IN THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

SCA Case No. A.815/2011

In the application of:

COUNCIL FOR THE ADVANCEMENT OF THE SOUTH AFRICAN CONSTITUTION - Applicant for admission as amicus curiae In the matter between:

JULIUS SELLO MALEMA -First Appellant

AFRICAN NATIONAL CONGRESS -Second Appellant

and

AFRIFORUM -First Respondent

TAU-SAU -Second Respondent and

VERENIGING VAN REGSLUI VIR AFRIKAANS -Amicus Curiae

FOUNDING AFFIDAVIT

I, the undersigned PARMANANDA LAWSON NAIDOO do hereby make oath and say:2

1 I am the Executive Secretary of the Council for the Advancement of the South African Constitution ("CASAC"), a voluntary association with its head office at 75 Durban Road, Mowbray, Cape Town.

2 I am duly authorised to depose to this affidavit and bring this application on behalf of CASAC. A copy of the resolution of the CASAC Executive Committee authorising me to bring this application is attached marked Annexure "LN1".

3 Save where the context indicates otherwise, the facts contained in this affidavit are within my own personal knowledge and are to the best of my knowledge and belief true and correct.

4 In this affidavit I address the following matters:

4.1 An overview of CASAC's approach to this matter.

4.2 The interest of CASAC in this matter.

4.3 The submissions which CASAC wishes to advance.

4.4 Compliance with Rule 16.

I OVERVIEW OF CASAC'S APPROACH TO THIS MATTER

5 This is an application by CASAC for admission as amicus curiae in this matter.

6 I deal with the nature of CASAC in detail below. For present purposes it suffices to say that CASAC is an active non-governmental organization that advances the South African Constitution as a platform for democratic politics and the 3 transformation of society, and which believes in the advancement of a society whose values are based on the core principles of the Constitution. CASAC uses various strategies to advance its goals, including lobbying, promoting and facilitating public debate, and litigation.

7 CASAC was an applicant in the Constitutional Court case of Justice Alliance South Africa and Others v President of Republic of South Africa and Others 2011 (5) SA 388 (CC); 2011 (10) BCLR 1017 (CC). The case dealt with the extension by the President of the term of office of the Chief Justice. The Court found that the impugned section of the Judges Remuneration and Conditions of Employment Act was unconstitutional and invalid.

8 CASAC perceives this case as extremely important in advancing the principles enshrined in the Constitution. It has accordingly decided to apply to be admitted as amicus curiae to advance certain propositions which have not been fully addressed by the parties. CASAC respectfully submits that its arguments (set out below) will assist the court in mediating the rights which are implicated in this case. There are two principal areas where CASAC believes it can make a meaningful contribution to the arguments presented:

8.1 First, CASAC seeks to advocate a situation-sensitive and contextual approach to the interpretation of section 10 of the Promotion of Equality and Elimination of Unfair Discrimination Act 4 of 2000 ("PEPUDA"). In particular, it will submit that whether the words constitute hate speech as contemplated in section 10 must depend on the situation and the context in which particular speech takes place. That approach, it will be 4 contended, has the potential to strike an appropriate balance between section 10 of PEDUDA and section 16 of the Constitution.

8.2 Second, CASAC seeks to submit arguments drawn from international and foreign law experience. CASAC will submit that while international law supports the contextual approach, it places some significance on the social position of the perpetrator and victim of hate speech. In particular, courts tend to take a tolerant approach towards speech by persons who are historically disadvantaged as a result of their race or other factors. This approach, it will be argued, is consistent with the overall goal of PEDUDA: To promote the achievement of equality.

9 The present dispute began when Mr Malema repeatedly sang an Apartheid-era "struggle song" known as "Dubul' ibhunu". The song contained the words "dubul' ibhunu", which literally translate as "shoot the boer", though the specific meaning of these words is disputed. Afriforum and TAU-SAU complained that the songs constituted a contravention of section 10(1) of PEPUDA.

