Zuma-Sambudla’s right to free speech may be her undoing 

In July Rebecca Davis wrote an article for Daily Maverick in the form of a letter to Duduzile Zuma-Sambudla, one of former president Jacob Zuma’s daughters, accusing her of calling on South Africans to rise up against ‘JZ’s detention’.

Davis accused Zuma-Sambudla of being ‘at it again’. To illustrate this she said: ‘You jubilantly reposted footage and reports of people organising to come together to blockade roads and set buildings on fire. The South African Human Rights Commission would later hear that yours was “one of the accounts that was most engaging in the celebratory parts of unrest”’.

Zuma-Sambudla tweeted as recently as 9 June 2022 ‘I Smell Another Unrest…’.

‘“It’s Time To Take Our Country Back!!!” she exhorted, later the same day, posting a photograph of protesters posing defiantly in front of a burning building.’ Davis further pointed out that the image in question was actually taken during the 2020 US protests following the murder of George Floyd.

Davis offered Zuma-Sambudla the benefit of the doubt, saying that her father’s arrest in 2021 resulted in her tweeting reflecting the rage and frustration of a daughter who believed her father was being treated unjustly. ‘Perhaps you genuinely had no idea of the scale of horrifying real-life violence that was about to explode’.

Davis, however, now says that Zuma’s daughter isn’t entitled to the benefit of the doubt: ‘If you weren’t aware in July 2021, you now know, beyond all question, what this “unrest” that you gleefully await again entails’. 

The comments on Davis’s article showed outrage. Many of them called for Zuma-Sambudla to be arrested and tried for sedition.

Then on Monday 11 July 2022, Zuma-Sambudla tweeted ‘The Ground is Ripe for a Revolution’. 

One commentator suggested that perhaps Zuma-Sambudla’s Twitter account should be suspended. 

As the Free Speech Union of South Africa (FSU SA) we disagree: her Twitter account should not be suspended for a number of reasons:

1. The FSU SA believes that the right to express opinions should be as wide as possible, curtailed only by Section 16(2) of the Constitution which prohibits freedom of expression of propaganda for war; the  incitement of imminent violence; or  that advocates hatred based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm; 

2. Some of her tweets suggest that she’s in thrall to her father’s cause, narcissistic and not very strategic, so she is very likely to continue to express herself and to do so carelessly. 

3. Limiting her right to express herself publicly would deny us .. the ability to track what she’s saying and doing, which not only warns us of what she is up to, but it could also give or enhance grounds for taking legal action against her for sedition or treason.

Only an individual, not an organisation, owes allegiance to a state and therefore is capable of committing treason against the state. All citizens of South Africa, whether by birth or naturalisation (including the Gupta family), owe allegiance to the state, as do foreign citizens who are resident in South Africa, because they enjoy the protection, the infrastructure and the services of the state.

Treason is the “crime of attacking a state authority to which one owes allegiance”. 

Sedition is “conduct or speech inciting people to rebel against the authority of a state”.

Even a broad right to free speech is not unconditional; Section 16(2) of the Constitution provides:

The right in subsection (1) does not extend to—

(a)  propaganda for war; 

(b)  incitement of imminent violence; or

(c)  advocacy of hatred that is based on race, ethnicity, gender or

religion, and that constitutes incitement to cause harm.

The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (PEPUDA/Equality Act) under Section 10(1) lessens the protection of free speech as follows:

“Subject to the proviso in section 12, no person may publish, propagate, advocate or communicate words based on one or more of the prohibited grounds, against any person, that could reasonably be construed to demonstrate a clear intention to:

                                (a)   be hurtful;

                                (b)   be harmful or to incite harm;

                                 (c)   promote or propagate hatred.” 

The Constitutional Court has declared Section 10(1)(a) of the Equality Act to be unconstitutional for vagueness and unjustifiably limiting section 16 of the Constitution.

Sections 10(b) and (c), though narrowing free speech more than the Constitution does, are available to form the basis of legal action against Zuma-Sambudla.

There is the possibility, in amongst all this careless tweeting, that evidence could well be provided of the incitement of imminent violence or the advocacy of hatred on a restricted basis, either of which constitute incitement to do harm, or at least constitute contraventions of the Equality Act.

Zuma-Sambudla and others may open themselves up to charges of treason, sedition or acting unconstitutionally.

Dreadful as Zuma-Sambudla’s utterances are, the expression of her right to free speech may well lead to her undoing.