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South African Facebook users fined R50 000 for hate comments against the Chinese

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The Gauteng High Court (sitting as the Equality Court), on June 28, strongly condemned comments made by twelve South African individuals about the Chinese community on Facebook, ruling that it constituted hate speech in terms of the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA).

The comments were made following a segment on Carte Blanche, which aired in January 2017, focusing on the issue animal abuse and the donkey skin trade. Graphic visuals showed persons slaughtering donkeys in an inhumane manner. The segment was aired the day after the Chinese New Year.

Following this viewing, inflammatory xenophobic comments aimed at the Chinese community were posted on the Carte Blanche Facebook page as well as that of the Karoo Donkey Sanctuary.

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The Chinese Association of Gauteng managed to identify twelve people who had made discriminatory statements, and began proceedings against them in the Equality Court to declare that their statements constituted hate speech.

The Association also asked the Equality Court to require that they publish an apology, attend a human rights sensitisation course, and pay damages and legal costs.

Three respondents did not oppose the case, while six others admitted in court papers that their statements constituted hate speech and unfair discrimination under PEPUDA. They also did not oppose the proceedings.

Only two respondents opposed the case – specifically, David Clive Horne and Mariette van der Linde de Klerk.

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Horne – who claimed he was in no way racist towards the Chinese community – had posted in comment: “Personally, I say wipe them out. I’d be the first one to be there.”

Meanwhile, De Klerk’s offending post had read: “We need to get rid of the Chinese in SA…they are not welcome, they steal our economy, dogs, rhino and now donkeys. I think the same as the donkeys can be applied to dogs and our pets.” Read the full judgment here

Chinese Association describes statements as ‘deeply hurtful’

Henry Yon Wing testified that the Facebook posts were deeply hurtful and made him feel despondent. He said that the Facebook comments reminded him of the racism he experienced growing up in Fietas, Johannesburg, during apartheid.

Wing said that he was angered by the comments because they created the impression that “white people thought they could still make deeply damaging, hurtful and racist comments in the new democratic South Africa”.

Erwin Ming Pon, chairman of the Gauteng Chinese Association, also provided testimony to the court. He said he was born in South Africa after his family came to the country in the 1930s, after his great-grandparents fled China because of civil unrest and war.

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Pon said that he and his family faced various forms of discrimination during apartheid, telling of how his grandparents were forcefully removed from Sophiatown and were relocated to a place called “Malay camp” during the forced removals in the 1950s.

His parents were only able to buy a property in Parkhurst, then a “white area”, because they used a white person as a front to buy the property.

Pon said he was often bullied by other children who told him to “go back to China” and would have to endure seeing them pulling their eyes to make fun of him. He said that he also faced discrimination when he used to swim in the Parkhurst public pool because he was told to leave whenever white children arrived to swim.

Pon explained that after 1994, he had hoped that apartheid-era discrimination would be “wiped out and forgotten” and that he was proud to finally be recognised as a South African citizen after he had voted in the 1994 election.

But, Pon said, after the Facebook comments were published, he became concerned for the safety of his children and his family. He described the comments as violent, racist and xenophobic.

Pon explained that the Facebook posts were only removed after he contacted Emma Sadleir, a media lawyer, who wrote to the administrators of the Facebook pages to have the comments removed. This, however, only happened after the posts had been viewed by thousands of people.

Read also: Police arrest KZN man calling for attack on foreigners in Facebook post

Horne claims comments were ‘taken out of context’

David Clive Horne, in his defence, was adamant that his comments were taken out of context. He claimed that when he posted the word ‘them’, he was not referring to Chinese people but was infact referring to the gangs who were involved in the unlawful or cruel killing of animals.

Horne said that the intention of his post was simply to convey that people who were involved in cruelty to animals must be held accountable.

Horne agreed that many of the statements posted about Chinese people on Facebook were unacceptable. He also said that he identified with the hurt felt by the Chinese community. He maintained, however, that his statements were not hate speech and that he had no intention to discriminate against Chinese people when he made the post.

In her court papers, De Klerk denied that she had written the Facebook post. However, she decided to not testify in her own evidence.

De Klerk found guilty of hate speech

Judge Motsamai Makume considered three main questions: whether the posts by Horne and De Klerk constituted hate speech under PEPUDA; whether the posts by the other respondents (who did not oppose the case) constituted hate speech; and the appropriate order that the court should make.

Makume found that the Facebook post by Horne was not hate speech, accepting Horne’s assertion that his post only referred to people who are involved in animal cruelty, not Chinese people.

He, however, did find that De Klerk was guilty of hate speech, after it was brought to light that her lawyers had written various letters to the lawyers for the Chinese Association where she admitted (and) apologised for making the Facebook posts.

Makume said that this was inconsistent with the argument that she did not make the posts in the first place. De Klerk did not testify, giving explanation as to why her lawyers had written letters, on her behalf, which had admitted that she wrote the Facebook posts.

Unlike Horne, the Facebook post of De Klerk clearly referred to the “Chinese in SA”. The Court said that this obviously referred to Chinese people within South Africa.

When she used the words “get rid of” was intended to convey the impression that Chinese people in South Africa are something which is “troublesome” or “unwanted” and which should be removed.

Pon had also testified that the words “get rid of” created the impression that Chinese people in South Africa were considered similar to rats or vermin. This violated their sense of dignity and self-worth, he said.

Makume said that the posts, aside from Horne, all clearly conveyed an intention to unfairly discriminate against Chinese people on the basis of their race and social origin.

All the respondents who did not oppose the case were ordered to publish an unconditional apology within 30 days and to pay R50,000 each to the Hong Ning Chinese old age home.

Judge Makume also ruled that any respondent who could not pay this amount could approach the Court with an affidavit setting out their financial situation.

That respondent, as an alternative to paying damages, would then be required to attend a training course on how to remove hate speech from the internet and would have to provide the Chinese Association with monthly reports setting out how many hours they had spent removing hate speech.

They would also be required to attend a human rights sensitisation course conducted by the South African Human Rights Commission.

Due to her initial response to opposed the case, De Klerk was ordered to pay R150,000 to the Hong Ning Chinese old age home and was ordered to pay legal costs.

This article first appeared on GroundUp and was republished with permission. Read the original article here.

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