Human Rights Commission ruling on Zulu king xenophobic statements

2 Oct 2016

SOUTH AFRICAN HUMAN RIGHTS COMMISSION

AFRICAN DIASPORA FORUM AND 30 OTHERS COMPLAINANTS

and

KING GOODWILL ZWELITHINI RESPONDENT

MEDIA STATEMENT

1.INTRODUCTION

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.

2.NATURE OF COMPLAINT

On 15 March 2015, the Respondent delivered a speech in isiZulu during a moral regeneration event to an audience in Pongola, KwaZulu-Natal Province.

The Complainants complained to the Commission that the statements amount to hate speech and that were capable of inciting violence and did in fact incite violence against migrants in South Africa and the KwaZulu-Natal Province during or on 30 March, 2015 in Durban, and the subsequent attacks that took place across the KwaZulu-Natal Province until May 2015.

Different relief was sought from the Commission by groups of Complainants. In summary Complainants asked that,

The Respondent be directed to retract his statements publicly;

The Respondent be directed to issue an apology;

The Respondent be subjected to an investigation, and that the Commission issue a declaration that the Respondent’s statements amounted to hate speech or to any other human rights violation;

The Commission institute litigation against the Respondent in the Equality Court for determination of whether the Respondent’s statements amounted to hate speech.

3.STEPS TAKEN BY THE COMMISSION IN ITS INVESTIGATION

3.1The Commission met with the parties and thereafter, the Commission met with officials of the Royal Household Trust to obtain information for its investigation.1

3.2The Commission’s investigative team visited affected communities in the KwaZulu-Natal Province and undertook interviews with members of affected communities; the Station Commander in the South African Police Service (“SAPS”) in Isipingo, Officials of the Professional Transport and Allied Workers Union (“PTAWU”), a representative of Africa Solidarity Network and a representative of Democracy Development Programme.

3.3The Commission also undertook a search and collation of all relevant print and electronic media publications on the subject of violence against migrants in the country, the Respondent’s utterances and private and public media commentaries on the same to identify reported or direct hate speech content. The Commission then attempted to secure a full recording of the Respondent’s speech, which was subsequently provided by Sonke Gender Justice, a non-governmental organisation (“NGO”). In addition, desk-top research was conducted to review of available literature relating to the role of traditional leadership in a democratic dispensation, culture and traditions of the Zulu people in order to enrich the contextual analysis of this investigation.

3.4The Commission also had regard to the report of the Special Reference Group on Migration and Community Integration in KwaZulu-Natal (“SRG Commission Report”) issued on 31 October, 2015 and of an independent socio-linguistic expert.

The Commissions Preliminary Report was sent to the Complainants and the Respondent on 30 November 2015 for response and submissions by 31 January 2016.

4.THE RESPONDENT’S DEFENCE

4.1The Respondent through his representatives in the KwaZulu-Natal Royal Household Trust, raised procedural challenges and rejected allegations that the Respondents comments amounted to hate speech. The first of the procedural challenges was that there were material discrepancies between the version of the speech provided to the Commission by the Respondent and the version relied on by the Commission. In addition, that the version of the speech relied on by the Commission had been obtained during the Commission’s investigation and that none of the Complainants themselves had submitted a version of the speech to the Commission. The Commission subsequently provided the Respondent with the revised transcription and translation of the speech, and the Expert Report. The duty to respond to the Commission was also disputed on the basis that the Commission refused to disclose the identity of the Complainants to the Respondent. In light of the public nature of the statement, the Commission was of the view that the indentity of the Complainants was irrelevant to the assessment of the complaint. The Respondent raised the procedural point that the Complainants were relying on hearsay to make the conclusions that they did as they were not present at the event. This procedural matter was resolved by the Commission when the audio recording made by an attendee to the event was provided to the Commission through Sonke Gender Justice. The Respondents representatives also indicated that speech was poorly translated; and provided a distorted meaning which did not take account of the rich in idiomatic and proverbial meaning of the isiZulu language. In addition, the Respondent indicated that media reporting based on such translations were unfairly inflammatory and mischievous and that the violent attacks instituted by the public were on a mistaken and erroneous belief, fuelled by the media. The Respondent contended that the allegations were “frivolous and devoid of any substance,” as they had been made by “faceless Complainants who were never affected by the so called hate speech.” The Respondent referred to other events where he had called for non violence and calm before and after the event; and on this basis could not be seen to have been inciting or propagating hatred.