10 Section 10(1) provides:

"Subject to the proviso in section 12, no person may publish, propagate, advocate or communicate words based on one or more of the prohibited grounds, 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." 5 11 PEPUDA's definitions section includes the list of prohibited grounds for section 10(1). They are "race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language, and birth".

12 A textual deconstruction of this section therefore requires the following analysis to be undertaken before speech can be found to constitute hate speech:

12.1 Whether there has been communication of words from one person to another;

12.2 Whether the communication is based on one or more of the prohibited grounds; and

12.3 Whether the words could reasonably be construed to demonstrate a clear intention to be hurtful, to harm, or promote or propagate hatred.

13 The question of communication is not in issue.

14 The case thus concerns the questions whether the communication was based on one or more of the prohibited grounds, and whether the words could reasonably be construed to demonstrate a clear intention to hurt, harm or promote or propagate hatred. The outcome of the case will determine the parameters of hate speech in light of the provisions of section 16 of the Constitution. I am advised that there are no reported judgments of this Court or the Constitutional Court in which the provisions of section 10 of PEDUDA were considered. The judgment of this Court will therefore break new ground. 6

15 In response to CASAC's request to be admitted as amicus curiae:

15.1 Mr Malema, the ANC, and the Vereniging van Regslui vir Afrikaans agreed to the admission of CASAC.

15.2 Afriforum did not consent to the admission of CASAC, and left the matter in the hands of the Court.

15.3 The correspondence in this regard between CASAC and the parties is attached as "LN2", "LN3", "LN4" and "LN5".

16 CASAC's position, if granted admission as amicus curiae, will be as follows:

17 First, the Equality Court's process for determining whether the singing of a particular song or the uttering of particular speech may legitimately be prohibited or penalized was flawed because it did not adequately consider the relevant speech in context. Context, in this regard, includes the historical and constitutional context.

18 Second, the Equality Court understood the concept of a "minority" in an inappropriately narrow fashion. A definition of the word "minority" must include factors other than numbers, and may even encompass a group that is in the numerical majority, but which finds itself in a minority-like position.

19 Third, the Equality Court failed to strike an appropriate balance between section 10 and section 16 of the Constitution. Such a balance could be struck in this case without causing any undue limitation on the right to freedom of expression.

II CASAC'S INTEREST IN THIS MATTER

20 CASAC is an individual membership non-profit organization that seeks to advance the South African Constitution as a platform for democratic politics and the transformation of society, and which believes in the advancement of a society whose values are based on the core principles of the Constitution.

21 The focus of CASAC's work is particularly on the right to equality, the promotion of socio-economic rights, judicial independence and the rule of law, and public accountability and open governance. CASAC believes that the people are the ultimate custodians of the Constitution, and seeks to shift custodianship from institutions to people. It has members throughout South Africa. A list of its Patrons and the members of its Executive Committee is attached as "LN6".

22 The aims of CASAC are to:

22.1 Encourage a multi-sector campaign to drive social activism so that people can claim and defend their rights;

22.2 Develop an effective strategy for public engagement and dialogue, so that people will see the Constitution's tangible benefit to them and defend it;

22.3 Foster initiatives that provide advice, such as institutions and organisations that can educate people about their rights and encourage them to take action;8 22.4 Conduct research as a means to inform constructive debate on constitutional issues;

22.5 Encourage public interest litigation, so that more people can claim their rights under the Constitution; 22.6 Conduct a sustained engagement with key political actors, such as the ruling party, other political formations, the labour unions, business, the faith communities and social movements; and 22.7 Develop a progressive, assertive jurisprudence on human rights.

23 The outcome of this case will have a material impact on the goals of CASAC.

24 A copy of the Constitution of CASAC is attached as Annexure "LN7".

III THE SUBMISSIONS WHICH CASAC SEEKS TO ADVANCE

Section 10 of PEDUDA and the Constitution

25 Section 16 of the Constitution provides that "Everyone has the right to freedom of expression, which includes: ... freedom to receive or impart information or ideas; freedom of artistic creativity; and academic freedom and freedom of scientific research."

