Why Julius Malema's call to 'kill' might not be hate speech (but is still unlawful) →

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Malema's speech last month, taken on its own, was a call to "kill" racists or white supremacists, who are not a protected group under our constitutional equality law. I do not believe that the term "racists" or "white supremacists" is coded language for white people as a race. Like in Masuku's case, the speech was not "based on prohibited grounds" and cannot constitute hate speech under South African law.

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SA law needs an overhaul to protect rape survivors →

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This is obviously a deeply entrenched social problem, rooted in long-held patriarchal notions of male ownership over women’s bodies. The law alone cannot solve it. But the law can, and should, do a lot to validate and vindicate the rights of women (and men and genderqueer people) who are subjected to sexual violations. Instead, what the law in SA does is validate the offender’s subjective sense of entitlement to someone else’s body.

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The Hate Crimes Bill – too much too late

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The fight against hatred in South Africa would have been much better off if, at least twenty years ago, the government had passed a simple amendment to the existing law, stating that hateful motive must be counted as an aggravating factor for sentencing. This would have been passed with no controversy or constitutional challenge.

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In a post-Qwelane world there may be more room for racists to escape legal consequences →

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But we must now be alert to the reality that, post-Qwelane, there is apparently greater room for bigots to escape legal consequences for insults and "jokes" that wound not only individuals, but whole groups at once – be they Muslim women, transgender people, refugees, or people with disabilities.

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Constitutional Court finally declares that hate is NOT okay →

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The Constitutional Court's finding that Qwelane's words constituted hate speech achieves two important things for the society that has left him behind. First, it declares that he was wrong: in this constitutional democracy, "gay" is more than "okay"; it is equal and dignified. Public expressions of queer love are brave and, like all love, beautiful.

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Ten years from Tatane to Ntumba: It is time to take rubber bullets out of protest policing →

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The death of Andries Tatane in 2011 should have brought an end to the police’s use of rubber bullets in public order policing, as should the report of the Marikana Commission of Enquiry. The recent death of Mthokozisi Ntumba would have been prevented if this had been done, and once more shows the urgency of the call to stop their use.

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New Frame: Anti-Chinese hate speech case back in court →

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Advocate Ben Winks asked Pon to take the court through the events that led to the current proceedings. He told the court that a joyful evening, after celebrating the Chinese New Year, was short-lived. One Facebook user had written on TCA’s Facebook page that he wished the Chinese community “death and destruction” on their New Year. 

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Constitutional Court searches for meaning of hate speech →

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Ben Winks for the Nelson Mandela Foundation argued that if the hate speech clause were to be read as closely as possible to section 16 (2) of the Constitution, it would exclude important cases from its ambit.

“Those that argue for maximum freedom of expression don’t tell us what should be done when black people are called bobbejaans or homosexuals are told that same-sex marriage is akin to bestiality. They don’t tell us,” he said.

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Criminal court judgment highlights Cabinet’s faulty approach to treaties (co-authored with Peter Leon) →

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After S&P Global Ratings’ decision to downgrade SA’s sovereign credit rating to subinvestment grade ("junk" status), in swift response to "the executive changes initiated by President Zuma" on March 30, it is important to analyse the institutional weaknesses that allow the executive arm of government to go virtually unchecked in altering the country’s economic destiny, as well as how to correct them.

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State fights hopeless court battles, say experts →

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Ben Winks, an independent constitutional consultant, said there had been widespread examples of government opposing valid lawsuits and that the state had a “hopeless record” in embarking on appeals.

“The problem is that the state attorney doesn’t consider its job to be legal advice; they take instructions from the executive. So the state attorney will spend the state’s time and money presenting that case, even if it lacks legal merit.

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Police minister's Nkandla report misses the key point →

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The conflicting official reports on the R246-million security upgrade at President Jacob Zuma’s private home in Nkandla, in all their disorienting secrecy and semantic manoeuvring, have left South Africans more confused and frustrated than ever. The political debate now revolves around one obvious question: was any of this money spent on non-security comforts?

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