SAHRC statement regarding the Johannesburg Equality Court Judgment against the ANC Youth League President Mr Julius Malema
Thursday, 15 September 2011
The Commission notes the Johannesburg Equality Court judgment which found that the singing of the song “Dubul’ibunu” by the ANC Youth League President, Mr Julius Malema, constituted hate speech. The Commission respects the decision of the Equality Court in this matter.
The Commission is committed to uphold the rule of law and is satisfied that parties will be able to engage processes in law to assert their rights. This would include their rights to appeal the judgment should they deem this approach necessary or appropriate.
Having now had an opportunity to consider the judgment and to reflect on the complaint brought by the Afrikanberbond against Mr Malema, the Commission recognises that the questions pertaining to freedom of expression and hate speech are both complex and emotive.
Consequently, the Commission maintains its view that it is important for it to proceed to deal with the matter and provide a perspective on the issue of freedom of expression and hate speech.
Meanwhile, the Commission reminds South Africans that the right to freedom of expression is enshrined in Section 16 of the Constitution and that the same right also allows for freedom of speech. In exercising this right, a balance therefore needs to be maintained.
The right to freedom of expression does not extend to propaganda for war, incitement of imminent violence or the advocacy of hatred that is based on race, ethnicity, gender or religion. In fact Section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act provides further limitations and prohibits speech which has the intention to be harmful, hurtful, and to incite violence.
The Commission cautions though that it is crucial that we remain alive to the history and culture where struggle songs emanate.
The issues involved in this matter are so complex that they warrant a discussion that extends beyond the courts and consequently, as an institution that has a mandate to strengthen constitutional democracy, the Commission plans to host a dialogue that will allow South Africans to engage with the complex nature of freedom of expression and hate speech and also provide a platform for articulating feelings, thoughts and ideas around these issues.
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