scholarly journals OF SEMI-COLONS AND THE INTERPRETATION OF THE HATE SPEECH DEFINITION IN THE EQUALITY ACT South African Human Rights Commission v Qwelane (Freedom of Expression Institute as Amici curiae) and a related matter [2017] 4 All SA 234 (GJ)

Obiter ◽  
2018 ◽  
Vol 39 (2) ◽  
Author(s):  
Joanna Botha
Keyword(s):  
South Africa ◽  
Human Rights ◽  
South African ◽  
Hate Speech ◽  
Freedom Of Expression ◽  
Eastern Cape ◽  
Threshold Test ◽  
Related Matter ◽  
The Republic

In South African Human Rights Commission v Qwelane (hereinafter “Qwelane”) the constitutionality of the threshold test for the hate speech prohibition in section 10(1) of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (hereinafter the “Equality Act”) was challenged. Although the court had no difficulty in finding that the publication in question fell squarely within the parameters of hate speech, the judgment is both incoherent and flawed. The court’s conjunctive interpretation of the section 10(1) requirements for hate speech also differs from the disjunctive interpretation given to the same provision in Herselman v Geleba (ECD (unreported) 2011-09-01 Case No 231/09 hereinafter “Herselman”) by the Eastern Cape High Court. The consequence is a “fragmented jurisprudence” which impacts on legal certainty, and which is especially dangerous when the legislation in question is critical to the achievement of the constitutional mandate (Daniels v Campbell NO 2004 (5) SA 331 (CC) par 104 hereinafter “Daniels”).This note demonstrates that the Qwelane court misapplied a number of key principles. These include: the court’s mandate in terms of section 39(2) of the Constitution of the Republic of South Africa, 1996 (hereinafter the “Constitution”); the need to strike an appropriate balance between competing rights in the constitutional framework; the importance of definitional certainty for a hate speech threshold test; the meaning to be ascribed to the terms “hate”, “hurt” and “harm” in the context of hate speech legislation; and the role of international law when interpreting legislation intended to give effect to international obligations.The consequence of these errors for hate speech regulation in South Africa is profound.

DEMOCRACY AT THE SERVICE OF FOREIGN POLICY OF THE REPUBLIC OF SOUTH AFRICA

2019 ◽  
Author(s):  
A. FREDDIE
Keyword(s):  
South Africa ◽  
Human Rights ◽  
Foreign Policy ◽  
Transition To Democracy ◽  
The Political ◽  
Political Activities ◽  
Foreign Policy Change ◽  
The Republic ◽  
Apartheid Regime

The article examines the place and role of democracy and human rights in South Africas foreign policy. The author analyzes the process of South Africas foreign policy change after the fall of the apartheid regime and transition to democracy. He gives characteristics of the foreign policy under different presidents of South Africa from 1994 to 2018 and analyzes the political activities of South Africa in the area of peacekeeping and human rights on the African continent.

scholarly journals Dignity, religion and freedom of expression in South Africa

2011 ◽  
Vol 67 (1) ◽  
Author(s):  
Jacobus C.W. Van Rooyen
Keyword(s):  
South Africa ◽  
South African ◽  
Freedom Of Expression ◽  
Sense Of Self ◽  
Point Of View ◽  
National Pride ◽  
Form Part ◽  
Self Worth ◽  
Constitutional Right ◽  
The Republic

The issue that this article dealt with is whether, in South African law, speech that infringes upon the religious feelings of an individual is protected by the dignity clause in the Constitution of the Republic of South Africa. The Constitution, as well as the Broadcasting Code, prohibits language that advocates hatred, inter alia, based on religion and that constitutes incitement to cause harm. Dignity, which is a central Constitutional right, relates to the sense of self worth which a person has. A Court has held that religious feelings, national pride and language do not form part of dignity, for purposes of protection in law. The Broadcasting Complaints Commission has, similarly, decided that a point of view seriously derogatory of ‘Calvinistic people’ blaming (some of) them as being hypocritical and even acting criminally is not protected by dignity. It would have to be accompanied by the advocacy of hatred as defined previously. The author, however, pointed out that on occasion different facts might found a finding in law that religion is so closely connected to dignity, that it will indeed be regarded as part thereof.

scholarly journals Raamwerkwetgewing ter Verwesenliking van die Reg op Toegang tot Voldoende Voedsel

