Media Statement: SAHRC statement on public utterances by a member of Parliament on the judiciary

7 October 2024

The South African Human Rights Commission (SAHRC/ the Commission) has noted the statement issued by a member of Parliament, Advocate Busisiwe Mkhwebane, following her unsuccessful appeal bid in the Supreme Court of Appeal. In the statement, she criticises the judiciary and alleges persecution by key figures of South Africans of Indian descent.

The Commission has also noted the public discourse that followed the statement, wherein members of the judiciary, academia, civil society organisations and society more broadly raised concerns about the racial undertones of the statement.

The Commission would like to remind everyone that while the judiciary is not above criticism, such criticisms must be within the ambit of the law. Moreover, the right to freedom of expression enshrined in section 16 of the Constitution must be exercised with due regard to the rights of others, as well as the internal limitations of that right. In this regard, section 16 (1) of the Constitution stipulates that everyone has the right to freedom of expression, but it should not extend to advocacy of hatred that is based on race, ethnicity, gender or religion and that constitutes incitement to cause harm, as seen on some social media messaging.

The Commission is closely monitoring this matter, having also noted the public reports about the intention of some interest groups to approach the Commission for intervention in this matter.

The Commission remains committed to ensuring that no individual or institution undermines the rights to equality, dignity, and justice that are enshrined in our Constitution and in particular our revered responsibility to protect the judiciary as one arm of the state. As the matter develops, we caution the public against divisive and discriminatory rhetoric. Similarly, public representatives are enjoined by the constitution to act in a manner that is consistent with their oath of office when making public utterances, particularly when making public utterances that have the potential to bring the judiciary into disrepute  on issues that may stir further division in our already fractured society.

Issued by SAHRC, 7 October 2024