Renaldo Gouws vs News24

SUMMARY

The headline to the story in dispute read, Zindzi Mandela taught us all a lesson (published on 21 June 2019).

This ruling by Press Ombud Pippa Green was based on the Press Code that was in effect before 30 September 2022.

 

Renaldo Gouws, a ward councillor for the DA in Nelson Mandela Bay, complained that a guest column on News24’s online platform, authored by Naledi Chirwa, an EFF member of Parliament:

• amounted to the advocacy of hatred that was based on race and that it had constituted incitement to harm; and
• exceeded the bounds of “protected comment” in that it showed “malice” and did not take account “of all material facts that are substantially true”.

The article referenced the “eruption of racial charges” against SA’s ambassador to Denmark, Zindzi Mandela, saying these were “from racist whites and black people who still suffer from massaging white fragility”.

Chirwa inter alia wrote that “white people and white-led propaganda systems” had “invested immense effort in deciding for black people what to make of apartheid” and that “white people have had no shame in defending the very premise of colonialism; land dispossession”. She then went on to describe the “dehumanizing atrocities” of domestic labour “like sacrificing a salary for breaking a glass”.

Green said Chirwa’s column might have been generalised and egregious, “but to prohibit it may simply close the valve on the necessary debates we need to have in South Africa”. She concluded that the article did not unnecessarily refer to race in a denigratory way. There was also no evidence that it constituted “incitement to cause harm” or of “malice”. Even though many would find her column “extreme” and “prejudiced”, Chirwa premised her column on two key facts: the fiery rhetoric around the land debate and the controversy over Ms Mandela’s tweets. “That it had a point of view that we may not agree with is the purpose of a column. Moreover, it was balanced by the other two contributions in this debate, which argued distinctly different views,” Green said.

The complaint was dismissed.

 

THE RULING ITSELF

Finding complaint 4428

Date of article: 21 June 2019

Headline: “Zindzi Mandela taught us all a lesson”

Author: Guest Column by Naledi Chirwa

Online: Yes

Particulars

This finding is based on a written complaint from Mr Renaldo Gouws, a written response from Mr George Claassen, internal Ombudsman for Media24, further written queries and responses and consultation of key texts on limitations of the freedom of expression and hate speech, both local and international.

Complaint

Mr Gouws, who is a ward councillor for the Democratic Alliance (DA) in Nelson Mandela Bay, complains that a guest column on News24’s online platform, by Ms Naledi Chirwa, who is an EFF member of Parliament, breached Section 16 (2) (c) of the Constitution that prescribes a limit for freedom of expression rights. The section states that the right to freedom of expression does not extend to “advocacy of hatred that is based on race, ethnicity, gender, or religion, and that constitutes incitement to harm.”

The Press Code closely mirrors this clause in its Clause 5 under the heading Discrimination and Hate Speech. This states:

5.1 Except where it is strictly relevant to the matter reported and it is in the public interest to do so, the media shall avoid discriminatory or denigratory references to people’s race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth or other status, nor shall it refer to people’s status in a prejudicial or pejorative context.

5.2 The media has the right and indeed the duty to report and comment on all matters of legitimate public interest. This right and duty must, however, be balanced against the obligation not to publish material that amounts to propaganda for war, incitement of imminent violence, or advocacy of hatred that is based on race, ethnicity, gender or religions, and that constitutes incitement to cause harm.

He also complains that the column exceeds the bounds of “protected comment” as laid out in Clause 7 of the Press Code, in that it showed “malice” and did not take account “of all material facts that are substantially true.”

1. The text

1.1 News24, in response to tweets from Ms Zindzi Mandela, the daughter of Nelson and Winnie Madikizela-Mandela, and ambassador to Denmark, commissioned three opinion pieces from guest writers.

1.2 The tweets were hashtagged #TheLandIsOurs and later, in what became a stormy debate on Twitter, simply #OurLand. The first one read: “Dear Apartheid Apologists, your time is over. You will not rule again. We do not fear you. Finally #TheLandIsOurs” [1]

1.3 In response to a storm of both support and condemnation, she posted a subsequent tweet that read: “Whilst I wine and dine here…wondering how the world of shivering land thieves is doing #OurLand”

1.4 In the wake of the controversy that erupted, News24 Opinions editor, Alet Janse van Rensburg, invited three guest columnists to comment on the controversy especially in the wake of President Cyril Ramaphosa’s third State of the Nation speech.

