‘We see you’: Do Duduzile Zuma-Sambudla’s social media posts constitute free speech?

Duduzile Zuma-Sambudla’s prosecution for her alleged role in the July 2021 unrest could be a defining moment for free speech on social media.

After handing herself over to police in Durban on Thursday, Zuma-Sambudla’s subsequent court appearance has many questioning the timing of the legal action.

Zuma-Sambudla was released on a warning but will appear again on 20 March after the matter was transferred to the KwaZulu-Natal (KZN) High Court.

Intent of words uttered

Jacob Zuma’s daughter is facing charges related to terrorism and incitement to violence based on social media posts she made while sections of Gauteng and KZN were on fire.

Roy Bregman, director of Bregman Moodley Attorneys, said that the legal principles of the case also included political accountability, the limits of free speech and online discourse.

“The case underscores the growing influence of social media in shaping public opinion and potentially inciting action, highlighting the need for legal frameworks to adapt to the rapid dissemination of information in the digital age,” Bregman told The Citizen.

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While many were amplifying the sentiments of that deadly week in July, Bregman said courts typically examine several factors when determining incitement, including intent, content and likelihood of the speech resulting in imminent lawlessness.  

“Even if beliefs are widely held, their expression can still be considered incitement if it creates a clear and present danger of imminent lawless action,” Bregman explained.

Free speech is not absolute

South Africa holds its right to free speech dear, but Director of the Free Speech Union of South Africa (FSUSA) Sara Gon explained that freedom is not absolute.

“The FSUSA believes that people should be free to say whatever they wish or think, irrespective of what one thinks of the content, subject to the limitations set out in our Constitution,” Gon told The Citizen.

“However, the person who makes these comments must take full responsibility for what they have said and how they have said them. That is the corollary obligation of that right to freedom of speech,” Gon added.

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Section 16(1) of the nation’s Bill of Rights allows for the free expression of information of ideas, however, Section 16(2) outlines the unacceptable forms of speech.

“This distinction is necessary because it balances the fundamental right to free speech with the need to protect society from harmful speech,” stated Bregman.

More than just words

Free speech absolutists argue that those hearing inflammatory sentiments should take responsibility for their own actions and not blame the source.

South Africa’s legal framework presents a different perspective, as Bregman explains.

“The law ascribes similar importance to words as it does to actions, recognising that words can have tangible, real-world consequences.

“This legal principle is based on the understanding that words can directly lead to harmful actions and, in some contexts, the utterance of words itself constitutes an action.”

Speech incompatible with the Constitution includes propaganda for war, incitement of imminent violence and hatred based on race, gender or religion.

Zuma-Sambudla would not be the first person to be prosecuted for speech in South Africa but would be the highest-profile individual to face incitement charges.

As well as the political ramifications, Bregman said the case was of great importance as it may set a precedent with how the courts deal with firebrand politicians in the digital age.

“Courts often consider whether the restriction on speech is proportional to the harm it seeks to prevent. This balancing act is crucial in cases like Zuma-Sambudla’s,” Bregman concluded.

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