By John Fraser
It was good to see the South African Sunday papers departing from their regular theme of bent politicians, sleaze and corruption, so they could cover another important issue: that of free speech.
The Sunday Times reported that the Supreme Court of Appeal had ruled in favour of a journalist and diplomat Jon Qwelane. A homophobe, he is a disgrace to both professions.
The Court was asked to interpret the Promotion of Equality and Prevention of Unfair Discrimination Act (Pepuda), which has been on hand to punish and imprison people for using racist and other offensive language.
“In essence, the court ruled that while the intentions of the law are noble, it oversteps the mark in curbing free speech,” the ST reported. (Similar reports are also available in other Sunday Newspapers).
Thus offensive language “may be hurtful without being hate speech…as long as it doesn’t promote hatred or incite violence.”
Homophobia, then, is OK as long as you don’t incite or resort to violence. To do that legally, you need to go to Uganda, where Qwelane loyally served as the SA High Commissioner.
The pendulum has rightly swung back from the brutal racism, homophobia and other horrors of the apartheid regime, but the Court now seems to be asking whether it has overshot the mark, and the judges appear to have just swung the pendulum back again. Just a bit.
The writer and actor Stephen Fry spoke out for free speech when he said:
- “It’s now very common to hear people say, ‘I’m rather offended by that.’ As if that gives them certain rights. It’s actually nothing more…than a whine. ‘I find that offensive.’ It has no meaning; it has no purpose; it has no reason to be respected as a phrase. ‘I am offended by that.’ Well, so fucking what.”
I have heard similar sentiments from the writer Salman Rushdie, against whom a fatwa, or death edict, was issued by an Iranian Ayatollah because of his book: ‘The Satanic Verses’. Said Rushdie:
- “Nobody has the right to not be offended. That right doesn’t exist in any declaration I have ever read. If you are offended it is your problem, and frankly, lots of things offend lots of people.”
If course, neither was speaking directly about the situation in South Africa, now or in the past.
However, it seems that South Africa, thanks to the Supreme Court of Appeal, has moved a step towards free speech, recognising that being unpleasant and offensive is not necessarily a crime.
Of course, we must continue to be sensitive to the country’s racist past, just as we must be wary of present racism, homophobia, abuse of women and children, and a whole range of other evils.
But the Constitution does protect all of us, and the uncomfortable is not always unlawful.
EFF rabble-rousers can say all sorts of unpleasant things against white farmers, but while being awful and distasteful, it seems that they will cross the line only if they urge violence against the Boers.
And just think…the K-word may now be legal again? Even though it will be a brave person, and a pretty despicable one, who puts that to the test.
No doubt, there will be another attempt by some MPs to tighten-up the legislation, and they may well do so.
Which could take us back to a situation where people can be imprisoned for (peacefully) speaking their minds?
This is not a subject on which there could ever be agreement, just as I don’t ever foresee a peaceful agreement on the status of Jerusalem.
Until the SA politicians tighten up the law, though, it seems we all can exercise a bit more free speech without the fear of being dragged to court.
This may be a relief to some, even if, at the same time, it lets that shit Qwelane off the hook.
(For a detailed interpretation of the judgement, please check out https://constitutionallyspeaking.co.za/why-the-hate-speech-provision-was-declared-unconstitutional-and-what-happens-next/ )