A Contextual Analysis of the Hate Speech Provisions of the Equality Act

The article presents a detailed contextual analysis of the categorical prohibition of hate speech in terms of section 10(1) of the Equality Act. It is argued that this provision is not primarily intended to describe and effectively regulate the extreme expression that falls within the narrow ambit of "hate speech" as defined in section 16(2)(c) of the Constitution. Rather, it is concerned with the promotion of equality in the broad societal context. It acknowledges the hurt and harm that discriminatory expression may entail and it condemns the reinforcement of systemic discrimination by means of expression. Therefore, the principal interpretive frame of reference for the analysis of section 10(1) of the Equality Act is the explicit constitutional obligation in terms of sections 9(3) and (4) of the Constitution to enact legislation to prevent and prohibit unfair discrimination, and not section 16(2)(c) of the Constitution. The fact that section 10(1) categorically prohibits hate speech, instead of premising its prohibition on the unfairness analysis generally applicable to discrimination in other contexts, however, implies that only expression with no reasonable prospect of meeting the constitutional fairness standard ought to be covered by section 10. Put differently, the prohibited expression may in no way promote rather than jeopardise the achievement of equality. The interpretation takes into account that section 10(1) applies only to engagement in expression that, in terms of an objective reasonableness assessment, is clearly primarily aimed at hurting or harming others, or at inciting others to hurt or harm, or at promoting hatred based on group identity. Furthermore, bona fide expression in accordance with the essential characteristics of the freedoms of expression mentioned in section 16(1) of the Constitution is explicitly excluded from its ambit. An analysis of the expression covered by section 10(1) leads to a conclusion that it prohibits only low-value discriminatory expression that obstructs the constitutional quest for the healing of our injured society. It manages to achieve this without jeopardising the constitutional guarantee of freedom of expression, construed in the light of the foundational values of the Constitution.

prohibition of hate speech will comply with sections 9(3) and (4) and, for that matter, section 16 of the Constitution only if it strictly covers expression with no reasonable prospect of meeting the fairness standard. Put differently, the prohibited expression may in no way potentially promote rather than jeopardise the achievement of equality.
In view of this, the article firstly considers the reason for the separate categorical hate speech prohibition.
A systematic, contextualised and interrelated purposive interpretation of each of the terms and phrases of section 10, as well as the forms of expression that the section 12 proviso excludes from the application of section 10, then follows. The condition that the prohibited expression may in no way potentially promote equality is considered as a guideline for purposive interpretation. By specifically mentioning certain forms of expression, it is argued, the proviso acknowledges the special challenges associated with the protection of the freedoms of expression explicitly stipulated in section 16(1) of the Constitution.
Considering the potential risk that a purposive interpretation of section 10(1) may still cover expression that does not jeopardise equality, the proposed interpretation is then tested against the constitutional fairness standard. The notion that the value of a particular form of expression determines the level of constitutional protection it should receive, constitutes a significant component of this assessment. This value is determined based on the values and interests that are generally acknowledged as informing the protection of the right to freedom of expression. The assessment ultimately leads to the conclusion that a purposive interpretation of section 10 covers only low-value expression that unfairly discriminates and that has no potential of promoting equality in any context. Finally, the justification of the limitation of the right to freedom of expression in terms of section 36 of the Constitution is addressed. In the light of the outcome of the fairness assessment, and assuming that unfair discrimination cannot be justified, the impact of the prohibition of hate speech on the right to freedom of expression clearly does not carry substantial weight compared to the compelling purpose of the limitation. That leaves for consideration the means by which section 10 achieves its aims. As lenient restorative means are used to enforce compliance, it is concluded that the section 10 limitation of the constitutional right to freedom of expression is justified in terms of section 36 of the Constitution.
Frequent reference is made to legislation, case law and related academic views in foreign jurisdictions, especially the United States, Canada and Germany, as well as international law. Although this is not a comparative study, the South African Constitutional Court has recognised some perspectives relating to these foreign jurisdictions' approaches in regulating expression in general, and expression that can be described as "hate speech" in particular. In this regard, the article takes into account the difference in the approach to freedom of speech in American jurisprudence and the jurisprudence of Canada, Germany and South Africa. Whilst the American approach is individualistic, the other jurisdictions follow a more "communitarian approach … which seeks to balance freedom of expression with other values, such as multi-culturism, equality and dignity". 4

