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Hate speech as a limitation to freedom of expression

  • Authors: Botha, Joanna Catherine
  • Date: 2016
  • Subjects: Freedom of speech -- South Africa , Hate speech -- South Africa , Civil rights -- South Africa
  • Language: English
  • Type: Thesis , Doctoral , LLD
  • Identifier: http://hdl.handle.net/10948/9054 , vital:26460
  • Description: Hate speech in South Africa creates a tension between the right to freedom of expression and the rights to human dignity and equality. The challenge is to achieve a balance between these competing rights in the context of the divisive past and the transformative constitutional ideal, in which reconciliation and respect for group difference are promoted. Freedom of expression, an individual right, must be construed in light of its underlying values, but regard must also be given to communitarian interests. The constitutional standard draws the initial line. The advocacy of hatred on four grounds and which constitutes incitement to cause harm is not constitutionally protected speech. Such speech undermines nation building, causes acrimony, and is not tolerated in the egalitarian society envisaged by the Constitution. The thesis formulates a principled legislative hate speech framework for South Africa at both human rights and criminal levels within the parameters of the constitutional mandate, as guided by the standard for hate speech restrictions in international law, and the Canadian regulatory model. An essential premise is that regulation requires a multi-faceted balancing enquiry. A holistic approach is proposed where factors such as respect for the dignity of the victims, autonomy for speakers, listeners and the wider community; the causal link between hate speech and hatred in a community; and the desire to achieve a diverse and harmonious society; amongst others, are considered. Failure to regulate hate speech constructively endorses hatemongers and promotes damaging speech at the expense of vulnerable groups. Regulation ensures that law sets the normative benchmark, affirms the protection of vulnerable groups within the social fabric and upholds social cohesion, inclusiveness and the equal citizenship of all individuals in society. The thesis contains a proposal for the enactment of legislation creating a self-standing hate speech crime for the advocacy of extreme hatred, shaped in accordance with international requirements and comparative foreign law, and structured in light of the distinction between hate crime and hate speech. The existing legal framework is unable to provide consistent and fitting redress for the severe harm caused by such speech, namely the fostering of an environment in which the stigmatisation of groups is promoted, their exclusion from society justified and intervention is needed to remedy the escalated levels of hatred and violence between different groups in society. PEPUDA, a remedial statute aimed at promoting transformation and substantive equality, is valuable, but its speech prohibitions are broad and imprecise. Consequently, their effectiveness is compromised and their constitutionality questioned. The thesis proposes recommendations for amendments to sections 7(a), 10(1) and 12 of PEPUDA. The aim is to ensure compliance with the international standard and to foster the optimal regulation of hate speech and other forms of damaging speech, including derogatory racial epithets, which undermine human dignity and equality and threaten national unity. It is intended for the two systems to complement one another and to create a legal framework aimed at addressing hate speech constructively and in context, promoting tolerance, respect for difference, reconciliation and transformation.
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  • Date Issued: 2016

The substantive and procedural limitations on the constitutional right to strike

  • Authors: Gathongo, Johana Kambo
  • Date: 2015
  • Subjects: Strikes and lockouts -- South Africa , Civil rights -- South Africa , Employee rules -- South Africa
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: vital:9254 , http://hdl.handle.net/10948/d1021205
  • Description: This treatise discusses the increasing of the procedural and substantive limitations on the employees’ right to strike. The Constitution permits the right to strike to be limited in terms of the laws of general application. The Labour Relations Act (LRA) is a good example. Such limitation must be reasonable and justifiable in an open and democratic society, based on human dignity, equality and freedom. The study sought to investigate whether further increasing the existing limitations on the right to strike unduly breaches employees’ Constitutional right to strike and the purpose of the LRA. Further, the study sought to find out whether the additional content requirements in the strike notice amount to importing into the LRA additional limitations on the fundamental right to strike that enjoys no textual support. Through an extensive literature review, the findings arguably show that indeed further increasing the limitations on the employees’ right to strike may unduly infringe their right to strike. Moreover, the increase of the content requirements in a strike notice creates an unnecessary hurdle to employees wishing to strike. One of the most important finding made is that instead further increasing the limitations on the right to strike, going back to the basics of negotiation to alleviate strikes, particularly wage-related strikes is vital. To achieve this, it is important for employers to re-establish social and individual relationships with their employees, whereby they become aware of the issues that employees face on a daily basis. Also, establishing proper workplace dialogue and forums would assist employers in becoming aware of employees concerns. This would thereby prevent strikes, as problems can be dealt with beforehand. The findings above informed in the recommendations at the end of the study.
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  • Date Issued: 2015

