Case Summary and Outcome

The South African Constitutional Court held that a provision creating criminal liability for hate speech was unconstitutional but could be easily adjusted to be constitutional. After a homophobic article was published in a South African weekly newspaper, the Human Rights Commission instituted proceedings in the Equality Court, seeking a finding of hate speech. The journalist approached the courts, arguing that the provision under which the proceedings had been brought was unconstitutional as it created a broader concept of hate speech than was set out in the Constitution. The Constitutional Court accepted that the prohibition of “hurtful” speech was an unjustifiable infringement of the right to freedom of expression, but held that the hate speech provision could be made constitutional by limiting it to expression that was intended to be harmful or incite harm and promote hatred.

The analysis of the Supreme Court of Appeal judgment can be found here.

---

Facts

On July 20, 2008, the South African newspaper, the Sunday Sun, published an article written by Jonathan Dubula Qwelane titled “Call me names – but gay is not okay”. The article included extreme homophobia, including the statements “The 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’,” and “I do pray that someday a bunch of politicians with their heads affixed firmly to their necks will muster the balls to rewrite the Constitution of this country, to excise those sections which give license to men ‘marrying’ other men, and ditto women. Otherwise, at this rate, how soon before some idiot demands to ‘marry’ an animal, and argues that this Constitution ‘allows’ it?” [para. 3]. Accompanying the article was a cartoon, not authored or authorized by Qwelane, depicting a priest marrying a man and a goat.

Qwelane was a well-known public figure as an anti-apartheid activist, a weekly columnist and talk radio show host, and after the article’s publication was appointed South Africa’s ambassador to Uganda.

The South African Press Ombud received more than 1000 complaints about the article, and found that the article breached the Press Code and ordered the publication of an apology. The South African Human Rights Commission (SAHRC) received 350 complaints and instituted proceedings in the Equality Court against Qwelane and the owner of the Sunday Sun newspaper, Media 24 Ltd. The SAHRC argued that the article was hate speech under section 10(1) of the Equality Act. Section 10(1) states: “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.”

Qwelane challenged the constitutionality of section 10(1) in the Johannesburg High Court, on the basis that the provision was overly broad as it prohibited more speech that was permitted by section 16 of the Constitution. Section 16 of the Constitution states that “(1) 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. (2) 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 High Court held that the article constituted hate speech and it was “hurtful and harmful and had the potential to incite harm and promote hatred against the LGBT+ community” [para. 19]. The High Court proposed an interpretation of section 10(1) in which “the word ‘hurtful’ be interpreted to mean a type of severe psychological impact, and ‘harmful’ to refer to physical harm” [para. 20]. The High Court found that section 10(1) was constitutional as it could not be found to unjustifiably limit section 16 “merely because it prohibits more speech than section 16(2) of the Constitution” [para. 21].

Qwelane appealed the decision to the Supreme Court of Appeal (SCA), which held that section 10(1) “limits speech beyond what is allowed in terms of section 16(2)(c) of the Constitution” [para. 24]. The SCA held that the use of the term “hurtful” was vague and that, for expression to constitute hate speech it has to be “more than just hurtful in the dictionary sense” [para. 26].

The Constitutional Court was required to confirm the SCA’s finding of unconstitutionality, and the SAHRC cross-appealed the SCA’s decision.

---

Decision Overview

Judge Majiedt delivered the unanimous decision of the Constitutional Court. The central issue for the Court’s determination was whether section 10 of the Equality Act was unconstitutional in that it prohibited more speech than is permitted by section 16(2) of the Constitution. The Court noted that the case involved a “delicate balancing exercise between the fundamental rights to freedom of expression, dignity and equality” [para. 2].

