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Good Corporate Governance Principles and the Probability of Hate Speech in South Africa, Australia and Namibia

Document Cited in Related
Vincent
Author
Date01 February 2019
Published date01 February 2019
Pages161-169
DOI10.3366/ajicl.2019.0264
INTRODUCTION

This article briefly discusses the relevance of the principles of good corporate governance in relation to human rights so as to identify hate speech.1 Hate speech in South Africa is a fairly new concept and at present the first legislative draft is open for public comment. Section 9 of the Constitution of South Africa 1996 gives effect to this legislation (on hate speech principles). Now, after 21 years, South Africa is currently enacting such legislation to prevent or prohibit hate speech in future.2 The purpose of this article is to analyse the principles of corporate governance and ascertain whether such principles amount to hate speech, i.e. King IV in South Africa requires an assessment of the performance of chief executive directors by means of a checklist or otherwise and compare it to Australia's requirements for high-quality directors.3 The latter is also compared to the unique Namibian constitutional landscape and statutory hate speech penalties in the assessment of director performances.

 THE PREVENTION AND COMBATING OF HATE CRIMES AND HATE SPEECH BILL 2016 IN SOUTH AFRICA

The preamble to the Hate Speech Bill refers specifically to two relevant constitutional rights contained in the Bill, namely the right to freedom of speech (section 16) and the right to dignity/reputation (section 10). Part of the right to dignity (section 9 of the Constitution) is that every person is equal before the law and that every person is entitled to the equal protection and/or benefit of the law.4 Keeping the latter in mind, the principles of corporate governance are often referred to as ‘soft’ law since their relevance is not embedded in any form of legislation which would make its enforcement voluntary. The new King IV report of South Africa (which replaced the King III report in November 2016) regulates the principles of corporate governance in the form of a checklist reviewing the performance or conduct of chief executive officers in South Africa.5 Since the King IV report does not contain a checklist template, the balancing act between freedom of expression and dignity in the form of a checklist is not part of our discussion, only the effect of a checklist that contains insulting remarks/comments as a logical result of freedom of expression.6 Although this balancing act is a complicated exercise, nevertheless freedom of expression requires section 4(1) of the Hate Speech Bill to understand when and how freedom of expression amounts to hate and states the following:

Any person who intentionally, by means of any communication whatsoever, communicates to one or more persons in a manner that

advocates hatred towards any other person or group of persons; or

is threatening, abusive or insulting towards any other person or group of persons, and which demonstrates a clear intention, having regard to all the circumstances, to

incite others to harm any person or group of persons, whether or not such a person or group of persons is harmed; or

stir up violence against, or bring into contempt or ridicule, any person or group of persons, based on … occupation or trade, is guilty of the offence of hate speech.7

 The above section is far-reaching in its application. The main words in section 4(1) are (advocating) hate, insulting and/or ridiculing a person/director based on his or her occupation and/or trade.8 If a checklist contravenes section 4(1) (containing insulting remarks as a method to ridicule or humiliate the chief executive officer of the company), it is not only hate but also an offence committed by the person. Section 4(1) states ‘any person’ where the meaning of person includes either juristic persons (companies) or natural persons (human beings) in terms of section 2 of the Interpretation Act 33 of 1957. As a result, any comments or remarks that companies or their employees make would constitute hate speech if the requirements of the Bill in section 4(1) are met. A practical example might be the chief...

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