2
The constitutional aims of section 10(1) Subsections 9(3) and (4) of the Constitution require the state to enact national legislation to prevent or prohibit unfair discrimination. As stated in its preamble, the Equality Act approaches this requirement with a focus on ... systemic inequalities and unfair discrimination (that still) remain deeply embedded in social structures, practices and attitudes, undermining the aspirations of our constitutional democracy.
It endeavours to ... facilitate the transition to a democratic society, united in its diversity, marked by human relations that are caring and compassionate, and guided by the principles of equality, fairness, equity, social progress, justice, human dignity and freedom.
It is in this light that the different aspects of section 10(1) will be interpreted. 4 Milo, Penfold and Stein "Freedom of  Case v Minister of Safety and Security, Curtis v Minister of Safety and Security 1996 3 SA 617 (CC) paras 29-35.
Section 6 of the Act prohibits unfair discrimination, subject to a fairness assessment in terms of section 14. The question therefore arises as to why it was necessary to enact a categorical hate speech prohibition instead of merely pursuing hate speech claims under section 6. 5 The answer lies in the reality that a categorical provision undoubtedly has a better chance of effectively achieving the reformative societal goals, particularly the preventative goals, required by the Constitution than a case-bycase development that is complaints-driven, retrospective and requires evidence of the detrimental effects of an incident. 6 According to the Act, a complainant of unfair discrimination bears the onus to make out a prima facie case of discrimination. 7 In terms of section 1, disadvantage, whether direct or indirect, is a definitive element of discrimination. Section 10 is primarily concerned with disadvantage in the form of the reinforcement or promotion of inequality in society when expression as described in the provision is tolerated. Expecting a complainant to prove that a specific incident relates to the broader effect of hate speech on society will be an overwhelming evidential burden. This challenge is, however, removed by the categorical recognition that the prohibited expression does constitute unfair discrimination. In this provision, therefore, those who are marginalised and deprived of self-confidence due to systemic humiliation based on their group identity find assurance that they do have a claim. 8 In addition, it assists in sensitising South Africans to the dignity-impairing consequences of discriminatory utterances. Noteworthy in this regard is that the remedies provided by the Act include the facilitation of empathy, which can lead to an apology and to forgiveness and healing. 9 In the final instance, section 10 acknowledges and, to some extent, gives effect to international commitments to prohibit hate speech, in particular the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). 10 3 A contextual analysis of section 10(1), read with the proviso in terms of section 12 Section 10(1) and the proviso in section 12 are interrelated and have to be interpreted as such. This analysis will show that, when read together, they describe a very particular form of expression that essentially does not constitute bona fide engagement in any of the forms of expression protected in terms of section 16(1) of the Constitution.

Section 10(1)
In the following paragraphs, the different terms and phrases used in section 10(1) will be considered, followed by those of the proviso.
3.1.1 "no person may publish, propagate, advocate or communicate words" The term "words" should be understood as, or replaced with, "expression" or "expressive content". This is because a textual interpretation results in the paradox that the prohibition covers only certain forms of extreme hate speech that fall within the ambit of section 16(2)(c) of the Constitution, while fully covering less extreme hate speech that falls outside the ambit of section 16(2)(c). 11 Such an interpretation would be contrary to the stated purpose of the Act, to prohibit expression contemplated in section 16(2)(c). 12 This approach is further supported by the fact that "speech" in the context of "hate speech" is generally accepted to include symbolic expression also. Even the American Supreme Court prohibited the burning of the American flag under the First Amendment, which explicitly protects "speech". 13 The term "words" also does not fit comfortably into the contextual construction of this Robinson and Davidson Chambers 21st Century Dictionary defines "idea" as "any content of the mind" or as "a thought, image, notion or concept formed by the mind, a plan or intention, a main aim, purpose or feature, and an opinion or belief". 17 Kirkpatrick Bloomsbury Thesaurus defines "publication" as "publishing, dissemination, circulation, ventilation, divulgence (or divulgency), divulgation, disclosure, promulgation, broadcasting, public-address system, … spreading the word, spreading abroad, broadcast, announcement, declaration, proclamation, pronouncement, public notice, speech, statement, sermon, notification, official notice, report, communiqué, bulletin, manifesto, pronunciamento, edict, decree, encyclical, ukase, ban, unconfirmed report, rumour, hearsay, gossip". 18 R v Keegstra [1990] 3 SCR 697.