26 Freedom of expression does not extend to the "incitement of imminent violence" or "advocacy of hatred that is based on race, ethnicity, gender, or religion, and that constitutes incitement to cause harm".

27 Section 10 of PEPUDA provides that "Subject to the proviso in section 12 no person may publish, propagate, advocate or communicate words based on one or more of the prohibited grounds, 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." 28 The definition of hate speech in Section 10 of PEPUDA is broader than the constitutional definition in at least two respects:

28.1 PEPUDA extends the listed grounds upon which advocacy of hatred is prohibited, to all seventeen grounds enumerated in the Act and other prohibited grounds, rather than restricting them to race, gender, ethnicity and religion as does section 16(2) of the Constitution. For example, speech targeted at a person based on his or her pregnancy, marital status, conscience, belief, culture, or language could constitute hate speech under PEPUDA's definition.

28.2 PEPUDA does not apply only to speech that actually advocates hatred or constitutes incitement to cause harm. It categorizes any speech that can "reasonably be construed to have a clear intention to be hurtful" as hate speech if it applies to one of the listed groups.

29 The definition of hate speech in section 10 of PEPUDA is thus broader than the boundaries of section 16(2) of the Constitution, and includes expression that is protected by section 16(1).10 30 Since the constitutionality of section 10 of PEPUDA was not placed in issue, it must be taken as valid. However, it must be given an interpretation which is consonant with the overall structure of the Constitution.

An interpretation must be sought which does not trench upon the legitimate scope of section 16 of the Constitution. The approach of the Equality Court results in an improper encroachment on the right to freedom of expression in section 16. This result is not warranted by section 10 of PEDUDA. It will also have the following absurd consequences:

30.1 ANC members congregating at a private party who sing this song could be found guilty of contempt of court.

30.2 An atheist's statement to a religious person that he is a fool for believing in God could constitute hate speech. A statement that a particular person's language was the language of the oppressor could also constitute hate speech.

30.3 This section would effectively regulate millions of private conversations in South Africa, placing an unreasonable and unjustifiable limit on freedom of expression.

30.4 This restriction would have a chilling effect on society by reducing diversity of opinion and allowing government to intrude into very private settings.

31 None of these outcomes is required by section 10. The section can be interpreted in a way that strikes the appropriate balance to freedom of expression, if it is construed in a narrower fashion than that adopted by the 11 Equality Court. The Court must balance the importance of the Constitution's guarantee of freedom of expression with the importance of preventing hate speech.

32 CASAC seeks to argue that:

32.1 The intention of the utterer does not necessarily play the decisive role in the construction of section 10. The court should be concerned with the consequences of hate speech.

32.2 The Court should construe the phrases "be harmful" or "incite harm" narrowly, as referring to the threat of physical violence and other concrete forms of harm such as discrimination, and should interpret the phrase "be hurtful" as referring to serious and significant psychological or emotional harm.

33 Given the relative youth of South Africa's hate speech jurisprudence, it is useful to look to international sources for guidance. Section 39(1) of the Constitution permits courts to consider foreign law in their interpretation of the Bill of Rights.

The determination of whether the singing of a particular song or the uttering of particular speech may be legitimately prohibited or penalized must include an adequate consideration of the relevant context.

34 Section 3(3) of PEPUDA provides that "Any person applying or interpreting this Act must take into account the context of the dispute and the purpose of this Act."12 35 Section 3(2)(c) of PEPUDA suggests a consideration of comparable foreign law.

36 Though the appellants argued that the respondents failed to consider the song's historical context and the performance's context, CASAC seeks to advance novel arguments, including other contextual factors and international law, and reconsider appellants' arguments in greater depth.

1 37 The context of a particular incident of alleged hate speech is relevant in several ways.

37.1 First, it is relevant to the prohibition itself. The prohibition on hate speech must be interpreted in a way that strikes a balance between the values of free expression, equality and human dignity.

