The Registrar received a number of complaints from listeners of 5 FM. The original complainant, 
whose letter was simply copied by others, withdrew her complaint after an apology from the SABC. The present complainant, however, persisted in his complaint: the inclusion in music of the Azaan (the Muslim call to prayer) amounted to hate speech based on religion. We accepted in favour of the complainant that the music cannot, as a result of its low value, be regarded as a bona fide work of art. The main problem is, however, whether the inclusion amounts to the “advocacy” of hatred. Advocacy may, of course, also take place by way of implication. Before such an inference may be drawn, there must, however, be factors which place such offensive material on the forefront to such an extent that the only reasonable inference would be that it was calculated (objectively) to promote hatred based on religion. The fact that religious feelings are generally particularly sensitive, especially where fundamental principles are involved must, of course, also play a role. The Tribunal agrees with the approach of the Constitutional Court that the right to inform also includes the right to offend. However, there must be some limit to this, if such limit is reasonable. In the present case the slight value of the music is outweighed by the harm to religious tranquility and the violation of religious sensitivity.
For Muslims it is unacceptable to have the Azaan mixed with this kind of music. Respect must be shown for these convictions and feelings. The harm lies in the psychological shock, mortification or pain which listeners are likely to have suffered when listening to the music. In South African Human Rights Commission v SABC “We support the Canadian Supreme Court’s accent on the invasion of dignity in cases of hate speech and also that of the Bundesverfassungsgericht, which regards material which amounts to hate speech as a serious violation of rights of personality. The US approach is, of course, an interesting one but, to our minds, too lenient within our young democracy, where we are still building unity amongst diverse groupings: a unity, the attainment of which must, of necessity, go through stages of political argument, both emotional and rational. But when resort is taken to demeaning, sweeping racial slurs, a legal limit must be put to such language.” The problem, however, remains that the inclusion of the Azaan was not done in a manner which could be regarded as having amounted to advocacy. Disrespect, yes, but not advocacy. Advocacy requires some form of promotion and the mere inclusion of the Azaan, in this music, cannot be regarded as a form of promotion of hatred. If the music is repeated often by a broadcaster a different conclusion might be reached. The evidence in the present matter is that the SABC, on having received a complaint, took immediate steps to stop all further broadcasts. This, to our minds, was a wise step to have taken. The complaint is dismissed. _______________________________________________________________________ [1] Human Rights Commission v SABC 2003(1) BCLR 92(BCCSA) par[38].