The Supreme Court of Appeal (SCA) has upheld a High Court ruling that found a man guilty of hate speech over racial slurs he sent in private WhatsApp chats.
The man had been charged with using the k-word in WhatsApp conversations with a business associate. The SCA dismissed his claim that his right to privacy should have protected those messages.
“That’s what’s so interesting about this judgment. It provided clarity that previously we didn’t have on this question,” Michaela Hull, a senior associate at Rupert Candy Attorneys, told Cape Talk.
In South Africa, a person found guilty of hate speech can face up to three years in jail, a fine, or both, according to MyBroadband.
The court said hate speech is not limited to public broadcasts or social media. It said the law also applies to private conversations.
Hull said the use of the k-word is already known in South Africa as hate speech. She said that part of the case did not need further clarification.
“What is interesting is that the defence raised was that of privacy,” Hull said. She explained that the defence had two parts.
The first part was that the messages were sent from one white man to another white man. The second part was that the chat took place between two business associates on WhatsApp.
“The argument that it was a private communication on WhatsApp and should therefore have been protected by the right to privacy and not constitute hate speech,” Hull said.
In its ruling, the SCA pointed to the Constitutional Court judgment in Qwelane v South African Human Rights Commission.
“The court said that the communication element here for hate speech is not limited to public communication; it can include private communication,” Hull said.
Hull said this approach leaves aside what is known as a person’s inner sanctum. She described this as something so personal and private that it could possibly be excluded from counting as hate speech.
The man also argued that his words were not hate speech because he said them to another white man. The SCA rejected this argument.
“The court said that this communication of using the k-word to another white person isn’t only hate speech, but also constitutes harassment,” Hull said.
“You’re assuming that this white person you’re speaking to is going to acquiesce with your views, your racist views, which amounts to harassment of that person,” she said.
President Cyril Ramaphosa signed the Prevention and Combating of Hate Crimes and Hate Speech Act into law on 9 May 2024. The law made hate speech on social media a crime.
The Act was first introduced as a bill in 2018. It set out hate crime offences and the prosecution of people found guilty of them.
Under the Act, an offence is a hate crime when the offender acts out of prejudice against a victim’s real or perceived traits. These include race, gender, sexual orientation, religion, disability and HIV status.
The Act defines hate speech as the intentional publication of material that can provoke or promote hatred. It says this can be written, visual, spoken or sent electronically.
This means WhatsApp messages and posts on other social media platforms that amount to hate speech can now be prosecuted, MyBroadband reported.
Source: this article is based on reporting by MyBroadband. Image: MyBroadband. Written with the help of AI and published by the Tzaneen Voice Business desk. See our Editorial Standards.
Anelisa Nkuna covers business and money news for Tzaneen Voice. Anelisa reports on the rand, fuel prices, interest rates, jobs, Eskom, Transnet, farming and company results. The aim is simple: explain what the numbers mean for household budgets, small businesses and workers in South Africa.