The South African Human Rights Commission (SAHRC) was at the Equality Court of South Africa, located at the Western Cape High Court on Tuesday January 20, 2015, concerning a case it has lodged against Afrikaans singer Sunette Bridges.  Ms Bridges is accused of hosting commentary on her Facebook page that constitutes hate speech in terms of the Promotion of Equality and Prevention of Unfair Discrimination Act of 2000 (Equality Act).  The court proceedings took the form of a directions hearing, to decide the procedure in the case. Brigit Rubinstein, a Director in Cliffe Dekker Hofmeyr’s Dispute Resolution practice, is representing the SAHRC in this matter.

Rubinstein noted on Tuesday 20th January that the Court dismissed Bridge's submissions that the matter should be heard in Pretoria and found that the Equality Court in Cape Town did indeed have jurisdiction to deal with the matter and would in fact hear the case on 20 April this year.

"Ms Bridges' attorney seemed to suggest that Ms Bridges may not align herself with some of the racist and deeply offensive posts attached to the SAHRC's papers, many of  which were read out in open court. To this extent, the SAHRC openly invited Ms Bridges to explore resolving the matter by publicly distancing herself from those posts and removing the comments on her facebook page she concedes may constitute racist hate speech," said Rubinstein.

The SAHRC contend that Ms Bridges is in violation of Section 10 (1) of the Equality Act, in that she has committed hate speech, and is also in violation of section 11 of the Equality Act ,which deals with harassment on the basis of race. The SAHRC has asked that Ms Bridges apologise unconditionally across all the Facebook pages over which she has primary control and that she removes all harassment and hate speech from these pages.

According to Isaac Mangena, Head of Communication at the SAHRC, “Ms Bridges has engaged in conduct that is considered hate speech and/or racial harassment by allowing on her Facebook page and wall, a consistent and serious pattern of racist and violent commentary by others that qualifies as hate speech and/or racism. The court papers contain numerous examples of the violent hate speech and racist comments posted on her wall. 

The SAHRC has received complaints from the public about hate speech on Ms Bridges’ Facebook page for a number of years.  The SAHRC has engaged in its standard research procedures and contacted Ms Bridges in this regard.  She has denied any offence.

Mangena explained that Ms Bridges consistently allows this commentary on her page, effectively condoning it and creating a platform and online environment where racist hate speech is allowed to flourish.

“The laws are in place for a reason and in a country whose history is centred on racism and oppression, with concerted efforts being made to move forward in this regard, people creating public forums have a responsibility to obey the law and stand up to hate speech and racism. Racist and hate filled comments should not be allowed to flourish in the public domain," he says.

Section 10 of the Constitution states that everyone has the inherent right to dignity and the right to have that dignity respected and protected.

With regards to Facebook comments, the SAHRC says that everyone has a responsibility to ensure their pages do not contain hateful and racist commentary posted there by others, otherwise they become “secondary publishers”.  The legal standing of posting comments online has been tested in several legal cases.  In one case – Dutch Reformed Church Vergesig and Another vs Sooknunan 2012 (6) SA 201 (GSJ) – Satchwell J stated that Mr Sooknunan had created a page that was hosting offensive comments and as such he had a responsibility to take down the commentary made by others.  Failure to do so is seen as condoning and supporting the offensive comments.

According to the SAHRC, Ms Bridges hosts a popular Facebook page that has become a platform for racist and violent hate speech.  The SAHRC is not out to persecute every person who may, in passing, have had another person post something unlawful on his or her wall, but when someone deliberately creates, through their Facebook page, a public forum for people to post comments that promote racial hatred and that incite people to take violent steps against black people, they should be held liable for these comments as a publisher and not merely be treated as an innocent bystander to hate speech.

The SAHRC will submit that no matter how nuanced the debate that South African law and society has about the limits of free speech, there can be no doubt that there is speech that is so racist and so harmful that it is not protected and deserves the censure of the Court.

The parties have been called upon to appear before Judge Desai again in Chambers on 2 March 2015 to indicate what witnesses will be called to testify in the matter.

Written by Brigit Rubinstein, Director: Dispute Resolution, Cliffe Dekker Hofmeyr