4.2The legal issue to be determined was whether the Respondent’s utterances amount to hate speech as prescribed in the relevant provisions of PEPUDA. This included considerations whether the meaning that should be assigned to the concept of hate speech for purposes of this complaint; was the meaning that would have been assigned to the Respondent’s utterances by a reasonable person; and whether the Respondent’s utterances were carried out in the exercise of freedom of expression, which exceeded the boundaries of freedom of expression and therefore constituted speech which is proscribed by section 10 of PEPUDA.

4.3In particular whether the utterances by the Respondent could reasonably be construed to demonstrate a clear intention to incite violence against migrants; whether the Respondent’s utterances could reasonably be construed to demonstrate a clear intention to be hurtful and or harmful to migrants; and whether the Respondent’s utterances could reasonably be construed to demonstrate a clear intention to promote and propagate hatred against migrants.

5.SUMMARY OF FINDINGS

The Commission found that:

      1. The media’s coverage on what the Respondent said, though inaccurate in some respects, was a valid exercise of media freedom. To the extent that the Respondent’s complaint is that such coverage was inaccurate, the Commission is not the correct forum to address the issue.

The Respondent’s utterances as set out in the transcription of the verbatim audio-recording of the speech in isiZulu could reasonably be construed to have been uttered with the clear intention to be hurtful to migrants; and could reasonably be construed to have been uttered with the clear intention to be harmful to migrants; and

The utterances did not constitute a call to locals to take up arms or commit acts of violence against migrants, and could not have been reasonably construed as inciting violence against migrants; and could not reasonably be construed to demonstrate a clear intention to promote or propagate hatred.

Hate speech is primarily addressed in section 16(2) of the Constitution which is defined in section 16(2)(c) as “advocacy of hatred that is based on race, ethnicity, gender or religion and that constitutes incitement to cause harm“. The exclusion of hate speech from the ambit of the right to freedom of expression accords with the foundational principles of our Constitution, which include the rights to equality and dignity.2

  1. The constitutional prohibition on hate speech has been given practical legislative effect in PEPUDA. Hate speech falls squarely into the category of conduct that perpetuates systemic patterns of discrimination and accordingly, PEPUDA also seeks to prohibit such conduct. Section 10 of PEPUDA states that no one; “may publish, propagate, advocate or communicate words based on one or more of the prohibited grounds, against any person, that could reasonably be construed to demonstrate a clear intention to be hurtful; harmful or to incite harm; promote or propagate hatred.

The Commission is mindful of the fact that the definition of hate speech contained in section 16(2) of the Constitution is significantly narrower than the definition contained in PEPUDA in that Section 16(2)(c) only applies to expression which constitutes advocacy of hatred and is coupled with incitement to cause harm. The consequence of this divergence between the constitutional delineation of hate speech and the definition that is contained in section 10 of PEPUDA is that PEPUDA also applies to speech which is prima facie protected expression.3 Accordingly section 10 of PEPUDA must be applied with due regard to the need to strike the correct balance between the right to freedom of expression and the rights to equality and dignity which PEPUDA seeks to protect.

In the matter of Afriforum and another v Julius Sello Malema4, the court found that the singing of a song calling for the shooting of “Boers” and farmers constituted hate speech despite its historical significance. In the case of South African Human Rights Commission v SABC5, the Broadcasting Complaints Commission of South Africa (“BCCSA”) held that the lyrics of a song that were “derogatory and inflammatory” against Indian people amounted to hate speech.

5.1The matter of hate speech has also come before the courts in other jurisdictions where it is prohibited because such speech does not advance, and indeed often undermines, the foundational principles on which a democratic nation is based such as freedom, equality and dignity.

5.2More recently in the 2013 Canadian Supreme Court decision of Whatcott v Saskatchewan Human Rights Tribunal,6 the Court held, with respect to the effect that hate speech can have on society that:

As the majority becomes desensitized by the effects of hate speech, the concern is that some members of society will demonstrate their rejection of the vulnerable group through conduct. Hate speech lays the groundwork for later, broad attacks on vulnerable groups. The attacks can range from discrimination, to ostracism, segregation, deportation, violence and in the most extreme cases, to genocide.

5.3The reasoning of the Canadian Supreme Court set out above applies with equal force in South Africa given the historical context which has given rise to the prohibition on hate speech in this country.

