Having the difficult South African conversations

A few weeks ago, Tumi Morake caused an outrage on a radio station more commonly associated with pop music and keeping things light, Jacaranda FM.  She was however accused of very serious breaches. On the one hand, she was accused of hate speech and on the other of violating the Broadcasting Complaints Commission Code of Conduct. It is not for me to assess whether the comments made by Tumi Morake are breaches of the BCCSA code - that is for the BCCSA to determine.  

Regardless of whether the comments constitute hate speech, they do not explain the furore that has erupted. There have been a few media pieces, which have sought to try answer the cause of the outrage. Some, like Max Du Preez asserted those who complained were themselves, bullies, Ferial Haffajee made crucial points and took umbrage at the response and apparent absence of support for Tumi Morake. Others like Sisonke Msimang placed the issue in a broader context and argued that the incident highlights discomfort being felt at the encroachment of Tumi Morake in a traditionally safe white space, but that there are positives.

There are other issues that need to be considered: 

What is clear is that raising the issue of apartheid and its brutality among an audience, where some of its members feel under threat, resulted in a significant level of discomfort for some of the listeners, and in some cases, feelings of outrage and offence. However, a quick review of the comments posted in response to Kagiso Media's original statement reveals comments in support, as well as vile and offensive remarks directed at Tumi Morake.

Indeed, it seems bitterly ironic that some of the same audience members who took such great offence to Tumi Morake's comments feel none of the compassion and sensitivity that they feel is their due when they responded to Kagiso Media, and Tumi Morake. Instead they sought to belittle, to demean and stereotype.

Gender plays a key role: It is sadly common for women online, to be subjected to the most vile forms of abuse, even when they haven't courted controversy. Research by The Guardian shows how this is the case in the UK and certainty anecdotal evidence and a brief review of pieces by some of South Africa's prominent women reveal a similar tendency.  One wonders therefore whether the response would have been quite as vitriolic had the comments been made by a man? 

The offence caused is thus not simply about race but about gender as well.  We had a young successful black woman asserting her viewpoint as an equal, with her co-host, a white male.  It seems his own comments about Steve Hofmeyer, and/or stereotypes about those living in Australia and or New Zealand would have or could have caused similar offence. Instead it was some seemingly understated social commentary about apartheid bullies that caused outrage.  

Tumi Morake, her team and senior management at Jacaranda FM should be commended for standing by the comments and not backing down. Indeed, their response to choose to engage, and Tumi Morake especially, to engage, to listen, shows a maturity, and humanity that all people in our country would do well to emulate, especially those who took such great offence to her comment.    

"Haters gonna hate": Those who seek to spew vile will sadly remain, as they do the world over. Their voices are amplified and are more hurtful when they are mixed up with racism and sexism. Racism and sexism are alive and well. Our only way forward, for us to realize the promise of our brilliant constitution is to tackle them head on, not shy away from difficult discussions but to have them. And unfortunately, in doing so those who seek to build are likely to encounter those who resist and want to destroy. As long as we don't let their voices drown out the others.   

Follow the money: One group who seems to have escaped much scrutiny are those advertisers who sought to withdraw their ads and or campaigns.  Of course, the logic advertisers have put to me is that advertisers like commercial stations because they deliver audiences in a safe manner, that doesn't clutter their message and potentially damage their brand. They don't want controversy, it might harm their brand, they can't risk damage to their reputation. If we consider someone like Lance Armstrong, it makes sense for an advertiser to withdraw their support from him as he was a proven liar and a cheat. Who would want their brand to be associated with that? (Well ok aside from KPMG).  

In the current instance with Tumi Morake, ironically, it is not simply black and white - it is precisely because it seems some advertisers want to avoid being seen to take sides, or feeling that there are shades of grey that they would rather withdraw. They might recall what happened to Spur who took a side and took a big hit. In a similar response to that seen in the Jacaranda case, a section of Spur customers opted to take to Facebook and encourage a boycott of Spur restaurants. Spur reportedly reversed their decision to have an independent panel and instead went on a "listening tour" that watered down their response. .In so doing, Spur may have won back a faction of their clients and appeased some organisations, but they have in so doing lost not only their moral and ethical authority, but also sent a message to a far greater group of customers that they are less important than those who make noise and threaten. There is a commercial logic to advertisers withdrawing.  Why stay with a station mired in controversy when you can put your money elsewhere and ensure your client's brand isn't damaged?  It is one reason why many corporates choose not to engage in difficult public debates, they don't want to be seen to be taking sides. The problem of course with this argument is that silence, or withdrawal, is itself a statement.  In the case of withdrawing from Jacaranda due to threats by Facebook groups to boycott Kagiso Media, or due to the controversy, we have to ask what that says about their commitments to our democracy - the very democracy that gives them the freedom to advertise on a diversity of media? Of course, advertisers can choose with whom to place their product, but those who have withdrawn or threatened to, have done their clients, their products and our democracy a grave disservice.