2017 ◽  
Vol 15 (5) ◽  
pp. 228
Author(s):  
Anél Terblanche ◽  
Gerrit Pienaar
Keyword(s):  
South Africa ◽  
Human Rights ◽  
Food Security ◽  
South African ◽  
The South ◽  
The Republic ◽  
The Right ◽  
Human Rights Based Approach ◽  
Right Of Access ◽  
Sufficient Food

Various South African government reports list food security as a development priority. Despite this prioritisation and despite the fact that South Africa is currently food self-sufficient, ongoing food shortages remain a daily reality for approximately 35 percent of the South African population. The government's commitment to food security to date of writing this contribution manifests in related policies, strategies, programmes and sectoral legislation with the focus on food production, distribution, safety and assistance. A paradigm shift in the international food security debate was encouraged during 2009, namely to base food security initiatives on the right to sufficient food. During a 2011 visit to South Africa, the Special Rapporteur for the Right to Food of the United Nations, accordingly confirmed that a human rights-based approach to food security is necessary in the South African legal and policy framework in order to address the huge disparities in terms of food security (especially concerning geography, gender and race). A human rights-based approach to food security will add dimensions of dignity, transparency, accountability, participation and empowerment to food security initiatives. The achievement of food security is further seen as the realisation of existing rights, notably the right of access to sufficient food. The right of access to sufficient food, as entrenched in section 27(1)(b) of the Constitution of the Republic of South Africa, 1996 will accordingly play a central role within a human rights-based approach to food security. Section 27(2) of the Constitution of the Republic of South Africa, 1996 qualifies section 27(1)(b) by requiring the state to take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of the section 27(1) rights. The South African government's commitment to food security, as already mentioned, currently manifests in related policies, strategies and programmes, which initiatives will qualify as other measures as referred to in section 27(2) mentioned above. This contribution, however, aims to elucidate the constitutional duty to take reasonable legislative measures as required by section 27(2) within the wider context of food security. This contribution is more specifically confined to the ways in which a human rights-based approach to food security can be accommodated in a proposed framework law as a national legislative measures. Several underlying and foundational themes are addressed in this contribution, amongst others: (a) the relationship between food security and the right of access to sufficient food; (b) food security as a developmental goal; and (c) the increasing trend to apply a human rights-based approach to development initiatives in general, but also to food security.

scholarly journals PRESIDENTIAL POWERS IN SOUTH AFRICA – MORE QUESTIONS THAN ANSWERS

Obiter ◽  
2019 ◽  
Vol 40 (1) ◽  
Author(s):  
George Barrie
Keyword(s):  
South Africa ◽  
South African ◽  
Good Governance ◽  
The United States ◽  
Abraham Lincoln ◽  
United States Congress ◽  
Executive Authority ◽  
Head Of State ◽  
The Republic

This note attempts to analyse the essence of presidential powers in South Africa. These powers are in essence found in sections 83−85 of the Constitution, which relate to “The President”, “Powers and functions of President” and “Executive authority of the Republic” respectively. After being in operation for close to two-and-a-half decades, questions still remain as to the precise meaning of the Constitution’s reference to the President as “head of state”, “head of the national executive” and being vested with “executive authority”. The existence of such questions, it is submitted, should be of some concern. Since the role of the President is critical in ensuring effective executive government, is it not imperative that, by this time, there should be a consensus as to the meaning of the terms “head of state”, “head of the national executive” and “executive authority”? The role of the President can be extremely politically demanding. Executive aggrandisement must be averted. Because our system of executive government is relatively unexplored given that the Constitution only dates from 1996, it needs to be developed in a truly democratic context with a keen sense of constitutionalism. This implies that the executive must be “unable to employ the strong arm tactics that an autocratic executive is by its very nature able to do”.The dilemma facing the South African President as head of state and head of the national executive and being vested with executive authority (sections 83, 84 and 85 of the Constitution) is similar to that faced by Abraham Lincoln on 4 July 1861 in his historic address to the United States Congress after the outbreak of the Civil War. Lincoln posed this question: “Must a government, of necessity, be too strong for the liberties of its own people, or too weak to maintain its own existence?”.In discussing the terms “head of state” and “head of the national executive”, the terms as they feature in the Constitution are referred to; the terms as interpreted and applied in practice are analysed and lastly the myriad questions raised by the terms are highlighted. It will emerge that when it comes to analysing these terms, there appear to be more questions than answers. It is submitted that these unanswered questions are not consonant with good governance and can only result in constant litigation.

