Issued by Ismail Joosub on behalf of the FW de Klerk Foundation on 7/05/2024

Introduction:

South Africans have not always had the right to freedom of expression, the right to freely share and receive ideas and information, or the right to freely say what they think.

In fact, as a country we have a past filled with heavy censorship. With the state acting as a parent and deciding what information its citizens were “mature” enough of being exposed to. Examples of such laws include the Publications Act of 1974, which permitted the banning of any material considered “undesirable” based on broad criteria (with harsh penalties for possession), the Newspaper and Imprint Registration Act of 1972, which inhibited freedom of the press by forcing newspapers to declare their ‘intended nature and contents’ beforehand, as well as the Post Office Act of 1958, which empowered erstwhile authorities to intercept postal articles, telegrams and telephone messages for state security purposes. 

In the present day, section 16 of the Constitution guarantees this right, which expressly includes the freedom of the press and other media; the freedom to receive or impart information or ideas; the freedom of artistic creativity; and academic freedom.

This is a right the State is obligated to respect, protect, promote and fulfil (as outlined in section 7 of the Constitution).

This article aims to provide a bird’s eye view of the present legal landscape surrounding expression and act as a temperature gauge, if you will, for how this hard-won right is doing.

Steps forward:

Recently, the crime of defamation was abolished (see section 34(1) of the Judicial Matters Amendment Act, 2023). This carried profound implications for journalists, civil society and the broader framework of free expression in South Africa, as previously individuals faced the chilling prospect of imprisonment for defamation. 

This had always been a problem, as the threat of criminal sanctions was very apparent  for those daring to criticise public figures or those expressing dissenting views and crucially, not only hindered investigative reporting, but also undermined the ability of civil society to hold those in power accountable. 

Public discourse will no longer be silenced by the threat of criminal sanctions for criticising public figures or expressing dissenting views – a critical element to a vibrant democracy. 

In its memorandum to the Act, when it was tabled before Parliament as a Bill (i.e. a proposed law), the Department of Justice stated that, “Defamation is currently a criminal offence in the Republic and also forms the basis of delictual liability. The United Nations, as well as foreign authorities, have expressed concerns about the ‘chilling effect’ of such offences, especially on journalists, and advocate for the abolition of such laws. There are well established civil remedies based on delict, in addition to the offence of crimen injuria.”

International norms, such as those articulated in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, emphasise the importance of robust protections for freedom of expression.

The abolition of criminal defamation represents a departure from past regimes that used it to stifle the free exchange of ideas and impeded the press’ ability to hold those in power to account. During the apartheid era, if a journalist wrote an article questioning the government’s policies or highlighting human rights abuses, they could be charged with criminal defamation, facing imprisonment or hefty fines. Today, its abolition underscores a commitment to upholding the fundamental right to freedom of expression (section 16 of the Constitution).

Steps backward:

Crimen injuria is still a common law crime. It is the crime of unlawfully and intentionally impairing someone else’s dignity or privacy. It encompasses acts that degrade, humiliate or violate the dignity of another person. In South Africa, crimen injuria is often invoked in cases where offensive language or conduct is directed at an individual or group, particularly concerning issues of race, ethnicity, religion or sexual orientation. 

One notable case involving crimen injuria is the Penny Sparrow incident, where a real estate agent made racist remarks on social media sparking public outcry and leading to a criminal case resulting in a fine for crimen injuria. Similarly, Vicky Momberg faced charges of crimen injuria for using racial slurs when in communication with police officers. 

Thus, it has played a role in recent high-profile court cases, particularly in addressing hate speech. Due to it being a common law crime, the penalties for crimen injuria, determined through precedent, can include fines or imprisonment – up to R20 000,00 or, alternatively, imprisonment for a period of up to 12 months – with recent cases raising questions about its consistent application and potential overlap with other legal frameworks, like the Prevention of Unfair Discrimination Act, 2000 (“PEPUDA”). 

