Shoddy law means Malema may get off the 'hate' hook

JULIUS Malema has finally succeeded in violating legally acceptable speech. The Equality Court has deemed that his callous claim that women who spend the night, wait for breakfast and ask for taxi money had a nice time constitutes hate speech.

The backdrop to this comment was the Jacob Zuma rape trial, and the woman being referred to by the African National Congress Youth League president was the one who had laid charges of rape against Zuma. Predictably, instead of getting on with paying the fine that has been meted out and unreservedly apologising for his inappropriate comments, Malema is doing what he knows best, continuing with unabated verbal arrogance by vowing to appeal against the judgment.

This raises two critically important questions. What are the prospects of an appeal succeeding? And what are the wider implications of this case, whatever the outcome of an appeal?

There might well be some prospects of a successful appeal. Not because it is patently clear that the magistrate has made incorrect factual findings and so misapplied the test for hate speech, but rather because the Equality Act itself is a shoddily drafted piece of legislation with clauses that can reasonably be interpreted in differing ways.

A shrewd lawyer could mount an appeal on the basis that the magistrate’s interpretation of the act is wrong. Alternatively, the constitutionality of the offending clause itself could be challenged.

A hermeneutical bone of contention can be found in the wording of the act, in section 10(1) in particular. This section forbids speech that “could reasonably be construed to demonstrate a clear intention” to promote or propagate hatred. This wording is unforgivably imprecise in a number of ways.

On the face of it, it seems to mix an objective test with a subjective one.

The first part of the clause — “could reasonably be construed” — implies that a “reasonable person test” is all that matters. In other words, we need only ask what a reasonable person listening to Malema would have heard when the words he uttered entered their innocent ears. But such a test would imply that the subjective intention of the speaker is irrelevant.

Yet reference in the latter part of the clause to what was intended —“demonstrate a clear intention” — conveys the confusing impression that the mindset of the speaker is, after all, also relevant in assessing whether the speech constitutes hate speech.

If the latter interpretation of the clause is correct, then Malema’s lawyer could argue that the magistrate faulted by not making and materially considering any findings as to his subjective intentions, and therefore the court wrongly bypassed a necessary part of the test for hate speech.

There is a fundamental lack of clarity about what exactly the legislators had intended the test for hate speech to be. This opens up some space for a successful appeal.

In addition to the conflation of an objective and subjective test, there is also a question of whether the ambit of the act is consistent with section 16 of the constitution, which guarantees general freedom of expression but for specific exceptions made in section 16(2).

There are two respects in which the act has a much wider scope than the exceptions laid out in section 16(2).

First, section 16(2) prohibits the advocacy of hatred that is based on a list of specified traits that a group might possess (any one of which counts as illegal speech) including "race, ethnicity, gender or religion”.

Yet, section 10 of the Equality Act does not delineate groups. This is why the group “women who are rape survivors” suddenly counts as a group for purposes of the application of the Equality Act.

But one might argue that this wide construal of vulnerable groups (imagine, for example, a case of left-handed folk feeling aggrieved by hurtful speech about their “unnatural” endowment?) is so wide as to undermine the general provision in favour of freedom of expression in section 16(1).

This is not to endorse Malema’s callous disregard of women’s rights and the plight of abused people in general, but it is to point to the legal sloppiness of the wording in the Equality Act.

Second, section 16(2)(c) makes it clear that speech constitutes hate speech if, and only if, it both advocates hatred and “constitutes incitement to cause harm”. Yet, this latter requirement is absent in the Equality Act.

This means that on an ordinary reading, the Equality Act merely requires a group to reasonably feel hurt by some remark in order for that group to successfully argue that it is at the receiving end of hate speech.

Yet, surely I have a right to hurt tenderpreneurs, for example, with snide remarks about their distasteful habits?

The Equality Act might unintentionally censor me.

In theory, of course, the Constitutional Court may yet come to declare this lower set of criteria for what counts as hate speech to be consistent with section 36 of the constitution, which sets out a test for determining the reasonableness of a right’s limitation.

The mere fact that the Equality Act is much wider than section 16(2) of the constitution is not in itself a decisive basis for establishing its unconstitutionality.

The implication is that Malema may yet successfully appeal against the judgment if his lawyer is skilled enough to articulate these hermeneutical and constitutional considerations with a view to convincing an appeal bench that the lower court had either misinterpreted the Equality Act or relied on an unconstitutional part thereof.

However, the initial reactions from the Malema camp suggest that they may miss these subtleties.

They claim that the facts about what had happened and the context within which the remarks were expressed were misunderstood by the court.

This is a silly strategy. Referring to one person does not mean you are not implying generalities about the group of which that person is a member. I need only be disparaging about “my” black gardener in order to denigrate the entire black population.

Furthermore, the findings in the Zuma rape case are irrelevant. Nothing in that judgment vindicates the veracity of the claims Malema made in reference to alleged rape survivors. An appeal based on contesting the magistrate’s factual findings will falter.

If the Malema camp had more brains, it would have a go at exploiting the cracks in the Equality Act itself.

However, whether or not Malema succeeds in the appeal, the judgment might still be of general significance if it proves to have a chilling effect on politicians.

In other words, even if the appeal succeeds, the initial guilty verdict serves as an incentive to politicians to think twice before uttering bile. Of course, you would have to be grossly naive to imagine that this means the end of Malemaisms, but it is equally difficult to know how many worse forms of hate speech will now be scratched from his impending speeches. It is obviously tragic that the courts are needed to regulate the quality of public debate in this way. But if that is what is needed to normalise political debate in our democracy, then so be it.