So what and when is our freedom of speech not so free anymore? If you look at section 16 of our Constitution you will find it guarantees the right to express yourself freely but keep in mind when you read this, that there is always a balancing act that must however be performed when an expression has the propensity to affect or harm others, notwithstanding the context within which such expression is made. In short, you have the right of free speech as long as you do not harm others with the speech and context in which you say things.
Hate speech as an example may pose harm to the constitutionally mandated objective of building a non-racial and non-sexist society based on human dignity and the achievement of equality. So lets see exactly what does section 16 say:
Section 16(2)(c) of the Constitution the right to freedom of expression does not extend to:
(1) advocacy of hatred that is based on race, ethnicity, gender or religion, and
(2) that constitutes incitement to cause harm.
Both these elements as above “the advocacy of hatred” and the “incitement to cause harm” must be present before an expression will amount to advocacy of hatred or hate speech. The constitutional test whether speech is to be judged as hate speech, can therefore be considered to be a stringent one.
In other words, offensive or hurtful speech is protected under section 16 of the Constitution however when such speech, when viewed objectively, has the intent to incite hatred and cause harm to the party or group of persons affected thereby, such speech can only be deemed hate speech and is not capable of the protection as is meant by section 16. This guaranteed right of freedom of expression cannot be abused or misused to the prejudice or reducing of another person’s reputation, dignity or safety.
A person against whom such an act of hate speech or racist speech were done will lay a civil claim, mainly in the Equity Court. This is a free service and free Court. Injuriarum is a civil claim where a wronged party sues for monetary compensation.
Racist insults can also be criminal and result in criminal penalties and a criminal record if the required intention can be proved.calling a person a racist name or any other defamatory name is a violation of that person’s dignitas and constitutes the crime of crimen injuria, which is a criminal case.
Remember, delivery of insults often says more about the person who delivers them than about the person to whom they are delivered.