How does security limit the right to protest? : a study examining the securitised response to protest in South Africa

  • Authors: Royeppen, Andrea Leigh
  • Date: 2014
  • Subjects: Protest movements -- South Africa , Political violence -- South Africa , South Africa -- Politics and government -- 21st century , Civil rights -- South Africa , Police power -- South Africa , Abuse of administrative power -- South Africa , Police -- Complaints against -- South Africa , Right to strike -- South Africa , Democracy -- South Africa , Political leadership -- South Africa -- 21st century , Political participation -- South Africa , African National Congress , South African Police Service
  • Language: English
  • Type: Thesis , Masters , MA
  • Identifier: vital:2878 , http://hdl.handle.net/10962/d1013071
  • Description: In South Africa, the right to protest is under constant threat as a result of the state response. Increasing cases of forceful policing and sometimes unlawful procedural prohibitions of protest attest to this. This study aims to firstly describe this situation through securitisation theory, essentially arguing that South Africa has become a securitised state. It also aims to understand how this is sustained by the state and why the state needs to use a securitised response to maintain power. Interviews were conducted with members of different communities and organisations. Their responses helped to illustrate the frustration of the right to protest or brutal policing during a protest. This provided primary evidence to support the claims of the study. The research shows that claims to protest are being delegitimised under the guise of security as protestors are being constructed as threats to the state. This is further substantiated by looking at how the reorganisation and remililtarisation of the South African Police perpetuates the criminalisation of protestors which necessitates a forceful response from the state. Furthermore, it shows that there is a distinct relationship between the prohibition of protest and the recent increase in ‘violent’ protests which legitimate forceful policing thereby creating a state sustained cycle of violence. The larger implication of this treatment is that these protestors are treated as non- citizens who are definitively excluded from participating in governance. In understanding why this is taking place, it is clear that a securtitised response is an attempt to maintain power by dispelling any threats to power, a response which is seen to have a long history in the African National Congress (ANC) when examining the politics of the ANC during exile. Maintaining power in this way distracts from the larger agenda of the state, which this thesis argues, is to mask the unraveling of the ANC’s hegemony and inability to maintain national unity. In other words, the increasing dissatisfaction of some of the citizenry which has manifested through protest greatly undermines the legitimacy of the government to provide for its people.
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  • Date Issued: 2014

Constitutional damages for the infringement of a social assistance right in South Africa are monetary damages in the form of interest a just and equitable remedy for breach of a social assistance right

