Within just two weeks of her 6 December selection by an independent committee to represent South Africa at the 2026 Venice Biennale, internationally recognised artist Gabrielle Goliath learned that something about her artwork, Elegy, had prompted Minister of Arts and Culture Gayton McKenzie to cancel her participation in the prestigious world showcase of contemporary art.
Elegy, a long-term performance art project initiated in 2015, addressed the distressing topic of femicide and the murder of gay and trans women in South Africa. And, in its later elaborations, the historic murder of women in Namibia by German colonial forces in the 1900s, and the death of Palestinian poet Hiba Abu Nada in an Israeli airstrike in October 2023.
It was evidently these more recently added elements of the work that prompted McKenzie’s intervention. It emerged from legal papers – after Goliath contested the cancellation in the Gauteng High Court – that McKenzie had argued in late December that “it would not be wise nor defensible” for him to support an artwork commenting on events in the Middle East, saying he was “deeply concerned” that Elegy dealt with issues related to the conflict in Gaza which was “known to be highly divisive in nature and relates to an ongoing international conflict that is widely polarising”.
In the following YouTube video, in which the artist expands on the concept and the content of the work, Goliath notes of its “sensitive subject matter” that it is a topic that “much of my work grapples with… [the] idea of the problem of representing violence in art”.
She points out that while Elegy is “grounded in the location of South Africa, where this violence plays out”, she believes “this nature of violence [also] plays out beyond the geographical borders of SA”.
The question that Gabrielle Goliath’s work, and the reaction to it, raises cuts to the heart of our right to free expression: where exactly does the limit of permissibility fall?
Shortly after Goliath’s troubles began making headlines, someone I know well asked me an unusual question: “Do I need to be concerned that my husband could go to jail for saying certain things?” (To be clear, he is not a soft‑spoken man.) An acquaintance who knows a lot more about the law than I do assured me that while many people feared this possibility, the likelihood of such a prosecution was extremely slim on the grounds that a case would be difficult to prove.
Yet, like this individual, I am sure I am among the many who now find themselves second-guessing what they say in everyday conversations – not because they risk causing harm, but because the boundaries of acceptable expression feel increasingly unclear. Because of this doubt, people who might ordinarily contribute to constructive public debate retreat into silence. There is the fear that a poorly worded opinion or a comment taken out of context could trigger social or even legal consequences.
Section 16 of the Constitution
Before addressing that fear, it is important to explain how freedom of expression is defined in South Africa. Our right to free expression is protected under Section 16 of the Constitution of the Republic of South Africa, 1996. It clearly protects freedom of the press and other media, the freedom to receive or impart information or ideas, artistic creativity, academic freedom, and scientific research.
However, this right is not absolute. Section 16 excludes three categories of expression from protection: propaganda for war, incitement of imminent violence, and the advocacy of hatred – the most contested of the three.
The Constitution states in Section 16(2)(c) that the right to freedom of expression “does not extend to… advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.”
This is a dense phrase, perhaps deliberately so. So, let’s unpack it.
“Advocacy” refers to actively promoting, encouraging, or endorsing an idea – not merely mentioning or discussing it (as I am doing here). When someone is tried under this section, the court examines intent and context.
For hatred, the threshold is very high. The expression must show deep hostility, not simply harsh opinion. It must go beyond offensiveness, insults, or crude and vulgar expression.
The phrase “based on race, ethnicity, gender or religion” means that the hostility must target an individual on the basis of their being a member of a protected group – a critical distinction, as the law is concerned with group‑based harm.
“Incitement” involves encouraging or provoking others to act. “Harm” is not limited to physical violence, but it also cannot be reduced to mere hurt feelings. All three elements – hatred, targeting a protected group, and inciting harm – must be present. If any one of these is absent, the expression remains protected, even if it is offensive or unsettling.
Consider two examples. If someone makes a crude or offensive generalisation about a group, the statement is almost certainly protected – offensive speech is not hate speech. But, if they deliberately encourage others to harm that group, and do so with clear intent and hostility, the expression may fall outside the protection of the Constitution. Many South Africans mistakenly assume offence alone equals impermissibility. This assumption deepens fear, even when the law itself draws a far narrower boundary.
