The objective of the two-day conference was to provide a multi-stakeholder platform to critically evaluate the gains and challenges of the SAHRC with regard to the execution of its mandate. On the first day, the conference reflected broadly on the role of the SAHRC regarding promoting respect and protection of human rights. On the second day, it gave special focus to the scourge of racism in the country and considered the roles and responsibilities of both state and non-state actors in building and fostering racial reconciliation and an equal society.

The main aim of the conference was to get national consensus and formal commitment to addressing racism jointly. It was attended by delegates from international, regional and national institutions.

The speakers included former South African President, Thabo Mbeki; Speaker of the National Assembly, Baleka Mbete; Justice and Correctional Services Minister, Michael Masutha; Chairperson of the Portfolio Committee on Justice, Dr Mathole Motshekga; and SAHRC Chairperson, Lawrence Mushwana. Other SAHRC commissioners and various delegates from the government, private sector and other Chapter 9 institutions also spoke.

Racism

The SAHRC chose to focus on racism as the theme. According to Mr Mushwana, the theme was triggered by a sudden spike in racism-related complaints lodged with the commission in January this year. The complaints related to allegations of racism perpetuated mainly through the use of social media.

Former South African President, Thabo Mbeki, gave the keynote address at the South African Human Rights Commission’s conference to commemorate 20 years of its existence in Midrand in March.
In his address former President Mbeki said that the fact that the conference is taking place to discuss, among others, the issue of racism, and national reconciliation and nation building, constitutes a justifiable acknowledgement that South Africa has still not accomplished the objective stated in the Constitution of building a new South Africa based on the values of non-racialism and non-sexism. He said that South Africa is a country of two nations – one is white and wealthy and the other one is black and poor.
President Mbeki said that over the years, South Africans have ‘spoken less and less about the fact of the racist legacy whose eradication must surely constitute the heart and focal point of the struggle to create the non-racial society visualised in our Constitution,’ adding that the country was still confronted by the scourge of racism.

President Mbeki said to combat subjective racism South Africa must, among others:

strengthen the capacity of the SAHRC, expeditiously to identify, expose publicly and condemn all manifestations of racism, including anti-semitism;
strengthen the legal capacity of the state to act against racism, including its punishment as unacceptable hate language, with the necessary respect for the constitutionally protected freedom of speech;
ensure that the school curricula, from the lowest grade, and the curricula in higher education inculcate in the young the values of non-racism and non-sexism and the celebration of common humanity;
work to cultivate a common patriotism among all people, based on recognition of the reality that we share a common destiny, that none can truly succeed without the other, and that we are to one another, our brother’s and sister’s keepers;
strive to ensure that all our national institutions and organised formations, both public and private, properly manifest healthy cooperation within a context representative of our demographic diversity; and
insist that especially government and the corporate sector do everything possible within their own structures, and continuously, such that they serve as exemplars of what it means to have a non-racial society, expressive of the values of true national reconciliation, non-racialism and non-sexism.

SAHRC cases

Mr Mushwana said most of the complaints processed by the SAHRC dealt with administrative issues and equality. He said the commission investigated thousands of cases and added that while the SAHRC has a long way to go, it has had good successes.

‘In the 20 years of its existence, the commission has provided individuals and groups with resolutions of their complaints and enquiries; between 2009 and 2013 for instance, the commission received over 35 000 complaints and resolved 33 000 of those. In addition, the commission has conducted over 30 investigations into structural systemic challenges to service delivery across the country,’ he said.

Mr Mushwana said that the SAHRC received an overwhelming number of complaints on racism this year. ‘In the past few weeks, the commission has received and is now processing an additional 160 complaints in relation to racism. This is despite the admirable work of numerous segments of our society, including the commission itself. Even though racism has economic social and political causes, we cannot afford to reduce our response to political and blame games,’ he explained.

