On the curious case of "shooting the boer."

It's tempting to be disgusted by the lack of sensitivity to farmers shown by Pierre de Vos in this post from Constitutionally Speaking. But the legal issues he highlighted about the ruling regarding the phrase "kill the boer" are worth paying attention to. We've observed the slip in the judicial system over the years since apartheid ended, with politicians walking free from serious crimes with barely a slap on the wrist. But the farm murders is an issue that's very close our hearts as white South Africans, and if it isn't then it certainly should be. The incitement of violence by politicians needs to stop!

News that the South Gautenteng High Court Acting Judge Leon Halgryn ruled on Friday that use of the words “dubula ibhunu (shoot the boer)” was unconstitutional and unlawful is odd, to say the least. Unfortunately this was an urgent application so the judge did not seem to have given reasons for his judgment. Nevertheless, if the media reports are correct, the judgment does not seem to make much sense.

I am not sure on what basis the “publication” and the “utterance” of the words can be declared unconstitutional. It is true that section 16 of the Bill of Rights states that the right to freedom of expression does not extend to incitement of immenent violence or advocacy of hatred that is based on race, ethinity, gender or religion and that constitutes incitement to cause harm. However, section 16 itself does not ban such words, but merely states that the utterance of such words are not protected speech.

This would mean such speech could be regulated or banned by the legislature and such a ban could not be challenged on the basis that it infiringed on the section 16 protection of freedom of expression. It decidedly does not mean that in the absence of such regulation by the legislature the words are “unconstitutional”. How a particular phrase could ever be declared unconstitutional is beside me. There is no provision in the Bill of Rights that prohibits any particular phrase. If the judge was quoted correctly, he was obviously talking nonsense.

Another question is whether a particular phrase could be declared unlawful by a court. I suspect not. The utterance or publication of some words in certain context could amount to defamation or it could fall foul of section 10 of the Equality Act but that could only be done with reference to the specific context and the facts of a particular case.

Maybe the Acting Judge was relying on the criminal law principle in common law and in terms of the Riotous Assemblies Act which prohibits the incitement of a crime. But then it would have to be shown that an accused “sought to influence the mind of another person towards the commission of a crime” and that would depend on the facts of a particular case and could not be decided in the abstract.

It seems to me bizarre that a court could decide in the abstract in an urgent application that a particular phrase was unconstitutional and unlawful. Surely one will have to decide on a case by case basis whether the utterances of words defamed someone or falls foul of the Equality Act or constitutes incitement to commit a crime.

To hold otherwise would be dangerous, nonsensical and would lead to absurd consequences. What would happen if I write a short story and one of the characters sings “Shoot the Boer”. Would this mean my story when published would be declared “unconstitutional” and “unlawful”?
At the very least it would be good for the judge to present written reasons for this judgment. Based on the available evidence it makes absolutely no sense.

Cliff: hate speech, not free speech

I had a giggle reading this little rant by Micheal Trapido. I don't like Gareth Cliff or Micheal Trapido because they are both so damn politically correct it's actually boring. As far as I'm concerned they can have a go at each other as much as they like. Heh heh.

Mantombazana ‘Manto’ Edmie Tshabalala-Msimang was a South African politician who will, no doubt, be remembered for her controversial policies on HIV-Aids while Minister of Health under President Thabo Mbeki.

Unquestionably she drew fire from many quarters with some even calling for her to be held accountable for the deaths that resulted from those policies.

She was also a human being, a wife, a friend and someone who had made a lifelong contribution towards the liberation of South Africa.

Her personal battle with her health ended on the 16th of December and there are millions of South Africans who are aware of the debt that they owed Manto for their freedom long before the issue over health ever came along.

Having said that and save for a few extreme examples - Hitler being one - to publically tell people that someone’s death is “good riddance” is not the work of a shock-jock it’s that of a moron.

“Manto is dead. Good. A selfish and wicked bungler of the lowest order. Rotten attitude and rancid livers - all three of them…” - Gareth Cliff

Perhaps Cliff, aware of the anger towards Manto over health, miscalculated the backlash that his Tweet would bring or possibly he just fired it off without thinking. Regardless, at the very least, he owes a public apology, at worst, a new CV to look for another job.

This is not free speech, this is hate speech, about someone who cannot defend herself and goes way beyond insensitive.

When Johannesburg shock-jock Majota Khambule (Phat Joe) made what were perceived by some as disparaging remarks about Caster Semenya, primarily whether she had testicles instead of testes and whether she had ever had a period, he was given his marching orders.