37.2 Second, it is relevant to determine whether the speech at issue amounts to hate speech.

37.3 Third, the speech at issue may still be a song or other form of cultural or artistic expression deserving of special protection.

38 The nature of the prohibited speech is highly relevant to the question of whether the Court's interpretation struck an appropriate balance between freedom of expression and the restriction of hate speech.

38.1 The Supreme Court of Canada emphasised this point in R v Keegstra, holding that the balancing exercise must consider the "nature of the expressive activity that the state seeks to restrict".2 The Court held that it is "destructive of free expression values ... to treat all expression as equally crucial to those principles at the core of s 2(b) [the free expression guarantee in the Canadian Charter]". As a result, the Court determines whether the type of expression under consideration advances the purposes of free expression, which it identifies as democratic discourse, truth-finding and self-fulfilment.3 The more expression advances these purposes the greater its value.

38.2 A similar approach has been adopted by the Committee on the Elimination of All Forms of Racial Discrimination (CERD), 4 the European Court of Human Rights 5 and the German Constitutional Court.6

38.3 Foreign courts have accorded a higher level of protection to political expression. This is demonstrated in the jurisprudence of the European Court of Human Rights, as restrictions on political expression are subjected to strict scrutiny. In Incal v Turkey, 7 the Court explained that freedom of expression "is particularly important for political parties and their active members ... They represent their electorate, draw attention to their preoccupations and defend their interests. Accordingly, interferences with the freedom of expression of a politician ... call for the closest scrutiny on the Court's part".

8 38.4 The depiction and contestation of history is an important form of expression, contributing to democratic discourse, truth finding and self fulfilment. This assumes particular significance where vulnerable or marginalised groups have historically been denied a voice. By resorting to particular forms of speech (which are hurtful) they can be seen to be reclaiming lost space and asserting their historical autonomy.

38.4.1 This point was made by the Australian High Court in Davis v Commonwealth 9 striking down legislation that restricted aboriginal groups' ability to protest the 200 th anniversary of Australia's colonisation.

38.4.2 The importance of historical representation has also been demonstrated in India, where the courts have repeatedly blocked attempts to use hate speech and censorship laws to suppress the depiction of India's painful history of religious conflict.

10 In one such case, the Court allowed the depiction to proceed in part because it was based on historical truths. These truths, though unpleasant on occasion, could be revealing and instructive.

11 38.5 Resistance songs, such as Dubul' ibhunu, are an important form of political expression. They are in some contexts a valuable way of remembering and depicting history. As a form of political expression, these songs continue to have relevance for vulnerable and marginalised groups who may harness the memories of togetherness, determination and courage that they evoke to confront current challenges.

39 Foreign courts appear to take a more tolerant approach to alleged hate speech by vulnerable groups.

39.1 There is a danger that oppressed or marginalised groups may be silenced or further marginalised by hate speech laws. The history of hate speech laws in the United Kingdom highlights this danger. While the Race Relations Act of 1965 (the predecessor to the Public Order Act 1986) was passed primarily in response to growing racism against minority groups, the first person to be convicted for hate speech under this law was a black man who directed racial abuse at a white policeman.

39.2 By contrast, in the Australian case McLeod v Power 12 the applicant, a white prison official, accused an aboriginal woman of violating the Race Discrimination Act by calling him a ‘white piece of shit', among other racial epithets. The Federal Magistrate's Court dismissed the case, holding that that the primary purpose of the Act was to protect vulnerable minority groups.

39.3 A more lenient approach is also apparent in the treatment by the European Court of Human Rights of hate speech charges against members of the Kurdish minority in Turkey.

13 The Court has tended to protect the free expression of members of this group where their speech did not reach the level of incitement to violence.

40 South Africa's unique historical context needs to be taken into account. Africans constitute the numerical majority. Yet, it cannot be denied that they experience the consequences of past discrimination, nor that discrimination has not come to an end. Apartheid's legacy is still with us. The process of engaging with the past and the present takes the form, in some contexts, of the singing of struggle songs. In this context, it is important for the constitutional project that section 10 should not be interpreted in a manner which closes the space for remembering the past, which wipes away the past from memory, or which limits the ability to deal collectively with the present.