5.4Properly interpreted through the prism of the Constitution, the three subsections of Section 10(1) in PEPUDA each have a distinct meaning, which ties in with the objectives set out above.

5.5In the Commission’s view, the following meanings must be ascribed to the subsections in section 10 (1) of PEPUDA:

5.5.1Hurtful refers to serious psychological or emotional harm experienced by individuals and the target group;

5.5.2Harmful includes physical harm, discrimination and other forms of harm experienced by individuals and the target group beyond psychological or emotional harm that is hurtful;  and

5.5.3Promoting and propagating hatred refers to the effect of words not on the target person or group, but on a group of persons in whom hatred for the target group is promoted or propagated, including communities and society as a whole.7

5.6The relevant factor in this determination was whether the speech is directed at minorities or vulnerable groups in society. The more vulnerable the group, the more likely it is that it will be harmed by speech which propagates negative messages that are based on prohibited grounds of discrimination.8

5.7Having analysed the comments, together with opinion of the independent expert, the Respondents intention was clearly to encourage and call for orderliness and positive behaviours in the community, and obtain support from public policy makers and regulators to address these matters.

5.8A traditional authority in South Africa bears constitutional and statutory9 responsibilities to express the views of the people that they serve and contribute towards social cohesion and local government in the country. They wield power in expressing the will of their people and in sometimes suppressing that will or in guiding the attitudes of their followers.10 Part of this responsibility is to use his moral and traditional authority to exert the rule of law, good governance and social development within the jurisdictions that they govern. Even though the Respondents speech was critical of migrants, it was just as critical of other persons within South Africa. Having considered the speech it would be difficult to conclude that the Respondent was not acting in in pursuance of a legitimate freedom to express himself on social issues of concern to his community.

5.9The matter of hate speech usually arises within the context of freedom of expression and so any attempt to limit it must be done with care.

5.10In deciding whether the Respondent’s utterances amounted to hate speech and incited violence, a fine balance must therefore be struck between the right of any person to impart ideas that may be contentious areas of public policy and the limitations stated in law. This remains the case even if in the process a section of the population is inadvertently offended, shocked or disturbed.

5.11The Respondent made a number of statements regarding migrants that are deeply problematic. In considering what the words would mean “to a reasonable listener having the common knowledge and skill attributed to an ordinary member of society.”11

5.12In the speech despite its call for the address of a number of perceived social ills, the Respondent identified the presence of migrants as one of the social ills that he believes needs to be dealt with. Viewed against this background, it is clear that the Respondent’s statements would not have been understood differently by any reasonable person.

5.13Accordingly although the audience may not directly have been instructed to view migrants as foes, they were clearly identified as a problem that needed to be addressed. The meaning to be attributed to the Respondent’s specific statements about migrants in this context are, in the Commission’s view, largely unambiguous and are not contradicted by the cultural context or interpretation set out in the Expert Report.

5.14The assessment of whether the speech was harmful or incited violence is not simply a matter of linguistic interpretation but a legal issue taking into account the provisions of PEPUDA and constitutional principles, which the Commission is best placed to make. This aspect of the Expert’s assessment is accordingly not accepted by the Commission.

5.15The speech also makes reference to the “removal of lice”. Viewed contextually, the Respondent’s reference to the removal of lice meant that the problems that exist in society should be identified and exposed so that they can be dealt with. In the circumstances, the statement was not intended to mean and would not have been understood by isiZulu language speakers to mean that migrants are akin to lice. The English language does not have an equivalent mode of expression, which gives rise to the misinterpretation.

5.16Did the Respondent incite violence against migrants?

Incitement to violence, involves actively encouraging, calling for or pressuring others to engage in acts of violence where the threat of violence occurring is imminent.12 Incitement to cause harm that does not amount to physical violence, such as discrimination, harassment or verbal abuse, must similarly be understood to require a component of instigating or actively persuading others to cause such harm.13

From an analysis of the utterances of the Respondent in the transcribed version of his speech, the Commission is of the view that at no point did the Respondent issue a call to arms or any call for violent attack against migrants. The Respondent’s utterances fall short of incitement to violence as he did not actively encourage, call for or pressurise the audience into committing violent acts against migrants.

