Case Summary and Outcome

The Supreme Court of Appeal (SCA) in South Africa held that a law prohibiting speech that is hurtful was an unjustifiable limitation of the right to freedom of expression. After a journalist had published a homophobic article, the South African Human Rights Commission argued that the article amounted to hate speech under the Promotion of Equality and Prevention of Unfair Discrimination Act. The journalist responded by arguing that the Act was unconstitutional as it prohibited conduct that was protected speech in terms of the Constitution. The SCA acknowledged the importance of protecting the rights to dignity and equality of individuals, but held that the Act’s prohibition of conduct which did not advocate hatred and incite harm went too far and was an infringement of the right to freedom of expression.

---

Facts

On July, 20 2008, Jonathan Qwelane, a South African journalist, published a homophobic article in a South African tabloid, the Sunday Sun. Qwelane, in an article titled “Call me names – but gay is NOT okay” wrote “[t]he real problem, as I see it, is the rapid degradation of values and traditions by the so-called liberal influences of nowadays; you regularly see men kissing other men in public, walking holding hands and shamelessly flaunting what are misleadingly termed their ‘lifestyle’ and ‘sexual preferences’.” [para. 4]. He added that “Homosexuals and their backers will call me names … but quite frankly I don’t give a damn: wrong is wrong” [para. 4]. He called on politicians to amend the Constitution to prevent gay marriage and said that “[o]therwise … how soon before some idiot demands to ‘marry’ an animal, and argues that this constitution ‘allows’ it?” [para. 4].

Following the publication of the article the South African Human Rights Commission (the Commission) received 350 complaints about the article on the grounds that it constituted hate speech. The press ombud – which had also received a number of complaints about the article – found that the article violated the South African Press Code by “publishing denigratory references to people’s sexual orientation” and “implying that homosexuals are a lower breed than heterosexuals” [Footnote 4]. The ombud ordered the newspaper to publish an apology, but refused the Commission’s leave to appeal its ruling.

The Commission then approached the Equality Court, arguing that Qwelane and the publisher of the Sunday Sun had contravened section 10(1) of the Promotion of Equality and Prevention of Unfair Discrimination Act, 1999 (PEPUDA).

Section 10(1) of PEPUDA states: “Subject to the provisio in section 12, no person may publish, propagate, advocate or communicate words based on one of 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”.

Section 1 of PEPUDA sets out the prohibited grounds of discrimination as “(a) race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language, birth and HIV/AIDS status; or (b) any other ground where discrimination based on that other ground – (i) causes or perpetuates systemic disadvantage; (ii) undermines human dignity; or (iii) adversely affects the equal enjoyment of a person’s rights and freedoms in a serious manner that is comparable to discrimination on a ground in paragraph (a).”

Section 12 of PEPUDA states: “No person may (a) disseminate or broadcast any information; (b) publish or display any advertisement or notice, that could reasonably be construed or reasonably be understood to demonstrate a clear intention to unfairly discriminate against any person; provided that bona fide engagement in artistic creativity, academic and scientific inquiry, fair and accurate reporting in the public interest or publication of any information, advertisement or notice in accordance with section 16 of the Constitution is not precluded by this section”.

In response to the Commission’s Equality Court application, Qwelane filed an application in the High Court to have section 10(1), read with the definition and section 12 declared unconstitutional on the grounds that they infringed section 16 of the Constitution.

Section 16(1) of the Constitution states that “Everyone has the right to freedom of expression, which includes – (a) freedom of the press and other media; (b) freedom to receive or impart information or ideas; (c) freedom of artistic creativity; and (d) academic freedom and freedom of scientific research”. Section 2 limits the protection of the right and states that “the right in subsection (1) does not extend to (a) propaganda for war; (b) incitement of imminent violent; or (c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm”.

The proceedings in the High Court and Equality Court were consolidated, and as the constitutionality of legislation was involved the Minister of Justice and Correctional Services was cited as a respondent. The Freedom of Expression Institute and the Psychological Society of South Africa were admitted as amici curiae.

The Commission presented evidence of discrimination against members of the LGBTI and the difficulties in having complaints investigated by the Police because of the anti-LGBTI disposition of police officers.

The Sunday Sun submitted that Qwelane’s article formed part of their “conversation pages” which dealt with current affairs and were designed to generate debate. The newspaper acknowledged that the article should not have been published but maintained that its publication should not be illegal, and testified that although the LGBTI community would find the article offensive it did represent a large proportion of the newspaper’s readership’s views.

The Psychological Society submitted evidence about the discrimination and victimization of the LGBTI community in a largely hetero-normative society, and argued that Qwelane’s article would be seen as justifying that victimization.