19
R v Keegstra [1990] 3 SCR 697 para VII D (iii)(a); Criminal Code (RsC, 1985, c C-46). 20 R v Ahenakew 2006 SKQB 110. The case concerned an individual who expressed allegedly hateful "conversation" in terms of section 319(2) was interpreted as "a conversation not open to, or intended for, the public". It was held that the number of persons present is irrelevant in determining whether or not a conversation is private. 21 Similarly, the setting should not be regarded as the determining factor either, as public conversation too can occur in private settings. The obvious reasoning is that a meeting, for instance at a private residence of one of the attendees, may involve the planning and initiation of a process to promote hatred in society, or may be the forum for incitement to disturb the public peace, and should thus not be protected based on its private setting.
In R v Noble 22 and R v Elms, 23 the principle was laid down that it is not about "whether the statement is communicated in a setting that is private", but rather whether it is conveyed "other than in private conversation". 24 It then follows that the sharing in private, amongst friends or between a husband and wife, of discriminatory feelings of hatred or of feelings of detestation towards others based on their group identity does not fall under section 10. On the other hand, a discussion by a group of people who plan to harass their homosexual neighbours would certainly be the business of society and the state, and would not qualify as a private conversation, even if the meeting is closed and takes place at the private home of one of the attendees.
Lastly, it is noted that even though the term "communicate" encompasses the terms "propagate" and "advocate", the latter two terms have been explicitly included. This may be explained with reference to the aims of the Act 25 to give effect to article 4 of the ICERD and section 16(2)(c) of the Constitution respectively, which are specifically concerned with racist "propaganda" and the "advocacy" of hatred. In terms of subss 2(b)(v) and 2(h).

"against any person"
The reason why expression under section 10 must be aimed "against" someone is that the prohibition is not concerned with the bona fide communication of information or viewpoints, but with expression used as a tool to hurt or harm people directly or indirectly by violating their human dignity, or to incite others to do so. This point will be argued in more detail later.
3.1.3 "(a) be hurtful; (b) be harmful or to incite harm; (c) promote or propagate hatred" Section 10 is concerned with both the hurt suffered by the members of a protected group, and the harm caused by the spreading of hateful views and the instilling of hateful attitudes in respect of certain groups in society. 26 Its primary purpose is not to use means such as criminal sanctions to protect society against hateful utterances that incite audiences to harm others. Rather, it firstly aims to enhance empathy and facilitate healing in line with the commitment contained in the preamble to the Constitution. It also recognises that inequality may be promoted by different means of expression, some of which may not constitute incitement or may not be as extreme.
Langton uses the example where a copy of Der Stürmer featuring the "Holy Hate" is deliberately left where a Jewish colleague will find it, to illustrate how propaganda that advocates or incites hatred can be used as an "assault" on an individual based on his or her group membership. 27 An example of the potential effect of less extreme discriminatory speech is the effective reinforcement of unfair gender discrimination, such as through the consistent use of patriarchal innuendos disguised as affection.
Milo and colleagues argue that the harms contemplated by the term "hurtful" in particular are open to such wide interpretation that expression in the form of robust opinions on racial issues or gender-insensitive jokes may also be prohibited. 28 This concern will be addressed in the discussion of the bona fide qualification in the proviso.
26 Moon 2008Moon -2009 Fla St U L Rev 79. 27 Langton "Beyond Belief" 77. 28 Milo, Penfold and Stein "Freedom of Expression" 42-87. While the above findings in defamation law disputes are relevant in hate speech matters, it is crucial also to consider the different objectives of the respective inquiries.
In the case of defamatory speech, the focus is on compensation for actual damage to reputation, specifically in relation to the addressees' interpretation of the speech concerned. 35 On the other hand, the issue at stake in section 10 (1)  reasonable audience members' interpretation need to be considered, but also the reasonable speaker's. 36 The above approach to the understanding of the meaning of words should equally be applied to interpret what the speaker could have reasonably intended to communicate.
Silencing prima facie discriminatory expression solely because a particular audience may reasonably understand it as demonstrating a certain intention may create a chilling effect, smothering opportunities to expose stereotypes and thereby jeopardising the promotion of equality. The requirement of a "clear" intention points to an element of deference to the speaker, as well as caution not to prohibit seemingly discriminatory expression that may in fact serve to promote rather than jeopardise equality. Significantly, though, the Constitution endorses a substantive understanding of the right to human dignity, which also includes the right to be respected by others. 37 This entails that every citizen may be expected to display a reasonable level of societal consciousness and empathy as far as the effect of discriminatory expression on others is concerned.

