelihood that the expression causes harm before it can be deemed to be hate speech.
The Commission is of the view that the Minister made the utterances in the context of an interview on challenges faced by the National Ministry of Human Settlements and specifically in responding to a question on the causes of the many squatter camps in South Africa.
It is important to note that according to the recording of the interview that the Minister specifically mentions that people in farms are being kicked out of farms by certain very, very evil farmers. Therefore considered in context, the Minister’s utterances are not general and cannot be said to have been aimed at all farmers. Furthermore, that “baie van die mense wat hulle nou in plakkerskampe bevind is daar omdat baie boere miljoene swart mense van hulle plase afgejaag het” may merely be inaccurate or unsubstantiated.
Based on the context of the Minister’s utterances outlined above, it is the Commission’s view that whilst negative utterances or allegations, made without presenting any proof, may have the potential to be inaccurate and irresponsible, the Minister’s utterances were not made with the intention to harm identifiable and or commercial farmers in general in the country.
The Commission is further of the view that the substantiation (or lack thereof) of the said utterances by the Minister would not cause the utterances to amount to a violation of any of the fundamental human rights enshrined in the Constitution.
In light of our findings, we therefore recommend that, in general, all South Africans, and in particular those in public office or in decision making positions, should refrain from making utterances or statements, and expressing opinions which have the potential to be unpalatable and/or offensive to others.
Instead these officials should use such public platforms to communicate in a manner that respects and upholds the rights of others, promotes the values of the Constitution and contributes towards the building of a nation that is united in its diversity.
I thank you.