Those observations were not even in the same division as Cliff’s ridiculous outburst.

Moreover it is disingenuous of the broadcaster to suggest that Cliff’s Tweet was private and as such they cannot take action.

As one of their frontline DJs everything that he says carries their brand and requires their response where necessary.

No doubt they will soon learn that they can’t duck the bullet on this one.

On reasonable accommodation

Productivity, performance, competence, excellence, scientific innovation, compassion, transparency and other such qualities are the things I associate with white culture. Dr. Beetroot left a sky rocketing AIDS legacy behind as former South African health minister. Pierre de Vos argues that whites should not criticize her and that we need to accommodate black culture by showing respect for the dead, unless it fundamentally detracts from our own dignity and freedom. Well Prof, as a matter of fact, it does. Duh!

Few recent events have highlighted the racial fault lines in South African society more starkly than the recent death of Manto Tshabalala-Msimang. While many South Africans (mostly white) have welcomed the death of the late Minister, pointing to her disastrous management of the HIV/AIDS crisis and the untold suffering and death caused by it, many other South Africans (mostly black) have chosen not to highlight her faults, pointing to an African tradition of not speaking ill of the dead.

Some argue in essence that in a diverse society they have no duty to respect the cultural traditions of the majority, just as they do not demand that the majority respect their traditions. Others claim that the lack of respect shown for African tradition is deeply hurtful or even racist and demonstrates an inability or unwillingness on the part of some white South Africans to embrace reconciliation.

This is a complex matter, not only because cultural traditions and practices are contested, are therefore not static, and are sometimes exploited for political gain, but also because it goes to the heart of how we manage diversity in a deeply divided society. [Divided mostly by intelligence, of course.]

South Africa is, of course, not the only country grappling with this problem.

All over Europe debates are raging about what the white majority can expect from immigrant populations. In France, for example, the debate focuses on the duty of the minority Muslim population to respect or even embrace French cultural practices in order to become “full” French citizens.

It seems to me a good way of approaching this issue is to adopt a principle championed by former Justice Albie Sachs in the context of the right to freedom of religion in cases where religious practices clash with broader values espoused by the Constitution. Sachs argued that the state and others have a duty to make a “reasonable accommodation” of such practices in order to respect both the secular and the sacred within the disciplining framework of the Constitution.

What is required, first, is to listen respectfully and to actually hear the views of those who do not share your own cultural beliefs and world view. Too often we shout past each other and make assumptions about what people believe without hearing their views and considering them in an honest and open manner. [Remember this principle always applies both ways. This is something Pierre de Vos has a tendency to forget because he doesn't acknowledge white culture.]

Second, we should accept that in a constitutional democracy based on human dignity, equality and freedom no cultural belief or practice is automatically sacrosanct (even if it is embraced by a majority of citizens). To hold otherwise would be to place an absolute limit on the freedom of every individual to decide for him or herself how to live a life of dignity and respect according to his or her own ethical rules and beliefs.

Third, this does not mean we should not strive to respect and accommodate the cultural beliefs and practices of other members of society where it is reasonably possible to do so without fundamentally betraying our own values and normative commitments. We all live in the same country and if we are to foster mutual respect for one another, we should be sensitive to the views of others without abdicating our own dignity and our freedom. Personally, my normative commitments closely mirror those enshrined in the Constitution and requires me to balance my own freedom, right to speak my mind and dignity on the one hand, with respect for the dignity and freedom of others, on the other.

When someone thus demands that I should not do or say something because it runs counter to their cultural beliefs or practices, I will ask whether that belief or practice has a valid goal and whether respecting it will fundamentally detract from my own dignity and freedom. Where someone says that a hatred of homosexuals is part of his or her culture, for example, I will not respect that and will speak out against it because to shut up would be deeply oppressive and dehumanizing for me.

Although it is not part of my particular culture, it seems to me a practice that demands some circumspection when speaking about the recently deceased can be reasonably accommodated without betraying one’s most cherished beliefs and principles or commitment to honesty and truth. Respect for the feelings of the family and friends of a recently deceased person can – in my view at least – be squared with my own notion of my own dignity and the dignity of all the members of society with whom I share the country.

In a diverse country in which people differ sharply on cultural beliefs and practices, it seems to me we will all be better off if we try to understand and respect such differences where it seems reasonably possible to do so. If one feels that it is not, one should be able to have an honest debate about it and should be able to justify why – in a particular case – respect for the cultural beliefs and practices of another is impossible if one is to hold on to one’s own dignity and one’s commitment about freedom and equality.

