CONCOURT DECISION IN QWELANE: FACTS, AND FINDINGS OF THE COURT

On 30 July 2021, the Constitutional Court handed down a unanimous judgment in the controversial and long-awaited case of Jon Qwelane versus the SA Human Rights Commission.

The judgment settles the definition of hate speech in South African law, and in particular confirms that merely “hurtful” speech does not qualify as (prohibited) hate speech. In the circumstances, Parliament was given 24 months to amend section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (“PEPUDA” or “the Equality Act”) relating to hate speech, accordingly.

In the meanwhile, the section must be read as follows: “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”. (our emphasis)This brings the definition of hate speech in section 10 of PEPUDA, closer to the definition of hate speech in section 16(2) of the Constitution which prohibits “the advocacy of hatred … that constitutes an incitement to cause harm”.

Our Courts have repeatedly held that, in order for a statement to qualify as hate speech, both elements need to be present - i.e. an advocacy (or stirring up) of hatred towards a certain person or group based on one of the prohibited grounds (e.g. race, sex, gender, sexual orientation, conscience, religion and belief), and an incitement to cause harm. Importantly, in the Qwelane judgment, the Constitutional Court emphasised "that the expression of unpopular or even offensive beliefs does not constitute hate speech", and defined hate speech as expression (i.e. speech, writing and/or conduct) which "travels beyond mere offensive expression and can be understood as “extreme detestation and vilification which risks provoking discriminatory activities against that group'".On the merits of the case (i.e. the question of whether Qwelane’s statements actually amounted to hate speech), the Court found that Qwelane’s statements against the LGBT community were indeed harmful, incited harm and propagated hatred, and therefore amounted to hate speech.

While, from a legal technical point of view, criticism could be levelled against various aspects of the judgment, the fact remains that the highest court has now given judgment in this matter and it, therefore, stands as law.In this article, we set out the facts that gave rise to the case, as well as a summary of the Court’s most important findings. In a separate article, we highlight some of the important implications of the judgment for freedom of expression (including freedom of religious expression) – both for individuals, and organisations, and whether made from the pulpit, on social media or otherwise.

‍The facts

‍In 2008, the late Jon Qwelane (who was a journalist at the time) published an article in the Sunday Sun newspaper under the heading “Call me names – but gay is not okay”. The article, which made some rather strong, derogatory statements regarding homosexuality (even going so far as to endorse former Zimbabwean President Robert Mugabe’s ‘unflinching and unapologetic stance over homosexuals’) was deeply offensive to members of the LGBT community and gave rise to 350 complaints with the South African Human Rights Commission (SAHRC), and 1000 complaints with the Press Ombud. As a result, the SAHRC opened up a hate speech case against Qwelane in the Johannesburg High Court (sitting as an Equality Court), in terms of section 10 of PEPUDA. Importantly, section 10 of PEPUDA – at that point – read as follows:“ Subject to the proviso in section 12, no person may publish, propagate, advocate or communicate words based on any 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”.Having heard oral evidence, the Equality Court found that the article was indeed hurtful and harmful and had the potential to incite harm and promote hatred against the LGBT community, and thus amounted to hate speech.

Qwelane appealed the decision to the Supreme Court of Appeal (SCA). From a constitutional point of view, Qwelane argued that section 10 of PEPUDA goes further than section 16(2)(c) of the Constitution which (only) prohibits the “advocacy of hatred that is based on ethnicity, race, gender or religion, and that constitutes incitement to cause harm”, and is therefore unconstitutional. The SCA agreed with Qwelane, and ordered that section 10 of PEPUDA be amended in line with the Constitution. (This declaration of constitutional invalidity gave rise to the confirmation proceedings before the Constitutional Court in terms of s 167(5), read with s 172(2), of our Constitution). On the merits, the SCA found that Qwelane’s statements, although regrettable, did not in fact amount to hate speech. (This decision formed the subject of an appeal by the SAHRC to the Constitutional Court).Before the Constitutional Court, the two main issues were:

1) Whether the definition of hate speech in section 10 of PEPUDA is broader than section 16(2)(c) of the Constitution, and therefore unconstitutional (i.e. the constitutional issue). The Court found that it was, and declared this section unconstitutional.2) Whether Qwelane’s article in fact amounted to hate speech (i.e. the merits issue). The Court found that it did.

‍The constitutional issue

‍As a starting point, the judgment emphasises the importance of freedom of expression (guaranteed by section 16 of our Constitution) in our open and democratic society. This freedom includes “tolerance by society of different views”, including views that are offensive, shocking or disturbing. Freedom of expression does not however go so far as to include hate speech, which is destructive of democracy. The question then is, what is hate speech? According to the Court, the mere expression of unpopular, controversial, offensive, disturbing or even shocking views, is not hate speech. In fact, the Court specifically stated that “hate speech does not serve to stifle ideology, belief or views”.

Where, however, speech amounts to “extreme detestation and vilification” that risks violating the rights of another person or group of persons based on group identity (e.g. sexual orientation), it will be regarded as hate speech. Turning then to the question of whether mere “hurtful” speech qualifies as hate speech (as suggested by s 10 of PEPUDA), the Court said it did not and that more was required to reach the (prohibited) threshold of hate speech. In order for speech to qualify as hate speech, it had to either be harmful or incite harm (or had the potential to be harmful, or to incite harm). “Harm” does not only refer to physical violence, but includes “deep emotional and psychological harm that severely undermines the dignity of the targeted group”.