Despite criticisms of arbitrariness in handling cases, crimen injuria prosecutions underscore the significance of protecting human dignity and combating hate speech in South Africa’s legal landscape.

The Hate Speech Bill and the Films and Publications Act (and notice):

The repeal of criminal defamation coincides with ongoing debates surrounding the Prevention and Combating of Hate Crimes and Hate Speech Bill (“Hate Speech Bill’) which seeks to address hate speech within South Africa’s legal framework. Critics of the Hate Speech Bill argue that its broad and vague definitions of hate speech could potentially infringe upon free speech rights. Moreover, concerns have been raised regarding the constitutionality of the Bill’s provisions, particularly its expansive scope and punitive measures.

The FW de Klerk Foundation, among other stakeholders, has raised substantive objections to the Hate Speech Bill contending that existing laws, such as the aforementioned PEPUDA and crimen injuria statutes, already provide mechanisms for addressing hate speech without resorting to criminalization. Moreover, the Foundation argues that the lack of clear definitions and the severity of penalties under the Hate Speech Bill raise constitutional concerns regarding freedom of expression and the rule of law.

Thus, whilst a step in the positive direction, the repeal of criminal defamation still raises questions in light of existing legislation, such as the Hate Speech Bill. 

In parallel with legislative developments, the Films and Publications Board (“FPB”) has issued regulations – by notice on 22 March 2024 and yet to be withdrawn – targeting “disinformation,” “misinformation,” and “fake news” under the Films and Publications Act of 1996. These regulations, while purportedly aimed at curbing harmful content, have raised concerns about their potential impact on free speech rights. The FPB’s broad interpretation of prohibited content and the imposition of criminal penalties for digital dissemination pose challenges to the open exchange of ideas and information. 

Areas in question – should we criminalise this speech?

Electoral Act, 1998:

The Electoral Act, 1998’s criminalisation of the publication of false or defamatory allegations in connection with an election in respect of a party, its candidates, representatives or members; or a candidate or that candidate’s representatives. Doing so can land the party’s guilty candidate in jail for up to 10 years (section 94 read with sections 97 and 98 of the Act). 

Civil law – solutions sans the jail time or criminal record:

Civil Defamation:

It is important to note that civil remedies for defamation remain intact, as per section 34(2) of the Judicial Matters Amendment Act of 2023. Thus, one can still be sued for defamation with remedies such as financial compensation, interdicts to prevent further publication, public apologies and legal costs orders available. 

PEPUDA:

Section 10 of PEPUDA prohibits the publication, propagation, advocacy, or communication of words based on prohibited grounds like race, sex, gender, sexual orientation, religion, belief, and disability, if those words could reasonably be construed to demonstrate a clear intention to be harmful, incite harm, and promote or propagate hatred (“hate speech”).

Importantly, PEPUDA is a civil, not a criminal, law. In Qwelane v South African Human Rights Commission, the Constitutional Court clarified that PEPUDA must consider the structural positions of different groups and how words contribute to systemic disadvantage and subordination.

In terms of PEPUDA the judge has quite a few creative recourses available, including compensation for victims, injunctions to cease discriminatory behaviour and fines. One can see this be successfully applied in cases such as that of Khumalo. Khumalo’s hate speech remarks ignited both legal scrutiny and profound personal reflection. The court’s verdict delineated hate speech boundaries, emphasising that incitement to harm, whether violent or non-violent, constitutes unacceptable speech under the law. The judgment profoundly transformed Khumalo, prompting introspection and accountability. Forced to confront the consequences of his words, he underwent a moral reckoning, recognising the harm caused by his inflammatory rhetoric. 

Conclusion:

In conclusion, while strides were made with criminal defamation’s abolition, challenges persist with the Hate Speech Bill and Films and Publications Act. In addition, while civil remedies like PEPUDA remain to combat hate speech and promote adherence to constitutional principles, particularly section 16, is vital. This echoes concerns raised in the FW de Klerk Foundation’s 2023 Human Rights Report Card.