  • Authors: Batchelor, Bronwyn Le Ann
  • Date: 2011
  • Subjects: South Africa -- Constitution -- Bill of Rights , Constitutional law -- South Africa , Human rights -- South Africa , Constitutional history -- South Africa , Social security -- Law and legislation -- South Africa , Civil rights -- South Africa , Common law -- South Africa , Compensation (Law) , Damages
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: vital:11117 , http://hdl.handle.net/10353/388 , South Africa -- Constitution -- Bill of Rights , Constitutional law -- South Africa , Human rights -- South Africa , Constitutional history -- South Africa , Social security -- Law and legislation -- South Africa , Civil rights -- South Africa , Common law -- South Africa , Compensation (Law) , Damages
  • Description: This dissertation will explore the revolutionary progression in the provision of monetary damages and the availability thereof due to the change in South Africa’s legal system from Parliamentary sovereignty to Constitutional supremacy after the enactment of the final Constitution in 19961. The Constitution of South Africa brought with it the concepts of justification and accountability as the Bill of Rights enshrines fundamental rights and the remedies for the infringement of same. The available remedies for the infringement of a fundamental right flow from two sources, being either from the development of the common law remedies in line with the Bill of Rights or alternatively from Section 38 of the Constitution, which provides for a remedy which provides ‘appropriate’ relief. The question that will be raised in this dissertation is, ‘does appropriate relief include an award of delictual damages?’ or a question related thereto ‘is an award of monetary damages an appropriate remedy?’ The motivation for this dissertation arises from the plethora of case law, especially in the Eastern Cape, that has come to the fore in the last sixteen years, highlighting the injustice of cancellations of social assistance grants and the non-payment of such in South Africa’s social security system, as well as the precedent that was set by our Constitutional Court and Supreme Court in remedying that injustice. The central case to this dissertation is that of Kate v Member of Executive Council for Department of Welfare, Eastern Cape 2005 1 SA 141 SECLD; Member of Executive Council, Department of Welfare, Eastern Cape v Kate 2006 (4) SA 478 (SCA), which is generally regarded as having paved the way for the granting of monetary damages for the infringement of an individual’s constitutional right as same require legal protection. Firstly the past approach to damages will be explored in relation to South Africa’s common law, being the Roman-Dutch law. The common law Aquilian action is the focal point of this dissertation in relation to the common law in that the granting of damages for the infringement of an individual’s social assistance right (being a specific constitutional right framed within the 1996 Constitution) results in pure patrimonial loss which in our common law system was remedied by the actio legis Aquilae. In delict, an award of damages is the primary remedy, aimed at affording compensation in respect of the legal right or interest infringed. After the common law system of damages has been explored, this dissertation will then examine the changes that have developed therefrom, and largely shaped by the current state of disorganization in the National Department of Welfare coupled with the all encompassing power of the final Constitution. The final Constitution provides the power, in section 38 of the 1996 Constitution, for the court to award a monetary remedy for the breach of a constitutional right. The question, however, is “does the award of monetary damages not merely throw money at the problem, whereas the purpose of a constitutional remedy is to vindicate guaranteed rights and prevent or deter future violations?” The battle for domination between the common law approach and the constitutional approach to damages is witnessed as the two systems eventually amalgamate to form an essentially new remedy, unique to South Africa. South Africa’s new system is aligned with the Constitution as the Constitution is the supreme law of the land and underpins the awarding of all damages and, especially, the awarding of constitutional damages. For the sake of completeness, alternatives to monetary damages will also be canvassed in this dissertation. It is hoped that the reader will, in the end, realize that the final Constitution is the supreme law of the land and as such dictates the manner and form in which damages are provided. If such provision is not in alignment with the Constitution, it will be declared invalid. The flexibility of our common law is put to the test, yet it is found to be adaptable to the ever-developing boni mores of society exemplified in the embracing constitutional principles and the production of this new remedy. The courts develop the common law under section 39(2) of the Constitution in order to keep the common law in step with the evolution of our society and the ever changing nature of bonos mores. , National Research Foundation
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  • Date Issued: 2011

Judicial enforcement of socio-economic rights under the 1996 constitution : realising the vision of social justice

  • Authors: Ngcukaitobi, T
  • Date: 2003
  • Subjects: South Africa. Constitution , South Africa. Bill of Rights , Civil rights -- South Africa , Human rights -- South Africa , South Africa -- Politics and government -- 1994- , South Africa -- Economic conditions -- 1991- , South Africa -- Social conditions -- 1994-
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: vital:3689 , http://hdl.handle.net/10962/d1003204 , South Africa. Constitution , South Africa. Bill of Rights , Civil rights -- South Africa , Human rights -- South Africa , South Africa -- Politics and government -- 1994- , South Africa -- Economic conditions -- 1991- , South Africa -- Social conditions -- 1994-
  • Description: Few legal developments in South Africa and elsewhere in the world in recent times have excited such controversy as the legal recognition of social and economic rights. South Africa has created a special place for itself in world affairs for being one of the countries that recognise socio-economic rights in a justiciable Bill of Rights. Partly this is in response to the appalling levels of poverty prevalent in the country which could potentially destabilise the new democracy. Improvement of the quality of life of every citizen is a crucial step in consolidating the constitutional democracy. The question that will face any court in giving effect to socio-economic rights is: how are these rights to be judicially enforced in a given context? The crux of this thesis lies in the resolution of this question. Firstly this thesis traces the philosophical foundations to the legal recognition of socio-economic rights. It is stated that the recognition of these rights in a justiciable bill of rights requires a conceptually sound understanding of the nature of obligations that these rights place on the state. It is emphasised that it is imperative that access to justice be facilitated to poor and vulnerable members of society for the realisation of the constitutional goal of addressing inequality. Particular concern and priority should in this context be given to women, children and the disabled. The study explores various judicial remedies and makes suggestions on new and innovative constitutional mechanisms for judicial enforcement of these rights. It is concluded that there is an important role to be played by civil society in giving meaningful effect to socio-economic rights.
  • Full Text:
  • Date Issued: 2003

Victims, survivors and citizens: human rights, reparations and reconciliation: inaugural lecture

