The Repression of Racist Insult in the Jurisprudence of South African Courts: The Weight of Racial Affiliation in the Assessment of Post-Apartheid Racism

Abstract

Based on an examination of some of the South African jurisprudence on crimen injuria and hate speech, we propose to examine the question of the definition and repression of racist slur by the South African justice system. Based on a collection of forty judgments relating to hate speech and crimen injuria cases brought before various South African courts between 2000 and 2020, and on interviews with actors from the judicial world who have had to deal with these cases, we will show how judges base the accusation of racism in hate speech and offence impairing the dignity of another. In particular, we will examine the place given by the judge to the question of the intentionality of the author of the judged words, the role given to the race of the protagonists of the situation, and the contextual elements taken into consideration to evaluate the extent to which the dignity of the plaintiff has been impaired. The jurisprudence appears to be relatively indecisive on these different points. We will then turn to the question of the role of race this time in the sanctions applied by the justice system, which oscillate between the protection of individual dignity and the categorical right to protect certain racial groups.