The Court – sitting as both the Equality and High Court – ruled that the article constituted hate speech because it contained statements that were hurtful, incited harm and propagated hatred and therefore infringed section 10 of PEPUDA. The Court dismissed Qwelane’s application that the provisions of PEPUDA were unconstitutional, finding that sections 10 and 12 were neither vague nor overbroad and were consistent with section 16 of the Constitution.

Qwelane then appealed the decision to the Supreme Court of Appeal.

---

Decision Overview

Judge Navsa delivered the unanimous decision of the Supreme Court of Appeal. The central issue before the Court was whether section 10(1), read with sections 1 and 12 of PEPUDA, infringed the right to freedom of expression, protected by section 16 of the Constitution.

Qwelane argued that the provisions in PEPUDA “impermissibly extended far beyond the speech that is excluded from protection by s 16(2) of the Constitution”, that they were overbroad and vague and were therefore unconstitutional [para. 36].

The Minister of Justice and Correctional Services argued that PEPUDA was constitutional and that including “sexual orientation” in PEPUDA (when it was not set out as a prohibited ground in section 16(2) of the Constitution) was legitimate because it extended equality [para. 52]. He also submitted that section 10(1) of PEPUDA was justifiable under section 36 of the Constitution, the general limitations clause.

The Court noted that section 16(2) of the Constitution “explains what is not encompassed under freedom of expression, or what it does not extend to” and that it is known colloquially as the “hate speech qualification” – even though only one of the three qualifications in section 16(2) relates to hate speech [para. 37].

The Court referred to the South African cases Islamic Unity Convention v. Independent Broadcasting Authority 2002 (4) SA 294 (CC), South African National Defence Union v. Minister of Defence 1999 (4) SA 469 (CC), S v. Mamabolo (eTV and others intervening) 2001 (3) SA 409 (CC) and the European Court of Human Rights case of Handyside v. UK (1976) 1 EHRR 737. The Mamabolo case had described freedom of expression as lying at the heart of a democracy and of the “utmost importance in the kind of open and democratic society the Constitution has set as our aspirational norm” [para. 41]. It had also explicitly referred to South Africa’s apartheid past and the “thought control, censorship and enforced conformity to governmental theories” and noted that because of this past the right to freedom of expression is particularly important because democracy had not yet been firmly established [para. 41].

In the Islamic Unity Convention case the Constitutional Court had stressed that the categories in section 16(2) of the Constitution “are not to be regarded as constitutionally protected speech” and that the subsection “defines the boundaries beyond which the right to freedom of expression does not extend” [para. 44]. This case discussed in detail the need to regulate hate speech “because of the harm it may pose to the constitutionally mandated objective of building the non-racial and non-sexist society based on human dignity and the achievement of equality” [para. 45].

With reference to Laugh it Off Promotions CC v. SAB International (Finance) BV t/a Sabmark International 2006 (1) SA 144 (CC), the Court reiterated that the South African jurisprudence confirmed that “all expression is protected save anything that falls within section 16(2)(c)” [para. 51]. The Court acknowledged that legislation can limit that protected freedom of expression, but that then the legislation must meet the standards set out in section 36 of the Constitution and so constitute a justifiable limitation of the right. The Court described section 16(2)(c) as a “baseline against which to measure the extent of any limitation so that the greater the intrusion into freedom of expression and the further the departure from that baseline the stricter the scrutiny that is required” [para. 51].

It was common cause that section 10(1) of PEPUDA limited the right to freedom of expression as protected by section 16(1), and the Court confirmed that it extended beyond section 16(2)(c) of the Constitution. Section 16(2)(c) of the Constitution only excludes from constitutional project “advocacy of hatred that constitutes incitement to cause harm beyond the four stated grounds of race, ethnicity, gender or religion” whereas section 10(1) of PEPUDA extends to all the additional prohibited grounds of discrimination set out in section 1. The question then was whether the limitation was justifiable.

The Court examined the permissibility of PEPUDA’s extended list of prohibited grounds and referred to section 9 of the Constitution – the equality clause. Section 9(4) obliges the State to take legislative measures to prevent and prohibit unfair discrimination, and PEPUDA was adopted as part of this obligation. The Court referred to PEPUDA’s requirement that the interpretation of the Act take into account international and foreign law, and noted that the Universal Declaration of Human Rights acknowledges that the right to freedom of expression may be limited to protect equality and dignity. The Court also referred to the International Covenant on Civil and Political Rights protection of freedom of expression in article 19 and to article 20 which states that “advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law” [para. 58]. The Court also mentioned the European Convention for the Protection of Human Rights and Fundamental Freedoms and how it confirmed the danger of hate speech.

