The poverty of Law : a critical analysis of hate speech Jurisprudence in South Africa

Abstract

The main purpose of this dissertation was to illustrate the ways in which law is limited when it comes to addressing hate speech. The dissertation was set on the premise that law is fundamentally lacking in its capacity to deal with hate speech. Using a combination of approaches the dissertation exposed various gaps of law. Chapter one provided a synopsis of the current South Africa experience with race based hate speech. Most of the highlighted cases took place online, a new dynamic in social conflict. It outlined a number of assumptions which were reiterated throughout the paper. The second chapter compared apartheid and post-apartheid laws and revealed the key shortcoming of current hate speech legislation. It was proven that post-apartheid South Africa is drastically different from apartheid law, particularly the fact that so called racial hostility laws were criminalised, while today speech categorised as hate speech is treated as a civil matter. It was also demonstrated that the ideologies informing racial hostility laws included suppressing anti-apartheid voices, whereas current laws are rooted in promoting the basic rights to equality and dignity. On the negative side is the interest of the state to make imprisonment one of the penalties for “hate speech” through the awaited Hate Bill. The third chapter attempted a thematic critique of how courts adjudicate over hate speech cases. It was found that matters involving identity politics are complex and that these cases are at the risk of being watered down through reconciliatory discourses, including the Ubuntu discourse. South Africa’s law is implicated in not affording apartheid’s victims to express their anger hence hate speech is a potential silencing tool. As such continued reproduction of reconciliatory narratives appears to have stifled courts from thinking more innovatively about developing hate speech jurisprudence of substantive aspects.