In the wake of rulings in favour of members of the Economic Freedom Fighters (EFF) against the South African National Editors’ Forum (SANEF) and public enterprises ministers Pravin Gordhan, prominent journalist Ferial Haffajee has raised concerns about the consistency of pronouncements by the South African Human Rights Commission and the Equality Courts.
The cases involved attempts to censure the EFF and some of its leaders for ‘hate speech’. Haffajee has previously written about the intimidation that she has faced from political activists on digital platforms.
In a piece published on the Daily Maverick, of which she is associate editor, Haffajee pointed to the judgments which found that while what the EFF activists had said may have been robust or hurtful, it fell short of the threshold needed to be considered hate speech. The judge presiding over the SANEF case added that journalists were not a special group with an entitlement to special protection.
Haffajee noted that while these rulings may have been ‘great’ for free speech, they appeared to point towards a double standard with respect to the concept of hate speech. For example, in the recent case involving the 1928 flag, Judge Phineas Mojapelo placed restrictions on expression on the grounds that it signalled an intention ‘to be hurtful, to be harmful and
[incite]
harm’ against black people. Similar reasoning had been used by the applicants in the SANEF and Gordhan cases, to no avail.
‘If you read the three judgments together, it could be argued that a judicial double standard has been created on hate speech and free speech and which will sooner or later have to be ironed out in a higher court,’ commented Haffajee.
She further referred to the SAHRC, specifically to a finding earlier this year into alleged hate speech by figures within the EFF, including its leader Julius Malema. The commission has said that it applies different standards to cases depending on racial identity.
‘The commission,’ Haffajee writes, ‘also set a new benchmark, saying that people who had been oppressed and dispossessed under apartheid had a higher threshold for free speech (presumably, than white people). Such a benchmark has never been set by a Chapter Nine institution or in the court and it remains unchallenged, perhaps because the HRC findings do not set a precedent.’
Other observers, including the IRR, have noted the inconsistency in the approach taken by some state bodies on such highly charged matters.