41 Context is vital in determining whether a particular example of expression amounts to hate speech. One of the primary legal questions is how the Court is to situate itself in its determination of whether the expression amounts to hate speech.

41.1.1 The Equality Court effectively approached this question from a point of view of the notional "reasonable Afrikaner": "If the words mean different things to different portions of society then each meaning, for the reasonable listener in each portion of society, must be considered as being the appropriate meaning."

41.1.2 Meaning and intention in incitement or propagation of hatred cases should however ordinarily be construed from the perspective of the audience that is allegedly being encouraged to hate or to harm.

41.2 Even speech that is offensive to a particular group may not constitute hate speech if it is capable of multiple meanings.

41.2.1 For example, in Vajnai, the European Court of Human Rights considered the convictions of several left-wing politicians in Hungary who were found guilty of the offence of wearing or displaying the "red star", a symbol associated with the Soviet Union and a history of repression. The offence prohibited all displays of the red star or other totalitarian symbols, irrespective of the context. The Court overturned the convictions, emphasising that public feeling alone cannot justify a blanket ban on forms of expression that have multiple, potentially legitimate meanings. Though it allowed that "the display of a symbol which was ubiquitous during the reign of [communist] regimes may create uneasiness amongst past victims and their relatives ... It nevertheless considers that such sentiments, however understandable, cannot alone set the limits of freedom of expression ... To hold otherwise would mean that freedom of speech and opinion is subjected to the heckler's veto." 14

41.2.2 This has clear relevance for the present matter. Like the red star, Dubul' ibhunu has multiple meanings. Thus there are contexts in which singing Dubul' ibhunu at public or private meetings of the ANC would not have a hateful meaning or demonstrate the intention (reasonably construed) to be hurtful, harmful or to incite harm or hatred. A blanket ban on the song would restrict potentially legitimate forms of expression. Echoing the ECtHR's reasoning, the mere fact that the song may cause feelings of unease among certain sections of society does not justify this inflexible restriction.

41.3 Major changes in prevailing social conditions can also influence the meaning of the speech and the intentions behind it.

41.3.1 For example, In Catch the Fire Ministries Inc v Islamic Council of Victoria, the Victorian Court of Appeal in Australia discussed an example of this phenomenon: "Changes in social context mean that words directed against members of a particular racial or religious group could be found to have the relevant inciting effect at one time, which they would not have at another time. For example words attacking a racial or religious group at a time when Australia was at war with a country from which members of that group originally came might be likely to incite hatred or other relevant emotion against members of that group, whilst the same words said in peace-time would not be likely to incite this response."

15 41.3.2 Potentially inflammatory words or lyrics may become neutralised through time, tradition and the form of representation, as is evident in many countries' national anthems. Courts must not define "minority" by reference to numbers alone. The Equality Court noted its duty to protect "particularly vulnerable" minority groups. The Court accepted the amicus brief's definition of "minority" without modification, noting that "A group which is numerically inferior to the rest of the population of a state and in a non-dominant position whose members possess ethnic religious or linguistic characteristics which differ from those of the rest of the population and who if only implicitly, maintain a sense of solidarity directed towards preserving their culture traditions religion or language" constitutes a minority.

43 CASAC seeks to submit that this approach to "minority" is too narrow.

44 A definition of the word "minority" must include a consideration of the United Nations Minorities Declaration of 1992, which recognises that numbers can never be the only determining factor when defining minorities.

45 CASAC seeks to submit that the Court should also have considered the UN report "Minorities Under International Law," which specifically cited the South African example: "In most instances, a minority group will be a numerical minority, but in others, a numerical majority may also find itself in a minority-like or non-dominant position, such as blacks under the apartheid regime in South Africa."17 This approach continues to have relevance.

