Another instance of the racial slur "Chinaman" being used:
"The issue in this matter is whether the reference to a Chinese person as a "Chinaman" amounts to hate speech. On SABC3, during a regular overnight TV feed from BBC World, a sports presenter from an independent (non-BBC) production house was heard to comment that a Chinese person, who was taking part in a golf tournament, was the first "Chinaman" to have taken part in such an international golfing event. The comment was not made by a BBC presenter. [2] Dr Tam, a South Africa citizen of Chinese descent, argued that the term was extremely derogatory and that the broadcast amounted to hate speech based on race. The SABC argued that the use of the term was not attributable to the SABC, since it had no control over the content of the BBC programme and, in fact, the person who had uttered the word was not a BBC presenter either. [3] The question is whether the material, judged within context, amounted to the advocacy of hatred based on race, ethnicity, gender or religion and that constituted incitement to cause harm. Our approach to derogatory racial terms has been a strict one. Racial peace in this country, where racial oppression and superiority were part of the Apartheid policy and legislation of the past, demands that race should not, in any manner, form the basis of discrimination or be used to insult. In fact, the test for incitement is that even if the person addressed did not hear the derogatory word, the language nevertheless amounts to incitement if the words were directed at him or her. The mere fact that such a word is broadcast, already supports a prima facie case which should be answered by a broadcaster Where public interest requires that derogatory language be broadcast, for example in news items directed at informing the public of racial abuse, such broadcasts have been held not to have amounted to a contravention of the Code - see Williams, Snyman, Logie & Others v SABC 54/2003. This approach is based on an instructive judgment of the European Court of Human Rights in Jersild v Denmark (36/1993/431/510), where the Court held that a journalist, Jersild, had been wrongly convicted by Danish Courts for furthering racial hostility by broadcasting an interview with racists. The interview included racially derogatory language of the worst kind - coarse language and terminology that also directly accused immigrants from Africa as intellectually inferior. The Court held that it had been in the public interest to reveal the shocking attitude of the group interviewed and that the public had the right to be informed thereof. Compare Johanessen 1995 South African Journal of Human Rights 123. [4] In Islamic Unity Convention v Independent Broadcasting Authority and Others the Constitutional Court emphasised that expression should not be allowed to impair the exercise and enjoyment of other important rights, such as the right to dignity, other state interests and the pursuit of national unity and reconciliation. Furthermore, on other occasions, it has been emphasised by the Constitutional Court that the protection of the rights of minorities is an integral part of our new democracy. The fact that such a minority is constituted by a small group is irrelevant. It is entitled to equal protection in terms of the Constitution. Compare Christian Education South Africa v Minister of Education Prince v President Cape Law Society, and Others where the majority states: "The fact that they are a very small group within the larger South African community [the Court was referring to members of the Rastafarian religion] is no reason to deprive them of the protection to which they are entitled under the Bill of Rights. On the contrary their vulnerability as a small and marginalised group means that the Bill of Rights has particular significance for them. The interest protected [in that case by s 15(1) and s 31 of the Constitution] is "˜not a statistical one dependent on a counter-balancing of numbers, but a qualitative one based on respect for diversity'." [5] I have referred to these judgments, not to equate the Chinese community with any marginalised group, which it is not, but to accentuate the importance of the recognition of diversity and the protection of a minority in the pursuit of national unity and reconciliation. The dignity and vulnerability of members of any minority must, at all times, be protected against derogatory language. This principle is, of course, also applicable to a majority. Inherent in dignity also lies the right to security of the person. Security of the person is explicitly protected by section 14 of the Bill of Rights, where the right to privacy is stated to include " to be free from all forms of violence from either public or private sources." This would include derogatory language, which could be defined as a form of verbal violence. In our judgment in South African Human Rights Commission v SABC we held that "harm" in the hate speech provision is a subjective requirement and that the likely emotional harm should be serious. The "harm" in the hate speech provision includes harm to dignity. [6] The evidence before us is that the term "Chinaman" is a seriously derogatory term - comparable to the word "kaffir", which is utterly unacceptable - base on race and that, in the circumstances, there was no justification for the use of the word. It amounted to hate speech within the definition and although the "advocacy" was not explicit and pronounced, the mere reference to a person as a "Chinaman" amounts to hate speech as a result of its likely serious impact on the dignity of a Chinese person. Of course, there would be circumstances where the term would not be derogatory as a result of the context. There was nothing in the broadcast which suggested that the term was contextually used otherwise than in its derogatory sense. Whether the person who used it knew that it was derogatory is unknown. Nevertheless, objectively it is derogatory and is not the kind of language which should be used in broadcasts, unless the broadcast is in the public interest or the word is dramatically or documentarily justified. [7] We accordingly hold that the term amounted to hate speech. The question is, however, whether the SABC should be held responsible for this hate speech. Is it not too far removed from its sphere of control? The term was used by an independent presenter commenting on the BBC about the unique event. In the circumstances we have decided that it would be unfair to hold the SABC responsible for what had been said by an outsider on a BBC broadcast. It is true that a South African broadcaster must, in principle, accept responsibility for all the material it broadcasts, and that an absence of negligence would not always exonerate the broadcaster, but in the present case it seems utterly unfair to hold the SABC responsible for what happened. It was not forewarned of what could be said, and the nature of the programme did not require pre-broadcast steps to be taken so as to ensure compliance with the Code. A broadcast concerning a sport event is usually innocuous. We accordingly hold that the SABC has not contravened the Code. We accept that the SABC will convey this judgment to the BBC, which obviously does not fall within our jurisdiction. Whether the person who said the word was malicious, or simply ill-informed as to the term's derogatory nature, remains open. We simply do not have evidence before us of his intention or motive. We do not have the authority, either, to subpoena such a person to appear before us or relate his intention to us. We, in any case, do not issue subpoenas. A written apology was extended by the BBC via the SABC to the complainant. The complainant was not happy with the letter since it had not been signed. The SABC's representative undertook to obtain the signed apology and send it to the Complainant."
