The Chetty case is a victory for freedom of speech

BackgroundThe case of Simeon Bradley Chetty, a young evangelist who was taken to court for alleged hate speech by various Hindu organisations, has been settled by mutual agreement between the parties on Thursday, 24 February 2022. Contrary to reports in recent news articles, the Court did not hear the case itself, neither did the Magistrate rule that Chetty was guilty of hate speech. Importantly, although the settlement agreement was made an Order of Court, this case does not set any legal precedent and is nothing more than an agreement between the parties to bring the matter to finality, without the necessity of the Court hearing and deciding the matter. It is, therefore, false to portray it as anything else.The facts:Chetty was taken to court by (amongst others) the South African Hindu Dharma Sabha (SAHDS) for sharing, at an open-air church service, his testimony of how he came to believe in Jesus Christ. The SAHDS had asked the Chatsworth Equality Court to rule that what Chetty said amounted to “hate speech” in terms of section 10 of the Prevention of Unfair Discrimination and Promotion of Equality Act, 2000 (“the Equality Act”). The SAHDS were asking the Court, amongst other things, to order Chetty to pay R1 million (later reduced to R200,000) in damages. Freedom of Religion South Africa (FOR SA) was admitted as an amicus curiae (or friend of the Court) in this case, specifically to make submissions on the importance of protecting the constitutional rights to religious freedom (section 15) and freedom of expression (section 16) which are a foundational part of a democratic and pluralist society and integral in promoting the constitutional ideal of diversity.Freedom of expression as a human right:Freedom of expression has long been seen as the bedrock of any democracy worthy of the name. The freedom to engage in robust debate and an open exchange of ideas and opinions, without fear of sanction by the State or anyone else, is seen as a foundational human right. It is therefore somewhat ironic that the case brought against Chetty was for speech that was of a religious nature, since the right to free speech was to a large part developed to protect religious freedom. With the rise of the Protestant faith in Europe in the 16^th Century, many who expressed beliefs contrary to the prevailing dogmas of the time were ruthlessly persecuted. It took several hundred years of warfare and countless deaths before the legal protection was won which today guarantees the expression of faith, thoughts, views and opinions in most democratic nations.Hate speech – the legal position:This protection is contained in our Constitution, which clearly recognises and guarantees the value of freedom of speech by narrowly defining “hate speech”. Section 16(2)(c) limits “hate speech” to speech that amounts to “an advocacy of hatred … that constitutes incitement to cause harm”. Both elements must be present and thus the threshold which must be crossed for something to qualify as “hate speech” is high. This is important because the more broadly you define “hate speech”, the less free speech is possible. However, the understanding of what qualifies as “hate speech” in South Africa was blurred by the definition in section 10(1) of the Equality Act. This section expanded the definition of “hate speech” to include words that were “hurtful”, and thereby introduced a concerningly subjective element. This seemed to reflect a resurgence of intolerance towards those who express views and opinions which conflict with the prevailing norms of “political correctness” or where words that merely offend are seen as “hate speech”.This definition of “hate speech” has now finally been settled by the Constitutional Court in their judgment in the case of the Qwelane v South African Human Rights Commission. Qwelane was a journalist who wrote a high-profile article in the Sunday Sun newspaper which vilified and made derogatory statements regarding homosexuality and which were deeply offensive to members of the LGBT community. The SAHRC took Qwelane to court for “hate speech” under the Equality Act and won their case in the High Court. However, Qwelane appealed on the basis that the definition of “hate speech” in the Equality Act was broader than the Constitution’s. The matter went all the way to the apex court, the Constitutional Court, which handed down its judgment on 30 July 2021. Although the Court found that Qwelane’s article did indeed amount to “hate speech”, it declared that the definition in the Equality Act was unconstitutional. In particular, the judgment confirmed that merely “hurtful” speech (which it declared to be “irredeemably vague”) does not qualify as hate speech. Parliament was given 24 months to amend section 10.In the meanwhile, the Constitutional Court ruled that the Equality Act’s prohibition of “hate speech” must 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, thatcould reasonably be construed to demonstrate a clear intention to be harmful or to incite harm and to promote or propagate hatred”. Importantly, the Constitutional Court emphasised “that the expression of unpopular or even offensive beliefs does not constitute hate speech“. It 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’“.The outcomeOn this test of legality, Chetty’s statements – although perhaps offensive or even hurtful to some – clearly did NOT amount to hate speech and would therefore be regarded as constitutionally protected speech. The agreement between the parties recognised this and was a positive outcome and a victory for freedom of speech – not only for Chetty, but for people of all faiths. It confirmed that people have the right to share their religious beliefs freely and without fear of sanction, even if others do not like them, do not agree with them, or even find them offensive. Religious tolerance is a therefore a two-way street which reflects the intention and spirit of the Constitution, wherein all South Africans can live alongside one another, celebrating our diversity in a pluralistic, democratic society.