The proviso
The focus now shifts to a discussion of the terms of the proviso, 38 which will show that the proviso ensures that certain forms of expression, or engagement in expression, are indeed permitted. 39 3.2.1 "provided that … is not precluded by this section" Similar to the relationship between subsections 16 (1) and (2) of the Constitution, 40 the proviso serves as an internal modifier of section 10. It explicitly states that the forms of expression it describes fall outside the scope of the prohibition. Those relying on section 10 will therefore have to establish that their claims fall within its ambit, 36 It seems that the court in Afri-Forum v Malema 2011 6 SA 240 (EqC) followed the former approach. including, where prima facie applicable, that the expression concerned is not excluded by the proviso.

"in accordance with section 16 of the Constitution"
According to Bronstein, this section qualifies the phrase "publication of any information, advertisement or notice" only. 41 However, interpreting the phrase as qualifying engagement in every form of expression mentioned in the proviso seems more correct, as the following discussion of the contextual sense and significance of the phrase will show.
The phrase firstly underscores that expression within the ambit of section 16 (2)   S 16(1) of the Constitution reads as follows: "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. 43 Milo, Penfold and Stein "Freedom of Expression" 42-57; Tănăsescu RJCL 25-26.

"bona fide engagement in"
Black's Law Dictionary defines bona fide as "made in good faith, without fraud or deceit, sincere, genuine". 44 Sealy believes that, in the context of corporate decisions, "in good faith" is more often used in the sense of "honestly, with the best of intentions". In a more objective sense, a bona fide act, activity or state of affairs may be described as "genuine". For example, a shareholder's resolution can be described as a bona fide expression of corporate opinion if it has not been distorted by some irregularity, such as the manipulation of votes or the bribery, intimidation or improper bias of some of the members. 45 A decision by a corporate organ is normally disputed only by impugning the integrity or regularity of the decision-making process and not the reasonableness of the result. However, a result may be so unreasonable that it leads the court to infer that it has not been reached through a proper process. In this way, an element of objectivity may be introduced into an inquiry that is determined by subjective considerations. 46 In view of this, it is suggested that the bona fide requirement in the proviso should be interpreted to include a subjective conviction that the expressive act or activity concerned will achieve its intrinsic purpose. The act or activity should also maintain the character of the form of expression used. Both these issues should be objectively assessed in terms of the reasonableness standard described above.
Of course, establishing intention in terms of section 10(1) and determining bona fide engagement in terms of the proviso are two sides of the same coin. A finding in terms of section 10(1) that discriminatory expression cannot reasonably be understood as demonstrating the required intention implies that it constitutes bona fide engagement in constitutionally protected expression, and vice versa. between the proviso and section 16(1) of the Constitution, this exception is not supported. The significant effect of the phrase when read as a condition applicable to each of the different forms of expression, particularly the "publication of any information, advertisement or notice", will be illustrated in the following sections.
3.2.4 "publication of any information, advertisement or notice" The term "publication" implies that the proviso does not exclude engagement in private conversation from the ambit of section 10. This complements the view expressed above, namely that section 10 is not concerned with conversation in private.
After all, it would be illogical to exclude engagement in the bona fide communication of information in public, while prohibiting the very same communication in private.
