Criminal case opened after KZN woman uses hate speech against President Ramaphosa in a Facebook post

Teleconference published in Daily Maverick on 14 February 2017

A criminal case has been opened against a KwaZulu-Natal woman who took to social media and allegedly referred to President Cyril Ramaphosa as “an ape trying to act like a first world president”.

The woman from Pinetown who posted the comment had since deactivated her Facebook account. She had not been arrested yet.

Be careful what you post on Facebook, Twitter, LinkedIn or Google+, whether in all innocence or out of malice, as the post may be construed as defamatory or hate speech.

HATE SPEECH VS FREE SPEECH IN SOUTH AFRICA

Freedom of expression is guaranteed by the South African Bill of Rights, within the Constitution giving everyone freedom of the press and other media, freedom to receive or impart information or ideas, freedom of artistic creativity and academic freedom and freedom of scientific research.

But what if you cross the line and directly call for the harm of a certain group of people, based on ethnicity, race, gender or religion; or use extremely derogatory terms to refer to an individual, especially a State President, as “an ape trying to act like a first world president”.

There is a law to prevent and punish perpetrators of hate speech, the Promotion of Equality and Prevention of Unfair Discrimination Act 2000. The Act describes hate speech:

No person may publish, propagate, advocate or communicate words based on one or more of the prohibited grounds, against any person, that could reasonably be construed to demonstrate a clear intention to:

§  Be hurtful.

§  Be harmful or to incite harm.

§  Promote or propagate hatred.

Courts must adopt a balancing act between hate speech and free speech.  These laws are effectively meant to regulate free speech, rather than limit it.

The courts did not censure the cartoonist, Zapiro, who always depicted former president Zuma with a shower head in his cartoons. Zuma first got the shower head treatment during his rape trial in 2006 after he testified in the Johannesburg High Court that he had showered after unprotected sex with a woman who he knew was HIV-positive in the mistaken belief that it would minimise the chances of infection. 

As Zapiro  expressed displeasure at Zuma’s apparent idiocy - without calling for acts of violence or using grossly offensive terms  –  he was covered by freedom of artistic creativity.

On the other hand Kessie Nair has been lawfully charged on the grounds of hate crimes, after not only referring to Cyril Ramaphosa as the “k*****-president”, but his social media posts in the week leading up to his racist rant encouraged locals in Chatsworth to engage in “sporadic acts of violence”, with obvious racial undertones.

Whether the state will pursue criminal charges against the KZN woman remains to be seen, as she didn’t tick the second box of inciting violence.