This report sets out the findings and recommendations of the South African Human Rights Commission (“Commission“) in respect of complaints lodged with the Commission by the African Diaspora Forum, Lawyers for Human Rights, and certain private individuals (3rd – 31st Complainants) residing within the Republic and outside of the Republic.
The complaints relate to alleged utterances by King Goodwill Zwelithini (“Respondent“) delivered during a moral regeneration meeting in Pongola in the KwaZulu-Natal Province on 15 March 2015.
Having considered all the facts relating to this matter, and the law applicable to the same, the Commission comes to the following findings:
With respect to the question whether the Respondent communicated words regarding migrants that amounted to hate speech within the meaning set out in Section 10(1)(a) of PEPUDA, the Commission finds that the words uttered by the Respondent on 15 March 2015 could reasonably be construed to demonstrate a clear intention to be hurtful; and could reasonably be construed to demonstrate a clear intention to be harmful in that he made statements which perpetuate discrimination and marginalisation of migrants and a public call for migrants to be expelled from the country.
With respect to the question whether the Respondent communicated words of and regarding migrants that amounted to hate speech within the meaning set out in Section 10 (1) (c) of PEPUDA, the Commission does not find that the words uttered by the Respondent on 15 March 2015 could reasonably be construed to demonstrate a clear intention to promote or propagate hatred against migrants.
With respect to the question whether the violent attacks on migrants that ensued following the statements made are attributable to the Respondent’s conduct, the Commission finds that upon consideration of the facts of this matter, there is no evidence that creates a causal link between the utterances of the Respondent on 15 March, 2015 in Pongola and the violent attacks on migrants in Isipingo and adjacent areas that commenced on 30 March, 2015. The initial cause of the violence was alleged to have been a labour-related dispute relating to Jeena’s Supermarket. Furthermore, aside from the absence of a clear causal link between the speech and the attacks that commenced shortly thereafter, the content of the speech does not evince any incitement to violent action. As indicated above, the Respondent appeared to denounce the perpetration of violence against migrants in his speech.
With respect to the defence of the Respondent that the media were responsible for attributing a language translation and a construction of meaning to the utterances of the Respondent that had the effect of inciting right-thinking members of the public to construe the Respondent’s words as bearing a clear intention to be hurtful and/or harmful and/or inciting harm and/or promoting and propagating hatred against migrants, the Commission finds that this question does not fall squarely within the jurisdiction of the Commission and is best referred to a more appropriate body for investigation and determination.
In considering which of the available remedies would be appropriate to redress the violation of human rights in this particular matter, the Commission was guided by the following factors and considerations:
The need to issue recommendations that are capable of implementation;
The need to issue recommendations that are effective;
The need to issue recommendations that provide an element of solatium to the Complainants;
The need to issue recommendations that are capable of having a deterrent effect on the Respondent; and
The need to issue recommendations that are consistent with the broad social and constitutional objective of reconciliation and social cohesion.
In considering the issue of appropriate redress, the Commission also took the following factors into consideration:
That the Respondent is a widely revered leader of the Zulu nation in the KwaZulu-Natal Province;
That the leadership role of the Respondent in the community, coupled with his moral authority over a large population of subjects, renders the Respondent a pivotal and critical vector in the transformation of South African Society into one that respects the rights, dignity and freedoms of migrants;
That the invocation of the legitimacy and moral authority of the Respondent to address attitudes, perceptions and behaviours of his constituency towards migrants is a useful tool to employ in addressing the public interest in this matter;
That the adverse finding against the Respondent that he has infringed the human rights of migrants is in itself a form of public sanction against a person of his stature;
That the Respondent, unprompted by any coercive force, convened an imbizo on 20 April 2016 at Moses Mabhida Stadium in which he did the following:
publicly disassociated himself from same;
called upon his chiefs to investigate and report directly to him any acts or reports of xenophobia against migrants;
called upon his chiefs to act as community protectors;
called upon his chiefs to facilitate peace in the community;
made a public call for migrants in KwaZulu-Natal province to come forward to participate in royal and government structures, with the view to building a relationship between nationals and migrants;
publicly undertook to “instruct” the Office of the Premier in KwaZulu-Natal to organise an urgent meeting between the Respondent’s royal household and the Ambassadors of the affected African countries;
publicly committed himself to participate in the drafting of a “Peace Accord” committing himself and other stakeholders to peace and the preservation of law and order in the country; and
A copy of the Respondent’s full address at the imbizo in both isiZulu and English is attached as Annex D and Annex E respectively.