The context for the discussion was “Is Reconciliation dead?”

1. 5 The three columnists were Mavuso Msimang, a former member of the Umkhonto We Sizwe High Command and a former senior government official,  Leon Wessels, who was deputy chair of the Constituent Assembly between 1994 and 1996 and a former human rights commissioner, and Naledi Chirwa, an EFF member of Parliament.

Neither of the other two article are in contention, so I will focus on Ms Chirwa’s column.

1.6 Under the headline, Zindzi Mandela taught us all a lesson, Ms Chirwa begins by referencing the “eruption of racial charges” against SA’s ambassador to Denmark, Ms Zindzi Mandela, saying these were “from racist whites and black people who still suffer from massaging white fragility”.

The “frenzy’ waged against the “daughter of South African heroine, Winnie Nomzamo Madikizela-Mandela, is in response to her tweets on land thieves and apartheid apologists who truly believe that Nelson Mandela was a living sacrifice for their sins against black people”.

1.7 She writes that “white people and white-led propaganda systems” have “invested immense effort in deciding for black people what to make of apartheid” and that “white people have had no shame in defending the very premise of colonialism; land dispossession”.

They are “adamant in driving the deception that they are not the descendants of their ancestors, who structured this system of dispossession and perpetual violence and yet find no fault defending the fruits of violence and having their surnames on title deeds emanating from theft, rape, murder and psychological trauma of black people”.

1.8 She references “white supremacy” as wanting to define the “parameters within which black rage can find expression”, and wants to decide “not only how the native speaks and dresses, but also how the native responds to the master..

“This is because they see black people as nothing more than black help.”

She then goes on to describe the “dehumanizing atrocities” of domestic labour “like sacrificing a salary for breaking a glass”.

1.9 Criticizing “reconciliation”, she writes: “Reconciliation…wasn’t even demanded by black people. This is because to the white person, it is an honour for us to share spaces with them and a deterioration of their humanness for them to do the same with us.”

1.10 The writer accuses “’leaders’ of the liberation party of trad(ing) justice of black people for pension funds…and the decision to fail to return land to its rightful owners, black Africans, without compensation. ..In her series of tweets and responses to white racists and apologetic black people, Zindzi Mandela gave us a decade worth of free decolonized education.” That she did this a few days before the June 16 anniversary as well as that of the 1913 Land Act “was a beautifully orchestrated coincidence as we were reminded of the gruesome hatred and entitlement of colonisers, the lives lost fighting against white supremacy and a slave driven education system that entrenched supreme reign over black lives by entrenching fear in our very existence.”.

It was to counter this that Zindzi Mandela asserted “we do not fear you…you will not rule again”.

“And like old school white aggressive arrogance fearful of the possibility of being stripped of power over black people, the retort was that ZIndzi Mandela was tarnishing her father’s legacy.”

1.11 The writer says “white people…still believe that our struggle heroes owe the narrative of their legacies to their myopic and shallow opinions and not actual liberation and emancipation of black people.”

1.12. She concludes by commending Ms Mandela for showing “what an ambassador and public servant should prioritize, and that is defending the truth at all cost”.

2. The Arguments

Mr Gouws

2.1 Mr Gouws’ central argument is that Mr Chirwa’s column violates Section 16 (2) (c) of the Bill of Rights in the Constitution. This clause states that freedom of expression does not extend to “advocacy of hatred that is based on race, ethnicity gender or religion, and that constitutes incitement to cause harm”.

It also violated section 1.2 of the Press Code, which enjoins the media to present news “in context and in a balanced manner, without any intentional or negligent departure from the facts, whether by distortion, exaggeration or misrepresentation, material omissions, or summarisation.”

