by Adv Nadene Badenhorst
18 August 2021

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 in fact 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 ruled in this matter and it, therefore, stands as law.

In this article, we deal with some of the important implications of the judgment for freedom of expression (including freedom of religious expression) – without going into the details of the facts of the case or the actual findings made by the Constitutional Court. The facts that gave rise to the case, and a summary of the Court’s findings, that support our analysis and recommendations in this article, can be found in a separate article.

Important implications for religious speech

The 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.

Firstly and importantly, the judgment does not make it illegal per se to disagree with, or disapprove, of – for example – homosexuality (and therefore, to teach, preach or otherwise share one’s moral or religious convictions, or what the religious texts say, on this issue). This would go contrary to previous findings by the Constitutional Court in this regard (including in National Coalition of Gay and Lesbian Equality versus Minister of Justice (1998), and Minister of Home Affairs v Fourie (2005)).

Whether a particular statement amounts to hate speech, will therefore depend on the facts of that particular case – and each case has to be determined on its own merits, having regard to the identity of the speaker/author, the context, the impact of the statement(s), and the likelihood of the particular statement(s) inflicting harm and propagating hatred.

Having regard to the judgment, however, it is clear that statements such as (but not limited to) the following, could amount to hate speech:

– An accusation that the LGBT community is responsible for the rapid decay of societal values;
– The insinuation that their sexual choices are against the natural order of things or akin to bestiality;
– The 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
– The insinuation that they are not worthy of the protection of the law.

Against this background, it may be wise for those who may be presenting a viewpoint based upn their religious or faith convictions to – at the outset – specifically and respectfully affirm the equal value, worth and dignity of LGBT persons as human beings and their constitutional right to hold to their own convictions, beliefs and opinions in this regard. (This is not the same as endorsing their beliefs or choices, which no Court can, or should, force a person or organisation to do).

Specifically, it may be wise to draw a clear distinction between the secular, legal position, and the religious position of the person or organisation making the statements. One of the reasons why Qwelane’s article was found to be hate speech, was because it advocated a denial of the LGBT community’s established legal rights, for example, to legally get married. Thus, when presenting a religious perspective on LGBT matters, it may be wise to stick to the religious text as closely as possible.

Unfairly discriminatory speech

It is important to note that the sole focus of the Qwelane judgment is the prohibition on hate speech as defined in section 10 of PEPUDA. While the legal threshold for hate speech has, in a sense been raised, the prohibition on unfairly discrimatory speech in section 12 of PEPUDA remains the same and is not affected by the judgment. Section 12 prohibits both words and conduct that are unfairly discriminatory towards a person or group of persons based on certain prohibited grounds, including for e.g. race, sex, gender, sexual orientation, conscience, religion and belief.

As a result, it is quite possible that, even though a certain statement may not reach the level of hate speech, a case of unfair discrimination can still be opened up against a person or organisation based on the same statement. The legal question, in that case, would be whether the statement distinguished between people based on a prohibited ground (“discrimination”), and if yes, whether there was a fair reason in law for doing so (“fair or unfair”)? In deciding whether the reason for the discrimination was fair or unfair, the Court will have regard to the factors in section 14 of PEPUDA, including whether the person affected by the statement, forms part of a group of people who have been discriminated against in the past. In this regard, it is worth noting that the Constitutional Court specifically stated that unfair discrimination against the LGBT community is not a new phenomenon, and has been prevalent since time immemorial.

Conclusion, and impact of the judgment on Hate Speech Bill

The bottom line is that, when addressing potentially controversial issues such as gender and sexual orientation (particularly in a religious context), persons and organisations should take great care both in what they say (the actual words used and also how they may be understood by others), as well as how they say it (the tone and attitude with which the statements are made).

While the Qwelane judgment certainly has some positive aspects (including raising the legal bar for hate speech), there are some statements in the judgment that could potentially be used to silence persons or organisations of faith from teaching, preaching or otherwise sharing their religious beliefs, for fear that someone will open up a hate speech and/or unfair discrimination case against them. Worse, it could even force them to say things that go against their inner convictions and beliefs, and thereby compromise on their deeply held beliefs.

Importantly further, the 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)

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Adv Nadene Badenhorst

Adv Nadene Badenhorst is an Advocate of the High Court of South Africa. She serves as FOR SA’s full-time Legal Counsel.

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