Closing arguments in the Chinese Association’s hate speech ca …

Closing argument on December 9 in the Chinese Association (TCA) hate speech case ended a crucial part of a long legal challenge to resolve harm, hatred, freedoms and consequences in a racially divided South Africa.

The case began in the Equality Tribunal in March 2019. It was brought by the TCA under the Act on Promoting Equality and Preventing Unfair Discrimination against 12 People. The case raised questions about underrepresented stories, context, social division, lazy classification and stereotypes and even why social media as a platform should come with warnings to users.

Two years earlier, in May 2017, TCA initiated proceedings against Cynthia le Roux, Dawn Reeve, Regina Richardson, Ryan van der Walt, Shana Markram, Alice Henning, Anja Lock, Joy Termoshuizen, Tracy Terick, Lana Berger, Mariette van der Linde de Klerk and David Clive Horne.

The 12 were among dozens who wrote comments on a Facebook page in response to a Flames insert earlier that year on animal cruelty and animal abuse in the processing and slaughter of donkeys raised and killed for the donkey skin market in China. Derivatives of the skin of donkeys are used in traditional medicines in the Far East.

TCA focused on the 12 respondents, as their comments on Facebook were, according to the association’s representatives, the most blatant, threatening and hateful towards the Chinese.

Comments included, “I think we should start killing their children to cure the common babalas, so maybe they’ll leave our animals alone!” “The Chinese are despicable savages, they can’t even call them people. And the filthy savages who kill these animals for money all deserve to die the painful death they inflict on these animals “and” We have to get rid of the Chinese in their .. they are not welcome .. they are stealing our economy. .dogs. Rhinos and now donkeys…. I think the same as donkeys can be applied to dogs and our pets… ”

Lead attorney for TCA advocate Faizel Ismail in his closing remarks spoke about the history and current realities of xenophobic hatred faced by many Chinese in South Africa, as well as the context in which the Facebook comments should be considered.

He said, “When evaluating the words used by the respondents, the court must keep in mind the horrific history of white supremacy in our country, including towards the Chinese people. And the tribunal must be fully aware of how the Chinese in South Africa have been and continue to be marginalized in the past.

Ismail looked back on personal testimonies from people who had taken a stand over the past two years, detailing their experiences of racial discrimination, racial profiling, stereotypes, exclusion and willful humiliation and intimidation.

TCA’s legal team also made submissions regarding costs for the various defendants, which included four defaulters – those who never responded – as well as five who made submissions to the court admitting their comments constituted discrimination. unfair racialism, hate speech and harassment against the Chinese community and were in violation of the law. The documents were not served on a guarantor because they could not be attached.

The proposed costs include contributions of between R70,000 and R100,000 per sponsor to the Hong Ning Old Age Home – a charity appointed by the TCA; 500 hours of community service and apologies pinned to the top of respondents’ social media pages for six months.

Two defendants, Horne and Van der Linde de Klerk disputed the complaints against them. Van der Linde de Klerk arrived in court early in the proceedings in 2019, but declined to testify and denied making the comments. Horne changed his defense on several occasions and was represented by four different people during the proceedings.

Respondents’ counsel, Collin Garvey, stated in closing argument that he believed TCA had not brought an appropriate action. He cited issues such as the admissibility of evidence, late discovery and screenshots of the messages as hearsay evidence. He also said that as no violence had taken place as a result of Horne’s comment, “Personally I say eliminate them – I would be the first to be there,” this could not be interpreted as incitement to violence.

However, attorney Ben Winks, acting for the TCA, disputed this. He referred to the judgment of the Constitutional Court of July in a 2008 column, titled, “Call me names, but gay don’t agree”, written by now deceased columnist Jon Qwelane.

The unanimous court decision rendered by Judge Stevan Majiedt concluded that “the likelihood of inflicting harm and spreading hatred is beyond question. It is difficult to conceive of a more flagrant attack on the dignity of LGBTQI + people.

Winks added: “This is certainly not the case where you had to prove that there was violence or that we had to produce a witness saying, “Yes, I read Mr. Horne’s comment and then I decided to beat the Chinese”. It’s ridiculous.”

Garvey, in closing, reiterated a freedom of expression argument, stating: “One of the essential foundations of democratic society is the right to freedom of expression, its importance for democratic society, and applicable not only to information and ideas that are welcomed, or considered offensive, but also to those who have been shocked or disturbed … “

However, in response, Ismail pointed out that the Constitutional Court’s clear statement in the Qwelane ruling underscored the limits of freedom of expression.

Ismail read in this statement: “The pluralism and openness that are at the heart of an open and democratic society can, however, be undermined by discourse, which seriously threatens democratic pluralism itself. The first section of the Constitution declares that South Africa is founded on the values ​​of human dignity, the achievement of equality and the promotion of human rights and freedoms.

Judge Motsamai Makume has set January 17, 2022 as the deadline for final additional submissions. DM


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