It also violated 5.1 of the Press Code, which says that except “where it is strictly relevant to the matter reported and it is in the public interest to do so, the media shall avoid discriminatory to denigratory references to people’s race, gender, sex pregnancy, marital status, ethnic or social origin, colour….nor shall it refer to people’s status in a prejudicial or pejorative context”; as well as 5.2 which balances the media’s duty to “report and comment on all matters of legitimate public interest…[with] the obligation not to publish material that amounts to propaganda for war, incitement of imminent violence or hate speech – that is advocacy of hatred that based on race, ethnicity, gender or religion”, and that constitutes incitement to cause harm.”

2.2 Mr Gouws argues the column relies on generalisations about white people such as in the sentence “white people still believe that our struggle heroes owe the narrative of their legacies to their shallow opinions..”, and that this violates section 7.2 of the Code, which protects comment and criticism as long as a piece “has taken fair account of all material facts.”

“How can the author make this statement as if all white people feel this way?” he asks.

2.3 There are several excerpts Mr Gouws quotes that he says are “generalisations” about white people such as:

• “White people…have invested immense effort in deciding for black people what to feel about apartheid.”
• “White people are adamant in driving the deception that they are not the descendants of their ancestors, who structured this system of dispossession and perpetual violence and yet find no fault defending the fruits of violence and having their surnames on title deeds emanating from theft, rape, murder…of black people.”
• “White South Africans cannot fathom black rage finding expression outside of the fictional limitations set by their stronghold on African soil.”
• “White people have consistently found unwarranted grace from black people.”
• “White people, two decades into supposed freedom, still believe that our struggle heroes owe the narrative of their legacies to their myopic and shallow opinions and not actual liberation and emancipation of black people..”

2.4 Although News24 has a disclaimer on the bottom of the piece saying the views of columnists do not represent the views of News24 and that it encourages diversity and freedom of speech, it nonetheless “does not assist when they are providing a platform to someone who is in clear violation of Section 16 of our constitution” as well as the Press Code.

2.5 By publishing the column, News24 have helped provide “a narrative and generalisation of a specific race in this country that is simply not true and completely based on hearsay.”

2.6 It also is a piece that bears “clear malice” thus violating even 7.2 of the Press Code that protects comment.

News24

2.7 Mr George Claassen, internal ombudsman of News24, replied on behalf of the publication.

2.8 He argues that the column was “clearly presented as opinion and is thus protected as fair comment”.

The column was published as part of News24’s Friday briefing newsletter and provided analysis from three columnists on Ms Mandela’s tweets. The other two writers were Dr Leon Wessels and Mr Mavuso Msimang, both of whom presented “opposite” views. “In this sense, while extreme, Ms Chirwa’s comments were balanced by the views of the other two commentators.”

2.9 In terms of the mention of race, this was “particularly relevant to the news under discussion, as Ms Mandela’s tweets were in essence commentary about white people’s role in land dispossession in the past. Ms Chirwa’s column was a defence of Ms Mandela’s views and therefore, even though extreme, in context of the topic of discussion, in the public interest. Ms Chirwa is an EFF Member of Parliament and her views represent those of 10.79% of South Africans – thus making it very much relevant to debates of this nature.”

2.10 Even if the column was “exaggerated or unjust, given the wide public debate around Ms Mandela’s tweets, it was in the public interest to publish Ms Chirwa’s views.” Ms Chirwa is a public representative and political leader “and her views should not be hidden, but instead published widely in order to expose South Africans to her and her party’s political and ideological views”.

2.11 Mr Claassen argues that this is the essential role of the media: “to expose and shed light on matters that are of public interest. The fact that the tweets in question and the subsequent public debate was in and of itself of an extreme nature meant that to accurately and fairly represent the debate, we could not ignore the more extremely held views on the topic. We tried to present this in the most balanced manner possible by also publishing opposing and more moderate views.”

2.12 He also argues that although generalisation/stereotyping may be unfair, this does not in itself “amount to hate speech “. Ms Chirwa’s arguments are not malicious, “but should rather be seen in context of her and her party’s ideological views and rhetoric on the history of South Africa. “

Further arguments

2.13 In response, Mr Gouws argues that the fact that three commentators wrote about Ms Mandela’s tweets is “irrelevant as two of the three analysists didn’t breach the code of conduct”. His complaint is also “not about whether or not News24 published a broad spectrum of views. My complaint is regarding Naledi Chirwa’s opinion piece and that it breached the Code of Conduct.”

