Racial Commentary Research Paper

1. Problem Statement

1.1. Background

Apartheid, the system of policies and laws which perpetuated racial discrimination and inequality against the majority of South Africans, resulted in the desecration of human dignity and the limitation of the right to freedom of expression in order to restrain notions contrary to its precepts, regulate the thoughts of the populace and propagate inter-racial tension.

The Constitution of the Republic of South Africa, 1996 (hereinafter referred to as the Constitution), the culmination of the transition to democracy, provides that all have the rights to human dignity and freedom of expression. The right to human dignity is deemed to be of superior importance.

Given the history of Apartheid and the constitutional

Here, the research paper adopts an expansive stance. The relationship between law and society is tentatively addressed. The regulation of racial commentary is evaluated in the context of the essence of the Constitution and the Truth and Reconciliation Commission (hereinafter referred to as the TRC). The concept of restorative justice will be explored.

This paper does not aim to provide a definitive answer or promote a specific course of action. Rather the aim is to stimulate thought and discourse on the interplay of the law and society in the context of racial commentary.

1.3. Approach

Section one of the research paper sets out the constitutional law, legislation, common law and case law regarding racial commentary.

The second section of the research paper delivers a case both for and against the regulation of racial commentary. This section then outlines international and foreign law before concluding with a discussion on the constitutional rights to human dignity and freedom of expression.

The third section considers if the regulation of racial commentary is likely to contribute positively to the creation of a heterogeneous society free of

Section 16(1) of the Constitution bestows on all the entitlement to freedom of expression. Thus the Constitution promises both the rights to human dignity and freedom of expression. It is however possible that the exercise of freedom of expression may lead to the infringement of human dignity. Thus the Constitution, established on the values of human dignity, equality and freedom, omits specific expressions from constitutional protection because of the conceivable assault on the dignity of others. Specifically, section 16(2)(c) of the Constitution, the hate speech provision, withholds constitutional protection for expression which propagates abhorrence on racial grounds and provokes