It turns out that Hofmeyer is talking through his nose and that Bono’s statement perfectly captures the legal position in South Africa regarding utterances that could be construed as hate speech. As I have argued before, it would be constitutionally impermissible to ban such a song outright on the basis that it constitutes hate speech. Section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act states that:
no person may publish, propagate, advocate or communicate words based on one or more of the prohibited grounds, against any person, that could reasonably be construed to demonstrate a clear intention to be hurtful; be harmful or to incite harm; promote or propagate hatred.
Section 12 of the Act also seems to make an exception for “bona fide engagement in artistic creativity, academic and scientific inquiry, fair and accurate reporting in the public interest in accordance with section 16 of the Constitution”. In other words, songs or words that might have constituted hate speech in certain contexts, might not constitute hate speech in other contexts, depending on who utters it, where it is uttered and in what form it is uttered.
This means that what is required to establish that hate speech has occurred is for us to focus on the intention of the person who uttered the alleged hateful words or sang the alleged hateful song. Could it be reasonably construed by a well-informed, thoughtful and objective observer (therefore not Steve Hofmeyer) that the uttering of the words or the singing of the song in a particular context by a particular individual in a particular format demonstrated an intention to harm others because of their race, sex, gender, sexual orientation and the like.
The question is not whether some people were hurt or felt aggrieved by the singing of the song. It is not even whether some people like Hofmeyer have concluded that the song was sung with the intention to be hurtful to Afrikaners. The question is whether, objectively speaking, the fact and the context can lead to the reasonable conclusion that the person or group who sang the song had the intention to harm or hurt others on the basis of their race.
For example, if the Drakensberg Boys Choir sang “Kill the Boer, Kill the Farmer” at a choir competition in Vienna as part of a medley of struggle songs, no court in its right mind is going to find that the singing of the song in that context song constituted hate speech prohibited by section 10 of PEPUDA because they could not reasonably be construed to be having the intention to harm others on the basis of their race. If the song is used as part of a soundtrack of a documentary about the United Democratic Front and the uprising against the apartheid state in the nineteen eighties, one would be hard pressed, once again, to make a finding of hate speech. Neither would the homophobic utterances of a fictional character in Spud constitute hate speech.