In her address, Ms Mbete, said land allocation and a de-racialised economy remain central to tackling the challenge of inequality in the country. She said income trends were still reflective of the country’s past and had to be addressed in order to defuse racial tensions.

Ms Mbete said that unity and cohesion are imperative to meet South Africa’s goal. She said that South Africa was one of the most unequal societies in the world.

Ms Mbete added that there was no country free of racism, racial discrimination and xenophobia. ‘We do not want to fuel the flames of the past, but in order for us to move beyond the past, we must talk about the issues that still confront us,’ she said.

Ms Mbete said the topic of racism invariably needed to remain on the public agenda ‘so that all of us can engage with it … in parliament, workplaces, the media, churches and mosques, universities and schools so that we guard this country against any form of division.’ She urged the delegates to insist that the economic growth trajectory deracialise the economy as a step in changing the ownership patterns of the past. ‘This must also include the acceleration of the allocation of land. Unless we do so, reconciliation will be shallow and a dream deferred,’ Ms Mbete warned.

Ms Mbete said while South Africans should not fuel the flames of the past, citizens must all confront the challenges that face the country. She said that the landscape of opportunities still reflects the contours of Apartheid and added that South Africa’s history is evidence that this country can fight anything, including racism, to build a united and inclusive society.

Speaker of the National Assembly, Baleka Mbete, addressing delegates at the recent conference to commemorate 20 years of the South African Human Rights Commission’s existence.
Ms Mbete spoke about how Parliament has deteriorated to a place of disorder and while it reflects the kind of society South Africa has become, she said, as an institution, Parliament has a responsibility to lead by example.

In his address Minister Masutha said that his department was finalising a draft Bill seeking to criminalise hate speech. He said the Bill would be tabled in Parliament for debate ‘around August, September, this year’. Minister Masutha added that attempts were also being made to expand the draft to include other provisions dealing with hate speech as an offence.

Minister Masutha said the Bill would be subjected to a broad consultative process before it was submitted to Parliament.

He added that government has a responsibility to support all Ch 9 institutions. Institutions such as the SAHRC were established to strengthen South Africa’s constitutional democracy. He added that all Ch 9 institutions must be respected and given space to do their work freely.

Former Chief Electoral Officer of the Electoral Commission, Pansy Tlakula, gave an overview of the history of the SAHRC.

Dr Motshekga said that he believes that no amount of campaigning can rule out racism.

Racism and the law

Retired judge of the Constitutional Court, Justice Johann van der Westhuizen, who was actively involved in the drafting of the Constitution, said that when drafting the Constitution everyone involved agreed that freedom of expression had to be protected. He added that without freedom of expression, democracy was not possible.

Justice Van der Westhuizen said that it was agreed that racist hate speech was not wanted and the drafters asked themselves how they would ensure that freedom of expression did not include hate speech.

Justice Van der Westhuizen went on to say that because all rights protected in the Constitution can, in principle, be limited, we have a limitation clause in s 36.

Giving an example of a limitation of a right, Justice Van der Westhuizen said: ‘We all know about our freedom of movement, but surely the authorities can limit my freedom of movement by making a rule that says I must drive on the left side of the road, below 120km/h. I cannot rely on my right to freedom of movement to drive on any side of the street at any speed. That is the limitation of my right to movement, but it is a very justifiable limitation.’

According to Justice Van der Westhuizen, South Africa could have just protected freedom of expression and if need be, have measures against hate speech or make another law, such as a censorship law and to say this is a limitation to the right to freedom of expression.

‘However with freedom of expression the Constitutional Court decided that it was to define freedom of speech in a way that from the beginning it does not include hate speech. We say from the outset that your freedom of expression does not include the freedom to advocate hatred against other races, for example. What it means in principle is that hate speech is not even speech. As far as freedom of expression or freedom of speech is concerned. He cited s 16:

“Section 16: Freedom of expression

(1) Everyone has the right to freedom of expression, which includes –

(a) freedom of the press and other media;

(b) freedom to receive or impart information or ideas;

(c) freedom of artistic creativity; and

(d) academic freedom and freedom of scientific research.