Political Violence in South Africa: The Role of Youth

1994 ◽  
Vol 22 (2) ◽  
pp. 27-29
Author(s):  
Saths Cooper
Keyword(s):  
South Africa ◽  
Human Rights ◽  
South African ◽  
Political Violence ◽  
Historical Background ◽  
The South ◽  
The Core

A meaningful understanding of the causes of political violence in South Africa and youth’s role in its dénouement must consider some of the historical background to the national struggle for human rights and youth’s specific involvement thereof. The phenomenon of adolescent marchers and activists who characterized the resistance to Apartheid over the last decade has had sequelae and antecedents that reflect the core of the South African dilemma.

scholarly journals The Politics of Hate Speech: A Case Comment on Warman v Lemire

2012 ◽  
Vol 19 (1, 2 & 3) ◽  
pp. 2011
Author(s):  
Ranjan K. Agarwal
Keyword(s):  
Decision Making ◽  
Human Rights ◽  
Supreme Court ◽  
Hate Speech ◽  
Freedom Of Expression ◽  
Court Ruling ◽  
Supreme Court Ruling ◽  
Teleological Reasoning ◽  
Academic Debate

In September 2009, the Canadian Human Rights Tribunal waded into a highly public and acrimonious debate about the role of human rights tribunals and commissions, especially in policing hate speech. In Warman v Lemire,1 the Tribunal held that section 13(1) of the Canadian Human Rights Act2 (CHRA), which prohibits the communication of hate messages, infringed the constitutional guarantee of freedom of expression, section 2(b) of the Charter of Rights and Freedoms.3 The decision added to a firestorm of media, political and academic debate about whether anti-discrimination statutes should prohibit hate speech. The Warman decision is complicated by a twenty-year-old Supreme Court ruling, in a 4–3 decision, that a predecessor provision in the CHRA is constitutional. In this article, I argue that the Tribunal’s decision is logically unsound and likely the result of ends-based or teleological reasoning. In my view, ends-based reasoning does not assist in Charter analysis as it produces decisions that call into question the legitimacy of the courts. This article first outlines the facts in Warman and the Tribunal’s holding on the constitutional issues. It goes on to survey the legal and constitutional background to the Warman decision and discuss the Taylor precedent. It then describes the Tribunal’s reasoning on constitutional issues, including the Taylor decision and amendments to the CHRA after Taylor. Finally, it criticizes the Tribunal’s ends-based reasoning and argues that this type of reasoning is illegitimate in constitutional decision-making.

scholarly journals A Duty Perspective on the Hate Speech Prohibition in the Equality Act

2021 ◽  
Vol 24 ◽  
pp. 1-35
Author(s):  
Marelize Marais
Keyword(s):  
South African ◽  
Hate Speech ◽  
Freedom Of Expression ◽  
The State ◽  
Bill Of Rights ◽  
Socioeconomic Rights ◽  
The Supreme Court ◽  
The Republic ◽  
Legal Contexts ◽  
The Right

In this contribution, I argue that every person's duty to respect others is central to section 10(1) of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 ("the Equality Act"), otherwise known as the "hate speech" prohibition. This duty should therefore also be a central consideration in its interpretation. Related duties are those of the state to enact legislation, and of courts to interpret and apply the law to promote the spirit, purport and objects of the Bill of Rights. Our courts have in many instances considered the duty to respect others, as well as the state's and the courts' related duties, in the interpretation of socioeconomic rights and the development of the common law. In doing so, they have consistently employed the reasonableness standard. Therefore, references to relevant case law in various legal contexts provide the framework within which I examine legal duties in the context of unfair discrimination and, in particular, hate speech in terms of section 10(1) of the Equality Act. I examine the constitutional obligations of the state, the courts and private persons to promote respect for the dignity of others. I reiterate the state's specific obligation in terms of section 9(4) of the Constitution of the Republic of South Africa, 1996, to enact legislation to prevent or prohibit unfair discrimination on the grounds listed in section 9(3). Finally, I relate these duties to the section 10(1) prohibition in the Equality Act. I apply the reasonableness standard to conclude that the prohibition gives due effect to the duties of the state and every person, and that the courts are duty-bound to interpret it accordingly. This conclusion refutes the Supreme Court of Appeal's ruling in Qwelane v South African Human Rights Commission ("Qwelane")[1] that the section 10(1) prohibition was vague, overbroad and, therefore, unjustifiably infringing the right to freedom of expression.   [1]        2020 3 BCLR 334 (SCA). 

