JUN KAJEE: ‘Kill the Boer’, but don’t say the K-word — the double standard in SA’s hate speech laws

 SA’s journey from apartheid to democracy has been marked by a determined effort to confront and dismantle institutionalised racism. Central to this exercise is the country’s legal framework addressing hate speech — a framework designed to protect human dignity and promote social cohesion in a deeply divided society. Yet, more than three decades after apartheid’s end questions persist about whether these laws are applied fairly across all racial groups. 

Key legal precedents illustrate how context shapes SA’s interpretation of hate speech. In the 2020 Qwelane case the Constitutional Court upheld hate speech laws but ruled that a journalist’s statement about homosexuals did not amount to hate speech. Likewise, in the 2017 AfriForum vs EFF case, courts found that the “Kill the Boer” chant was not hate speech, emphasising its historical role in the anti-apartheid struggle.

These decisions show that context is crucial in legal judgments regarding hate speech. However, they also reinforce perceptions that the law is not always applied equally, depending on the identities of those involved. 

The Prevention & Combating of Hate Crimes & Hate Speech Act of 2023, signed into law in May 2024, represents the latest milestone in SA’s attempt to curb hate speech and hate crimes. The law criminalises speech intended to be harmful or to incite harm, or that promotes hatred based on race, ethnicity, gender or religion, with penalties including fines and imprisonment. This legislation builds on the constitutional mandate in section 16, which limits freedom of expression where it amounts to advocacy of hatred that incites harm. 

Supporters argue that such laws are essential in a country still grappling with the legacy of apartheid and ongoing racial tensions. They contend that hate speech laws protect vulnerable groups from discrimination and violence, fostering a more inclusive society. However, critics — including human rights organisations and legal experts — warn that the law’s broad and sometimes vague definitions risk infringing on free speech and may be applied inconsistently. The Helen Suzman Foundation and the SA Institute of Race Relations are among those that have voiced concerns over the legislation. 

Double standard

At the heart of the controversy is a perception held by many South Africans that hate speech laws are enforced unevenly. Racial slurs historically used to oppress black South Africans, such as the “k-word”, are prosecuted vigorously, with courts imposing jail sentences in landmark cases. Conversely, politically charged expressions such as “Kill the Boer,” which some interpret as inciting violence against white farmers, have been ruled not to constitute hate speech by the courts, citing historical and contextual factors. 

This dichotomy fuels the argument that lexicon against black South Africans is framed as hate speech and criminalised, while similar — arguably more inflammatory — expressions against whites are defended as political speech or historical commentary. 

The perception of a double standard in hate speech enforcement is not merely a legal issue but a social and political challenge, underscoring the need for:

• Consistent application of laws. Courts and law enforcement must apply hate speech laws impartially, regardless of the racial or political identity of the speaker or target. 
•  Legal review and reform. Periodic reassessment of hate speech laws is necessary to ensure they reflect contemporary realities and uphold constitutional rights fairly. 
• Education and media literacy. Promoting awareness about the impact of hate speech and fostering critical media consumption can help mitigate social tensions without heavy-handed censorship. 

As SA continues to evolve, so too must its approach to balancing freedom of expression with the imperative to combat hate speech — ensuring that justice is both done and seen to be done. For all South Africans. 

• Kajee is a lecturer at Southern Utah University, a non-resident research fellow at the Korea Institute for Maritime Strategy, and a researcher for the SeaLight maritime transparency initiative at Stanford University’s Gordian Knot Center for National Security Innovation.