SABC News - A response to the outcome of the Malema hate speech trial:Tuesday 13 September 2011

A response to the outcome of the Malema hate speech trial

Tuesday 13 September 2011 09:04

Jan Hofmeyr

ANCYL president Julius Malema

ANCYL president Julius Malema(SABC)

While the South Gauteng High Court’s verdict in Julius Malema’s hate speech trial may have surprised many, the eventual polarising impact of a ruling either way was never in doubt. The extreme tone of public responses to its outcome thus far – elation and outrage, with very little in between – is telling, because it not only underscores our high levels of social polarisation, but also the extent to which ordinary citizens on both sides of the debate felt that they had a vested interest in its outcome.

It is a trial that should never have been. Technically, the court was asked to pronounce on its interpretation of a provision, which is intended to protect the dignity of all citizens. Yet, in practice any judgment was bound to be viewed as a mutually exclusive validation of the distinct traditions of the two parties. Inevitably the perception – and hence the reality - for some would be that judgment also amounts to a pronouncement on the legitimacy of deeply-rooted emotive claims to dignity, apart from those generic rights linked to citizenship. In as far as its ability to forge social harmony is concerned, the court, and by extension the judiciary, was therefore ultimately set up for failure.


When questioning the wisdom of filing the case at all, the broader question also needs to be asked as to why Afriforum would have opted for this zero-sum strategy, when more constructive ways towards resolution ought to have been available?  And when we do so, a series of events over the past year suggest that Afriforum’s absolutist approach is not unique, but that it be mirrors the rigid terms that have framed many other debates during the same period. The long list includes, but is not to limited to: Excessive wage demands that have been being backed-up by tacit threats of violence, and actual instances thereof, during the recent strike season; equally excessive increases in executive pay, which fly in the face of reason when more austerity could have provided a gesture of solidarity towards the growing number of unemployed; the splitting and re-racialisation of organized business at a juncture where the economy can least afford it; the no-tolerance attitude of police that has resulted in at least one publicly-televised killing of an innocent protestor; and, more recently, the reactionary response of several predominantly white organisations to suggestions by Archbishop Emeritus Tutu that white South Africans ought to contribute more towards the undoing the injustices of apartheid.


While these responses may be diverse in terms of their origins, they share an underlying tone of intransigence, which increasingly seems to gain the upper hand in our national debates, at the expense of processes that are inclusive and consensus-seeking. It is a discourse of suspicion and anger that only caters for winners and in which the cost of losing is too high to bear. As a result the demeanor of stakeholders in opposing camps, across social- and economic policy spectrums, are becoming increasingly combative. For the same reason it is also becoming increasingly untenable.


Surely, South Africans in all spheres could have done more to avert this situation where we constantly seem to be driven to the brink. Economic injustice, of course, represents the most pronounced fault-line of our society, but the origins and consequences of its deep structural roots cannot possibly be eradicated overnight. In the absence of quick fix solutions, we need to find new ways of talking  to each other, and invest in existing institutions that hold the potential to expedite more inclusive forms of social transformation.

The broader question also needs to be asked as to why Afriforum would have opted for this zero-sum strategy

Against this backdrop, it is not unreasonable to argue for more urgency within government to empower the so-called Chapter 9 Institutions, in terms of their jurisdiction and resources. As institutions that have been tasked to protect the values of the constitution, they have the potential to mitigate the potential impact of polarizing court cases at a much lower level of administration. Yet, the Asmal Report, which suggested far-reaching changes to their functioning, seems to be gathering dust in the Parliamentary library.
Organised business and labour can do more to find common ground with regard to the creation of jobs in ways that promote the longevity of the business, but also the living costs of workers. Too often it appears as if their points of departure in bargaining processes are informed by sectional interest rather than a greater- and more sustainable economic good. The same, could of course be said for unity within the ranks of business itself. 


An unfortunate reality in societies, as polarised as ours, is that topics of meaningful conversation are not being conveyed directly from person to person, but are being ‘mediated’ almost exclusively by the media. We seem to be conducting our debates through the media, and not enough around tables in towns and cities across the country. It therefore places an even bigger responsibility upon this sector to execute its mandate with a heightened emphasis on quality, diversity of views, but also sensitivity, for the kind of society that we live.


It should, finally, also be incumbent upon civil society organisations to ask themselves whether enough is being done within this sphere to create platforms, where conversations can occur in a non-threatening way that ultimately promotes shared understanding and inclusive outcomes. This sector is commonly known for its emphasis on deliberation, yet more attention ought to be paid  to the way in which we deliberate, as opposed to the number of hours that we do so.


A growing realisation of the unsustainability of the status quo is, however, taking root across the abovementioned sectors. More and more, people seem to be realising that, apart from the real historical grounds, there are also pragmatic grounds that could threaten our prospects for a common future, if not addressed with more urgency.  It is becoming clear that we need a new way of talking, or as some have referred to it, a new national dialogue. While the events of this week may therefore have been discouraging, it should also serve to rally all of us, across to the social spectrum, to prevent its recurrence. We cannot afford it any longer.

Jan Hofmeyr heads the Policy and Analysis Unit of the Institute for Justice and Reconciliation.

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