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Freedom of speech not absolute, says attorney

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A local attorney has pinned the recent wave of racism scandals on a lack of understanding as to how freedom of speech is governed as per the South African Constitution.

Local media has been awash with reports of incidents where citizens, including these within positions of prominence, have made questionable social media comments that have bordered, and in cases overstepped the boundaries of hate speech.

Realtor, Penny Sparrow and Durban gym owner, Justin Van Vuuren have both come under fire for racist comments targeted at black beachgoers. Standard Bank economist, Chris Hart is also in hot water after tweeting that: “More than 25 years after apartheid ended, the victims are increasing along with a sense of entitlement and hatred towards minorities.”

Government employee, Velaphi Khumalo has already been suspended for a Facebook post in which he urged black South Africans to “do to white people what Hitler did to the Jews”. Journalist, Carien du Plessis has also faced the wrath of the ANC after describing those planning to attend the ANC’s 104 anniversary bash as ‘pantypreneurs’ and ‘tenderpreneurs’. She has been barred from attending the event.

Attorney, June Marks said that as per the country’s constitution such derogatory and hateful comments are already deemed as being in contravention of the law.

“I think there is a lack of knowledge that, first of all the constitution is not an absolute right to freedom of speech. The articles being thrown around do note that constitutional rights are limited. In terms of the constitution you can only make certain comments up to a point where they don’t infringe on the rights of others,” she stressed.

As per South African law, crimen injuria deems worthy of criminalisation any offense that “unlawfully, intentionally and seriously impairs the dignity of another.” This includes the use of racist language, insults, as well as psychological and emotional abuse.

Marks suspected that some of the comments made over the course of the past week could well fall under crimen injuria.

“We need to get rid of this idea that you have a complete blanket right to freedom of speech. That’s not quite correct and people need to be made aware of this.

“I think people are being very reckless in the comments they are making on social media these days,” she stated.

Marks said more awareness of the country’s laws on freedom of speech were needed amongst the general public, in particular where the line was drawn between free speech and hate speech. VOC


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