The SA Human Rights Commission has cleared the Western Cape’s Congress of South African Trade Unions (Cosatu) provincial secretary Mr Tony Ehrenreich of hate speech charge preferred against him nearly two years ago. However, in view of the spirit of the constitutional imperative of nation building, the Commission would like to express its concern about the choice of words he used which it found unfortunate and undesirable in the context of a constitutional democracy based on human dignity, equality and freedom.

The finding by the Commission follows the hate speech complaint lodged in Septermber 2006 by Agri-Western Cape against several organisations and leaders, including Einreich, for allegedly inciting hatred against the white farmers.

Speaking at a rally in response to allegations by a 22 year old female farm worker who had claimed that some white farm owners in the Rawsonville area had raped her, and seriously assaulted a 16 year old boy, Ehrenreich told the gathering: “We are here today to declare war…we are opposed to violence, but if that’s what it takes to push bad farmers in the right direction, we must smash them ... If farmers continue, like mad dogs, to violate the rights of our farm workers then we have to beat them… However this is in the last resort. They will sh*t if they don’t stop. There is already blood on the farm workers…unless this stops, there will be blood on the farmers of these farms. We will grab the land and give it to the rightful owners.” 

The allegations against the farmers were later found to have untruthful.

After assessing the complaint which implicated organisations including as Women on Farms, the Commission was of the opinion that the statements by others amounted to nothing more than mere statements, albeit robust and undesirable. However, the Commission was concerned that Eihrenreich’s statements might amount to hate speech and therefore needed further investigation.

Ehrenreich’s statements, by his own admission, used extreme and intemperate language including words and expressions such as “moer”, “war”, “mad dogs”, “blood on the farms”, “take the land” and so forth. If reasonably interpreted, and taking into consideration all relevant circumstances and the specific context within which these statements were made, his utterances could not be interpreted as “advocacy based on hatred” constituting “incitement to cause harm” as provided for in section 16 (2) (c) of the Constitution.

In his written response to the allegations put to him by the Commission, Ehrenreich argued the state institutions provided very little relief to the evictions and abuses against the farm workers, and that these communities were robbed of their dignity, and needed to defend their humanity.

The language he used was to empower communities and debunk the notion that farmers were omnipotent and unchallengeable. He admitted that whilst the language he used might have been harsh, the objective was to respond to the pain the farm workers felt. The question of reclaiming the land back was absolutely legitimate, and that the possible violence he might have referred to was a defensive response to the specific farmers’ brutality that had taken place. He contended that his speech sought to emphasise the need for nation building with progressive farmers, rejecting on the other hand the thinking of farmers who undermined the values of the Constitution. He said he did not in general target farmers as being racist or murderers, nor did he wish to incite racial hatred. Such claims, he said, were factually inaccurate. The purpose of the statements, he said, was to identify the atrocities, and to encourage people to defend themselves through social solidarity.

The question arose as to whether the utterances fell within the ambit of a prohibited speech as defined in section 10 of the Equality Act. According to this section, the intention of the person making the utterance or statement must be considered, since the section requires that the utterances should “reasonably be construed to demonstrate a clear intention to be hurtful; be harmful or incite harm; promote or propagate hatred”.

However, the Commission could not make a finding against him. Section 16(2) of the Constitution is an internal modifier which provides that the constitutional protection afforded to freedom of expression does not extend to propaganda for war, incitement of imminent violence and the advocacy of hatred. It is a constitutional affirmation that an expression falling within the categories listed in section 16(2) is not worthy of protection in a constitutional democracy.

Section 16(2) of the Constitution is definitional in scope and does not itself prohibit hate speech. Section 10 of the Equality Act provides for a definition of hate speech that appears to be broader than that contained in section 16 of the Constitution.

The fact of the matter was that Ehrenreich was responding to perceived serious allegations of violence against farm workers, which should be viewed against the backdrop of ongoing media reports about such problems in South Africa, and in particular in the Rawsonville area. His response was to some extent solicited, having been provoked by allegations of violations of farm workers’ rights.

The Commission furthermore notes that Ehrenreich’s conduct did not reflect the values enshrined in the founding provisions in Chapter 1, section 1(c) of the Constitution insofar as it relates to the supremacy of the Constitution and the rule of law.

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