Updated: Nov 4, 2019
The South African Constitution accordingly guarantees the right to self-determination of cultural, religious and linguistic communities in accordance with international directives that apply in this regard.
The new South Africa proposed to promote national unity by totally different means. Its constitution encourages the maintenance of, and pride in, one's ethnic, religious and linguistic group identities. The constitutional preamble thus expresses the belief that all who live in South Africa are "united by our diversity."3 In its substantive provisions, it proclaims eleven official languages, calls on the State "to take practical and positive measures to elevate the status and advance the use of... [indigenous languages of our people]", and affords to everyone "the right to use the language and to participate in the cultural life of their choice." Group rivalries are still rife in South Africa as a feature of the country's demographic divides. How to deal with such rivalries and the means of orchestrating reconciliation are central to social engineering within the troubled land.
SOUTH AFRICAN CONSTITUTION. Drafters of the South African Constitution rejected segregation of rival ethnic, religious and linguistic communities, as well as the promotion of cultural, religious or linguistic homogeneity within our nation, as a means of counteracting group-related tensions in the country's social construct. Instead, they opted for creating -in the celebrated words of Archbishop Desmond Tutu -"a rainbow people". The new constitutional dispensation accordingly seeks to promote pride in one's group identities: be proud of being an Afrikaner, or being a member of any of the rich variety of "peoples" within the African, Indian or coloured communities; be faithful to your membership of the Catholic, Methodist, Dutch Reformed, or Zion Christian Church, or as a member of the Muslim or Buddhist communities; find comfort in speaking the language of your cultural extraction, albeit Afrikaans, English, Greek, Portuguese, Tswana, Xhosa, or Zulu. Pluralism, tolerance and broadmindedness have been singled out by the European Court of Human Rights as indispensable components of a democratic society.Pride in your particular ethnic, religious or linguistic identity does not elevate one to a superior status in the community.
Respect of others for your cultural values, religious persuasions or linguistic preferences demands of you to fully respect the culture, religion and language of others. The constitutional principle that applies in this regard has been reduced to perhaps the most basic moral directive for a "new South Africa"; one that finds expression in the concept of ubuntu or botho, "an idea based on deep respect for the [inner] humanity of another."63 Ubuntu translates into "humaneness" and constitutes "part of our rainbow heritage."64 It stands in sharp contrast to "dehumanising and degrading the individual."
Justice Albie Sachs on occasion referred to ubunthu-batho in the sense of "civility" as "a precondition for the good functioning of contemporary democratic societies" and noted that "[c]ivility in a constitutional sense involves more than just courtesy and good manners. ... It .presupposes tolerance for those with whom one disagrees and respect for the dignity of those with whom one is in dispute.
"The constitution therefore subjects freedom of expression to limitations, which limitations include "advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm."
Under the Promotion of Equality and Prevention of Unfair Discrimination Act "no person may publish, propagate, advocate or communicate words ... 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."
It is important to emphasize that South African law does not uphold the almost incontestable sanctity of freedom of speech, as does the American constitutional system. In South African law, "certain expressions do not deserve constitutional protection because it has the potential to impinge adversely on the dignity of others and cause harm". In South Africa, "the right to freedom of expression is not a pre-eminent freedom ranking above all others"; it in this respect "differs fundamentally from the balance struck in the United States," where freedom of speech constitutes the basic norm -a Grundnorm -of the entire rights regime.The "new South Africa" is instead founded on zero tolerance for words and conduct that are offensive to others. Depicting members of a particular population groups as "h--not", "*ka--ur" (*deliberate mis-spelling) "ro**nek" "boer", or "c**lie" is therefore strictly forbidden since such names "have for decades been used to bring people of different races into contempt." Refusing to serve a Muslim client wearing a fez in a business enterprise open to the public constitutes unbecoming discrimination based on religion.
The media are under legal constraint not to publish cartoons depicting the Prophet Mohammed as a terrorist (the ones that first appeared in a Danish newspaper), because they "advocate hatred and stereotyping of Muslims." A newspaper report that likens homosexuality with bestiality cannot be tolerated under freedom of the press demands because it promotes hatred against the gay and lesbian communities.
OFFENDING WORDS CONSTITUTE HATE SPEECH.
The chanting a so-called "freedom song" that includes the phrase dibulu iBhunu (shoot the boer) clearly, and without even a shadow of doubt, violates the proscription of offensive language. In a provisional decision, pending a final judgment by the Equality Court, Judge Bertelsmann held that "the offending words constitute hate speech, for which there is neither justification, nor protection in the Constitution" Dealing with the same matter in the Gauteng High Court, Acting Judge Halgryn held that the phrase dibulu iBhunu prima facie satisfies the requirements of the crime of incitement to commit murder.
INCITEMENT. The Acting Judge was wrong, of course. "Shoot the Boer" prima facie amounts to incitement to commit genocide. And just for the record, changing the phrase to "Kiss the Boer" will make no difference in this regard. Incitement to commit genocide is often coached in euphemisms. Jurisprudence of the International Criminal Tribunal for Rwanda (ICTR) is particularly instructive in this regard. In Prosecutor v Kambanda, for example, the accused pleaded guilty to incitement to commit genocide based on the following statement: you refuse to give your blood to your country and the dogs drink it for nothing. South African audiences know perfectly well that "kiss the boer" is a substitute for "shoot the boer". [Prima facie – definition in law - based on the first impression; accepted as correct until proved otherwise]
SOCIOPOLITICAL DISCORD. As noted by Chief Justice Langa a while ago, "The process of reconciliation is an ongoing one which requires give and take from all sides." "Our democracy is still fragile," said Judge Bertelsmann, adding that "Participants in the political and sociopolitical discourse must remain sensitive to the feelings and perceptions of other South Africans when words were used that were common during the struggle days, but may be experienced as harmful by fellow inhabitants of South Africa today.The beneath image refers to the; Authorized Accord on Afrikaaner Self Determination dated, 23rd April, 1994.
See names of signatories they cannot deny their actions today on March 6th, 2019.
SOURCE - JD van der Vyver. BComm, LLB, Honns BA (PU for CHE) LLD (Pret). IT Cohen Professor of International Law and Human Rights, Emory University School of Law; Extraordinary Professor in the Department of Private Law, University of Pretoria.
Posted on 6th March, 2019 by Admin for #BreakTheSilenceAboutSouthAfrica