A Free State High Court ruling has driven home a warning for South African WhatsApp users: forwarding a message can carry the same legal consequences as writing it yourself. ANC councillor Sibongile Tsoleli was ordered to pay R50,000 in damages after sharing messages containing unproven corruption and adultery claims against a fellow councillor, alongside discriminatory remarks about the Indian community, in a party WhatsApp group. Her appeal, including a defence based on freedom of expression, was dismissed. Beyond the damages, Tsoleli must issue a public apology and attend a race sensitisation programme, a stark reminder that hitting “forward” is not a legal shield.
By Hanno Labuschagne
A Free State High Court ruling has highlighted that South Africans can face significant penalties for sharing hate speech on WhatsApp, even if they did not author the content.
MyBroadband previously reported on legal experts’ views that disseminating WhatsApp messages containing hate speech could land people in legal trouble.
Much attention was given to the consequences of hate speech under the Prevention and Combating of Hate Crimes and Hate Speech Act.
Once the Act comes into effect, hate speech determined to be an incitement to violence becomes a criminal matter with potential imprisonment for offenders.
However, hate speech, harassment, and unfair discrimination are already prohibited by the Promotion of Equality and Prevention of Unfair Discrimination Act.
This was recently made clear in a case concerning WhatsApp messages sent by Sibongile Tsoleli, a municipal councillor and former MP, to an ANC “Women Coordinators” WhatsApp group in March 2022.
Tsoleli had forwarded messages directed at fellow ANC member and Mangaung councillor Stephanie Lockman-Naidoo, her husband, and the Indian community to the group.
The messages alluded to the pair’s involvement in corruption, adultery, and sexual innuendos without evidence, while also making discriminatory remarks against Indians.
The Equality Court ruled that the comments constituted hate speech, harassment, and unfair discrimination and ordered Tsoleli to pay R50,000 in compensation to Lockman-Naidoo within 30 days.
She was also ordered to furnish Lockman-Naidoo with an unconditional apology, which was to be addressed to Lockman-Naidoo and the Mangaung Indian community at large.
Tsoleli also had to attend a South African Race Sensitisation Programme approved by the South African Human Rights Commission, within three months of the order.
Tsoleli appealed the ruling, arguing the court had erred in its finding that the message constituted the publication of prohibited hate speech.
She contested the ruling on several grounds, beginning with denying that she had authorised the messages.
Court reaffirms messages qualify as harassment
Tsoleli also argued that the allegations were shared in the public domain and were made in the context of a political battle of reactions, which did not necessarily amount to inciting violence.
She also said her reference to Indians was made in the context of the “battle for economic resources”, not hatred of Indians.
In addition, she argued the respondent could not have been offended by these comments, as she was not Indian herself.
Lastly, she said that disseminating the messages was an exercise of her right to freedom of expression, which is enshrined in the Constitution.
The High Court was not satisfied with these arguments and agreed with the Equality Court’s ruling, which it found was based on established evidence and circumstances.
The court ruled that a reasonable person reading the messages would conclude that the words were intended to be discriminatory and harmful to the respondent, her husband, and their good name.
It also reaffirmed that the messages promoted hatred against the Indian community, and the fact that the respondent was not of Indian descent by birth was irrelevant in the matter.
“Her evidence that, pursuant to her marriage into the Indian family, she adopted the Indian culture, is indisputable,” the court said.
“The humiliation, shame and reputational damage to her and her conservative Indian family caused her to abandon her promising career in politics and relocate her family.”
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The judge criticised Tsoleli’s choice to refuse to apologise and proceed to defend the matter on a “scant and contradictory ” basis.
It found that Tsoleli would potentially have avoided the damages claim and other consequences altogether if she had retracted and apologised during the initial hearing.
The appeal was dismissed with costs, and the court upheld the compensatory damages of R50,000 awarded by the Equality Court.
This article was first published by MyBroadband and is republished with permission.
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