  • Authors: Asmal, Kader
  • Date: 1992-05-25
  • Subjects: Human rights -- South Africa , Civil rights -- South Africa
  • Language: English
  • Type: text , book
  • Identifier: http://hdl.handle.net/10962/69386 , vital:29513 , ISBN 1868081212
  • Description: The professorial inaugural lecture is for the university an occasion to celebrate - celebrate in the full meaning of the word, i.e. to perform publicly and duly, to observe and honour with rites and festivities, to publish abroad, praise and extol. Through the custom of the inaugural lecture the university celebrates and affirms its basic function, that of creating, preserving, transmitting and applying knowledge, particularly scientifically-based knowledge. The university appoints to the position of professor one who has attained excellence in the handling of knowledge in her or his discipline, and through a jealous watchfulness over the dignity and esteem of this time-honoured position of excellence amongst scholars, defends the capacity of the university to advance human knowledge and human progress. The University of the Western Cape is particularly honoured to celebrate by way of this address the inauguration of its first ever Professor of Human Rights Law. We take pride from both the position and the incumbent: the post demonstrates our commitment to scholarly relevance, the incumbent to the pursuit of excellence. This university has distinguished itself amongst South African educational institutions for the way that it has grappled with questions of appropriate intellectual and educational responses to the demands of the social and political environment. That search involved debates and contests over what constitutes knowledge or valuable knowledge, over the nature of the process of knowledge production, over the relationship between theory and practice, about autonomy and accountability, about the meaning of "community" and about how the activities of a university are informed by the definition and conception of "community". The decision to establish a chair in Human Rights Law was arrived at as part of that process of searching for the appropriate forms of curricular transformation. South African society with its history of colonial conquest and latterly apartheid rule is one bereft of a rights culture; and where the discussion of a bill of rights and the general establishment of an awareness of human rights had been started in recent times, it has often been motivated by a concern with the protection of traditionally advantaged sectors of society. A university like ours has an obligation to contribute to the debate about and the promotion of human rights in ways which will also be concerned with healing, reparation and reconstruction in this severely brutalised nation. In this address marking his formal assumption of the University of the Western Cape’s Chair in Human Rights Law, Kader Asmal gives testimony of the depth of scholarly rigour and the breadth of humane concern brought to and emanating from this position. The integral coming together of Asmal the international scholar, the anti-apartheid activist of long standing, the seasoned international solidarity worker, the spirited publicist is evidenced in this address which is sure to stand as a signal point of reference in our national debate about this complex subject. The University had been privileged to attract to its staff some of the finest scholars from the ranks of the formerly exiled South Africans; this inaugural ceremony provides the institution with the opportunity to welcome into its midst one of those in the person of Kader Asmal. , Publications of the University of the Western Cape ; series A, no. 64
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  • Date Issued: 1992-05-25

Emergency law: judicial control of executive power under the states of emergency in South Africa

  • Authors: Grogan, John
  • Date: 1989
  • Subjects: War and emergency legislation -- South Africa , Internal security -- South Africa , Civil rights -- South Africa , Executive power -- South Africa , Judicial review of administrative acts -- South Africa
  • Language: English
  • Type: Thesis , Doctoral , PhD
  • Identifier: vital:3674 , http://hdl.handle.net/10962/d1003189 , War and emergency legislation -- South Africa , Internal security -- South Africa , Civil rights -- South Africa , Executive power -- South Africa , Judicial review of administrative acts -- South Africa
  • Description: This work examines the legal effects of a declaration of a state of emergency under the Public Safety Act 3 of 1953 and the exercise of legislative and administrative powers pursuant thereto. The general basis of judicial control over executive action and the various devices used to limit or oust the court's jurisdiction are set out and explained. Against this background, the courts' performance of their supervisory role under the special circumstances of emergency rule is critically surveyed and assessed. The legal issues raised by the exercise of emergency powers is examined at the various levels of their deployment: first, the declaration of a state of emergency; second, the making of emergency regulations; third, their execution by means of administrative action, including detention, banning, censorship and the use of force. The major cases concerning emergency issues, both reported and unreported, are analysed in their appropriate contexts, and an overview provided of the effects of emergency regulations and orders on such freedoms as South Africans enjoy under the 'ordinary' law. Finally, an attempt is made to assess how these decisions have affected the prospect of judicial review of executive action, both in the emergency context and in the field of administrative law generally. The conclusion is that, however far the Appellate Division may appear to have gone towards eliminating the role of the law in the emergency regime, grounds remain for the courts to exercise a more vigorous supervisory role should they choose to do so in future.
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  • Date Issued: 1989

