I have struggled to corroborate this exact figure, but a news report in July indicates that the commission has already dealt with and finalised 505 complaints of racism in the current financial year, an increase of 82% from 2015.
 
The commission has a huge mandate that encompasses all issues related to human rights under the Constitution: from access to housing, basic services, healthcare and education, to matters related to equality, unfair discrimination and access to justice. It has a duty to educate, promote and prosecute these matters in a manner that advances SA’s progress towards realising the rights contained in the Bill of Rights for all citizens.
 
During my time in Parliament, my office’s engagement with the commission tended to relate to the realisation of these rights — from complaints about access to clean running water for the women of Brandfort in the Free State, to seeking redress for school children in rural Eastern Cape and Limpopo, who were endangered by 14km and 20km daily walks to school because of the provinces’ failure to provide adequate school transport.
 
But increasingly, the commission is occupied with mediating conflicts and resolving complaints about unsavoury characters spouting forth racist invective on social media. In my own experience, the commission’s provincial offices are staffed by diligent, meticulous and hard-working staff who have never failed to come out in defence of neglected citizens when the government has failed them. I can’t help but think of the opportunity cost of their scarce resources now being diverted towards moderating SA’s racism debate.
 
To the commission’s credit, it has never shirked its responsibilities in this regard, but one is left wondering why we can’t seem to have an unmediated public conversation about these critical issues, instead of adding to the workload of an already inundated institution with scarce resources. The answer lies in the Promotion of Equality and Prevention of Unfair Discrimination Act, or "Equality Act" as it is colloquially known.
 
The act does two contentious things: it empowers the commission (alongside other Chapter 9 institutions, although the burden tends to fall on the commission) to bring cases to the Equality Court on behalf of commission complainants — another weight on its overburdened back. And, controversially, the act criminalises both hateful and "hurtful" speech without reference to the section 16 constitutional proviso that such speech must also "constitute incitement to cause harm".
 
The clause about "hurtful" speech is particularly interesting because of the sheer absurdity of the overreach. Nowhere in the Constitution does it state that we have the right not to have our feelings hurt. If it did, I can certainly think of a number of politicians I would like to see prosecuted for their vile public statements about me — as I am sure any number of women in public office can. There is a longstanding legal debate about whether section 10 is merely a reference to crimen injuria or whether the Equality Act goes too far in outlawing hateful and hurtful speech where these do not constitute incitement to cause harm.
 
What is clear from the commission’s statistics, however, and observable to anybody who consumes news or social media, is that South Africans do not necessarily realise that the Constitution does not outlaw hatefulness or hurtfulness. It promises equality under the law and calls for legislation to prohibit discrimination — which is materially different to hateful speech. Our constitutional settlement prized free speech and robust debate over regulating the hearts and minds of citizens. In this respect, our model is closer to the US attitude towards freedom of expression than most.
 
This leaves us with a difficult but necessary task: we must learn to have productive debates and conversations about racism using the very media that spawn our outrage in the first place. Anger and reporting are understandable, but unsustainable responses to a generations-old conflict. And energetic as our independent institutions are about resolving hate speech disputes, I believe this is one debate for which we are capable of taking collective responsibility.
 
• Mazibuko, a former parliamentary leader of the DA, is a resident fellow of the Harvard Institute of Politics

This article appeared on BDlive