2.14 News24’s defence that Mr Chirwa’s commentary is protected by Clause 7.2 of the Press Code is also without substance as that clause specifically excludes “malice” and prescribes that it should take account of “all material facts that are substantially true”.

Ms Chirwa’s commentary was intended to cause malice “as it is stereotyping 4.6 million South Africans. The motive the writer used here was not to comment on the words used by the ambassador, it was used as a separate motive which was to degrade white people and that she used it as a launching pad to run her own agenda, which is therefore malicious.”

2.15 Neither was it based on “truth or a reasonable truth”: it stereotypes a whole race “and therefore would have to mean that every single person of that race has to think according to her statement to be considered true or reasonably true.”

The best example of this breach is to be found in her statement:

“White people are adamant in driving the deception that they are not the descendants of their ancestors, who structured this system of dispossession and perpetual violence and yet find no fault defending the fruits of violence and having their surnames on title deeds emanating from theft, rape, murder and psychological trauma of black people.”

She could have said “some” or “most”; this would have bolstered the News24 argument, even if he did not agree. But her comment “clearly states ‘white people” assuming that every white person is guilty of what she describes.

“She is also accusing every white person of obtaining the land they own through “theft, rape, murder and psychological trauma of black people”. This is written with clear malice and cannot be considered true or reasonably true.”

2.16 He argues that she has referred to “white people as a whole instead of individuals in 17 instances in the article”.

2.17 Although her party may represent 10.79% of the vote, she has stereotyped “100% of white people” and is discriminating against “an entire race group’, thus breaching section 5.1 of the Code.

2.18 It is also “unfortunate” that News24 “will gladly publish an opinion piece that is denigratory against white people, however will they or have they ever run a denigratory opinion piece against black people? If not, why not?” This shows “clear bias”.

2.19 “Whether in the public interest or not the constitution is clear with regards to hate speech.” Moreover, the Press Code clause 5.2 balances the media’s right to report and comment with an obligation not to publish material that is “advocacy of hatred” based on race. In this case, “her hatred” is illustrated by the following paragraph:

“White people are adamant in driving the deception that they are not the descendants of their ancestors, who structured this system of dispossession and perpetual violence and yet find no fault defending the fruits of violence and having their surnames on title deeds emanating from theft, rape, murder and psychological trauma of black people.”

2.20 “This is but one example of the 17 times she stereotyped and generalised white people, what makes the above quote of specific importance is the accusation of theft, rape, murder and psychological trauma at the hands of every white landowner in South Africa. This statement is simply not true.”

3. Analysis

3.1 Although the commentary piece began with a narrowed definition of the object of its attack by using the term “racist whites” (and coupling that with “black people who still suffer from massaging white fragility”), it fairly quickly degenerated into broad generalisations. So although the term “apartheid apologists” (the term used in Ms Mandela’s tweets) or “white supremacy”, which defines an ideology, is used, much of the piece relies on the general term “white people” (they “find no fault with defending the fruits of violence”, to a white person who believes “it is an honour for us to share spaces with them”, they regard themselves “highly…over black lives”, they “still believe that our struggle heroes owe the narrative of their legacies to their myopic and shallow opinions.”

3.2 This is sweeping in spite of being more constrained in the beginning.

3.3 In the introduction to the series of columns known as the Friday Briefing, opinions editor Alet Janse van Rensburg quotes the Nigerian poet Ben Okri quoted by President Cyril Ramaphosa in his third State of the Nation address: “You can’t remake the world / Without remaking yourself / Each new era begins within.”

Okri’s words, she writes in her introduction “ are also instructive in a time when South Africans are increasingly at each other’s throats as illustrated again the past week in the fallout of South African Ambassador to Denmark Zindzi Mandela’s controversial tweets about “white people” and land. Many lambasted her for being racist while even more came to her defence.

In light of these events, we ask, ‘Is reconciliation dead?’”