"Information" is defined as To "inform someone about or of something" means "to give them knowledge or information about it" or "to tell them about it". 50 "Knowledge" can be defined as including "understanding". 51 A noteworthy observation in this regard is that the right to inform includes the right to "offend, shock or disturb". 52 Free expression is also generally understood to include the dissemination of incorrect information or of an understanding or view that is based There isn't a committee that checks out everyone's nether regions … They believe you are a woman. They believe they have already been checked … She could even win. Balls to the wall. Good luck to "It". 58 These remarks were undeniably discriminatory and crude, and invaded the core privacy of the target. In addition, these negative effects were enhanced by having been published in the form of a radio broadcast. At least some of the remarks appear to have been primarily aimed at hurting and harming Jenna based on her group identity, rather than offering an opinion on the Miss Universe pageant's approach to transgender contestants. Clearly, the derogatory remarks were not necessary to effectively communicate an opinion in this regard. All these aspects contradict the essential characteristics of bona fide comment, opinion or even humour, and lead one to conclude that the intention required in terms of section 10 can be reasonably construed. 56 Delgado and Stefancic 1996 U Colo L Rev 104-105; R v Keegstra [1990]  aim was to show that he had distinct "bestial" characteristics and behaved accordingly.
The court held that this deprived him of his dignity as a human being in a way that could not be justified by artistic freedom, and that ... a legal system that takes the dignity of man as the highest value must disapprove of. 75 Viewed through the lens of section 10, the argument would be that the "art speech" could reasonably be construed to demonstrate a clear intention to violate human dignity and that the drawings did not constitute engagement in bona fide artistic creativity.
A good example in the "hate speech" context is the decision by a major Danish newspaper in 2005 to publish a series of controversial cartoons under the headline "The Face of Mohammed". The publication caused an international outcry, which was soon dubbed the "cartoon wars" or the "cartoon controversy". 76 An application for an interdict against the publication of the cartoons in the Sunday Times and other newspapers was granted in the matter of Jamiat-Ul-Ulama of Transvaal and Johncom Investment. 77 The finding was based on the greater weight attached to human dignity as opposed to the right to freedom of the press. No mention was made of artistic creativity, despite the fact that the cartoonist, Westergaard, defended even the most controversial of the cartoons, the depiction of Mohammed with a bomb-shaped turban, as being an "incendiary but dignified drawing". 78 Commentators argue that the offending cartoons themselves were not the real issue. Instead, they were being misused by right-wing groups to assert that a Muslim could never be a democrat, as "Go for it, boss!" The SAHRC reasoned that it was common knowledge that Zuma's allies in the tripartite alliance were calling for a "political solution" to the corruption charges he was facing at the time. The cartoonist acted with "bona fide artistic creativity, in the public interest", the SAHRC found, and his cartoon did not discriminate against Zuma, women or rape victims, as some claimed, but was "satirical and metaphorical". In addition, the cartoon was seen as poster, but with his genitals exposed, elicited a heated debate on the constitutionality of the painting and, thus, its display in the gallery. 81 The painting certainly had the essential characteristics of art, and its display in an art gallery constituted artistic Where hate speech is concerned, these contextual aspects are relevant in the reasonableness assessment to determine the speaker's intention. The publication in an academic journal of a scientific article that argues that females are genetically less intelligent than males would prima facie constitute bona fide engagement in academic and scientific inquiry. However, this may not be the case when the article contains sexist remarks that are not essential in substantiating the contention. The presentation of the article to a class of schoolgirls, without also presenting other perspectives, may also be found to be aimed at the reinforcement of stereotypes that humiliate women, rather than to constitute bona fide engagement in scientific inquiry. 89 86 Meinecke Nazi Ideology and the Holocaust 11-13. 87 Alston and Malherbe 2009 TSAR 111-112. 88 Braun Democracy off Balance 27. 89 In this regard, it is noteworthy that two of the leading "hate speech" cases in Canada, R v Keegstra [1990] 3 SCR 697 and Ross v New Brunswick School District No 15 [1996] 1 SCR 825 873-874, involved teachers. In Ross, the court noted that "young children are especially vulnerable to the messages conveyed by their teachers … [since] they are unlikely to distinguish between falsehood and truth and more likely to accept derogatory views espoused by a teacher". See Moon 2008Moon -2009 Fla St U L Rev 88-91.

