Mckenzie takes ‘K-word’ fight to SAHRC’s doorstep

SPORTS, Arts and Culture Minister and Patriotic Alliance leader Gayton McKenzie believes that the South African Human Rights Commission (SAHRC) defamed him when it went ‘public’ with allegations of hate speech before granting him a hearing. 

McKenzie had until Wednesday to respond to the SAHRC’s letter following a racism complaint about the use of the K-word and xenophobic remarks dating back to 2011. 

“Following assessment of the contents, the Commission is of the view that utterances made by Minister McKenzie are prima facie violations of the provisions of the Promotion of Equality and Prevention of Unfair Discrimination Act (Equality Act), 2000. Consequently, the Commission has sent an allegation letter to Minister McKenzie. Thereafter, the Commission will determine the best way forward which may include instituting proceedings in the relevant Equality Court,” the commission said last week. 

In a statement responding to the SAHRC, McKenzie denied the allegations of racism and hate speech. 

“The SAHRC's preliminary assessment and prima facie finding of potential violations rely on their interpretation of the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (PEPUDA), particularly Sections 7, 10, and 11, concerning unfair discrimination, hate speech, and harassment. A full review of the context easily reveals, however, that all the posts the SAHRC decided to concentrate on in their letter to me were non-racial in nature, and in fact were intended to challenge and reject racism. Not one of my tweets have demonstrated any intention to harm, incite harm, or promote hatred, as required under the legal test established in Qwelane v South African Human Rights Commission [2021] ZACC 22. Instead, they reflect my consistent anti-racist stance," he said. 

McKenzie said he learned through the media about the SAHRC’s letter, saying they only managed to find it in an administrative assistant’s inbox two to three days later. 

“The SAHRC is a Chapter 9 institution, which is meant to uphold the Bill of Rights in South Africa's Constitution. They effectively released preliminary findings, even suggesting what the penalties could or should be. The SAHRC in this way made itself the prosecutor, the judge, the jury, the sentencer and the executioner - all in a single day's work. What they did not do was make themselves the investigator, because they have investigated nothing, questioned nothing and cross-examined nothing. They have merely taken at face value what social media and rival politicians told them I did. Without even attempting to speak to me, they were already convinced enough of my evident ‘hate speech’ to go public about it.

“In summary, the posts that the SAHRC decided to focus on as ‘prima facie evidence’ of hate speech, and which span over a decade, are not only far from being hate speech, but they consistently demonstrate my non-racial ethos: rejecting slurs, challenging stereotypes, defending black dignity, and promoting unity. They were written in an informal social media environment where robust debate on race is common, and they do not meet PEPUDA's threshold for hate speech or discrimination, as they lack the requisite intention to harm (per Qwelane).”

SAHRC spokesperson Wisani Baloyi said the organisation has not finalised its decision on the matter. 

“We will be able to respond once we’ve made a decision.”

Convenor SA1st Forum convenor, advocate Rod Solomons said: “The law applies to all of us irrespective of who we are and the SAHRC has a specific mandate in terms of our constitution and they should execute that mandate without fear or favour. If McKenzie is so confident about his position, then he should not hesitate to state his case at the SAHRC when the hearing or the investigation happens. 

“The SAHRC has many times expressed their views on certain things. If McKenzie feels they have been incorrect, he must deal with it. I don't think they have found him guilty, they have not conducted the hearing. He must understand he is a leader of a political party, he puts himself out there with various views he has. Those views that he holds are now being tested by the SAHRC whether it meets the test as put forward in our Constitution.”

Cape Times