This can even include harm to the social cohesion in our society that can undermine our nation-building project. Also, even though the speech may be directed at a certain individual, it was enough to show that the (harmful) impact would be on the group to which that individual belongs (e.g. LGBT people in general). In this regard further, the Court held that – for purposes of proceedings in terms of the Equality Act – it is not necessary to prove a causal link between the statement and the actual harm, or incitement of harm. (In Qwelane’s case, in particular, the Court took note of the uncontested evidence in the Equality Court of pervasive past violence and general enmity against the LGBT community, which demonstrates the potential harm in Qwelane’s article).

The next question then is, whether the test for hate speech is an objective or subjective test (in other words, from whose perspective should the speech be harmful or incite harm)? In this regard, the Court held that the test is an objective test i.e. would the reasonable person who read / heard the particular statements, and who consider it in the context of the facts and circumstances surrounding the statements, understand it as (potentially) harmful or inciting harm? In other words, it is the effect of the words – not the intention of the author or speaker, or the mere inferences and assumptions made by the targeted group – that is assessed. The above findings of the Court apply with regard to both verbal and non-verbal expressions, but do not include private communications which the Court stated should be exempt from hate speech prohibitions, even those that attach civil liability.

‍The merits issue

‍Turning to the merits of the case, the Court found that it could not be gainsaid that the LGBT community – which has suffered unfair discrimination since time immemorial - was impacted by Qwelane’s article. According to the Court, “in unequivocally aligning himself with former President Mugabe’s abominable comments, [he] vilified the LGBT community as ‘animals’, as less than human beings. Their sexual preferences and relations were degraded to bestiality. [His] article unabashedly exuded his loathing and revulsion.” This, the Court said, could be discerned from Qwelane’s:- Accusation that the LGBT community is responsible for the rapid decay of societal values;- Insinuation that their sexual choices are against the natural order of things and akin to bestiality;- Claim that the LGBT community should be denied the right to marry (i.e. arguing for “law reform” in favour of the removal of legal protection for same-sex marriages); and- Insinuation that they are not worthy of the protection of the law.- (The Court also took issue with Qwelane’s “deplorable subversion of the Constitution”, and unapologetic stance.)

The Court found that “homophobic speech” (which it did not define) is problematic not only because it injures members of the LGBT community, but also because it contributes to an environment that serves to delegitimize their very existence and right to be treated as equals. (In other words, it carries with it the potential to cause members of the public who hear/read the words to unfairly discriminate against the LGBT community.)In assessing whether Qwelane’s article reached the required level of hate speech (i.e. evinced a clear intention to be harmful, or to incite harm and to promote or propagate hatred), the Court held the following considerations to be important:

a) The identity and status of the speaker. (Qwelane was a seasoned journalist, commentator of note and a veteran of the liberation struggle. He wrote to a predominantly Black township audience which took his view seriously).b) The context. (The article came against the backdrop of the vile remarks of former President Mugabe, and extraordinarily high levels of violent attacks against LGBT persons).c) The impact of the speech. (The speech comprised unadulterated vilification and debasement of the LGBT community.

Its reach and impact was undeniably extensive and devastating).d) The likelihood of inflicting harm and propagating hatred. (This was beyond doubt. The Court said “it was difficult to conceive of a more egregious assault on the dignity of LGBT persons”. In addition, the article also attacked our constitutional project to create an inclusive society.)As a result, the Court found Qwelane’s article, which “plainly constitutes detestation and vilification of homosexuals”, to amount to hate speech. There was a reasonable apprehension that the article fueled the already anti-LGBT burning fire and galvanized further discrimination, hostility and violence against the LGBT community. The fact that Qwelane has since passed away, did not remove the harm caused by his article. Relief under PEPUDA goes beyond holding perpetrators accountable – it feeds into our constitutional project of building a more tolerant society. As such, the Court expressed the hope that the judgment would send “a strong message of deterrence in respect of hate speech directed against members of [the LGBT] community”.

‍Conclusion, and impact of the judgment on Hate Speech Bill

‍The Qwelane judgment has some very important implications for freedom of expression (including freedom of religious expression), particularly on issues of human sexuality – made both by individuals and organisations (including religious organisations), and whether made from the pulpit, on social media or otherwise. For an article on these implications in particular, see here. Importantly further, the Qwelane judgment is now paving the way for the Prevention and Combating of Hate Crimes and Hate Speech Bill (“Hate Speech Bill”), which will make hate speech a criminal offence punishable by a fine and/or imprisonment, to proceed. This Bill has been pending before the Parliamentary Portfolio Committee of Justice and Constitutional Development for some time (“the PPC for Justice”). The Department of Justice gave a briefing to the PPC for Justice on the Hate Speech Bill, and the impact of the Qwelane judgment thereon, on 18 August 2021. At that meeting, the PPC for Justice stated that the next step would be for the Bill to be published for public comment.

‍It would be critically important for religious persons and organisations to, at that stage, make comment on the Bill which could potentially have far-reaching implications for freedom of expression (including freedom of religious expression).

In this regard and in particular, we point out that the Qwelane judgment specifically refers to the fact that South Africa’s approach to hate speech accords with the UN Rabat Plan of Action, which recommends that “criminal sanctions related to unlawful forms of expression should be seen as a last resort measure to be applied only in strictly justifiable situations.” (our emphasis)