A South African law would make hate speech punishable by jail time

Late one night in December 2017, a black handyman named Joseph Mona was asleep when his white employers woke him up and instructed him to turn on a pump connected to a sewage pit on the property.

Mona tried but reported back that the pump was broken.

In his telling, that’s when three members of the family proceeded to restrain him, pour sewage down his throat, shove him into the pit and cover it with corrugated iron — all the while berating him using a vicious racist slur.

Last month, South Africa’s Equality Court, which hears civil cases of discrimination and harassment, ruled that Harry Leicester and his wife and son had committed a “gross violation” of Mona’s rights, drawing particular attention to the racial slur as hate speech and a violation of his “constitutional rights to human dignity and equality.”

The judge ordered the family to apologize, attend a program on race relations and pay Mona about $14,000 in damages — a decision the family, which denies the incident ever happened, is appealing. A criminal case against the family is pending.

Such cases have fueled widespread support for establishing a special category in South African law for crimes motivated by prejudice or intolerance. A hate crimes bill making its way through the Parliament would do just that.

More controversially, it would also criminalize hate speech.

Deputy Justice Minister John Jeffery called the proposal “a small part of the fight against racism.”

Like many countries, South Africa has been grappling with how to contain hate speech as ugly tirades from private individuals and public figures ricochet around Twitter and Facebook with disturbing regularity.

But unlike other places, South Africa is stalked by the vestiges of apartheid, giving these outbursts a unique existential weight.

The democratic era that Nelson Mandela helped usher in in 1994 — the year the nation’s first free elections were held — restored political and personal freedoms to millions, but it has not wiped out the toxic legacy of the system of racial segregation enforced by a white-run government for most of the 20th century.

In 2017, the Equality Court received 328 hate speech complaints, up 36% from a year earlier, according to the Department of Justice. Of those, 125 were related to race.

The proposed law defines hate speech as any communication that intends to harm, incite harm or propagate hate on the basis of race, gender, religion or nationality, among other inherent characteristics.

First-time offenders could be sentenced to up to three years in prison, and repeat offenders could get as many as five years.

Proponents of those restrictions say that hate speech has become much more dangerous in the age of social media, which has become a megaphone for opinions that were usually expressed only in private.

“Before, people would say things to each other and there would be no record,” said Jeffery, the deputy justice minister. “With social media, there is a record…. We do feel the need for there to be consequences.”

But opponents argue it is unnecessary, given the existing legal remedies to tackle the problem of hate speech.

In addition to the Equality Court, where individuals can bring civil cases, courts have allowed criminal prosecution of hate speech under a common law offense known as crimen injuria — the act of “unlawfully and intentionally impairing the dignity or privacy of another person.”

Others worry the hate speech section of the law is too vague and will have an unintended chilling effect on political debate and free speech.

“Sometimes when you create these laws, they are used by the powerful to silence the powerless,” says Pierre de Vos, a constitutional law expert at the University of Cape Town. “If I say white people are privileged or stole land, that might be hate speech.”

Phephelaphi Dube, an independent legal analyst who specializes in constitutional law, said the language used to define hate speech is “clumsily drafted,” particularly in defining speech that is intended to harm.

“Regardless of what’s said, if I feel that I’ve been harmed, then you’d be guilty of an offense,” Dube says. “Even saying something like ‘Men are trash,’ the ordinary reading of the act would mean that’s hate speech.”

The hate crimes bill has been many years in the making. It was a series of high-profile incidents on social media — starting in 2016 — that ignited the current debate about speech.

That January, a white real estate agent named Penny Sparrow complained in a Facebook post about the crowded beaches around her home, repeatedly referring to black South Africans as “monkeys.”

Subsequently, Velaphi Khumalo, a member of the ruling African National Congress, who is black, responded to Sparrow’s post by writing on Facebook that “white people in south Africa deserve to be hacked and killed like Jews.”

The next month, a white woman named Vicki Momberg was caught on video using a racial slur more than 40 times against a black police officer trying to help her at a crime scene.

Sparrow was convicted of crimen injuria and ordered to pay a fine. Khumalo was ordered by the Equality Court to issue an apology to all South Africans. Momberg was also found guilty of crimen injuria and became the first person to serve time for it.

Hateful language has even crept into the political discourse, where discussions of race have usually been framed around transforming South Africa into a land of racial equality.

In February, a case was filed against Andile Mngxitama, the black leader of a small opposition party called Black First Land First, after he allegedly threatened white people at a rally of party supporters in December.

“We will kill their women, we will kill their children, we will kill their dogs, we will kill their cats, we kill anything that comes for us,” Mngxitama said, according to documents published by the South African Human Rights Commission, which helped file the case.

Mngxitama later said his comments were taken out of context and were made in the spirit of self-defense after an earlier threat a white businessman allegedly made toward black South Africans. A group representing the rights of the white minority has since taken Mngxitama to the Equality Court.

William Bird, who heads Media Monitoring Africa, a group that promotes ethical journalism, said that the government should do more to stop racist speech.

But he also that has expressed concern that the law could be used to limit press freedoms.

“Are you going to stop racists from being racist and sexist by criminalizing them?” he said. “It doesn’t stop people. The bigger focus needs to be how to prevent them. How do we combat those things in society?”

Mahr is a special correspondent.