But what of the hate speech allegations?  Here's a quick summary of events:

On the 14th of September Martin Bester and Tumi Morake were discussing a topical issue of a person in New Zealand who was encouraging people to boycott South African Afrikaans music concerts if they included Steve Hofmeyer. The stated intention of the insert by Martin Bester was to talk to the person who was encouraging the boycotts, and to find out why he was encouraging the boycott, as the feeling was that those living in New Zealand or Australia probably wouldn't mind Steve Hofmeyer:

"We're gonna get him on the line in a moment here on the show this morning just to chat about that. Like, what is the story; is it a personal vendetta? What is the feeling? Why is he putting pressure on these places overseas to cancel concerts with Steve Hofmeyer on the line-up? - I mean, I don't know about you; but if you think of expats in Australia and New Zealand. You know, you think to yourself they probably wouldn't mind," Bester remarked.

Martin Bester and Tumi Morake then go on to interview the person, and enquire as to his reasons. All the time it is clear from their comments that they are being careful to assert that people are entitled to their views, and they deliberately set out to ask listeners to call in and share their views.

"It doesn't have to work like that. In certain societies it works like that. They alienate themselves from the opposite groups, and they alienate themselves from their own people which is something that's, you know…jy het nou gehoor wat Johan de Villiers gesê het op die show vanoggend [You've now heard what Johan de Villers had to say on the show this morning]. Let's open it up! Talk about it. What's your five cents worth? Remember, we've got a new WhatsApp line, 084 850 0942," said Bester.

It is one of the voice notes that lead to the comments from Tumi Morake about apartheid that resulted in the uproar from sections of the audience. For context, it is worth noting the conversation as transcribed:

"2nd WhatsApp Voicenote: Morning, Martin and Tumi. I don't think it's about being Xhosa or Zulu or Afrikaans anymore; I think it's about a nation. It's about a country that needs to stick together because this is all we have, and uuuh yeah, that's my view and ja [yes]. Thanks for a great show.

TM: Amen brother!

MB: Thanks for listening. But I'm gonna disagree to a certain degree. 

TM: Why?

MB: Allow me to. I think when we came off the back of Apartheid, I think the whole rainbow nation concept was very idealistic. But I think it misled a lot of people and I think that that's starting to turn around; that it's okay to be different. There was a notion that we're all the same and that we're all one people. Yes, we're all South African but we're not the same.

TM: We're not the same. Yeah, but look…

MB (Interrupts): Do you agree with me?

TM: …I hear you! The reason I agree with that last caller is because it should be about nation right now…

MB (Interrupts): It should be about South Africa…

TM (Interjects): Mmh, because we need to stand together. So much else to fight, you know?

MB: But, while recognising and being okay with you being different to me…

TM (Interrupts): No, absolutely! Look, if we're going to get into that conversation, it's going to be a whole other show and it could get ugly (TM laughs out loud) because…

MB (Interrupts): No; it doesn't have to!

TM: …because the reason I say that is because if you look at why did Steve become this. I don't think Steve was always…always took this position of feeling like…because I always feel like where Steve Hofmeyer is coming from is that he feels like white people as a people are under threat. He feels like Afrikaner people…the Afrikaner nation as a culture, is under threat. And when you are threatened, you attack back! So, that's where I see his perspective coming from, right? And that's where I say it might need to be about nation and if it starts going to [be] about individual it's going to get ugly because when he starts to say that then the attack that's gonna come from the black person, because it implies an attack from black people; would be us going, 'well, Apartheid was about oppression of black people and after Apartheid, we were told after '94 we're all one'. As opposed to going, you broke down a people on skin colour. Before you build them up, you're now saying they must just share with everybody and be friends with everybody…

MB (interrupts): We're all one…

TM:…It's like a child who's bicycle was taken forcefully away from him, and then you say to the bully, no, no, no share the bike together. Don't be like that'. Then the kid whose bike…the bike was taken from doesn't feel like there's been retribution because the bully hasn't been punished and on top of that, the bully is still being rewarded because he still gets to share the bike with me…

MB (interrupts): Exactly!

