Final 1 7 October 2019, answers PDF

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INTRODUCTIONIn Nelson Mandela Foundation Trust v Afriforum 2019, the court held that “the gratuitous display of the colonial-apartheid South African flag constituted prohibited hate speech in terms of the provisions of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (...

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INTRODUCTION In Nelson Mandela Foundation Trust v Afriforum 2019, the court held that “the gratuitous display of the colonial-apartheid South African flag constituted prohibited hate speech in terms of the provisions of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (‘the Equality Act’).” 1 After carefully studying this judgement, this essay is going to critically comment on the significance of the judgement from the lens of transformative constitutionalism. First, it is going to give a brief summary of the judgment’s most salient features including the reasoning. Secondly, it will provide a detailed synopsis of transformative constitutionalism. Moreover, it will apply transformative constitutionalism to the judgement, with emphasis on the jurisprudential significance and implications of the decisions. Finally, it will argue that the judgement advances some central tenets of transformative constitutionalism only to a certain extent. SUMMARY AND REASONING OF THE JUDGEMENT The plaintiff instituted an action of hate speech after a protest march had included the display of the apartheid flag. 2 The respondent argued that the physical display of the old apartheid flag does not constitute hate speech because the legislation narrows hate speech only to verbal communication.3 However, the court rejected the defendant’s literal interpretation of section 10 of the Equality Act which provides that the provision prohibits only words and so cannot be extended to the display of the old apartheid flag. The court held that “literal interpretation fails to give effect to the principles of 1 Nelson Mandela Foundation Trust v Afriforum (EQ02/2018) (2019). 2 Ibid para 22. 3 Ibid para 5.

interpretation and thus words must be given wide meaning going beyond mere verbal interpretations.”4 In coming to this judgement, the court further noted that section 10 of the Equality Act prohibits hate speech and speech includes all forms of expressions of ideas because the essence of speech is communication.5 Moreover, the court asserted that “because words on a literal meaning cannot be advocated, the prohibition against words that propagate hatred must be interpreted to refer to a broader understanding of words that includes ideas.” As a result, the court held that words in section 10(1) of the Equality Act may be interpreted to mean ideas, ideologies, beliefs, instructions conveyed by the words.6 SUMMARY OF THE TRANSFORMATIVE CONSTITUTIONALISM Prior to 1994, South Africa was under authoritarian apartheid regime in which human rights of black people were violated, parliament had power to make laws as they wish and the laws of parliament were supreme. 7 However, in 1994 there was a regime change to constitutional democracy premised on the supremacy of the Constitution. 8 The leading aspiration and objective of the Constitution was to redress the legacies of apartheid and transform South Africa to a new society of democracy. 9 Subsequently, many scholars have put forward several frameworks or accounts essential for achieving the transformative objectives and aspirations of the newly adopted democratic Constitution. 4 Ibid para 128. 5 Ibid para 129. 6 Ibid para 132. 7 Ibid para 2. 8 Ibid. 9 Ibid.

One of the most influential of these accounts is transformative constitutionalism. Klare defines transformative constitutionalism as “a long-term project of constitutional enactment, interpretation, and enforcement committed to transforming a country’s political and social institutions and power relationships in a democratic, participatory, and egalitarian direction.”10 In this regard, the Constitution is depicted as having the desired effect of social justice depending on how it is interpreted and practiced. More precisely, the manner in which the Constitution is interpreted and practiced is essential for social transformation. Therefore, transformative constitutionalism provides that societal challenges can best be addressed using the Constitution, as the basis for societal transformation and in turn it seeks to argue for redress of the legacies of apartheid.11 Significantly, transformative constitutionalism views the law as an instrument of transformation, and in that, the courts act as the vanguard of the transformation because they are empowered to apply and interpret the law. 12 As such, judges ought to interpret and use the Constitution in a meaningful way to elicit social justice. For example, Klare stated that “the postliberal constitution may plausibly be read not only as open to but committed to large-scale, egalitarian social transformation.” 13 Accordingly, judges must take into account the aspirations of the Constitution when interpreting the Constitution and their adjudicative decisions must be in line with the aspirations of the Constitution.14 10 Karl E Klare ‘Legal culture and transformative constitutionalism’ (1998) South Africa Journal of Human Rights 146 at 150. 11 Sanele Sibanda ‘NOT PURPOSE-MADE! TRANSFORMATIVE CONSTITUTIONALISM, POST-INDEPENDENCE CONSTITUTIONALISM AND THE STRUGGLE TO ERADICATE POVERTY’ (2011) 3 Stellenbosch Law Review 482-500. 12 Ibid at 488. 13 Ibid at 151. 14 Ibid.