In such matters reasonable people might well differ and do so respectfully. On this Blog some participants have expressed some harsh views (based on their religious or cultural beliefs) on the alleged evils of homosexuality. As a rule I have not jumped down their throats as long as they expressed their views in a rational and reasoned manner. It is, after all, in the very nature of a constitutional democracy that people will differ with one another about fundamental issues that goes to the heart of their identities. But we all too often forget that when someone differs from you, it does not necessarily mean that he or she is an evil or bad person.

Pity many people (from all sides) do not always adhere to this view and feel that any disagreement with them represents a fundamental attack on their dignity and worth as a human being. That, perhaps, says more about our particular history, or about their own insecurities and lack of self-respect, than about the views of the person they are disagreeing with.

Yesterday, a short-lived war broke out between the US and SA

Here is a post by Kaya Dlanga from Thought Leader, which I thought was pretty apt for posting today after reading Google's threat to shut ILSA down. Everyone has the right to their own perspective and to express it. That's one right that is truly free. Google, Twitter and the whole bunch of internet service providers still need to realize that they need to act global if they want to have our support in South Africa. Broaden your horizons a bit, guys, for heaven's sake.

If this is social media, isn’t this one of the ways in which people should learn about each other’s cultures? Wasn’t this one of those opportunities? Hopefully they learnt something from little old South Africa, even though we don’t see ourselves as so little.

When they shut us down, it was as if Twitter took the ball home and said see what you’ll play with now.

“Irony 101: #thingsdarkiessay is not racist in South Africa — What’s NOT racist in South Africa? Apartheid wasn’t Disneyland.” A virtual war between the United States and South Africa was full-on yesterday, the weapon of choice being Twitter. Unfortunately, the weapon was an American one too. Of course in the bigger scheme of things, even in the smaller scheme, this was an insignificant spat. The war was fought at 140 characters at a time.

It was between South African blacks and African Americans. What could have caused this outbreak you may ask? (At some point I even tried to get the US Embassy (@USEmbPretioria) to intervene, they responded by saying, “@Khayadlanga has more pull power with Twitter than we ever will”. The comment was followed by a smiley face. This response was enough for my over-inflated ego. It’s true, flattery will get you anywhere. All I need is flattery and oxygen. I am more powerful than the United States. I feel like invading something. Anything. Suggestions anyone? Should we vote on it? I say let’s invade Khanyi Mbau or Julius. Kidding.

The tweet that caused all the trouble is a certain trending topic that went as follows — before I say, I should explain what a trending topic is. Twitter tracks the 10 most popular topics of the day and ranks them according to popularity. These topics are usually preceded by a hash tag. Allow me to demonstrate. #khayasthoughtleaderblogsucks. That would be a trending topic, notehowtherearenospacesbetweenthewords. Yes. WedothatonTwitter. The native that caused all the trouble started a trending topic that reached number 1. #thingsdarkiessay. That was the topic. One would say for example, “#thingsdarkiessay I have high-high”. Elderly black folks say they have high-high, by this they mean high blood pressure. Perhaps using more words than necessary increases their blood pressure. Maybe they were the original tweeters.

Someone else would then say, “#thingsdarkiessay Stop nonsense”. You get the picture. Completely harmless. Unless you were African American. An avalanche of misunderstanding descended on the South Africans like a ton of 140 character insults. One that amused me was by @DukeBrady. I quoted him in the opening line of this blog. He assumed that the topic was started by racist white South Africans. This is understandable considering his cultural context, the word darkie is just one rank below the N word over there. He tweetered the following: “Irony 101: #thingsdarkiessay is not racist in South Africa — What’s NOT racist in South Africa? Apartheid wasn’t Disneyland.” This was a retweet by @MissLeggz, she shared his sentiments. I initiated a dialogue with her, in the end she understood.

African Americans were up in arms. Even American hip-hop artist wrote, “@RealTalibKweli: Also interesting that black South Africans seem to have no clue as to why the term darkie would offend”. I won’t get into the use of the N word in hip-hop today. That’s a whole new topic on its own.

Dream Hampton, (@dreamhampton) who became the first woman editor of The Source Magazine asked me if “darkie” wasn’t “more akin to the N word?” I explained to her “No, here that would be the K word”. She was fine with the explanation, if not completely comfortable with it.