(2) The right in subsection (1) does not extend to –

(a) propaganda for war;

(b) incitement of imminent violence; or

(c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm”’, he said.

Justice Van der Westhuizen said that hate speech, provided that it falls within this definition, is not constitutionally protected.

He said that freedom of expression is protected because it is important for democracy. ‘If political parties are not allowed to say what they are going to do and if they are not allowed to criticise others, then there would be no meaning for elections.’ He added: ‘Why is it important that we have the right to freely express ourselves? Because if we cannot, our very nature as human beings is being violated. Solitary confinement shows that. Evidence shows that if you are locked up in a space where you cannot communicate it affects your entire human nature very deeply. Freedom of expression is important for my dignity as a human being because I need to communicate with others.’

Justice Van der Westhuizen said that when speech is not used to communicate but is used as a weapon to injure, humiliate, scare, or intimidate, then it does not deserve the protection that free speech deserves as it is hate speech and does not deserve the protection.

Hate speech

Justice Van der Westhuizen spoke on how hate speech is dealt with in the law. He said that the Constitution is the supreme law of the land as it guides us. ‘We seldom can apply the Constitution directly in legal situations. For example, the Constitution guarantees the right to a fair trial. For any accused person, however, we still need a Criminal Procedure Act to spell out how a fair trial is conducted. Similarly the Constitution protects clauses about labour law and administrative justice but we need pieces of other legislation to make that complete. We are sometimes a little bit quick to simply grab the Constitution to say you have offended the Constitution or you are guilty of a criminal offence,’ he said.

Retired judge of the Constitutional Court, Justice Johann van der Westhuizen, spoke on racism and the law at the South African Human Rights Commission’s conference to commemorate 20 years of its existence in Midrand in mid-March.
He added: ‘The Constitution does two things, it is a set of rights and values, and in that sense, s 16 does guide us but we may well need other pieces of legislation to make it applicable to specific situations. The obvious one would be censorship, a censorship law or legislation regarding education,’ he said.

Speaking on criminalising hate speech Justice Van der Westhuizen said that if one wants to do so, one would need something else as the Constitution is the framework. He said criminalising it can be done in two ways. The first way is by legislation. ‘Parliament can make a law either where they define racist hate speech as a criminal offence or it can make a law where they extend a definition of an existing crime for example, crimen injuria… . However, we do not necessarily need Parliament, what could also happen is if someone says something blatantly racist, we can simply try to charge that person under crimen injuria as it exists and then try to persuade a court that in terms of the general definition of crimen injuria, this kind of act does fall under it. Something like this happened with the definition of rape. It was extended and confirmed by the Constitutional Court,’ he said.

Justice Van der Westhuizen said that the law does not care what you think, the law only cares about what you do. ‘So if I walk around with tendencies of being a serial killer or a rapist, it is my problem and not the problem of the law as long as I do not do anything about it. But, do we want that? Do we want people walking around fantasising to be serial killers? We do not want them among us. We want something more than where the law can reach and that is where we need education or therapy.

We cannot punish them because the law can only punish you for what you do. Maybe I am a racist but I keep it in my head but we still need to address that’.

The way forward

‘So what can we do, what is the way forward?’ he asked. He said that there were three things that South Africans could do. These are:

Fight against and expose racism as it is an evil and hate speech is the practical manifestation of it.
Think a little bit more carefully before we accuse somebody of being a racist. If we do it to expose an evil, that is fine because that is our duty. If we do it to disarm someone, to bully someone out of material benefits or a job, or to eliminate someone out of society, then we must think carefully about our own motives.
Think even more carefully before we quietly say I am not a racist or I have never been a racist or when we vouch for someone else, because very few of us have been left untouched by the history of our country.
 

Nomfundo Manyathi-Jele NDip Journ (DUT) BTech Journ (TUT) is the news editor at De Rebus.