The penalties for hate speech, however, were formulated with reconciliation in mind, and lead to incarceration only if court orders meant to facilitate formal apologies and financial redress are ignored, resulting in defendants being in contempt of court.
Comments by real estate agent Penny Sparrow caused outrage on social media as South Africans reacted and condemned her views at the weekend. In a post on a neighbourhood group on Facebook, Sparrow lamented the state of a Durban beach on New Year’s Day, and called black people monkeys.
In just a few hours, Sparrow’s comment had spread across all social media platforms, with many contacting Jawitz Property, where it was assumed she was employed, and complaints against her had been filed with the South African Human Rights Commission (SAHRC).
On Monday morning, the Democratic Alliance announced that one of their members, Herman Mashaba, had filed criminal charges against Sparrow with the police, and a criminal case had been opened.
In a statement, DA spokesperson Mabine Seabe said the party would be suspending Sparrow’s membership with that party. “Racists are not welcome in the DA, and have no place in our democratic South African society,” he said.
Hate speech may be defined as “any speech, gesture or conduct, writing, or display which is forbidden because it may incite violence or prejudicial action against or by a protected individual or group, or because it disparages or intimidates a protected individual or group.
South Africa’s judicial system is equipped to formally test the argument that Sparrow’s comments constitute hate speech.
“While the South African Constitution makes very little reference to ‘hate speech’, it prohibits speech that propagates for war; incitement of imminent violence; or advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm,” said Nomagugu Nyathi, a researcher at the Freedom of Expression Institute.
In accordance with the Constitution of South Africa, hate speech does not constitute freedom of expression and therefore it is not acceptable. The Promotion of Equality and Prevention of Unfair Discrimination Act, commonly known as the Equality Act, states that one of its main objectives is to “prohibit hate speech”.
Nyathi added that Sparrow can be tried in a court of law and cases such as hers are heard by the Equality Court, which is designed to hear matters where the constitutional right to equality is alleged to have been violated. She also noted that comparing black people to monkeys is widely considered derogatory and there have been previous cases where perpetrators have been asked to issue formal apologies or engage in a remedy as stipulated by the court.
Should a defendant be found guilty, the Equality Court may issue an order that requires them to apologise, pay a fine or pay an appropriate order of cost to the victim.
“There is no record of imprisonment due to hate speech. Imprisonment is not a remedy but if the individual fails to comply with the court order they may be imprisoned,” Nyathi added.
Sparrow later posted an apology on Facebook. It fell short, however, of the Equality Court’s definition of an apology, which stipulates that a “mere retraction cannot be called a full and free apology”.
It is not the first time comments made on social media have landed someone squarely within in the SAHRC’s sights. In 2012, 45 cases were opened against model Jessica Leandra after she posted a series of racist tweets.
Digital media manager Natalie Govender said that although Sparrow’s comments were made on a neighbourhood watch group they were still considered public.
“As digital citizens, we must be aware that our rights to freedom of expression come with responsibilities,” she said. “Social media is not there for us to be racist, sexist or homophobic.”