The ongoing legal saga surrounding Musa Khawula, a blogger embroiled in accusations of cyberbullying and hate speech, has ignited critical conversations about the repercussions of online actions in South Africa.
Khawula has been charged with crimen injuria and violations of the Cyber Crimes Act of 2020, stemming from derogatory comments directed at businessman Zed Nxumalo within the fraught time frame of October 10 to 12, 2024.
As the state vehemently opposed Khawula's bail application, citing his ongoing attempted murder case from 2022 and an outstanding warrant concerning reckless and negligent driving, legal experts are weighing in on the broader implications of these charges, not just for Khawula, but for social media users at large.
In an exclusive conversation with the Saturday Star, legal expert Nthabiseng Dubazana elaborated on the seriousness of cyberbullying, stating, “What people should be aware of is that cyberbullying or crimes are criminal acts in terms of the Criminal Procedure Act. As such, one can be charged with crimen injuria (defamation).”
She explained that sharing any potentially harmful information, even with noble intentions, could result in serious legal consequences, including being regarded as an accessory to a crime.
Critical distinctions drawn by Dubazana also focused on hate speech versus freedom of expression.
She noted that courts typically employ an objective test to discern this line, examining whether a reasonable person would interpret comments as hateful, particularly when it concerns aspects such as race, gender, or religion.
“Our law caters for the prohibition of hate speech by the use of historically inappropriate words," she explained, referencing Sections 10 and 16 of the South African Constitution, both of which aim to protect individuals from derogatory and harmful expression.
"Section 10 of the Act provides that no person may publish, propagate, advocate, or communicate words based on one or more of the prohibited grounds against any person that could reasonably be construed to demonstrate a clear intention to be hurtful, be harmful, or to incite harm, and/or to promote or propagate hatred. Publication of such expression is allowed if the expression is genuinely for purposes of artistic creativity, academic and scientific inquiry, fair and accurate reporting, or such publication of any information, advertisement, or notice is in the public interest.”
“Section 16 of the constitution provides that everyone has the right to freedom of expression, which includes freedom of the press and other media; freedom to receive or impart information or ideas; freedom of artistic creativity; and academic freedom and freedom of scientific research. However this freedom is limited and does not extend to propaganda for war or incitement of imminent violence or advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.”
Moreover, the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (PEPUDA) underscores the need for responsible communication. Dubazana highlighted that such expressions may only be permissible under the guise of artistic creativity, academic inquiry, or when there is a genuine public interest.
Kaspersky's Consumer Channel Manager for Africa, Kim Grobbelaar, has also chimed in on the pressing issue of cyberbullying, revealing alarming statistics from their recent study.
It is reported that approximately 4% of South African parents reported that their children had experienced cyberbullying, while another 5% knew of similar cases involving their children's friends or peers.
“In South Africa, the prevalence of cyberbullying is alarming, and there are heightened concerns regarding online predators,”
Grobbelaar also referenced initiatives from bodies like the Film and Publications Board and the Department of Basic Education aimed at increasing awareness and safeguarding children online.
She further offered practical advice on how individuals can protect themselves from cyberbullying.
“It’s crucial to document everything. Save all posts and messages from the cyberbully by taking screenshots and noting relevant details like time and date,” she advised.
She also highlighted that engaging in a ‘back-and-forth’ with aggressors can exacerbate the situation, recommending a strategy of non-engagement and blocking to mitigate threats.
In recent developments, Khawula appeared briefly in the Fochville Magistrate’s Court on Friday to face charges related to an incident on February 20, 2021.
According to the NPA, Khawula has been charged with attempted murder in connection with an alleged incident near the Mponeng Mine. He is also facing charges of failing to render assistance and/or report the accident to the police.
Khawula was remanded in custody, with the case postponed to February 5, 2025, for a formal bail application.
Saturday Star