TM: …even though he took it forcefully from me and enjoyed it for the past hour… 

MB (interrupts): So, can you…

TM (interjects): …that's why I'm saying I think it's such a touchy conversation. So, if we just stick to the issue of this guy, what he says and people saying we don't want you to come and speak here; I say yes it should be about nation. If you are travelling overseas to expats who miss home, don't go and reinforce the negative reasons that some people left. Don't go there to reinforce that. Go there to celebrate what is South African. Go and help them celebrate their culture. Don't go there and go, 'you are right! It is so bad. They are killing us…'

It is seemingly the comparison of apartheid with a bully that has caused the offence. What we need to establish now is whether the comments, in context, could constitute hate speech.

The issue of hate speech is one that has been on the media agenda for much of 2016 and 2017, partly as a result of well publicized racist incidents and comments, but also because of government attempts to deal with the issues through the development of the Hate Crimes and Hate Speech Bill. More recently the issue was the subject of a media complaint following a blog that was posted on the Huffington Post that posed the question as to whether it was time for white men to be denied the vote. The details of the case are worth considering briefly, not because they are the same as the comments by Tumi Morake but because the case went on appeal to the Press Council and a central question at stake was whether the article constituted hate speech. Those arguing that the piece didn't were the appellant, Ms Verashni Pillay (the editor of Huffington Post at the time) and two Amicus, MMA and SANEF. Arguing the piece did constitute hate speech was Afriforum. In the end, the Appeals Justice Ngoepe ruled the piece did not constitute hate speech. See link to the ruling here.

The relevance of the case is that in determining whether the piece constituted hate speech, counsel for MMA and SANEF, Advocate S Budlender set out a test.  A test which, during the appeal hearing all parties agreed was useful and valid and should be adopted in cases to assess whether or not comments or media pieces could be held to be hate speech. The test sets out the requirements for hate speech, of the kind that is unprotected by the constitution. There are three questions.

The following are posed to help determine if a piece constitutes hate speech:

1. Does the piece amount to advocacy of hatred that is based on race, ethnicity, gender or religion? If not, the complaint must be rejected.

2. If so, does the piece constitute incitement to cause harm? If not, the complaint must be rejected.

3. If so, is there some overarching public interest that justified the publication of the piece? If so, the complaint must be rejected.

It is structured such that if the piece in question successfully answers the first question then the second is asked and so on. If a piece satisfies all three questions, it is likely that the piece being scrutinized may constitute unprotected hate speech.

If we apply the test to Tumi Morake comments, it soon becomes apparent that in context her comments fail all three of the questions set out above:

1. Advocacy of hatred.  If anything, the comparison of the crime of apartheid to bullying and taking a bicycle, seems more an understatement given the brutal reality it took, and the legacy which still haunts us today. To advocate hatred based on race would have required a clear assertion by Tumi Morake that she thinks all black people should hate white people. Instead she argued that people shouldn't reinforce negative stereotypes, "Don't go there to reinforce that. Go there to celebrate what is South African." It seems extraordinarily difficult to assert that on the comparison alone that it constituted advocacy of hatred, as her comments demonstrated neither advocacy, nor hatred of anyone.

Assuming for a moment that Tumi Morake's comments satisfied the first question:

2. Do the comments constitute incitement to cause harm?  Tumi Morake makes a comparison of apartheid and possibly at a stretch one may draw the inference that she is saying white people are bullies, at no stage does she suggest any form of violence or retribution. Instead, still in the same hour under review, she says, "we need to stand together. So much else to fight, you know?" Far from inciting violence or harm, she is asserting people need to stand together. An example of incitement to cause harm might be saying, white people are cockroaches, and evil and we should assault them. Instead she makes a clear effort to assert nationhood, to not offer negative stereotypes. On the second question then the comments fail.

Assuming again even if it satisfied the second question we need to ask:

3. Is there a public interest in discussing the issues or in making the comments? It was clear the issue of boycotting shows that featured Steve Hofmeyer was not only topical, but also one of great interest to the Jacaranda audience, and that as part of encouraging discussion and debate Tumi Morake made her comments. She only introduced the issue of apartheid in response to her co-host who opened the discussion around the concept of the rainbow nation. Accordingly, it seems difficult to assert that the issue was not one of clear public interest, highlighted ironically by the uproar that is caused.

It seems clear, that Tumi Morake's comments do not constitute hate speech in any material aspect and that no reasonable listener, taking the full hour into consideration would succeed in demonstrating how the comments would satisfy any of the three elements set out above, let alone all three of the tests set out above.

The complaints will be heard by the BCCSA in late October. Regardless of the ruling, the debates we have on these issues are crucial for our democracy, but as we have these we need to deeply consider the seriousness of allegations of hate speech, which are not to be taken or lodged lightly, our democracy depends on our humanity.