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

• Jurisdiction: South Africa
• Author: Burchell, J.
• Date: 24 December 2019
• Pages: 203-227
• Published date: 24 December 2019
• Citation: 2019 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

1998 (4) SA 1196 (SCA).

† BA LLB (Natal) LLM Dip Comp Leg Stud (Cantab) PhD (Wits); Emeritus

Professor and Fellow of the University of Cape Town.

2019 ACTA 203

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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

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