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Article by listed attorney: Fawzia Khan

The racist comments posted by a white middle-aged woman, Penny Sparrow on social media, early in January 2016, has caused much outrage amongst most South Africans. It has brought to the fore the painful issue of racism, which continues to plague post- apartheid South African society. Unsurprisingly, it’s also fuelled much vigorous debate amongst South Africans of all hues and colours. The African National Congress has since criminally charged Sparrow for crimen injuria. Complaints have also been laid to the South African Human Rights Commission. Because of our apartheid history, our Constitution has ensured that we commit to the recognition of human rights and the right to dignity. The Constitution of South Africa guarantees us as South Africans the right to freedom of expression. It also entrenches our right as South African citizens to dignity.  

When one looks at the right of freedom of expression juxtaposed against the right of dignity, which right would be considered more important to uphold? Would a person have the right to speak his or her mind freely and without censure even if it defames someone else? If the comments made by a person seek to promote hate, racism and intolerance amongst South Africans, then the answer is a resounding No!  

The Supreme Court of Appeal dealt with ensuring that a person’s right to speak his or her mind must be properly balanced when weighed against the backdrop of the right to human dignity, as early as 1998. In the case of National Media Limited v Bogoshi, the Supreme Court of Appeal also held that the right to a persons dignity must take preference when looking at one’s right to freely speak one’s mind.

Whilst our Constitution entrenches both the right to dignity and to freedom of expression, our courts, including the Constitutional Court and the Supreme Court of Appeal, have over the years and in a number defamation related cases, taken the view that the rights to life and dignity takes precedence over one’s right of freedom of expression. In the United States of America, for example, the right of freedom of expression is entrenched in their constitution and takes precedence in their law. The South African position on racism and defamation is thus in sharp contrast to that of the USA. If someone makes a hurtful and insulting or even racist comment on Facebook, Twitter or any other social media platform, it would certainly carry certain backlash and negative consequences. Just ask Penny Sparrow, who since her offensive posting was brought to the public’s attention, has now lost her job and has gone into hiding.

The Constitution of South Africa, which acts as our blueprint for the manner in which South Africans are to co-exist with each other post apartheid, also guarantees us the right to live in a non-racist and non-sexist society.

The Constitutional Court has, since it’s existence, handed down several judgments where a person’s right to freedom of expression came under the spotlight.  In the case Holomisa v Argus, the President of the Constitutional Court said: “The rights to life and dignity are the most important of all human rights, and the source of all other personal rights. By committing ourselves to a society founded on the recognition of human rights we are required to value these two rights above all others.  And this must be demonstrated by the State in everything that it does’. Judge O'Regan, the judge in the Constitutional Court in the Khumalo v Holomisa case, (where the issue of our Constitution’s position on the common law of defamation was considered), said that the media have a particular role in the protection of freedom of expression. The Constitutional Court also held the media were ‘important agents in ensuring that government is open, responsive and accountable’. The Court also said “However, although freedom of expression is fundamental to our democratic society, it is not a paramount value.  It must be construed in the context of the other values enshrined in our constitution.  In particular, the values of human dignity, freedom and equality."

This means that as US presidential candidate Donald Trump continues to dominate the media with his controversial and downright racist views on Muslims, Mexicans etc., had he been a South African, his outrageous and racists antics would, in terms of our Constitution, certainly not be tolerated. In addition, he would also find himself facing both criminal and civil sanctions. 

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