THE JUDGEMENT AND TRANSFORMATIVE CONSTITUTIONALISM The court has taken the right step towards the direction of realizing transformative constitutionalism, in practice. For instance, the judgement prohibiting the display of the old apartheid flag supports transformative constitutionalism to the extent that it dismantles formal structures of apartheid. Moreover, the court held that “the display of the old apartheid flag reminds black people of the oppression, humiliation, indignity and dehumanization which they moved past.” 15 The display of the flag in post-apartheid South Africa undermines the aspirations of the Constitution which aims to heal the wounds of the past, build a unified society and promote reconciliation amongst citizens. Hence, prohibition of symbols and structures causing discomfort in society is transformative. Moreover, the court advanced transformative constitutionalism in its interpretation of the legislation regulating hate speech. For instance, the court held that “literal interpretation of s 10 of the Equality Act does not give effect to the principles of interpretation and words must be given a generous and wide meaning going beyond mere verbal interpretations.”16 This shows that our judiciary has shifted from the past conservative legal culture in which the court could neither invalidate laws nor exercise judicial review. The literal interpretation of the legislation would clearly inhibit social justice and lead to absurd conclusion. For instance, this would mean that people are prohibited from calling others baboons but not prohibited from circulating images of people’s face superimposed on the body of a baboon. Therefore, the purposive interpretation and

15 Nelson Mandela Foundation Trust supra note 1 at 45. 16 Ibid para 129.

creative application of a court’s jurisdiction and remedial authority advanced transformative constitutionalism. On the other hand, the court’s formalistic and traditional interpretation of the legislation undermines transformative constitutionalism. For instance, Sibanda contended that “within the context of South African’s prevailing conservative legal culture, the extent to which the success of transformative constitutionalism as an enterprise depends on legal and judicial interpretation leaves the project in danger of remaining an incomplete project at best.”17 The spirit of justice should not reside in forms and formalities nor in technicalities nor is the triumph of the administration of justice to be found in successfully picking one’s way between pitfalls of technicality. SIGNIFICANCE AND IMPLICATIONS The decision of the court establishes a binding and/or persuasive legal precedent within its jurisdiction. In this regard, any court dealing with a case of hate speech will have to take into account the legal precedent (judgment and reasoning) set by the previous court, on hate speech. The legal precedent set by the old flag hate speech case has implications for all South Africans. For instance, the apartheid flag is not allowed to be displayed anywhere in public and private space, without any reasons of serving the interests of the public. Therefore, the display of apartheid is now classified as hate speech, and serious legal penalties will be incurred by offenders. Moreover, the court allows for the old apartheid flag to be displayed in museums and places of historical interests. Therefore, the implication of this judgment is that the

17 Sibanda op cit at 493.

display of the old apartheid flag constitutes hate speech. However, the court did not prohibit the display of the old flag completely. There is an exception for people displaying the old apartheid flag for genuine artistic, academic or journalist reasons in the public interest. This judgement advances some tenets of transformative constitutionalism to a limited extent. The court had the opportunity to display full transformative decision-making but decided to overlook the opportunity. Under a transformative Constitution, judges have the ultimate responsibility to justify their adjudicative decisions not only by reference to authority, but by reference to ideas and values. For the judiciary to be successful in helping South Africa redress the multiple legacies of apartheid, the Equality Court, in my view, must be transformative in its adjudication of cases. It would seem that the Equality Court felt constrained by pure interpretative originalism. CONCLUSION Transformative constitutionalism is an approach which aims to move South Africa to a better future on grounds of the law. It requires judges to facilitate social transformation through adjudication. The display of the apartheid flag constitutes hate speech: it is prohibited by the Equality Act, which regulates any form of communication perpetuating hate speech. The judgment advanced transformative constitution in a limited extent: applying purposive interpretation and prohibiting apartheid flag. In conclusion, this essay has commented on the significance of the judgement from the lens of transformative constitutionalism. First, it gave a summary of the judgment. Secondly, it

provided a synopsis of transformative constitutionalism. Moreover, it applied transformative constitutionalism to the judgement.

BIBLIOGRAPHY CASE LAW Nelson Mandela Foundation Trust v Afriforum 2019 JOURNAL ARTICLES Karl E Klare ‘Legal culture and transformative constitutionalism’ (1998) South Africa Journal of Human Rights 146 at 150. Sanele Sibanda ‘NOT PURPOSE-MADE! TRANSFORMATIVE CONSTITUTIONALISM, POST-INDEPENDENCE

CONSTITUTIONALISM

AND

THE

ERADICATE POVERTY’ (2011) 3 Stellenbosch Law Review 482-500

STRUGGLE

TO...