Qwelane accepted that the article had a “strident view on homosexuality” but argued that it did not advocate hatred and did not incite harm, and, in any event, was protected by his right to freedom of expression. He submitted that section 10(1) was unconstitutional as it went beyond section 16 of the Constitution by setting a lower threshold for hate speech than section 16. Qwelane argued that section 16 of the Constitution created an objective standard for determining whether something constitutes hate speech, whereas section 10 of the Equality Act introduced a subjective standard because it requires an assessment of whether the expression “could reasonably be construed to demonstrate a clear intention” [para. 35]. He added that section 10 did not only relate to advocacy of hatred but also prohibited expression of hatred through publishing, propagating, advocating or communicating words. Qwelane submitted that the section’s overbreadth would have a chilling effect on expression and “the limitation on free expression goes far beyond what the promotion of equality requires” [para. 37].

The SAHRC emphasized the importance of equality and that section 10 sought to protect equality by “reasonably and justifiably limit[ing] the right to freedom of expression” [para. 39]. It argued that the SCA had failed to interpret section 10, as far as reasonably possible, so as to be consistent with the Constitution. The SAHRC disagreed with the SCA’s finding that section 10 introduced a subjective test and submitted that section 10 requires that “the speech must objectively demonstrate the requisite intention” and that the intention must be “clear” [para. 41]. It argued that in order for something to be “hurtful” the subject’s dignity must have been infringed and that harmful or inciting harm “extends beyond mere physical harm and includes psychological, emotional and social harm that adversely affects the right to dignity, as long as the harm is serious enough to pass the hate speech threshold” [para. 42]. The Commission submitted that the limitation to the right to freedom of expression was reasonable, particularly given the use of civil rather than criminal remedies.

The Minister of Justice and Correctional Services also argued that the limitation to the right to freedom of expression was reasonable and justifiable. He accepted that section 10 went beyond section 16 of the Constitution, but stated that the State is obliged by the Constitution to “respect, protect, promote and fulfil the rights to equality and human dignity” and that “in balancing the competing rights, it is clear that the section 16(1) right must yield to the rights to equality and dignity” [para. 46].

The Court noted that the Equality Act’s purpose was to prevent unfair discrimination, to protect “categories of persons disadvantaged by unfair discrimination”, and to facilitate the State’s international law obligations [para. 48], and characterized it as seeking “to heal the wounds of the past and guide us to a better future” [para. 49]. It added that section 10 bridged three rights – to equality, dignity and to freedom of expression. The Court noted that when interpreting legislation it must adopt a purposive approach which gives effect to all the rights in the Bill of Rights. With reference to Khumalo v. Holomisa 2002 (5) SA 401 (CC) and Case v. Minister of Safety and Security 1996 (3) SA 617 (CC) the Court recognized that the right to freedom of expression is “constitutive of the dignity and autonomy of human beings” and involves a “web of mutually supporting rights” [para. 54].

In examining the right to equality, the Court emphasized that “[o]ur constitutional commitment to equality lies at the heart of our new constitutional order and is crucial to our transformation” [para. 56]. It commented on the links between equality and dignity and the important role dignity plays in the South African constitutional framework.

The Court then highlighted the importance of the right to freedom of expression, describing it as “the benchmark for a vibrant and animated constitutional democracy like ours” [para. 67]. It set out the values “undergirding” the right as being the “(a) the pursuit of truth, (b) its value in facilitating the proper functioning of democracy; (c) the promotion of individual autonomy and self-fulfilment; and (d) the encouragement of tolerance” [para. 69]. The Court explained that hate speech does not only affect the individual but “seeks to undo the very fabric of our society as envisioned by our Constitution” [para. 1]. The Court conducted an overview of its own jurisprudence on the right to freedom of expression, noting that the right’s corollary is tolerance and it also encompasses pluralism and open-mindedness. With reference to the Economic Freedom Fighters v. Minister of Justice and Correctional Services 2021 (2) SA 1 (CC) case, the Court stressed that “the historical stains of our colonial and apartheid past reinforce the point that freedom of expression has a particularly important role to play in our constitutional democracy” [para. 75]. The Court described the Islamic Unity Convention v. Independent Broadcasting Authority 2002 (4) SA 294 (CC) case as the “lodestar” for the interpretation of section 16, noting that it is when the State seeks to regulate speech beyond the categories set out in section 16(2) that those regulations must meet the justification analysis set out in the general limitations clause in section 36 of the Constitution. Accordingly, the key question in the present case was “whether, on a proper interpretation, section 10 limits the right to freedom of expression protected in section 16(1) of the Constitution” [para. 77].