At some point I was expecting Reverend Al Sharpton to denounce the racist South Africans, alas, my hope was false. The complaints flew in by the split second. Eventually, it was removed from the trending topics. Strangely enough the #NoGod trending topic was allowed to stay on even though many complained. Who decides what is too offensive or just offensive enough to be tolerated? This was nothing more than a cultural misunderstanding. By shutting it down, the powers that be shut down a potential educational moment where South Africans would have taught the Americans something. And we in turn might have learnt something about African Americans, because let’s face it, we still only know each other at face value, we don’t understand the little cultural nuances and the sensitivities that go with the nuances.

At some point I wrote that those who were finding out that #thingsdarkiessay was a South African set trending topic, “They’re surprised that South Africans have enough computers to set a number 1 trending topic”.

It was a very apparent misunderstanding of two cultures. One found the word offensive, the other found the word neutral. Both sides have a history of oppression. So who has the right to say whose point of view is correct? Well, it appears Twitter decided that they did in fact have the right. Once the topic hit the number 1 spot, it was not long before it was removed by the powers that be.

It would seem to me, according to Twitter, tweets Americans find offensive but are innocent to others will not be allowed to be trending topics it seems. Part of social media is that we get to learn about each other. It’s not always going to be just fun, sometimes we have to get a little uncomfortable with one another before we can be truly understanding of each other. Even in our hyper-emotional responses we may pause for a moment, breathe, think and learn something about someone else. They were not wrong in their outrage, nor were we when we joked about things darkies say. What was wrong was the inability to try to understand or explain why we held the views we did. Most of the responses were emotional, not rational.

The deletion of #thingsdarkiessay set off a #SouthAfricansArePissed @Twitter trend. It was amusing to watch and participate in. One of which was a tribute to our president, “Hawu lethi trending topic yami, trending topic yami!” #SouthAfricansArePissed @twitter”.

If this was social media, isn't this one of the ways in which people should learn about each other's cultures? Wasn't this one of those oppurtunities? Hopefully they learnt something from little old South Africa, even though we don't see ourselves as so little.

When they shut us down, it was as if Twitter took the ball home and said see what you'll play with now.

Tim Minchin favourites

A couple by Tim Minchin taking the piss out of liberal white guilt and hypocrisy. Don't laugh too loud, because you might find that you're actually laughing at yourself, this guy's that good! And an Aussie to boot! I wonder how his brand of satire would go down in SA?

Have you been affected by anything you have viewed in this insert?
Do you have any concerns or issues that might have touched you?
Have you been offended by anything that was displayed or do you regard the content as racially offensive or inappropriate?

If you do, well then, you can just send me a fricken e-mail.

One Man and His Dog Charged with 'Incitement to Racial Hatred'!

Please Don't be Too Honest, we Are the Politically Correct Crystal Ego Thought Crime Police!...


One Man and His Dog, television presenter Robin Page was arrested by police after he stated in a Protest speech that farmers should enjoy the same rights as Blacks, Muslims and Gays.


Outraged Police traveled over 200 miles to question Page, before detaining him, and then charging him with incitement to racial hatred.

****

A former presenter of One Man and His Dog has been arrested on suspicion of inciting racial hatred in a pro-hunting speech.

Robin Page, 61, a farmer and countryside campaigner, was questioned over remarks he made at a fair in Frampton on Severn, Gloucestershire.

Mr Page was invited to the event by its organisers, the Frampton Court Estate, to urge people to attend the Liberty and Livelihood March in London.

But several people complained to police about his speech, in which he allegedly said supporters of the traditional country way of life should be given the same rights as blacks, Muslims and gays.

On Monday Gloucestershire Police asked Mr Page to attend an interview at a police station in Cambridge, near his farm in Barton.

The Daily Telegraph columnist was subsequently arrested on suspicion of committing public order offences by breaching section 18 of the Public Order Act, which refers to the stirring up of racial hatred.

Mr Page denies having made racist comments at the event on 6 September.


Establishment blamed

He said: "I believe country people should have the same rights and protection under the law as any other minority group in a multi-cultural society.

"It is beyond my comprehension that I am not allowed to say that in a public place, where I was invited on to private land."

He said his arrest was an example of the way country people had been "victimised" by the establishment.

A spokesman for Gloucestershire Police confirmed a man from Barton, Cambridgeshire, was arrested on suspicion of committing public order offences.

Mr Page was released on bail and is to report back to Stroud Police Station on 6 January.

Source: BBC