A constitutional perspective on the Sparrow judgements

Abstract

The cases of ANC v Penny Sparrow and State v Penny Sparrow, respectively in the Equality Court and the magistrate’s court, concerned a Facebook entry posted by Penny Sparrow, a white
estate agent. The Equality Court found that Sparrow’s words constituted hate speech in terms of sec. 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000
(“the Equality Act”); in the magistrate’s court, she was found guilty of crimen iniuria. This contribution considers whether the judgements in these matters comply with the constitutional
approach in dealing with hurtful or harmful expression related to group characteristics, in particular race, broadly referred to as hate speech, which approach is crucial for the protection as well as
the transformation of South African society. Both these aims are put at risk by an indiscriminate comprehension and application of the wide-ranging phrase “hate speech”. This observation is
corroborated by the fact that international agreements concluded in the aftermath of the atrocities of World War II set out on the quest for the narrowest restriction of free speech, reserving
criminalisation for extreme forms of expression only. In line with this approach, the Constitution of the Republic of South Africa, 1996, clearly distinguishes between expression under its sec.
16(2), in particular sec. 16(2)(c), which warrants no protection, and expression that falls outside this ambit, which does enjoy constitutional protection, although subject to limitation. This
distinction is particularly relevant in the application of sec. 10 of the Equality Act, which is primarily aimed at transformation instead of punishment. The article first argues that the Equality Court in the matter of ANC v Penny Sparrow disregarded the distinction above, and consequently failed to further the transformative aims of the Equality Act. It also failed to consider the cyber context within which the Sparrow comments were made. It is contended, in this regard, that the characteristics of internet communication increase the risks of extreme hate speech, on the one hand, and have the potential to generate sincere transformation through social pressure when it comes to expression that falls outside the ambit of sec. 16(2), on the other. In the same vein, the article argues that the common law offence of crimen iniuria, construed as to extend to a verbal attack, not against an individual, but against a group of which he/she is a member, is not in keeping with international law or the Constitution, and negates the purposively drafted provisions of the Equality Act.