Balancing ‘equality of respect’ with freedom of expression: The actio iniuriarum and hate speech

JurisdictionSouth Africa
AuthorBurchell, J.
Date24 December 2019
Pages203-227
Published date24 December 2019
Citation2019 Acta Juridica 203
203
Balancing ‘equality of respect’ with
freedom of expression: The actio
iniuriarum and hate speech*
JONATHAN BURCHELL
This essay begins with a brief tribute to Emeritus Professor Danie Visser,
a very close friend and respected colleague. The essay then evaluates the
common-law protection of dignity in the South African law of delict,
as well as criminal law, and examines the role of the courts in balancing
this right to individual dignity with freedom of expression against
the backdrop of recent draft legislation aimed at curbing hate speech.
The essay favours the established common-law protection of dignity
(supplemented by existing statutory remedies) and questions the need
for further legislation on hate speech. The author also highlights the
role of education in preventing hate speech.
I A TRIBUTE TO EMERITUS PROFESSOR DANIE VISSER
It snowed in Johannesburg in September of the year that I was
invited by Danie to the University of the North (Turoop), as it
then was, to deliver a public lecture and to take a few of his Delict
classes. The year was 1981 and I had just been promoted to associate
professor in the Law School at the University of the Witwatersrand.
I arrived in Pietersburg (now Polokwane) from Johannesburg, just a
little nervous and very cold. However, Danie immediately put me at
my ease. I was introduced to Anita, his wife, shown the campus, and
driven through the majestic Magoebaskloof area.
* The phrase ‘equality of respect’ is taken from Peter Birks’s inuential article
‘Harassment and hubris: The right to an equality of respect’ (1997) 32 Irish Jurist 1
at 7. Birks sees ‘equality of respect’ as the essence of the Roman law actio iniuriarum.
Some of the instances of impairment of dignity discussed in this article might well
also amount to an impairment of reputation (defamation) or even an impairment
of privacy, but the focal point of the article falls on the concept of human dignity.
The Constitutional Court of South Africa has, in fact, interpreted the protection
of human dignity under s 10 of the Constitution of the Republic of South Africa,
1996 to include the protection of reputation; National Media Ltd & Others v Bogoshi
BA LLB (Natal) LLM Dip Comp Leg Stud (Cantab) PhD (Wits); Emeritus
Professor and Fellow of the University of Cape Town.
2019 ACTA 203
© Juta and Company (Pty) Ltd
204 PRIVATE LAW IN A CHANGING WORLD
On my return to Johannesburg a few days later, after a protable
academic exchange, the light snowfall had already melted. I knew,
however, that the friendship started with Danie and Anita was not
going to fade.
My wife, Wendy, and I have enjoyed wonderful times with Danie
and Anita: a 4x4 adventure through Namibia, visiting Etosha Game
Park, ying by light plane into the Okavango Delta, trips to the
Cederberg and the West Coast and along Route 62, and a glorious
fortnight in a seaside cottage at Cape Agulhas. Retirement will
bring even more exploration together.
Of course, there have been those highly protable South African–
Scottish private law exchanges so capably orchestrated over the years
by Danie and Kenneth Reid. The publications owing from these
encounters have undoubtedly enriched the private law of both
jurisdictions. I have been privileged to participate academically in
many of these events.
On the Cape Town side, the exchanges have included an
exhausting but character-building ve-and-a-half-hour climb
up Table Mountain via the Pipe Track and Blind Gully (a climb
described in advance by my colleague, Anton Fagan, as merely a
‘gentle clamber over a few rocks’). The Scottish side of the exchange
produced its own spectacular events: walking through a forest at the
Burn, with salmon leaping up specially made stone ‘ladders’ on the
North Esk River, and a boat trip with Niall Whitty o the Scottish
coast to observe thousands of gannets nesting on a rocky island.
Such are the fringe benets of academic life.
Whether at work or on holiday, Danie displays constant qualities
of generosity, thoughtfulness and good humour. He enjoys sharing
ideas, facilitating the research endeavours of others and is fascinated
by the pioneering scientic advances of humankind – an ideal
quality for a Deputy Vice-Chancellor (Research) at UCT.
II MOTIVATION FOR THIS CHAPTER
Educating members of society on how to treat each other with
dignity and respect has always been crucial in a divided South
Africa, but it is particularly urgent now that social media and the
Internet oer so many additional platforms from which individual
dignity and collective respect can be assailed with seeming abandon.
During Danie’s 40 years as an academic, South African universities
have been crucibles for heated political dissent, often accompanied
by ery rhetoric. In his teaching of the law of delict, Danie played
© Juta and Company (Pty) Ltd

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