This conclusion is bolstered by the fact that the Respondent, during his speech, criticised locals for conducting violent attacks against migrants. Unfortunately, this aspect of the Respondent’s speech was not covered in the media reports regarding the speech.

5.17Were the Respondent’s statements hurtful and/or harmful?

The messages communicate the idea that nothing but the banishment, segregation or eradication of this group of people will save others from the harm being done by this group. In this case the Respondent unequivocally calls for the removal of all migrants from South Africa.

The messages communicated by the Respondent speak directly to some of the key issues that have been found to underpin violence against migrants such as competition for jobs, competition in the informal trading and small business sector, and stereotypes about migrants – including that they are all undocumented illegal immigrants and that they engage in crime.14

The Respondent’s utterances were accordingly hurtful to migrants in that they reinforced serious negative stereotypes that have caused direct harm to migrants in the past and were likely to contribute to feelings of marginalisation and exclusion.

In this regard, any form of hate speech amounts to the violation of the right to dignity because it disparages or diminishes the self-worth of a protected individual or group.

In this case, migrants are a protected group. They are in the minority, and are rendered vulnerable by their reliance on the hospitality of the host country and its people to accommodate them. In this case any show of poor hospitality is contrary to the spirit of ubuntu which is a central value of South Africa’s new democratic dispensation.

In these circumstances there can be little argument against the conclusion that a public expression by a public figure with moral authority which perpetuates harmful stereotypes and calls for migrants to pack their bags and leave, would leave migrants diminished in their human dignity, which by necessary implication has serious emotional and psychological consequences.

Aside from the psychological and emotional impact inherent in the Respondent’s utterances, the Respondent’s utterances were also harmful. Although the Respondent did not directly engage in any incitement to physically harm migrants, his statements contributed to creating an environment in which migrants could be discriminated against by members of society as illegal immigrants and criminals who contribute towards the economic difficulties experienced by South Africans and whose presence in South African society is undesirable. Such psychological conditioning could ultimately lead to acts of discrimination and fuel a climate which leads to violence against migrants.

The moral authority enjoyed by the Respondent and his status as an important public figure within the Zulu nation is crucially important in this assessment. The reverence with which the Respondent is viewed and his influence in society is clear. It is indisputable that the Respondent’s views carry significant weight with large sections of the public.

In the context of the xenophobic attacks that have taken place across South Africa since at least 2008 and which had flared up in the Gauteng Province in January 2015 and February 2015 (shortly before the Respondent’s speech) the Respondent must have been aware of the potentially harmful effects of his statements.15

In the assessment of the Commission, the Respondent’s statements concerning migrants, viewed cumulatively, could reasonably be construed as having been communicated with the intention to be hurtful and harmful within the meaning of Sections 10(1)(a) and (b) of PEPUDA.

5.18Did the Respondent promote or propagate hatred?

The Commission is of the view that the statements do not promote or propagate hatred as contemplated in section 10(1)(c) of PEPUDA.

The Commission is of the view that in order for statements to constitute an expression of hatred for purposes of section 10(1)(c), they must meet a high threshold and must involve detestation, malevolence and ill-will.

The Commission is of the view that the statements made by the Respondent, although hurtful and harmful (for reasons which are fully set out above), did not go as far as to seek to instil feelings of serious detestation and vilification of migrants.

5.19The role of the media

As part of his defence the Respondent suggestion that misinterpretation of his statements and incorrect reporting by the media may have played a role in members of the public concluding that he engaged in hate speech. The Respondent went further and called upon the Commission to investigate the role of the media in the violence, thereby implying they were responsible for the violence against migrants.

There are two aspects in relation to the media that the Commission must consider. Firstly, whether members of the media must themselves be held liable for hate speech and secondly, whether the media inaccurately reported the Respondent’s utterances.

The importance of the media has been widely acknowledged by our courts. In this regard the Constitutional Court has held that the right to freedom of expression and freedom of information under section 16 of the Constitution lie at the very heart of a democracy, as individuals in society need to be able to hear, form and express views freely on a wide range of matters. Our courts have repeatedly stressed this pivotal role of the media: it is the watchdog of society, keeping check over the government by keeping the public informed of all matters of public importance.

The Constitutional Court has also held that the very ability of each citizen to be a responsible and effective member of society “depends on the manner in which the media carry out their constitutional mandate. The media thus rely on freedom of expression and must foster it.”16

In light of the above, it is apparent that an independent and robust news media is essential to the growth of a democracy. Social media too creates platforms for expression and critical conversations in and around all aspects of public discourse. It is for this reason that the right to freedom of expression has received special recognition in our Constitution.