"fair and accurate reporting in the public interest"
The phrase "fair and accurate reporting 90 in the public interest" is reminiscent of the American common law privilege known as the "fair report" or "record" privilege. This privilege initially applied to reports of proceedings within its ambit, provided that the report constituted an (a) accurate and complete or a fair abridgment of such proceedings, and (b) was not made solely to cause harm to the person defamed. 91 Section 611 of the Second Restatement of Torts removed the latter requirement. The privilege applies ... even though the publisher himself does not believe the defamatory words he reports to be true and even when he knows them to be false. 92 One could lose the privilege through a ... showing of fault in failing to do what is reasonably necessary to insure that the report is accurate and complete or a fair abridgment. 93 The purpose of the "fair and accurate reporting" privilege is to ensure that the public interest is served by the dissemination of information about events occurring at official proceedings and public meetings. 94 In National Media Limited v Bogoshi, the Supreme Court of Appeal described "matters of public interest to the community" as "matters relating to the public life of the community and those who take part in it ... but excluding matters which are personal and private, such that there is no public interest in their disclosure". 95 The matter of Jersild v Denmark 96 in the European Court of Human Rights (ECHR) illustrates the application of these principles with respect to hate speech. The case dealt with the Robinson and Davidson Chambers 21st Century Dictionary defines "report" as "to bring back (information, etc.) as an answer, news or account; to give a formal or official account or description of (findings, information, etc.), especially after an investigation; to give an account of (some matter of news, etc.), especially for a newspaper, or TV or radio broadcast; to act as a newspaper, TV or radio reporter; to make a complaint about someone, especially to a person in authority; to take down or record the details of a legal case, proceedings, etc". conviction in terms of Danish hate speech legislation of a Danish journalist who had interviewed several members of an extremist youth group, the Greenjackets, on a news programme. In the course of the interview, the Greenjackets made extreme racist remarks and were subsequently also convicted. The court confirmed that there could be no doubt that the remarks in respect of which the Greenjackets were convicted were more than insulting to members of the targeted groups and did not enjoy protection under article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. 97 However, the conviction of the journalist was found to be in violation of article 10. The court held as follows: The punishment of a journalist for assisting in the dissemination of statements made by another person in an interview would seriously hamper the contribution of the press to discussion of matters of public interest and should not be envisaged unless there are particularly strong reasons for doing so. 98 The related term "fair comment" has been purposively interpreted in the media context. 99 In The Citizen 1978 (Pty) Ltd v McBride, 100 the Constitutional Court stated that the defence of protected or "fair" comment required, at the outset, that the facts be "truly stated". A commentator is not protected if he or she "chooses to publish an expression of opinion which has no relation, by way of criticism, to any fact before the reader". 101 The comment or criticism will be protected "even if extreme, unjust, unbalanced, exaggerated and prejudiced". However, it has to relate to a matter of public interest and must express an honestly held opinion without malice. 102 In the context of the Equality Act proviso, non-compliance with these conditions will render the comment not bona fide.

97
A 10(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) protects freedom of expression in the following terms: "Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises." This approach addresses Bronstein's concern that the proviso may be interpreted to give narrow protection to the press. 103 The Constitutional Court highlighted the special challenges in relation to the media in Khumalo v Holomisa. The court described the media as "primary agents" of the dissemination of information and ideas 104 and, as such, "extremely powerful institutions in a democracy" with a "constitutional duty to act with vigour, courage, integrity and responsibility". 105 These attributes will have to be considered in all instances where engagement in a form of expression mentioned in the proviso occurs in the media context.

4
Does section 10 strictly accomplish its essential aims?
The potential risk that a categorical prohibition of discriminatory expression, in this instance section 10, may jeopardise the promotion of equality by preventing the exposure of stereotypes and their condemnation by means of response 106 warrants consideration. While the general prohibition of unfair discrimination in terms of the Equality Act meets the challenge of not prohibiting fair discrimination by requiring a case-by-case contextual fairness analysis, section 10 has to achieve this in terms of its definitional scope. In order to determine whether this is indeed achieved, the provision as interpreted above will now be subjected to a fairness analysis against the constitutional fairness standard. 107 Such an analysis requires a balancing of the potential effect of the prohibited expression on equality, and the impact of the prohibition on other constitutional rights, particularly the right to freedom of expression. Different levels of speech value require different standards of protection of the right to freedom of expression. 108 The South

