A Duty Perspective on the Hate Speech Prohibition in the Equality Act

Abstract

In November 2019 the Supreme Court of Appeal in Qwelane v South African Human Rights Commission ruled that section 10(1) of the Promotion of Equality and Prevention of Unfair Discrimination Act (Equality Act) 4 of 2000, otherwise known as the "hate speech" prohibition, was unconstitutional. The court said it was vague, overbroad and therefore unjustifiably infringing the right to freedom of expression. This contribution argues that every person's duty to respect others is central to the hate speech prohibition, and should therefore also be a central consideration in its interpretation. Related duties are those of the state to enact legislation and of courts to interpret and apply the law to promote the spirit, purport and objects of the Bill of Rights. References to relevant case law in various legal contexts provide the framework within which legal duties are examined in the context of unfair discrimination and, in particular, hate speech in terms of section 10(1) of the Equality Act. The constitutional obligations of the state, the courts and private persons to promote respect for the dignity of others are examined.  The state's specific obligation in terms of section 9(4) of the Constitution of the Republic of South Africa, 1996 to enact legislation to prevent or prohibit unfair discrimination on the grounds listed in section 9(3) is reiterated. Finally, these duties are related to the section 10(1) prohibition in the Equality Act. Refuting the Supreme Court of Appeal's ruling in Qwelane, the reasonableness standard is applied to conclude that the prohibition gives due effect to the duties of the state and every person, and that the courts are duty-bound to interpret it accordingly.