The Commission considers these public declarations and commitments to provide a good foundation for appropriate redress to resolve the complaint in this matter for the following reasons:
They aim to achieve peace and goodwill towards migrants in KwaZulu-Natal;
They invoke the legitimacy of the Respondent as the King of the Zulus, which is critical in ensuring that the Respondent’s constituency adheres to and supports the Commission’s recommendations;
They are based on proposals that the Respondent himself regards as implementable;
The Respondent is likely to see the recommendations in light of his own interests and that of his subjects and therefore more likely to implement a set of recommendations along these lines;
They are in line with the SAHRC Act’s injunction to resolve complaints relating to the violation of a human rights through a mediated and negotiated settlement, which in the Commission’s experience makes for longer lasting settlements; and
They are also in line with the principle of reconciliation which has become a central feature of the South African democratic order following the use of this approach in resolving deeply divisive elements in a society that is emerging from a historical legacy of hatred, fear, guilt and revenge.
In the circumstances, the Commission makes the following recommendations:
That the Respondent, His Majesty King Goodwill Zwelithini, continues with his efforts of reconciling nationals and migrants in KwaZulu-Natal and with the implementation of his proposed plan of action set out in paragraphs addressed the allegations of xenophobia levelled against him in the media; to publicly undertook to see to it that such a Peace Accord was formally signed and publicised. above and that he makes every effort to ensure its full implementation.
That the Respondent provides the Commission with a report within 60 (sixty) days of the date of this report, setting out the following:
Whether the above proposals have been implemented and, if not, a time-bound plan for implementation;
If the proposals have been implemented, whether the proposals have enjoyed any success in improving relations between migrants and nationals within the Province;
If successful, provide a strategy for disseminating the model with the Houses of Traditional leaders to encourage other Traditional Leaders who may have similar challenges to implement similar strategies in the localities under their domain; and
If the proposals have not been implemented, what factors prevented the implementation of such proposals and what lessons can be learnt and alternative strategies implemented to generate cohesion between nationals and migrants.
That the Commission renders any assistance as may be required to the Respondent and the other relevant actors identified in the above proposals, namely:
Facilitating meetings between the Respondent and Ambassadors of affected countries to South Africa, to dialogue on how best to promote good relations between nationals and migrants in KwaZulu-Natal, as the Respondent has undertaken to do; and
Facilitating meetings between the Respondent and the Premier of KwaZulu-Natal to dialogue with key stakeholders on the development and signing of a Peace Accord, as the Respondent has undertaken to do.
That, the Department of Cooperative Governance and Traditional Affairs (“COGTA“), in collaboration with the Houses of Traditional Leaders, design and develop a programme to provide the necessary support to Traditional Leaders, to enable them to comply with the Traditional Leaders Act and section 2(3) and section 2A(4) of the Traditional Leaders Act in particular.
In this regard, the Traditional Leaders Act provides that institutions of traditional leadership must be transformed to be in harmony with the Constitution and the Bill of Rights. In particular, section 2(3) and section 2A(4) of the Traditional Leaders Act provide as follows:
“2 (3) A traditional community must transform and adapt customary law and customs relevant to the application of this Act so as to comply with the relevant principles contained in the Bill of Rights in the Constitution, in particular by –
(a) preventing unfair discrimination;
(b) promoting equality;
2A(4) A kingship or queenship must transform and adapt customary law and customs relevant to the application of this Act so as to comply with the relevant principles contained in the Bill of Rights in the Constitution, in particular by:
(a) preventing unfair discrimination;
(b) promoting equality; and
This recommendation is made in terms of section 13(1)(a)(i) of the SAHRC Act, which provides that “[t]he Commission is competent and is obliged to make recommendations to organs of state at all levels of government where it considers such action advisable for the adoption of progressive measures for the promotion of human rights within the framework of the Constitution and the law, as well as appropriate measures for the further observance of such rights.”
The Commission, in its independent monitoring role, remains available to assist COGTA and the respective Houses of Traditional Leaders with designing and implementing such a programme, as well as any other programmes and interventions that can improve relations between nationals and migrants.
That, with regard to the counter-complaint of the Respondent in which the Respondent requested that the Commission make a finding against the media, the Respondent should (should he wish to persist with this complaint) redirect the complaint to the BCCSA, Press Ombudsman and ICASA, which bodies possess jurisdiction to deal with this complaint in terms of their procedures.
In light of the involvement of the Chairperson and the other Commissioners of the Commission in the investigation of this matter, it would not be appropriate for the Chairperson or any other Commissioner, to determine an appeal on this matter. In the circumstances, should any party not be satisfied with this decision, the aggrieved party may approach the Equality Court for further relief.
These are extracts from the HRC statement