IV COMPLIANCE WITH RULE

46 On 12 October 2011, the Legal Resources Centre (the attorneys for CASAC) wrote to the legal representatives of the parties requesting their consent to the admission of CASAC as amicus curiae ("LN2"). CASAC indicated that, if admitted, CASAC would wish to make written and oral submissions.

47 On 14 October 2011, the second appellant's legal representatives consented to CASAC's admission as amicus curiae ("LN3").

48 On 18 October 2011, the first appellant's legal representatives consented to CASAC's admission as amicus curiae ("LN4").

50 I respectfully submit that CASAC's application meets the requirements of Rule 16(4) for admission as amicus curiae.

51 CASAC accordingly prays for an order in terms of the notice of motion to which this affidavit is attached, admitting CASAC as amicus curiae for the purpose of making written and oral legal submissions.

LAWSON NAIDOO

I hereby certify that the deponent declared that he knows and understands the contents of this affidavit and that it is to the best of his knowledge both true and correct. This affidavit was signed and sworn to before me at Cape Town this _____ day of May 2012. The Regulations contained in Government Notice R1258 of 21 July 1972, as amended, have been complied with.

COMMISSIONER OF OATHS

Footnotes

1. The appellants argued before the Equality Court that the song's historical context was relevant to the Court's determination of the song's meaning. The Court noted the song's history, but rejected their broader argument. It found that the song may have been acceptable in the past, but the way Mr Malema sang it combined with the way the media portrayed it meant that it could now "reasonably be construed" as hate speech. (Judgment 15)

2 R v Keegstra [1990] 3 SCR 697 (SCC) 67.

3 Grant v Torstar Corporation [2009] 3 SCR 640 (Canadian Supreme Court) [47], cited with approval in The Citizen 1978 (Pty) Ltd and Others v McBride 2011 (4) SA 191 (CC) [100], fn 120.

4 See for example CERD, Jewish Community of Oslo et al. v Norway, Communication No. 30/2003, 15 August 2005, [10.1]: the right to free speech in international law ‘has been afforded a lower level of protection in cases of racist and hate speech dealt with by other international bodies'.

5 See for example Féret v Belgium App no. 15615/07 (ECtHR 16 July 2009).

6 See Lüth, BverfGE 7, 198 (1958) 198, 210, 211, see Annexure para 75.

7 Incal v Turkey Incal v Turkey, App no 22678/93 (ECtHR 9 June 1999).14

8 Ibid [46], see also Féret [63]-65].

9 (1988) 166 CLR 79 (High Court of Australia).

10 See for example Ramesh v Union of India (1988) 1 SCC 668; Anand Patwardhan v Union of India AIR 1997 Bom 25; F.A. Picture International v Central Board of Film Certification AIR 2005 Bom 145. 15

11 Ramesh v Union of India (1988) 1 SCC 668.

12 (2003) 173 FLR 31.16

13 See for example Sürek and Özdemir v Turkey App no. 23927/94 (ECtHR 8 July 1999); Ceylan v Turkey, App no. 23556/94 (ECtHR 8 July 1999); Karatas v Turkey, App. no. 23168/94 (8 July 1999); Incal v Turkey, App no 22678/93 (ECtHR 9 June 1999). However counter-examples exist where the applicant did not prevail. See Sürek v Turkey (No 1), App no. 24122/94 (ECtHR 7 July 1999).17 41.1

14 Vajnai v Hungary App. no 33629/06 (ECtHR, 8 July 2008) [53]19

15 [2006] VSCA 284; (2006) 206 FLR 56.20

16 1992 United Nations Declaration of the Rights of Persons Belonging to these Categories of Minorities.

17 United Nations Office of the High Commissioner for Human Rights Statement on Minorities Under International Law.21 49 On 31 October 2011, the attorneys for the first respondent indicated that their client was not convinced that CASAC would raise any new matters, and suggested that CASAC prepare a substantive application for intervention as amicus, leaving it to the Court to decide whether its intervention would be appropriate ("LN5").

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