Media freedom, however important, is not absolute.17 This right, as indicated above, should be exercised responsibly and within the limits set out in law. This is more so in a society like ours where many regard what the media says as gospel. In the first instance, the responsible exercise of the right to freedom of expression entails the duty to report news truthfully, accurately and fairly.18 The Media is also curtailed by laws that inter alia prohibit the unlawful tarnishing of an individual’s reputation19 and the incitement of hatred and violence.20 Moreover, the media is further curtailed by rules and regulations that govern certain segments of the media.

In this regard, the rules of the BCCSA which apply to broadcasting service licensees, provide that licensees may not broadcast material which judged within context amounts to propaganda for war; incites imminent violence or advocates hatred based on race, ethnicity, gender, or religion and which constitutes incitement to cause harm21; or glamourises violence or unlawful conduct based on race, national or ethnic origin, colour, religion, gender, sexual orientation, age or mental or physical disability22. This prohibition does not however apply to broadcasts which, inter alia, amount to a bona fide discussion, argument or opinion on a matter of public interest23.

Similarly, the Code of Ethics and Conduct for South African Print and Online Media prohibits the publication of material that amounts to propaganda for war, incitement of imminent violence, or advocacy of hatred that is based on race, ethnicity, gender or religion and that constitutes incitement to cause harm, except where the publication serves a legitimate public interest.24

The Commission is of the view that it cannot find at the level of principle that members of the media should be held liable for hate speech or inciting violence simply for reporting the Respondent’s speech, even if such reportage was inaccurate. The Respondent did not point to any specific media report that contradicts this finding.

The next matter to consider is whether the Commission should rule that the media’s reportage was inaccurate. The Respondent, during the Imbizo of 20 April 2015 attended by the Commission, specifically called upon the Commission to investigate the role of the media in having “misused” and “abused” the words uttered by the Respondent, and thereby attributing an intention to incite violence against migrants that the Respondent did not possess. The Respondent has also stated previously that members of the media ascribed an incorrect meaning to the speech because they were “mischievous and intent on giving the King a bad name.’’ This essentially appears to be a complaint of inaccurate reporting which affected the Respondent’s reputation.

The Commission is of the view that it is not the best placed institution to investigate the Respondent’s counter allegations in as far as they relate to inaccurate reporting. The BCCSA, the Press Ombudsman and the Independent Communications Authority of South Africa (“ICASA”) are better placed to investigate these allegations. Accordingly, the Commission recommends that the Respondent refers complaints to the BCCSA, the Press Ombudsman and ICASA respectively, together with reasons for the late referral of the complaints.

6.FINDINGS

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.

7.RECOMMENDATIONS

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:

7.1.1The need to issue recommendations that are capable of implementation;

7.1.2The need to issue recommendations that are effective;

7.1.3The need to issue recommendations that provide an element of solatium to the Complainants;

7.1.4The need to issue recommendations that are capable of having a deterrent effect on the Respondent; and

7.1.5The 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:

7.1.6That the Respondent is a widely revered leader of the Zulu nation in the KwaZulu-Natal Province;

7.1.7That 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;

7.1.8That 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;

7.1.9That 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;

7.1.10That the Respondent, unprompted by any coercive force, convened an imbizo on 20 April 2016 at Moses Mabhida Stadium in which he did the following:

7.1.10.1addressed the allegations of xenophobia levelled against him in the media;

7.1.10.2publicly disassociated himself from same;

7.1.10.3called upon his chiefs to investigate and report directly to him any acts or reports of xenophobia against migrants;

7.1.10.4called upon his chiefs to act as community protectors;

7.1.10.5called upon his chiefs to facilitate peace in the community;

7.1.10.6made 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;

7.1.10.7publicly 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;

7.1.10.8publicly 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

7.1.10.9publicly undertook to see to it that such a Peace Accord was formally signed and publicised.

7.1.11A 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:

7.1.12They aim to achieve peace and goodwill towards migrants in KwaZulu-Natal;

7.1.13They 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;

7.1.14They are based on proposals that the Respondent himself regards as implementable;

7.1.15The 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;

7.1.16They 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

7.1.17They 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:

7.1.18That 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 15.6.5.1 to 15.6.5.9 above and that he makes every effort to ensure its full implementation.

