By Caroline Hooper-Box
"Chinese came to South Africa to rip us off, selling their fakes to us", say the Zulu and English lyrics, sung by the Hunger Boyz Senyaka and Kamazu. The song became so popular that goods sold by Chinese hawkers in Johannesburg soon came to be known in street lingo as Fong Kong, the song's name.
The Boyz got away with it, but three years later the Human Rights Commission (HRC) has lodged a complaint about Mbongeni Ngema's song AmaNdiya, ("Indians") with the Broadcasting Complaints Commission (BCCSA), the self-regulating industry body.
The BCCSA will hold a tribunal session with Ngema and the HRC on June 13, chairperson Kobus van Rooyen told The Sunday Independent, to determine whether the song constitutes hate speech. Van Rooyen said the HRC would "try to run an open shop, informal and public-oriented, with legal representatives if necessary".
In the past eight years the commission has dealt with 9 000 complaints, 800 of which were "taken up seriously", Van Rooyen said. Forty percent of these found against broadcasters.
"Oh brothers, Oh my fellow brothers. We need strong and brave men to confront Indians," goes the song. "Indians have conquered Durban, we are poor because all things have been taken by Indians."
Getting this song classified as hate speech will be very difficult indeed. While the song is "by no means immune from control", said advocate Gilbert Marcus, the constitutional yardstick by which the song will could be judged as hate speech will be an extremely stringent test.
Ngema and his song will not be protected by the constitutional guarantee of freedom of expression if the song is judged to both advocate hatred and incite harm. Broadcasters can be precluded from airing racially inflammatory material, and face heavy fines if they breach the code. And in terms of the Promotion of Equality Act, Ngema could be prosecuted for hate speech.
But Marcus said that it seemed unlikely that the song would fall foul of the double-barrelled constitutional test.
William Bird, the director of the Media Monitoring Project, said that the song's call to "strong and brave men to confront the Indians" might be viewed as tipping over into incitement.
Constitutional court judge Pius Langa ruled in April that broadcasting authorities should regulate hate speech in terms of the constitution, rather than the broadcasting code, which he found constitutionally deficient.
The code, which falls under the IBA Act, is completely out of date, Marcus said.
"The language used in the code is the language of the apartheid censorship laws. The formula is verbatim the 1963 publications and entertainment act, which was the principal vehicle of censorship."
A new and improved version of the code was drafted in 1998, but has been languishing in the communications ministry, which has not got around to sending it to parliament to be passed into law. One industry source who did not want to be named said the minister had washed her hands of the act, and labelled the delay in processing the code a "scandal".
Jody Kollapen, the deputy chairperson of the HRC, said the body had referred the matter to the BCCSA because the commission did not want to be both investigator and adjudicator in this case.
And, he said, "even if the HRC made a negative finding, it would not be binding on anyone in terms of legislation - people can totally ignore our recommendations if they want".
Given the urgency of the situation, the BCCSA would be able to deal with the matter much faster than the HRC, Kollapen said.
He said that the Canadian model, which separates its commission from its human rights tribunal, was "something we need to look at".
Disregarding appeals to apologise, including one from former president Nelson Mandela, Ngema continues to insist that it is his role as an artist to mirror society, and that the song tried to address the fundamental problems between blacks and Indians, rather than creating confrontation.