African Constitutional Court endorsed this idea in De Reuck v Director of Public
Prosecutions when it concluded that the expression at issue was ... expression of little value which is found on the periphery of the right and is a form of expression that is not protected as part of the freedom of expression in many democratic societies. 109 The interests and values that are generally acknowledged to underpin the protection of the right to freedom of expression are the discovery of truth and the advancement of knowledge, 110 the establishment and maintenance of "representative democracy", 111 and human dignity in the sense of personal autonomy in the pursuance of self-fulfilment and development. 112 If, when assessed against these values and interests, the value of the expression covered in terms of section 10 is categorically low, the risk that its prohibition will unduly violate the right to freedom of expression will be substantially less.
However, such an assessment has to take into account the tension inherent in the respective values and interests involved. For example, freedom of expression may be crucial for knowledge, but may in certain circumstances also jeopardise truth and 108 knowledge. 113 Freedom of expression may be essential for the maintenance of democracy, but may also be instrumental in destroying it. 114 Freedom of expression may facilitate autonomy and the development of the personality, but may at the same time break down these attributes to the extent that it jeopardises freedom and equality. Of considerable importance with respect to the value of human dignity is the fact that the South African Constitution endorses a substantive concept of human dignity, also including respect for and the self-esteem of others. In the words of Sachs J, The focus on dignity results in emphasis being placed simultaneously on context, impact and the point of view of the affected persons. 115 Alexy's "second law of balancing" may also prove useful in the analysis. 116 This law, as interpreted by Bilchitz, requires only relatively conclusive evidence to be accepted as the basis for limiting a constitutional right. 117 Therefore, if it is not clear that discriminatory expression does or will violate the right to equality, the right to freedom of expression should not be categorically limited to protect it. Using the terminology of the ICCPR, it should be "necessary" to limit the right to freedom of expression in order to protect the right to equality. It follows that any categorical prohibition of "hate speech" should cover a narrow ambit where such necessity can be substantiated.
In this respect, the following must be taken into account: The preamble to the Constitution contains a positive commitment to "(h)eal the divisions of the past". This perspective on equality requires a societal awareness of and an enhanced level of empathy with respect to hurt and suffering relating to group identity. On the other hand, there is no significant potential risk that section 10 might eliminate opportunities to expose stereotypes by means of response. It does not prevent speakers from using legitimate forms of expression to bring to light the very views and ideas that underlie the desire to utter or display the hateful remarks section 10 prohibits. As a matter of fact, those who feel so strongly about an issue that they experience emotions of hatred and a desire to humiliate those they hate, or to provoke such hatred in others, will probably use all the legitimate means at their disposal to disseminate these views. The fact is that the respectful presentation of these views is much more likely to elicit meaningful response than the expression contemplated by It is therefore concluded that section 10 covers a narrowly defined ambit of low-value expression that unfairly promotes inequality in society. It follows that the hate speech prohibition gives effect to the obligation in terms of sections 9(3) and (4) of the Constitution.

Justification of the limitation of the right to freedom of expression
In the light of the conclusion above, 122 all that remains is to consider the means employed to enforce compliance with the prohibition. As lenient restorative remedies are provided for, the prohibition of the expression contemplated by section 10 is clearly justifiable in terms of section 36 of the Constitution.

Conclusion
This analysis has shown that the prohibition found in section 10 of the Equality Act is not restricted to words, but includes other forms of expression also. It does not apply to private conversations. In the reasonableness assessment to determine whether discriminatory expression could be understood as demonstrating the required clear intention, the reasonable meaning of the expressed content to members of the audience as well as to the speaker should be considered. The same objective reasonableness assessment applies to the determination of the bona fides provided for in the proviso. The condition of bona fide engagement applies to all the forms of expression listed in the proviso, which in turn relate to the freedoms mentioned in section 16(1) of the Constitution. These observations lead one to conclude that section 10(1) applies only to engagement in expression that, in terms of an objective reasonableness assessment, is clearly primarily aimed at hurting or harming others, or at inciting others to hurt or harm, or at promoting hatred based on group identity.
Bona fide expression in accordance with the essential characteristics of the freedoms 121 Sections 21 (2) and (3)