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5.02.2011

South African legal conflicts

Two significant conflicts are taking place that implicate the South African Constitution. First, as the New York Times reported yesterday, one of the African National Congress' most important young leaders is on trial for engaging in hate speech: http://www.nytimes.com/2011/05/01/world/africa/01southafrica.html Julius Malema used the term "Shoot the Boer" from an Apartheid protest song. My understanding is that the lawsuit is being brought by some Afrikaaner citizens under the hate speech provision of a statute called the Promotion of Equality and Prevention of Unfair Discrimination Act. There are several problems. First the hate speech statutory provision is probably constitutionally overbroad. It precludes a person from saying something that "could reasonably be construed to demonstrate a clear intention to be be hurtful" to someone else on the basis of race and other categories (including culture). Yet the Constitution seems to require a hate speech provision be aimed at expression involving "advocacy of hatred that is based on race, ethnicity, gender, or religion and that constitutes incitement to cause harm." There is no incitement requirement in the statute. Another problem is that both sides in the case are polarizing the situation which was predictable. The Afrikaaner lawyer representing the complainants has been completely impolitic in various ways, almost sounding like the Apartheid era still exists. And Mr. Malema has ratcheted up the rhetoric. Moreover, Malema's attorneys are apparently not even raising the overbreadth issue which suggests they may not mind the forum. The case has been televised live at times so it's also hitting a national nerve. This is far from what the country needs. In another twist, the ANC is supporting Malema in the case though they disciplined him earlier.

On another front, the South African Supreme Court of Appeal has reinstated a Judicial Service Commission complaint against Western Cape Judge President John Hlope, who was accused by Constitutional Court members of trying to influence Constitutional Court deliberations regarding matters implicating President Zuma (through improper contacts with two Court members). The problem is that Hlope will appeal to the Constitutional Court, yet many members of the Court are the complainants. So who will judge the case? This really challenges the legal system at a time when some critics have already said it is out of touch, elitist, and the like. Hopefully, this case will go away with Judge Hlope still receiving the discipline which he seems to deserve.

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