3.4 Leon Wessels, a key drafter of the South African constitution, acknowledges in his contribution the bitterness generated by South Africa’s past: “Generations have struggled for today’s generation to be free; we must acknowledge that we have also left them with unfinished business. We have burdened them with many challenges. Dealing with the vestiges of apartheid is no small matter.

“I would like the new generation to be fleet footed and race towards the future; not running away from the past but knowing that their hopes for the future is stronger than the shackles of the past. I would like them to appreciate that there was a past – a brutal one at that – and that you can’t get rid of the past by ignoring it..

“We battle to get to the future. South Africa’s past just will not let us be in peace.”

3.5 Mavuso Msimang, a former member of the High Command of Umkhonto we Sizwe, who has served the democratic government in several senior capacities, went further. He criticized Ms Mandela’s tweets as  being “an egregious violation of the Constitution”.

“As ambassador, Mandela is in reality the representative in Denmark of the president of South Africa and of the entirety of its people. Her utterances are not only prejudicial against certain sections of the population but are also tantamount to the repudiation of important tenets of the Constitution. They are against the grain of the Freedom Charter, a document drawn up by, among other patriots, the ambassador’s father, Nelson Mandela, South Africa’s preeminent freedom fighter and statesman; who spent 27 years in gaol for his unflinching commitment to the liberation of South Africa and for his unwavering commitment to non-racism, non-sexism and universal human rights.”[2]

3.6 He accuses her of  indulging in “hate speech” and of operating in “a space not dissimilar” to that occupied by Adam Catzavelos whose racist video celebrating the absence of black people on a Greek beach went viral, or Julius Malema, the EFF leader, when he said South Africans of Indian origin were ‘worse than Afrikaners.’

“People in public office, especially politicians, have a crucial responsibility to ensure that cohesion prevails in society. This they can do without conceding an iota of their philosophical convictions.”

3.7 These were two very different views on Ms Mandela’s tweets from the ones expressed by Ms Chirwa and indicates there was balance in the debate commissioned by News24.

3.8 That said, the question is whether Ms Chirwa’s comments nonetheless breached the Press Code and the Constitution.

3.9 Section 16 (2) (c) of the Constitution spells out the limits of the right to freedom of expression: “advocacy of hatred that is based on race, ethnicity gender or religion, and that constitutes incitement to cause harm” (my emphasis).

The Press Code mirrors this in Clause 5.2: “The media has the right…to report and comment on all matters of legitimate pubic interest…[but must be balanced] against the obligation not to publish material that amounts to propaganda 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.” (my emphasis)

3.10 The conjunctive “and” recently became critically important in a ruling by the Supreme Court of Appeal that declared parts of the Promotion of Equality and the Prevention of Unfair Discrimination Act (PEPUDA) (4 of 2000) as constitutionally invalid.[3]

3.11 The case arose out of an appeal by former journalist and columnist Jon Qwelane against a conviction for “hate speech” by the Johannesburg High Court in 2017. Mr Qwelane had written a column for the Sunday Sun in 2008 headlined “Call me names but gay is NOT okay”. The column was illustrated by a cartoon of a man “marrying” a goat.

3.12 The SCA described the column as “admittedly offensive…directed against the gay community.” It said the article “unambiguously lambastes homosexuals who are, in the view of the appellant, ‘against the natural order of things’. The article speaks of a ‘rapid degradation of values and traditions’ and calls for an amendment to the Constitution to remove the provisions which allow men and women to marry persons of the same sex. What is more, Mr Qwelane makes reference to former Zimbabwean President, Robert Mugabe, and says that he has no issue with his ‘unflinching and unapologetic stance over homosexuals’.”

3.13 The column “was met with a huge public outcry” and both the Human Rights Commission and the Press Ombud received “many” complaints. The Press Ombud found that Mr Qwelane and Media24 (the publisher) were in breach of the Press Code and ordered the Sunday Sun to apologise.[4]

3.14 The HRC instituted proceedings against Mr Qwelane and Media24 in the Equality Court, but both then launched an application to the High Court to have parts of PEPUDA declared unconstitutional, arguing they were inconsistent with Section 16 of the Constitution.

