Context largely determines the legal decision on whether a publication or communication constitutes hate speech. This is seen in the 2018 case of Duncanmec vs Gaylard, in which the Constitutional Court confirmed that while the use of the word “boer” in itself was not racially offensive, when used in the singing of a struggle song and depending on the circumstances, it may be inappropriate and offensive.
The court in this matter accepted that a group of employees who sang a struggle song containing the word “boer” while participating in a peaceful strike had participated in racially offensive conduct.
In his article, “Black people must be free to articulate their anger at the theft of their land” (June 10), Mcebo Dlamini proposes an insightful context to the slogan “Land or Death”, citing Frantz Fanon to argue that land and the soil provide a foundation for the production of food, without which people will die. Dlamini’s criticism of the equality court judgment is largely based on his belief that the court took the slogan far too literally, because the slogan was merely meant to “capture the imagination of our people” and should thus be protected as free speech.
At best, this explanation is creative. It does not represent the views of Black First Land First and BLF itself has failed to defend its “Land or Death” slogan.
Previous statements made by BLF leader Andile Mngxitama include: “Whites and their lackeys better repent now before it’s too late”, “You kill one black person, we kill five white people” and “We’ll kill their children, we’ll kill their women, we’ll kill their dogs, we’ll kill their cats, we’ll kill anything.”
I am doubtful that even a complete data analysis of Mngxitama’s tweets and media communications would bring about any evidence in support of Dlamini’s ideal contextualisation of “Land or Death”. It is the real environment in which the slogan exists that renders the equality court ruling reasonable and correct.
The BLF could not argue that its slogan is an intellectual representation of its ideology because of the falsity of such a defence and the lack of supporting evidence.
The court, in ruling that the BLF slogan violates section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act, stated that the “harm” caused in the matter is the marginalisation of white people who own land. Dlamini correctly states that there was no imminent harm caused. But, the judgment ruled on the incitement of harm, which is different from imminent harm.
The law’s requirement of imminence refers to impending harm, whereas that of incitement refers to the provocation or inducement of harm. For an allegation of incitement to stand in the matter, the words used must, within reason, be capable of an interpretation that implies a clear intention to provoke harm.
In the recent case of journalist Karima Brown against the Economic Freedom Fighters (EFF), the court concluded that party leader Julius Malema’s publication of Brown’s cellphone number, leading to a slew of threats against her life and safety, was incitement.
This leads to my only contention with the BLF judgment, which is that I do not see the existence of a causal connection between Lucy Strydom, who brought the complaint, and any provocation of harm against her. Despite her whiteness and the fact that she owns land, I cannot link her to the complaint as a direct subject of potential harm.
With the two recent EFF judgments involving Brown and Trevor Manuel, it is becoming increasingly clear that public officials, as well as influential people with a large social- media following, are subject to a duty of care that underpins their right to freedom of expression. People must ensure that the content they share on social media with their followers does not discriminate against others in an unfair manner.
Had the BLF presented “Land or Death” as an academic ideology in the same vein as Steve Biko’s “Black Consciousness” or Malcolm X’s “Black Power”, the slogan might have had a positive effect on the empowerment of black people. Had the slogan been presented as a school of thought, as Dlamini expresses, the BLF might successfully have persuaded more citizens to trust that their interests would be adequately represented in Parliament (if it had a seat). Unfortunately, this is not the reality. In fact, the BLF missed a great opportunity for meaningful engagement — along with a seat in Parliament.
Nobuhle Kunene is a final-year LLB student at the University of the Witwatersrand. These are her views.