In this article Joshua Hovsha explores how our historical and political backgrounds determine our response to freedom of expression and our approach to hate speech.  

​“Penny Sparrow has written more legislation than I ever will.” A friend and prominent member of civil society jested the other week. We were working through the latest draft of the Hate Crimes Bill. A Bill which has taken ten years to reach parliament. A Bill which has become contentious after very broad hate speech provisions were added. Provisions only added after Penny Sparrow’s racist comments elicited unprecedented outrage in January 2016.
 
The public outcry following Sparrow’s racist remarks has become a turning point in our political discourse, along with university protests, calls for land expropriation, and daily debates over who can lay claim to the experience of racism and persecution.

Frustration is often expressed in terms of perceived double standards over who is charged and who is not.  
 
Harsh sentences against some may allow for temporary satisfaction. These punishments will not in and of themselves redress the wrong committed against other victims, nor will they fix the societal ills of racism and discrimination. ​

​​In the third of our three inaugural articles, Adv. Anton Katz looks at some inherent tensions between certain Constitutional rights and the implications of these for the Jewish community. ​

IN 2007 the Nederduitse Gereformeerde Gemeente (NG Kerk) in Moreleta Park, Pretoria fired a Mr Strydom, the congregation’s music teacher. The reason for his dismissal was his sexual orientation and that he was in a same-sex relationship.
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According to the prescripts of the church, marriage can only exist between one man and one woman. For the church, persons of homosexual orientation must be celibate and cannot be involved in a homosexual relationship. This would amount to a cardinal sin in view of the church’s teachings.

Mr Strydom challenged the church’s decision to fire him in the Equality Court in Pretoria. His argument was that the decision infringed his constitutional right to equality and to not be discriminated against on the grounds of sexual orientation. The church took the view that to have Mr Strydom work at the church was an affront to their right to freedom of religion.

Because Mr Strydom was not seen by the Court to be a religious or spiritual leader, but only a contractor who worked there on an occasional basis to teach music, the Court ultimately found in his favour. According to the Court’s judgment, the “impact on religious freedom of [keeping Mr Strydom there] is minimal”. In other words, the Court judged that in this particular case Mr Strydom’s right to equality and to not be discriminated against on the grounds of his sexual orientation outweighed the church’s claim that its religious freedom had been impinged upon. ​