Hate Speech in the Equality Act Following the Constitutional Court Judgment in Qwelane v SAHRC

Authors

DOI:

https://doi.org/10.17159/1727-3781/2023/v26i0a15438

Keywords:

conjunctive reading, Equality Act, expression in private, freedom of expression, harm, hate speech, incitement, referral for prosecution, section 10, unfair discrimination

Abstract

In its judgment in Qwelane v South African Human Rights Commission 2022 2 BCLR 129 (CC), the Constitutional Court declared section 10(1) of the Equality Act unconstitutional and invalid to the narrow extent that section 10(1)(a) refers to the intention to be "hurtful". The prohibition on hate speech passed constitutional muster in all other respects. In addition, the court purposively interpreted aspects of the application of section 10(1) so as to limit its impact on the right to freedom of expression. This contribution firstly welcomes the court's reliance on the transformative goals of the Constitution and the Equality Act as its primary framework in interpreting section 10(1). The severance of section 10(1)(a) and the conjunctive reading of sections 10(1)(b) and (c) ("be harmful or to incite harm" and ʺpromote or propagate hatred" respectively) also seem sensible considering the court's broad definition of "harm". The article further emphasises that the terms of section 10 call for a proper consideration of context. In this regard, the court rightly considered the extreme homophobia in the society addressed by Mr Qwelane, the particular vulnerability of the target group and the real threat of devastating imminent consequences to conclude that Qwelane's words were clearly intended to "incite harm" and "propagate hatred". Yet the court's view that the speaker's subjective intention is irrelevant in performing the requisite objective reasonableness assessment from the ambit of section 10(1) is arguably less judicious, as is the categorical exclusion of expression in private. Ultimately, the objective case-by-case reasonableness inquiry under section 10(1) should be whether a reasonable person in the speaker's position should have refrained from making the impugned harmful discriminatory utterances. This inquiry involves a determination of wrongfulness based on the constitutional duty not to discriminate unfairly. It invokes all the aspects of the Equality Act's definition of discrimination as well as all the elements of fairness analysis set out in section 14 of the Equality Act. Factors to be considered include the value of the particular expression, and the extent of the (potential) harm to individual members of a protected group and to society as a whole, as well as justification considerations such as the respondent's legitimate and bona fide exercise of the right to freedom of expression and to privacy.

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Author Biography

  • Marelize Marais, University of the Free State

    Research fellow, Free State Centre for Human Rights, University of the Free State, South Africa

References

Bibliography

Literature

Bleich E and Al-Mateen S "Hate Speech and the European Court of Human Rights: Ideas and Judicial Decision-Making" 2021 Mich St Int'l L Rev 179-212

Geldenhuys J and Kelly-Louw M "Demystifying Hate Speech under the PEPUDA" 2020 PELJ 1-50 DOI: https://doi.org/10.17159/1727-3781/2020/v23i0a7520

Hoctor S "The Concept of Dolus Eventualis in South African Law – An Historical Perspective" 2008 Fundamina 14-23

Kok A et al "The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000: Proposals for Legislative Reform to Promote Equality through Schools and the Education System" 2020 Erasmus Law Review 49-64 DOI: https://doi.org/10.5553/ELR.000152

Law Society of South Africa Legal Services Sector Charter (Department of Justice and Constitutional Development Pretoria 2007)

Marais ME "Hate Speech in Context: Commentary on the Judgments of the Equality Court and the Supreme Court of Appeal in the Masuku Dispute" 2019 JJS 101-118

Marais ME "A Duty Perspective on the Hate Speech Prohibition in the Equality Act" 2021 PELJ 1-35 DOI: https://doi.org/10.17159/1727-3781/2021/v24i0a9236

Marais ME and Pretorius JL "A Contextual Analysis of the Hate Speech Provisions of the Equality Act" 2015 PELJ 901-941 DOI: https://doi.org/10.4314/pelj.v18i4.05

Marais ME and Pretorius JL "The Constitutionality of the Prohibition of Hate Speech in terms of Section 10(1) of the Equality Act: A Reply to Botha and Govindjee" 2019 PELJ 1-37 DOI: https://doi.org/10.17159/1727-3781/2019/v22i0a5718

Mengistu YL "Shielding Marginalized Groups from Verbal Assaults Without Abusing Hate Speech Laws" in Rosenfeld M, Herz M and Molnar P (eds) The Content and Context of Hate Speech. Rethinking Regulation and Responses (Cambridge University Press New York 2012) 352-377 DOI: https://doi.org/10.1017/CBO9781139042871.025

Milton JRL South African Criminal Law and Procedure Vol II: Common-Law Crimes 3rd ed (Juta Cape Town 1996)

Snyman CR Criminal Law 5th ed (LexisNexis Butterworths Durban 2008)