3.15 The HRC testified it had received several complaints from the LGBTI community and that they were often subject to violence and abuse. Furthermore, their complaints were often not investigated by the SA Police Services. These included “horrific” testimony from People Opposing Women Abuse (POWA) about how a lesbian in KwaZulu Natal was stoned to death and former women’s national soccer team member was gang-raped and “brutally” murdered by five men.

3.16 There was also evidence that the main harm caused by the article was to the dignity of the LGBTI community.

3.17 The High Court held “that the offending statements against homosexuals were hurtful, incited harm and propagated hatred; and that they accordingly amounted to hate speech for purposes of s 10(1) of PEPUDA.”

3.18 The SCA sets out the conundrum that confronts South Africa and perhaps the media in particular in its introduction: “It can rightly be said that espousing and fostering hatred is the antithesis of our constitutional order. The preamble to the Constitution sets out the basis of our social compact. It records that we, as a nation, whilst recognising our painful past, ‘[b]elieve that South Africa belongs to all who live in it and that we are united in our diversity’. We also undertake to ‘[h]eal the divisions of our past and establish a society based on democratic values, social justice and fundamental human rights’.

“On the other hand, freedom of expression is vital to – and indeed the lifeblood of – a democratic society. Renowned author George Orwell, who was preoccupied with government encroachment on individual liberties, political correctness and ‘thought police’, said the following:

‘If liberty means anything at all, it means the right to tell people what they do not want to hear.’”

The focus, said the Court, is the tension between hate speech and freedom of expression.

3.19 Section 10 (1) of PEPUDA prohibits speech or publication that may be:

 a) be hurtful;

(b) be harmful or to incite harm;

(c) promote or propagate hatred.

The argument before the Appeal Court was that this section (and another) “unjustifiably limits the constitutionally guaranteed rights to freedom of expression”.

3.20 The Court asked whether certain provisions of PEPUDA “extend beyond the provisions of s 16(2)(c) of the Constitution”.

The “short answer”, it found, is “yes”. This was because the categories of prohibited speech extend beyond the bounds of the Constitution, (e.g. it includes marital status, HIV status, and disability among them). However, it stated, there can be no doubt that the State has an interest in extending the protection against discrimination, to include protection against discrimination based on sexual orientation.

3.21 However, the difference between the way the law is phrased and Section 16 of the Constitution is that the legislation says:

no person may publish, propagate, advocate or communicate words based on one or more of the prohibited grounds ‘against any person, that could reasonably be construed to demonstrate a clear intention to (a) be hurtful, (b) be harmful or to incite harm, (c) promote or propagate hatred’.

3.22 This was different from the Constitutional standard, argued the Court, which says that freedom of expression does not extend to “advocacy of hatred that is based on ‘race, ethnicity, gender or religion, and that constitutes incitement to cause harm’.

3.23 This is a distinct standard, argued the Court, and involves an “objective test” –  “a primary assessment of whether the expression complained of comprises advocacy of hatred based on one of the prohibited grounds and then a further assessment of whether the advocacy of hatred constitutes incitement to cause harm. This ties in with the international jurisprudential basis for regulating freedom of expression..

“The ‘advocacy of hatred’ and ‘incitement to cause harm’ are inextricably linked.”

3.24 “Hurtful” speech alone, then, cannot be a sufficient justification to limit freedom of expression.

3.25 The court also quotes UCT Law professor Pierre de Vos, who writes about how PEPUDA was drafted: “This is so absurdly broad that it is difficult to see how . . . the hate speech provision is nevertheless justifiable in terms of the limitation clause.’

He goes on to state:

‘The current provision is also bad on policy grounds. In a vibrant democracy which respects difference and diversity – also diversity of opinion – it would be dangerous to ban all speech that could be construed as intending to be hurtful to another person merely because of that person’s race, sex, sexual orientation, religion, language, ethnicity, culture or age. Some of us remember all too well how the apartheid government tried to censor our thoughts and our speech. Do we really want to go back to a situation where we are so scared to express our deeply and sincerely held and honest opinions that we shut up because we fear we might be found guilty of hate speech?’[5]

3.26 The court also cited various international jurisdictions as comparators, one being Canada, where hate speech is also “rigorously regulated”. There a court found in one case that “hate propaganda legislation should be carefully tailored so as to minimize impairment of the freedom of expression.”