The Court had begun the judgment by noting that “[h]ate speech is one of the most devastating modes of subverting the dignity and self-worth of human beings”, and that the way hate speech can marginalize people can lead to discrimination and violence [para. 1], and expanded on this later in the judgment. It described hate speech as “the antithesis of the values envisioned by the right to free speech” [para. 78] and, while recognizing that there is no universal definition of the concept, stressed that it does not include “the expression of unpopular or even offensive beliefs” [para. 79]. The Court referred to the Canadian definition of hate speech set out in the case of Saskatchewan (Human Rights Commission) v. Whatcott 2012 SCC 11 as the “extreme detestation and vilification which risks provoking discriminatory activities against that group” [para. 81]. It added that hate speech occurs only when other people’s rights are violated, and not whenever the expression of shocking opinions is made. The Court accepted that South African jurisprudence followed that of Canada in this respect, and referred to the Rustenburg Platinum Mine v. SAEWA obo Bester 2018 (5) SA 78 (CC) case in stating that South African jurisprudence “takes cognisance of how words or, more broadly, expression contribute towards creating or exacerbating systemic disadvantage and subordination” [para. 83]. The Court concluded its analysis of hate speech in the South African context by stipulating that “[t]he purpose of hate speech regulation in South Africa is inextricably linked to our constitutional object of healing the injustices of the past and establishing a more egalitarian society” [para. 86].

The Court conducted a thorough analysis of international law and comparable foreign jurisprudence, and had submitted a request to the World Conference on Constitutional Justice (Venice Commission) for a position on foreign jurisprudence on hate speech. It referred to articles 19 and 20 of the International Covenant on Civil and Political Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, and the African Charter on Human and Peoples’ Rights, and described international law as obliging states to both protect free speech and prohibit hate speech. It also noted that the Equality Act calls for reference to comparable foreign law in the interpretation of its principles, and that the SCA had looked only at the US, Canada and Germany and had failed to acknowledge that hate speech is criminalized in Canada and Germany. The Court added that, although foreign jurisprudence is helpful, “[t]he emphasis a society places on freedom of expression and its approach to hate speech regulation is largely a product of that society’s culture, history, values and norms” [para. 92]. The Court mentioned that the South African approach of using civil rather than criminal remedies to address hate speech accords with the UN Rabat Plan of Action.

In analyzing section 10(1) in detail, the Court accepted one of the amici curiae’s characterizations of the provision as “a statutory delict that innovatively offers, unlike any crime or other delict in our law, specific remedies concerning the right to equality” [para. 95]. It also accepted the SAHRC’s argument that the provision created an objective – not subjective – standard, based on the reasonable person test. It added that a subjective test would infringe the right to freedom of expression but that an objective test which – as had been described in Whatcott – focuses on the effect of speech rather than its intent and that “systemic discrimination tends to be more widespread than intentional discrimination” [para. 100]. The Court also disagreed with the SCA’s finding that the subsections (a)-(c) should be read disjunctively as that interpretation would lead to a finding of unconstitutionality because it would prohibit “mere private communication which could reasonably be construed to demonstrate a clear intention to be hurtful” [para. 102]. It explained that if an interpretation that is constitutional can be reached then that is the interpretation that must be accepted. The Court stressed that speech that is merely hurtful is analogous to offensive speech which is protected by the Constitution and cannot be categorized as hate speech.