scholarly journals The role of Parliament in promoting active citizenship in relation to the Grade 11 Life Orientation in the South African curriculum

2019 ◽  
Vol 15 (1) ◽  
Author(s):  
Agnetha Arendse ◽  
Juliana Smith
Keyword(s):  
South Africa ◽  
South African ◽  
Active Citizenship ◽  
Limited Information ◽  
Focus Group Interviews ◽  
Life Orientation ◽  
The Republic ◽  
Group Interviews ◽  
Grade 11

The Parliament of the Republic of South Africa plays a pivotal role in promoting active citizenship to ensure the deepening of democracy. This article, as based on the study by Arendse, explored the extent to which Parliament as a key participatory institution promotes active citizenship in relation to the Grade 11 Life Orientation (LO) curriculum in South Africa. A qualitative, interpretive approach was employed. However, data were gathered through the crystallisation approach using different methods of gathering data such as document study, questionnaires and focus group interviews, which involved 461 Grade 12 LO learners who had completed the Grade 11 LO curriculum during 2012 and seven LO educators. The findings suggest that there is: (1) lack of exposure, knowledge and understanding about Parliament; (2) lack of public education programmes and initiatives about Parliament; and (3) limited information about Parliament in the LO curriculum.

scholarly journals Human rights and the policing of disorder in South Africa: challenges and future directions

2021 ◽  
pp. 72-84
Author(s):  
Shaka Yesufu
Keyword(s):  
South Africa ◽  
Human Rights ◽  
South African ◽  
National Development ◽  
Extensive Literature ◽  
The South ◽  
State Repression ◽  
The Republic ◽  
Apartheid Regime ◽  
South African Police

Unarguably, the South African Police during the apartheid era was characterised by brutality and state repression, including the political executions of several South African citizens who dared oppose the apartheid regime. The post-apartheid era has also witnessed deaths of citizens at the hands of the police during demonstrations, demanding better service delivery, higher wages, improved working conditions, and an end to marginalisation and poverty. The author presents some cases of police human rights violations concerning policing citizen’s protests. This is a qualitative study, relying on extensive literature review by previous researchers. The findings of this study are: The South Africa Police Service continues to violate citizen's right to protest, which is enshrined in the Republic of South Africa’s constitution under chapter 2 “Bill of Rights” and other international legal jurisprudence. The South African police have failed to perform their duties professionally and effectively when it comes to policing protests. Crown management remains an elusive issue both during the apartheid and post-apartheid eras. The author recommends a demilitarization of the police consistent with the South African government policy recommendation, found in the National Development Plan 2030.

HUMAN RIGHTS, CULTURAL DIVERSITY AND CUSTOMARY LAW IN SOUTH AFRICA

2006 ◽  
Vol 50 (1) ◽  
pp. 2-23 ◽  
Author(s):  
EVADNÉ GRANT
Keyword(s):  
South Africa ◽  
Human Rights ◽  
South African ◽  
Customary Law ◽  
Constitutional Court ◽  
The South ◽  
The Republic ◽  
Human Rights Norms ◽  
The Right ◽  
Human Rights Standards

In the joined cases of Bhe v. Magistrate Khayelitsha and Others; Shibi v. Sithole and Others; South African Human Rights Commission and Another v. President of the Republic of South Africa and Another (2005(1) B.C.L.R. 1 (CC)), the South African Constitutional Court held unanimously that the male primogeniture rule according men rights to inheritance not enjoyed by women enshrined in the South African Customary Law of Succession violated the right to equality guaranteed under section 9 of the South African Constitution. On one level, the decision can be seen as a triumph for the universality of human rights norms. On another level, however, the case raises difficult questions about the relationship between human rights and culture. The aim of this paper is to assess the judgment critically in the context of the ongoing debate about the application of international human rights standards in different cultural settings.

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