Salvaging the law: the second Ernie Wentzel memorial lecture

  • Authors: Didcott, J M
  • Date: 1988-10-04
  • Subjects: Civil rights -- South Africa , Terrorism -- South Africa
  • Language: English
  • Type: text , book
  • Identifier: http://hdl.handle.net/10962/73347 , vital:30178 , 1868140954
  • Description: A budding author bold enough to have sent his manuscript to Dr Samuel Johnson for appraisal received a reply, so the story goes, in these terms: ‘Sir. Your work is both original and good. Unfortunately the part that is good is not original. And the part that is original is not good. I find it difficult to say anything new or original about the lovable man whose life we celebrate this afternoon and whose memory we thus keep alive. For so much has been said in the tributes previously paid to him, tributes testifying to the place he occupied in the hearts of countless South Africans. What is good should prove easier, however, when it is said of someone whom, at the ceremony held in court soon after his death, Ralph Zulman described, simply and truly, as a good man. So, be it said how it may, what I shall say today about Ernie Wentzel feels good to say. Unless someone who is now a lawyer was acquainted with Ernie during his childhood or schooldays, I can rightly claim, I believe, that none still around knew him for more years than I did. Our long friendship may explain why John Dugard honoured me with the invitation to deliver this lecture. It was certainly my reason for accepting the invitation with alacrity. Ernie and I first met each other 37 years ago, in 1951, when he entered the University of Cape Town, where I too was a student. I happened to be his senior by two years. But I soon got to know him well, for we had a lot in common. We were both enthusiastic student politicians. And we were in the same camp. Our time together on the campus was one of turmoil, not as acute as that which campuses have experienced subsequently, but intense nonetheless since, in addition to all the other strife of the period, the Universities of Cape T own and the W itwatersrand were under an attack that was constant and fierce for their policy of admitting students of every race, and they faced the threat of legislation forbidding them to accept any who was not white without official pennission.
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  • Date Issued: 1988-10-04

The new townsmen: the legal position of the African in the white areas today

Suggestions: For consideration at Meeting of Preliminary Convention Committee, Cape Town: Monday 11th September, 1961

Portion of minutes as well as the attendance register of the Coloured National Convention, held at Malmesbury - code name Chatworth - on the 8th to 10th of July 1961

Why a "Coloured" National Convention

  • Authors: Planning Committee of the South African Coloured National Committee
  • Date: 1961-06
  • Subjects: Coloured National Convention , Colored people (South Africa) , Civil rights -- South Africa , Apartheid -- South Africa , South Africa -- Race relations -- 20th century , South Africa -- Social conditions -- 1961-1994 , Human rights -- South Africa -- History -- 20th century
  • Type: Text
  • Identifier: http://hdl.handle.net/10962/31211 , vital:23925 , MS 10 800 , This manuscript is held at the Cory Library for Humanities Research at Rhodes University. For further information contact cory@ru.ac.za. The digitisation of this image was made possible through a generous grant received from the Andrew W. Mellon Foundation 2014-2017.
  • Description: We would like to stress at the outset that we are not organising this Convention in order to “gang up” with persons of other race-groups against others. Some people say that we should have nothing to do with Africans, because we have nothing in common with them. This is utter folly. We could mention several important factors which we do have in common with them. There is our common humanity, there is our common South Africanism, there is a great deal of common discrimination under South African laws, and there is, in regard to a great and growing number of Africans, a common Western view of life. We would like to see developed a wider South Africanism, capable of embracing all the peoples of this country, whatever their race, colour or creed. Let nobody say that because we are organising a Convention as a Coloured group, we are recognising and accepting the fact that we are a separate groun, or that we wish to be so regarded in the laws of the land. We repeat that we are a separate group by exclusion, by discrimination, by virtue of laws which we regard as wrong. And it is to destroy this false, separate identity that we are dedicating ourselves in this Convention.
  • Full Text:
  • Date Issued: 1961-06

Letter from P.C. Kruger

South African Coloured National Convention, Claremont Civic Centre, 7th to 10th July 1961

South African Coloured National Convention. National Continuation Committee. Annexure "A" to the minutes of 7th 1961 meeting

The road forward: a policy statement of the South African Coloured People's Congress, for the consideration of the National Convention of Coloured People

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