Even Politically Inflammatory Or Downright Offensive Speeches Not Excluded From Constitutional Protection: South Africa SC [Read Order]

“The bounds of constitutional protection are only overstepped when the speech involves propaganda for war; the incitement of imminent violence; or the advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm”.

The Supreme Court of South Africa has observed that the fact that particular expression may be hurtful of people’s feelings, or wounding, distasteful, politically inflammatory or downright offensive, does not exclude it from protection under the Constitution.

The court said the bounds of constitutional protection are only overstepped when the speech involves propaganda for war; the incitement of imminent violence; or the advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.

The South African Jewish Board of Deputies (SAJBD) had lodged a complaint alleging that certain statements made by Bongani Masuku amounted to hate speech. The equality court had found these statements as ‘hurtful, harmful, incite harm, and propagate hatred, and amount to hate speech.’ It ordered Masuku to tender an unconditional apology to the Jewish community.

Before the Supreme Court, Masuku contended that his speech was rather directed at the conduct of the State of Israel, and the fact that most Jewish people might support such conduct did not transform the statements into ones based on religion or ethnicity.

Analyzing the speech threadbare, the bench observed that nothing in the content of the speech shows that it was anything more than a political speech. The court also said that the interpretation of the word ‘Zionists’ in the blog statement as referring to Jewish people in general was incorrect. It observed: “Mr Masuku’s explanation that his utterances had nothing to do with Jews but were directed at supporters of the State of Israel find support in the transcripts. Nothing in the content of the speech shows that it was anything more than a political speech.”

Allowing his appeal, Justice Dambuza JA said: The starting point for the enquiry, in this case, was that the Constitution in s 16(1) protects freedom of expression. The boundaries of that protection are delimited in s 16(2). The fact that particular expression may be hurtful of people’s feelings, or wounding, distasteful, politically inflammatory or downright offensive, does not exclude it from protection. Public debate is noisy and there are many areas of dispute in our society that can provoke powerful emotions. The bounds of constitutional protection are only overstepped when the speech involves propaganda for war; the incitement of imminent violence; or the advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm. Nothing that Mr Masuku wrote or said transgressed those boundaries, however hurtful or distasteful they may have seemed to members of the Jewish and wider community. Many may deplore them, but that does not deprive them of constitutional protection.”