Whatshot

2026
All
September
2025
All
November
All
2024
All
June
All
April
All
2023
All
March
All
2022
All
2021
All
2020
All
March
All
February
All
2019
All
December
All
November
All
October
All
September
All
August
All
July
All
June
All
May
All
April
All
March
All
February
All
2018
All
December
All
November
All
October
All
September
All
August
All
July
All
June
All
May
All
April
All
March
All
February
All
2017
All
December
All
November
All
October
All
September
All
August
All
July
All
June
All
May
All
April
All
March
All
February
All
January
All
2016
All
December
All
November
All
October
All
September
All
August
All
July
All
June
All
May
All
April
All
March
All
February
All
January
All
2015
All
December
All
November
All
October
All
September
All
August
All
July
All
June
All
May
All
DHS
April
All
March
All
February
All
January
All
2014
All
December
All
November
All
October
All
September
All
August
All
July
All
June
All
KZN
May
All
April
All
March
All
February
All
January
All
2013
All
December
All
November
All
October
All
September
All
August
All
July
All
June
All
May
All
April
All
March
All
February
All
January
All
2012
All
December
All
November
All
October
All
September
All
August
All
July
All

Legal Talk

Legal Talk

Author: Fawzia Khan
Date: 2016-01-29
The racist comments posted by a white middle-aged woman, Penny Sparrow on social media, early in January 2016, has caused much outrage amongst most South Africans. It has brought to the fore the painful issue of racism, which continues to plague post- apartheid South African society. Unsurprisingly, it's also fuelled much vigorous debate amongst South Africans of all hues and colours. The African National Congress has since criminally charged Sparrow for crimen iniuria. Complaints have also been laid to the South African Human Rights Commission. Because of our apartheid history, our Constitution has ensured that we commit to the recognition of human rights and the right to dignity. The Constitution of South Africa guarantees us as South Africans the right to freedom of expression. It also entrenches our right as South African citizens to dignity.

When one looks at the right of freedom of expression juxtaposed against the right of dignity, which right would be considered more important to uphold? Would a person have the right to speak his or her mind freely and without censure even if it defames someone else? If the comments made by a person seek to promote hate, racism and intolerance amongst South Africans, then the answer is a resounding No!

The Supreme Court of Appeal dealt with ensuring that a person's right to speak his or her mind must be properly balanced when weighed against the backdrop of the right to human dignity, as early as 1998. In the case of National Media Limited v Bogoshi, the Supreme Court of Appeal also held that the right to a persons dignity must take preference when looking at one's right to freely speak one's mind.

Whilst our Constitution entrenches both the right to dignity and to freedom of expression, our courts, including the Constitutional Court and the Supreme Court of Appeal, have over the years and in a number defamation related cases, taken the view that the rights to life and dignity takes precedence over one's right of freedom of expression. In the United States of America, for example, the right of freedom of expression is entrenched in their constitution and takes precedence in their law. The South African position on racism and defamation is thus in sharp contrast to that of the USA. If someone makes a hurtful and insulting or even racist comment on Facebook, Twitter or any other social media platform, it would certainly carry certain backlash and negative consequences. Just ask Penny Sparrow, who since her offensive posting was brought to the public's attention, has now lost her job and has gone into hiding.

The Constitution of South Africa, which acts as our blueprint for the manner in which South Africans are to co-exist with each other post apartheid, also guarantees us the right to live in a non-racist and non-sexist society.

The Constitutional Court has, since it's existence, handed down several judgments where a person's right to freedom of expression came under the spotlight. In the case Holomisa v Argus, the President of the Constitutional Court said: "The rights to life and dignity are the most important of all human rights, and the source of all other personal rights. By committing ourselves to a society founded on the recognition of human rights we are required to value these two rights above all others. And this must be demonstrated by the State in everything that it does'. Judge O'Regan, the judge in the Constitutional Court in the Khumalo v Holomisa case, (where the issue of our Constitution's position on the common law of defamation was considered), said that the media have a particular role in the protection of freedom of expression. The Constitutional Court also held the media were 'important agents in ensuring that government is open, responsive and accountable'. The Court also said "However, although freedom of expression is fundamental to our democratic society, it is not a paramount value. It must be construed in the context of the other values enshrined in our constitution. In particular, the values of human dignity, freedom and equality."

This means that as US presidential candidate Donald Trump continues to dominate the media with his controversial and downright racist views on Muslims, Mexicans etc., had he been a South African, his outrageous and racists antics would, in terms of our Constitution, certainly not be tolerated. In addition, he would also find himself facing both criminal and civil sanctions.

Know your rights! For legal assistance at competitive rates, email fawzia@thelawdesk.co.za or call 031-5025670. The Law Desk of Fawzia Khan & Associates. Giving YOU the Power of Attorney!