Accordingly, the Court acknowledged that “the State has a legitimate interest in promoting equality and prohibiting hate speech that impinges on equality” [para. 59]. The obligation to protect the dignity of members of the LGBTI community is also a constitutional requirement and the Court held that, contrary to Qwelane’s argument, it was constitutionally permissible for PEPUDA to extend the prohibition of discrimination to discrimination on the grounds of sexual orientation.

The Court focused on PEPUDA’s regulation of hate speech and the difference in language between the Constitution and PEPUDA: PEPUDA defines as hate speech conduct 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”, whereas the constitutional definition is “advocacy of hatred … that constitutes incitement to cause harm” [para. 61]. The Court held that the constitutional standard is an objective one and aligns with the international justification for regulating expression on the grounds of protecting public order and the welfare of society. However, the Court held that the subsections of section 10 of PEPUDA must be read disjunctively and there it prohibits language that is merely hurtful, with no requirement that the same language advocate hatred or incite harm. In addition, the Court noted that the phrase “reasonably construed” amounts to a subjective opinion of a reasonable person, which is distinct from the Constitution’s objective standard [para. 66].

The Court held that a “purposive and contextual interpretation of s 10 of PEPUDA leads to the compelling conclusion that the legislature sought to provide protection as broadly as possibly” [para. 67]. It referred to the book, Introduction to the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 by C. Albertyn, B. Goldblatt and C. Roedere which had described PEPUDA as an “obvious attempt by the legislature to widen the cover of hate speech” [para. 67] and that the Act was “exceptionally difficult to understand” [para. 68]. In particular, the Court agreed with the authors that there is no clear definition of “hurtful” and noted that the general understandings of the word refer to subjective feelings and not to causing or inciting harm.

By referring to examples of speech that would be prohibited under section 10 of PEPUDA – such as pronouncements in churches that homosexuality is a sin and by atheists that religion is a fairy tale – the Court noted that “daily human interaction produces a multitude of instances where hurtful words are uttered” [para. 69]. With reference to the Canadian case of Lund v. Boisson 2012 ABCA 300, the Court stressed that hurtful words do not automatically constitute hate speech. The Court stated that “[o]ne must be careful not to stifle the views of those who speak out of genuine conviction and who do not fall within the limitation set by s 16(2)(c) and where there is no justification for such limitation in an open and democratic society based on human rights, dignity, equality and freedom” [para. 70].

The Court then examined whether section 12 of PEPUDA sufficiently narrowed the limitation on freedom of expression caused by section 10 of the same Act, and held that Qwelane did not write his article for any of the purposes listed in section 12.

The Court held that section 10 of PEPUDA “cannot on any reasonable interpretation be equated with the provisions of s 16(2) of the Constitution. It extends far beyond the limitations on freedom of expression provided for in the Constitution and in many respects is unclear” [para. 77].

The Court undertook an analysis of the approach to hate speech in other countries. It referred to the US cases of Beauharnais v. Illinois 343 U.S. 250 (1952) and Virginia v. Black 538 U.S. 343 and distinguished the American system of criminalizing hate speech from PEPUDA which “appears to have been motivated more by the drive to promote equality than to prevent hate speech” [para. 81]. The Court noted that in Canada hate speech is criminalized but, like in South Africa, the focus is on the “right to equality and the value of diversity and multiculturalism”, and referred to R v. Keegstra [1990] 3 R.C.S. The Court recognized that the context of hate speech in Germany must be seen in the context of the history of Nazi atrocities and noted that German hate speech provisions make it unlawful to “in a manner capable of disturbing the peace … incite hatred against segments of the population or call for violent or arbitrary measures against them; or … assault the human dignity of others by insulting, maliciously maligning or defaming segments of the population” [para. 83]. The Court found that none of these countries regulated hate speech in a manner that was similar to the way South Africa did. It recognized that it is important to protect the dignity of individuals, but emphasized the equal importance of freedom of expression. The Court accepted that the proscription of hate speech beyond the provisions of section 16 can be permitted but only when it can be justified in terms of section 36 of the Constitution.

Accordingly, the Court held that section 10 of PEPUDA was unconstitutional and ordered the legislature to redraft the provision. However, the Court ordered that until a new provision was enacted, section 10 would read “(1) No person may advocate hatred that is based on race, ethnicity, gender, religion or sexual orientation and that constitutes incitement to cause harm. (2) Without prejudice to any remedies of a civil nature under this Act, the court may, in accordance with section 21(2)(n) and where appropriate, refer any case dealing with the advocacy of hatred that is based on race, ethnicity, gender, religion or sexual orientation, and that constitutes incitement to cause harm, as contemplated in subsection (1), to the Director of Public Prosecutions having jurisdiction for the institution of criminal proceedings in terms of the common law or relevant legislation” [para. 96].

---