Getting to the heart of free speech

What do the following have in common: A cartoon about rape, a song about killing boers, and a photo mash-up of teachers and gay bodybuilders?

The answer is that they are all current legal cases that go to the heart of free speech in South Africa:

  • The ANC is appealing the ban on singing the Dubul’ Ibhunu (Shoot the Boers) song on the basis that it is not literally an incitement to violence. Winning their case would legalise controversial political speech over the offence taken by one body of citizens.
  • In contrast to this ANC stance, President Jacob Zuma has now launched a R5-million case against Avusa media for the Zapiro rape of justice cartoon. Zuma is reported as saying the cartoon defamed him and left him feeling humiliated. Winning that case would limit free political speech.
  • The Constitutional Court is currently assessing the appeal by three teenagers who were earlier found guilty of offences for a photo-manipulated picture. This particular case could greatly limit what is permissible to say about authority figures.

The judgement on the photo case is especially relevant for future jurisprudence about what speech actually impairs a person’s dignity. The issue goes back to 2006 when the North Gauteng High Court convicted the three boys of harming the reputation and dignity of their deputy headmaster Louis Dey through having produced and circulated a crude photo-montage.

As background to this case, a joke had been doing the rounds at the school based on the fact that “Dey” rhymes with “gay”. The adolescent jest is reminiscent of the old music album The Pope Smokes Dope (produced, incidentally, by John Lennon and Yoko Ono).

The rhyme about Dey is the context in which 15-year-old Hennie le Roux took inspiration from a mash-up he had seen on the South Park comedy series, where a character digitally transposes faces on to bodybuilders’ bodies.

Taking a picture of two naked men gleaned from a gay bodybuilders website, Le Roux then digitally inserted over-sized heads of Dey and the headmaster on to the torsos.

Dey’s argument was that both his reputation and his dignity were violated through being pictured as gay and masturbating.

In the original case at the North Gauteng High Court, the teacher had sought R600 000 in damages. The judge in that hearing concluded that the image had implied Dey was homosexual and had “low moral values”. The boys were ordered to pay R45 000 damages.

The trio appealed unsuccessfully to the Supreme Court of Appeals — hence their current pitch to the Constitutional Court. What’s of concern in the two earlier courts’ rulings are the following:

  • The photo-image was taken by these lower courts as implying that Dey was indeed gay, whereas the boys maintain their humour played precisely on the contrast between the reality (non-gay) and the obviously fabricated picture.
  • Controversially, with the courts finding Dey to have been imputed to be gay in the photo, they found this to be defamatory, disrespectful and ridiculing of the man’s moral values.

In supporting Dey’s case, the majority judgement written by Justice LJC Harms did acknowledge that teachers should “expect to be the subject of robust comment and the butt of jokes by scholars”. But, the judgement added, there was a line that could not be crossed because teachers had the right to reputation and dignity. Adolescents, it averred, should know where to draw the line between jest and ridicule.

The issue, continued the judgement, was not whether defamation actually occurred, but whether there had been a probability of injury to reputation. In this case, the photo had raised questions about Dey’s sexual orientation, ridiculed his moral values and disrespected his person.

A minority judgement by Justice BM Griesel argued that a bad joke did not automatically translate into a defamatory statement. While the picture had affronted Dey’s dignity, he agreed, this did not equate to defamation.

In their appeal to the Constitutional Court, the boys have denied that the image denigrated either Dey’s reputation or dignity.

Given the image was clearly a montage, and not literally Dey, it was clearly not defamatory of the man, and nor did it injure his real dignity, they argued.

Their court papers also note that at the time of the prank, none of the teens knew what defamation was. “They thought it was taking the Lord’s name in vain,” read the documents.

Dey has presented himself as fighting to maintain the authority of teachers. In a comment after his initial legal victories — which also reveals a pretty archaic racial worldview — he reportedly said: “Selfs ‘n Indiër-skoolhoof het my gebel en gesê: ‘Dank die Heer’.” (Even an Indian headmaster called me and said, ‘Thank the Lord’.)

Hopefully, the Constitutional Court will soon let the boys off the hook — leaving Dey to realise that teachers’ authority rests on their actions, rather than being a function of schoolboy jokes.

What’s also critical, though, is that the court strongly underline that even if Dey has a right not to be portrayed as gay, South African law means that homosexuality cannot be seen as meaning a diminished reputation — let alone having “low morals”.

Finally, what’s also critical is that they do not support an understanding of harm to dignity as being a matter of purely subjective affront. Dey’s personal offence should not be the exclusive measure of his dignity.

A positive ruling on all this will help to retain our current freedom of speech, and it will also reinforce a climate for equally pro-speech rulings about the ANC’s song and the rape cartoon.

This column is made possible by support from fesmedia Africa, the Media Project of the Friedrich-Ebert-Stiftung in Africa, The views expressed in it are those of the author.

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Guy Berger
Guy Berger
Director: Policies & Strategies in the field of Communication and Information at UNESCO

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