Qwelane J "Call Me Names - But Gay is not Okay" Sunday Sun (20 July 2008) 14

West C "Words that Silence? Freedom of Expression and Racist Hate Speech" in Maitra I and McGowan MK (eds) Speech and Harm: Controversies over Free Speech (Oxford University Press Oxford 2012) 222-247 DOI: https://doi.org/10.1093/acprof:oso/9780199236282.003.0009

Case law

Canada

Canada Human Rights Commission v Taylor Canada Human Rights Commission v Taylor 1990 3 SCR 892

R v Keegstra 1990 3 SCR

Saskatchewan Human Rights Commission v Whatcott 2013 SCC 11

European Court of Human Rights

Vejdeland v Sweden App No 1813/07 (ECtHR, 9 February 2012)

South Africa

Bernstein v Bester 1996 4 BCLR 449 (CC)

Carmichele v Minister of Safety and Security 2001 10 BCLR 995 (CC)

City Council of Pretoria v Walker 1998 3 BCLR 257 (CC)

Country Cloud Trading CC v MEC, Department of Infrastructure Development, Gauteng 2014 12 BCLR 1397 (CC)

Economic Freedom Fighters v Minister of Justice and Correctional Services 2021 2 BCLR 118 (CC)

Harksen v Lane 1997 11 BCLR 1489 (CC)

Loureiro v iMvula Quality Protection (Pty) Ltd 2014 5 BCLR 511 (CC)

Masuku v South African Human Rights Commission obo South African Jewish Board of Deputies 2019 2 SA 194 (SCA)

Minister of Finance v van Heerden 2004 11 BCLR 1125 (CC)

Minister of Safety and Security v Van Duivenboden 2002 3 All SA 741 (SCA)

Minister: Western Cape Department of Social Development v BE obo JE 2021 1 SA 75 (SCA)

MTO Forestry (Pty) Ltd v Swart 2017 5 SA 76 (SCA)

Qwelane v South African Human Rights Commission 2020 2 SA 124 (SCA)

Qwelane v South African Human Rights Commission 2022 2 BCLR 129 (CC)

SAHRC v Khumalo 2019 1 SA 289 (GJ)

South African Human Rights Commission obo South African Jewish Board of Deputies v Masuku 2022 7 BCLR 850 (CC)

South African Human Rights Commission v Qwelane; Qwelane v Minister for Justice and Correctional Services 2018 2 SA 149 (GJ)

The Citizen 1978 (Pty) Ltd v McBride 2011 8 BCLR 816 (CC)

Legislation

Canada

Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982

Canadian Criminal Code RSC, 1985, c C-46

Canadian Human Rights Act RSC, 1985, c H-6

Saskatchewan Human Rights Code SS 1979, c S 24.1

South Africa

Constitution of the Republic of South Africa, 1996

Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000

Sweden

Swedish Penal Code (Brottsbalken SFS 1962:700)

International instruments

European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14 (1950)

International Convention on the Elimination of All Forms of Racial Discrimination (1965)

Internet sources

ARTICLE 19 date unknown Home https://www.article19.org/ accessed 23 August 2023

Bukovska B, Callamard A and Parrmer S 2010 Towards an Interpretation of Article 20 of the Prohibition of Incitement to Hatred. Work in Progress https://www.ohchr.org/sites/default/files/Documents/Issues/Expression/ICCPR/Vienna/CRP7Callamard.pdf accessed 23 November 2022

Canadian Bar Association 2020 Legal Remedies for Victims of Hate Speech https://www.cba.org/CMSPages/GetFile.aspx?guid=a92e68a9-5338-471f-9694-9f0ef887ca05 accessed 23 November 2022

De Vos P 2018 Supreme Court of Appeal Gets the Law Very Wrong in a Hate Speech Judgment https://constitutionallyspeaking.co.za/supreme-court-of-appeal-gets-the-law-very-wrong-in-a-hate-speech-judgment/ accessed 23 November 2022

Office of the United Nations High Commissioner for Human Rights 2020 One-Pager on "Incitement to Hatred": The Rabat Threshold Test https://www.ohchr.org/en/documents/tools-and-resources/one-pager-incitement-hatred-rabat-threshold-test accessed 1 December 2022

Walker J 2018 Hate Speech and Freedom of Expression: Legal Boundaries in Canada https://lop.parl.ca/sites/PublicWebsite/default/en_CA/ ResearchPublications/201825E accessed 23 November 2022

Published

12-09-2023

Issue

Section

Articles

How to Cite

Marais, M. (2023). Hate Speech in the Equality Act Following the Constitutional Court Judgment in Qwelane v SAHRC. Potchefstroom Electronic Law Journal, 26, (Published on 12 September 2023) pp 1 - 33. https://doi.org/10.17159/1727-3781/2023/v26i0a15438

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