7.1.19That the Respondent provides the Commission with a report within 60 (sixty) days of the date of this report, setting out the following:

7.1.19.1Whether the above proposals have been implemented and, if not, a time-bound plan for implementation;

7.1.19.2If the proposals have been implemented, whether the proposals have enjoyed any success in improving relations between migrants and nationals within the Province;

7.1.19.3If 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

7.1.19.4If 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.

7.1.20That the Commission renders any assistance as may be required to the Respondent and the other relevant actors identified in the above proposals, namely:

7.1.20.1Facilitating 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

7.1.20.2Facilitating 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.

7.1.21That, 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.

7.1.21.1In 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;

(c)…

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

(c) …”

7.1.21.2This 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.

7.1.21.3The 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.

7.1.22That, 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.

1 Acting CEO of the Respondent’s Trust, Bonginkosi M Qunta (Rev) and legal advisor to the Respondent (Judge Ngwenya).

2 Section 1(a) of the Constitution provides that

The Republic of South Africa is one, sovereign, democratic state founded on the following values:

(a) Human dignity, the achievement of equality and the advancement of human rights and freedoms.

3 Islamic Unity Covention at para 32.

4 2011(6) SA 240. See also ‘Hate speech and freedom of expression in South Africa’ available at http://fxi.org.za/home/fxi_downloads/Hate_Speech_and_Freedom_of_Expression_in_SA.pdf (accessed 5 June 2015).

5 2003(11) BCLR 92 (BCCSA). See also ‘Hate speech and freedom of expression in South Africa’ available at http://fxi.org.za/home/fxi_downloads/Hate_Speech and_Freedom_of_ Expression_in_SA.pdf (accessed 5 June 2015).

6 2013 SCC 11, at para 40.

7 See D Milo, G Penfold & A Stein “Freedom of Expression” in S Woolman & M Bishop (eds) Constitutional Law of South Africa (2 ed, OS 06-08) ch 42 p 87. Original footnote refers to A Kok ‘The Promotion of Equality and Prevention of Unfair Discrimination Act: Why the Controversy?’ 2001 TSAR 294, 299-300.

8 Afriforum at para 35.

9 The Traditional Leadership and Governance Framework Act of 2003

10 Edward LiPuma and Thomas Koelble “Deliberative democracy and politics of traditional leadership in South Africa: A case of despotic domination or democratic deliberation?” Journal of Contemporary African Studies Vol 27, No2 (2009) 201

11 Afriforum at para 109.

12 C van Wyk “The Constitutional Treatment of Hate Speech in South Africa” (2003) 18 SAPR/PL 185, 194.

13 D Milo, G Penfold and A Stein “Freedom of Expression” in Woolman, Roux, Klaaren, Stein, Chaskalson and Bishop Constitutional Law of South Africa (2nd edition, Vol 3) at 42-83.

14 SRG Commission Report, pgs 2-5.

15 The attacks that took place in January 2015 and February 2015 were widely reported in the local and international media.

16 South African Broadcasting Corp Ltd v National Director of Public Prosecutions and Others 2007 (1) SA 523 (CC) at para 24

17 Argus Printing and Publishing Co Ltd and others v Esselen’s Estate 1994 (2) SA 1 (A) [25B-E]; and Section 16(2) of the Constitution of the Republic of South Africa, 1996.

18 Section 28 (1) of the BCCSA’s Code of Conduct for subscription Broadcasting Service Licensees and section 11(1)of the BCCSA Free-To-Air Code of Conduct for Broadcasting Service Licensees 2009.

19 Ibid.

20 See section 16(2) of the Constitution and section 10 of PEPUDA.

21 See section 10 of the BCCSA’s Code of Conduct for subscription Broadcasting Service Licensees and section 4(2) of the BCCSA Free-To-Air Code of Conduct for Broadcasting Service Licensees 2009.

22 See section 4(1) of the BCCSA Free-To-Air Code of Conduct for Broadcasting Service Licensees 2009.

23 Section 11 of the BCCSA’s Code of Conduct for subscription Broadcasting Service Licensees and section 5 of the BCCSA Free-To-Air Code of Conduct for Broadcasting Service Licensees 2009.

24 Section 5(2) of the Code of Ethics and Conduct for South African Print and Online Media.

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