Press Release: The Legal Resources Centre intervene in hate speech matter

For Immediate Release: 05 July 2018

On the 2 & 3 July 2018, in the Equality Court (sitting in the High Court in Johannesburg) the Legal Resources Centre, acting in their own name, made submissions as a friend on the court in the matter of the South African Human Rights Commission v Velaphi Khumalo.

This the second time that Mr Khumalo has been brought before the court and the LRC, upon request from Judge Sutherland, was appointed to make submissions.

Access to legal representation is an important constitutional imperative that gives everyone the right to be represented. After multiple failed attempts by Mr Khumalo to find legal representation, Adv Stewart Wilson and Adv Ofentse Motlhasedi were appointment as pro bono legal counsel for Mr Khumalo.

The South African Human Rights Commission (SAHRC) brought two applications (first in 2016 and then again in 2018) against Mr Khumalo on the basis that statements he made on Facebook (as a response to comments by Penny Sparrow) amounted to hate speech and he was therefore in contravention of section 10(1) of the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA).

Mr Khumalo was first brought before the Equality Court by the African National Congress (Mr Khumalo is a member) in 2016 where he was ordered to pay damages to the amount of R30 000 and to undertake one-hour grooming sessions/talks against racism at three schools.

In their application to the Equality Court in the second matter, the SAHRC asked the court to order that Mr Khumalo’s statements be declared hate speech, that he be ordered to make an unconditional public apology to all South Africans, that he be interdicted from publishing, propagating, advocating or communicating hate speech, that he be ordered to pay R150 000 in damages and that the matter be referred to the Director of Public Prosecutions for the possible institution of criminal proceedings for incitement to genocide.

Counsel on behalf of Mr Khumalo argued that Mr Khumalo could not be sued twice in the Equality Court for the same comments and that, if he could be, the test for hate speech had not been met because Mr Khumalo’s words were clearly not intended to incite actual harm or promote hatred and therefore did not amount to hate speech in terms of section 10 of PEPUDA. In other words, read in context, the reasonable person would have understood the words as meaningless hyperbole in response to Penny Sparrow’s comments.

They argued that the SAHRC was attempting to unfairly re-litigate the same matter. Mr Khumalo’s counsel further noted that Mr Khumalo accepts that his comments were grossly inappropriate but that they were not tantamount to hate speech in terms of PEPUDA.

The LRC’s role as a friend of the court was to present relevant evidence to the court. The LRC submitted that it is important for context to be taken into consideration in cases of hate speech. Further, in response to the SAHRC’s argument that the ANC’s complaint in the first Equality Court case was a “friendly complaint” is false because Mr Khumalo’s sentence was in the range of an appropriate sentence in terms of PEPUDA.

The LRC argued that the application by the SAHRC should be dismissed as the issues are ones of estoppel.  However, were the Court willing to consider the merits, the comments by Mr Khumalo was not hate speech and even if it were, an appropriate remedy has already been granted in this regard.

Judgment was reserved.

ENDS