3.27 The SCA judgment will go to the Constitutional Court for final approval and to the legislature if it is necessary to amend the law. However, its relevance in this case before the Press Ombud is that the Press Code clause 5.2 follows closely the precepts of Section 16 (2) of the Constitution, that is that advocacy of hatred based on race must also constitute incitement to cause harm.”

3.28 These principles are highly contested not only in South Africa, which suffers a burden of historical, legalized discrimination, but in other jurisdictions too where freedom of expression has clashed with limits defined by historical racial injustice.

One such example is the US Supreme Court decision in the “Skokie” case in 1977. Skokie, a small town near Chicago, Illinois, had a large Jewish population, including survivors of the Nazi concentration camps. A planned march by the American Nazi party was banned by local authorities. Among the grounds were that the insignias of the marchers would incite hatred of “persons by reason of their race, national origin or religion.” Ultimately the US Court of Appeals declared the ban unconstitutional (but by that time the neo-Nazi fire had waned and the march was cancelled). [6]

3.29 In the case of the column by Ms Chirwa, it can reasonably be defined as “hateful speech”. Mr Gouws is correct: it is full of generalisations and is severely negative in its description of all white people.

3.30 But is it an “incitement to harm”?

There is nothing in the column that calls for any assault or harming of white people, either in particular or general.

The Appeal Court ruling in the Qwelane case, where his column was as egregious in its hatred of a particular section of the community, who may have experienced more direct harm than white people, is an appropriate prompt to understand the meaning of clause 5 (2) of the Press Code in the light of Section 16 (2) of the Constitution, which it closely resembles.

Incitement to cause harm, as the SCA has found, is a more objective test than simply hate speech.

3.31 In terms of whether the column exceeds the bounds of Clause 7 of the Press Code, it may have shown resentment based on historical injustices towards white people. However, this is not the same as “malice”.

It was a point of view expressed by a member of the legislature, however badly argued and poorly substantiated.

It was also  balanced by strong and coherent columns by two other commentators, Mavuso Msimang and Leon Wessels, the former being highly critical of Ms Mandela’s tweets for being a breach of the Constitution.

3.32 In this contested society, still in transition from an unjust past, I believe we need to err on the side of letting those from different corners of society speak their minds as long as they do not “incite harm”.

3.33 Mr Claassen, in his argument, cites the words of Judge Murray Gurfein who presided over the “Pentagon Papers” case involving the New York Times, which was barred from publishing them by the Nixon Administration in 1971. Judge Gurfein, who was also a war crimes prosecutor in Nuremberg, rejected the national security argument of the government at the time, saying: ”There is no greater safety valve for discontent and cynicism about the affairs of government than freedom of expression in any form.”

Ms Chirwa’s column may have been generalised and egregious, but to prohibit it may simply close the valve on the necessary debates we need to have in South Africa.

Finding

The column, although it relied heavily on generalisations, did not unnecessarily refer to race in a denigratory way in terms of clause 5.1 of the Press Code. The argument of the column was around defending Ms Mandela’s “land” tweets in the context of historical racial injustice.

It may also have been hate speech in terms of clause 5.2 but there is no evidence  that it constituted “incitement to cause harm”.

In terms of clause 7, which protects comment “even if extreme, unjust, unbalanced and prejudiced”: the column may have been all of these things, but it dwelt on history and did not show “malice”. In terms of “taking account of all material facts”, this is  a broad definition. Even though many will find her column “extreme” and “prejudiced”, Ms Chirwa premised her column on two key facts: the fiery rhetoric around the land debate and the controversy over Ms Mandela’s tweets (whom she defended). That it had a point of view that we may not agree with is the purpose of a column. Moreover, it was balanced by the other two contributions in this debate, which argued distinctly different views.

The complaint is dismissed.

Appeal

The Complaints Procedures lay down that within seven (7) working days of receipt of this decision, either party may apply for leave to appeal to the Chairperson of the SA Press Appeals Panel, Judge Bernard Ngoepe, fully setting out the grounds of appeal. He can be contacted at [email protected].

Pippa Green

Press Ombudsman

February 13, 2020