The Court made further reference to international and foreign jurisprudence and highlighted that there is “no requirement of an established causal link between the expression and actual harm committed” [para. 107]. It explained that this allows a proactive response to hate speech by not requiring that harm has actually occurred before any action can be taken and that requiring a causal link would “undermine the very same objectives of the Equality Act to prohibit unfair discrimination, in that not every instance of harmful and/or hurtful speech will result in imminent violence” [para. 111]. The Court accepted the Equality Court’s finding in Nelson Mandela Foundation Trust v. Afriforum NPC 2019 (6) SA 327 (GJ) that speech goes beyond words and includes non-verbal expression, and that the key focus is the “meaning behind the words, and not simply the words” [para. 115]. It did, however, hold that section 10 could not apply to private communication “because that would be incongruent with the very purpose of regulating hate speech – that public hateful expression undermines the target group’s dignity, social standing and assurance against exclusion, hostility, discrimination and violence” [para. 118].

In examining whether section 10 of the Equality Act violated section 16 of the Constitution, the Court examined section 10’s grounds justifying a finding of hate speech that went beyond the grounds – race, ethnicity, gender or religion – defined in section 16 as hate speech. The Court held that this inclusion of analogous grounds was constitutional as it sought to fulfil the purpose of a hate speech provision which is to protect marginalized groups. It held that the inclusion of the term “hurtful” is broader than section 16, and that as it therefore infringes the right it had to apply a limitations analysis, under section 36. The Court found that “hurtful” is an extensive limitation and that, while its inclusion protects the right to dignity, it covers expression which need not spread hatred and so it was not a proportionate limitation of the right. Section 10 also went beyond section 16 by including “sexual orientation” as a prohibited group – a ground that is not included in section 16(2) of the Constitution. The Court held that this addition was necessary as without it the provision could not prevent hate speech against the LGBT+ community, and it was therefore a justifiable limitation to the right.

The Court concluded by examining whether section 10 infringed the rule of law in that the terms “hurtful”, “harmful” and “to incite harm” were vague. It mentioned the UN Special Rapporteur’s 2012 report which required that hate speech laws be clear and unambiguous. It held that “hurtful” was vague and redundant but that “harmful” had a clear meaning as “deep emotional and psychological harm that severely undermines the dignity of the targeted group” and, relying on the definition in the Canadian case of R v. Keegstra [1990] 3 S.C.R. 697 and the High Court judgment in SAHRC v. Khumalo, noted that harm can be done both to the targeted group itself and to society more broadly [para. 154].

Accordingly, due to the inclusion of “hurtful” in section 10(1), the Court held that the provision unjustifiably limited the right to freedom of expression and was overbroad and was therefore unconstitutional. However, it held that the unconstitutionality could be remedied by the severance of the term “hurtful”

The Court then examined whether Qwelane’s article constituted hate speech and whether it should have led to liability. It discussed the long history of homophobia in South Africa and the discrimination faced by members of the LGBT+ community. It mentioned the European Court of Human Rights cases of Vejdeland v. Swedan No. 1813/07 (2012), Beizaras and Levickas v. Lithuania No. 41288/15, 2020 and Lilliendahl v. Iceland No. 29297/18 2020 which had found that homophobic hate speech was not protected by the right to freedom of expression. The Court found that Qwelane had a clear intention to instigate hatred against the LGBT+ community and that the article had an “extensive and devastating” reach which had a high likelihood of inflicting harm and inciting hatred. Accordingly, the Court held that the article constituted hate speech and that – notwithstanding the provision’s change following the Constitutional Court’s hearing – it was legitimate to hold Qwelane accountable under section 10. It also held that the lack of a causal connection between the article and any specific incitement of harm was irrelevant.

The Court upheld the SCA’s declaration of unconstitutionality, to the extent that section 10 includes the word “hurtful” and ordered that Parliament remedy the constitutional defect. It ordered that, pending the amendment, section 10 would read “Subject to the proviso in section 12, no person may publish, propagate, advocate or communicate words that are based on one or more of the prohibited grounds, against any person, that could reasonably be construed to demonstrate a clear intention to be harmful or to incite harm and to promote or propagate hatred.”

---