Picture: THINKSTOCK
Picture: THINKSTOCK

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THERE can be no principled legal objection to making racist statements a crime if such law is properly crafted within the parameters of the Constitution. The devil will be in the detail in how far the law goes and what it actually says.

The right to freedom of expression is not absolute. All societies have laws that make it unlawful to say certain things. And most democracies, with the notable exception of the US, have outlawed hate speech in one way or another.

Talk of criminalising hate speech has come in the wake of the storm over a series of public racist comments, beginning with the now infamous post on Facebook by former estate agent Penny Sparrow, in which she likened black people to monkeys, lamenting their being "allowed loose" onto public beaches because it "invited huge dirt and trouble and discomfort to others".

Despite a public outcry, Ms Sparrow’s remarks were followed shortly thereafter by comments by well-known economic commentator Chris Hart, who said 25 years after apartheid, "victims are increasing, along with a sense of entitlement and hatred towards minorities".

Then there was e.tv news anchor Andrew Barnes who made fun of the way Basic Education Minister Angie Motshekga pronounced "epitome". Ironically, as he did so, he mispronounced "Motshekga". Yet other comments followed.

SA’s laws already set themselves against hate speech. The Promotion of Equality and Prevention of Unfair Discrimination Act (Equality Act) says no one may publish or communicate words — based on a number of prohibited grounds including race — "that could reasonably be construed to demonstrate a clear intention to" be hurtful, harmful or promote hatred. This is not a criminal offence but allows a court to order an apology and payment of damages.

It is a crime — crimen injuria — to impair someone’s dignity through speech. However, it appears crimen injuria requires an identifiable person to be on the receiving end of an insult. An insult such as Sparrow’s, against an entire race group, would not be covered. So, there is a gap in our criminal law in respect of speech that impairs the dignity of groups of people.

Free speech fundamentalists lament the criminalising of any speech, but the Constitution adopts a different approach. It states 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 cause harm".

So a crime of expressing racial hatred, which constitutes incitement to cause harm, would be consistent with the Constitution.

The more difficult question is whether the legislature could go further and criminalise racist speech that does not amount to the kind of hate speech singled out in the Constitution. The general thrust of the Constitution is permissive when it comes to speech: the kind of democracy it envisages is a noisy one in which people can speak their minds and demand their due. But freedom of speech, like all rights in the Constitution, can permissibly be limited if this is justifiable in an "open and democratic society based on human dignity and freedom".

What this essentially involves is a balancing exercise in which all relevant factors are weighed.

The balancing may be difficult, as is demonstrated by a long-running debate in the legal community on whether the Equality Act has struck the correct balance — a question that is the subject of an ongoing court case between the Human Rights Commission and former Sunday Sun columnist Jon Qwelane.

Some believe the act is unconstitutional because it prohibits forms of speech that do not constitute hate speech under the Constitution. Others say the correct balance has been struck, given the kind of society SA is and its history.

However, the constitutional concerns about the Equality Act would apply with much greater force when talking about a criminal sanction; when balancing under the Constitution, the inroad into freedom of expression is much greater.

Also, the legislature would have to tackle the argument that the Equality Act is already sufficient to counter racist speech and that criminalisation is, therefore, constitutionally impermissible.

In any event, what the #PennySparrow debacle has achieved is a new level of public awareness about existing avenues of legal redress for racist speech.

It was always a matter of some puzzlement that the Equality Courts weren’t heaving with cases. Perhaps, when the hitherto sleepy Equality Courts are woken up and the National Prosecuting Authority has boned up on crimen injuria, a new law will not be necessary.