The Registrar received a complaint concerning Isidingo on the 26th and 28th January 2009. The televisioncomplainant argued that racist remarks by a character in the soap were unacceptable. The SABC responded that, within the context, the words were typical of the character involved and that the words, in any case, did not amount to hate speech.

The Tribunal reasoned as follows in dismissing the complaint:

It is true that any racist remark, within the South African context, gives rise to concern. However, the aim of drama (even of a soap) is, at times, to bring controversial matters and characters to the fore so that viewers could be confronted with them. Such statements must then be judged within the context of the drama and the character of the person who makes the statement. The character has to be judged within his setting. Of course, there are limits to what may be said, even in a drama. In fact, viewers often argue that such statements could, just as well, have been left out by the script writer. This argument is as old as literature is: fiction is written by an author and why should he or she have the freedom to write these (fictional) words into a text directed at the public? And, so the argument runs, this is a soap and controversial issues should not be included in light entertainment of this nature. The Tribunal’s experience is, however, to the contrary. Both Sewende Laan and Egoli have dealt with issues concerning the use of drugs and even of a suicide where an unhappy teenager took an overdose of pills. Isidingo, at a stage, even included a scene where domestic violence was shown rather graphically. The Tribunal, however, held that the man who had acted in this inhuman manner was later on rejected by the community and that, within the context, there had been the necessary corrective. In the other instances a BCCSA adjudicator rightly found that there had been no contravention of the Code: the issues were necessary to address to a wide audience in which even children were present. The inclusion created an opportunity for discussion and was part of domestic education. 

In isolation the words are offensive. However, the Constitutional Court has held that mere offense can be accommodated within free speech. The true test is whether the words used advocate hatred based on race and that they constitute incitement to cause  harm. 

Held that the words used do not amount to the advocacy of hatred. Any hate speech allegation fails when this is found to have been the case. It may be accepted that harm is done in so far as some viewers would regard such statements as hurtful. Ultimately, however, the words do not go so far that they may be regarded as truly advocating hatred. Disrespect, yes, but not hatred. In any case, the limits of bona fide drama have not been overstepped. The Broadcasting Code states in clause 17 that bona fide drama is exempted from the hate speech rule. 

The complaint is, accordingly, not upheld.

[2009] JOL 23389 (BCCSA)

CLICK TO VIEW FULL JUDGMENT  Case-No-05-2009