McKenzie wins the case
Goliath lost her court bid to overturn Gayton McKenzie’s decision; Judge Mamoloko Kubushi ruled in favour of McKenzie, finding that the dispute arose from an ordinary private agreement between two parties – the Department of Sport, Arts and Culture and Art Periodic, the nonprofit set up to run the selection of artworks and their exhibition in Venice – and did not, contractually, involve Goliath and her team, which consisted of curator Ingrid Masondo and studio manager James Macdonald.
Goliath’s legal team indicated that they were intending to apply for leave to appeal, arguing that the ruling “sets a dangerous precedent, jeopardising the rights of artists, curators and creatives in South Africa to freedom of expression – freedom to dissent”.
I completely agree. Not only will this discourage artists from freely expressing themselves, but it also sends a message to the broader South African public: your rights may be at risk if you cross a boundary defined by a politician.
For artists in particular, whose work more often than not tackles painful or divisive subjects, this creates a climate of uncertainty: does challenging authority now come with career‑limiting risks? Art has long served as a space for national reflection, satire, and expression. If artists begin to self‑censor out of fear of political retribution, the country risks losing one of its most important cultural safety valves.
The final safeguard
The courts are meant to function as the final safeguard – where constitutional principles triumph over political interests. Section 16’s three‑part test for hate speech exists precisely to prevent powerful figures from silencing expression simply because they dislike what is being said. Historically, our courts have interpreted this section carefully, requiring evidence of genuine harm rather than mere offence or discomfort – and for this, they deserve credit.
In Goliath’s case, the court’s ruling appeared to rest on a contractual rather than a constitutional question. There may be further developments. What is clear, however, is that should courts begin to defer too readily to political authority – or, for that matter, prominent organisations (in the Goliath case, the South African Zionist Federation expressed favour with the outcome) – our constitutional rights would become fragile.
Under such circumstances, the consequences reach far beyond one artist, one case, or one controversy; they strike at the heart of what it means to live in a free society.
“Normal” citizens
The real question is how this will trickle down to us “normal” citizens. If the courts cannot consistently protect our constitutional rights, do we truly have freedom of expression? And is the concern of the individual I mentioned earlier becoming something we should all be worrying about?
These are questions I cannot answer with any certainty, which is a source of unease. When freedom of expression is compromised, even subtly, the state, or other powerful interests, gain more power to determine not only what is said, but what is thought.
For most citizens, debates on these topics typically occur well beyond the realm of their daily lives. What they experience instead is uncertainty. This rarely registers as a dramatic event; it emerges gradually as people watch artists lose opportunities, critics face a backlash, or public figures being punished inconsistently.
South Africans should not have to fear legal consequences for speaking their minds in good faith. They should not have to attempt to calculate whether their creative work, political views, or subjective opinions will be interpreted through a partisan lens. A healthy democracy depends on a public that feels free to think, question, and express itself without fear of crucifixion. Which is not to say that freedom is uncomplicated, or that none of us is accountable.
The choice before us is therefore simple, though not easy: either we insist that the constitutional promise of free expression applies to all – consistently, impartially, and unapologetically – or we accept a future in which speech is tolerated only when it aligns with political favour. And if we allow that to happen, the erosion of free expression will not just silence artists or activists but diminish the democratic agency of every South African.
In a 2025 reflection on her work, Gabrielle Goliath said perceptively of the choral format of the conceptual framework for “justice and shared grief” of her controversial work that “[w]hen one choir member runs out of breath and cannot sing anymore, there are other voices to carry on the lament. In this way, it’s not only about song, as such, but breath—a collective offering and holding of breath.”
Goliath’s words provide a fitting metaphor. In the end, freedom of expression survives not because it is written into a constitution, but because citizens demand it, exercise it, and defend it – even, and especially, when doing so is inconvenient to those in power.
If you like what you have just read, support the Daily Friend