By Daniela Ellerbeck, Legal Advisor to FOR SA
Co-author Adv Nadene Badenhorst, FOR SA Legal Counsel

What can, and can you not say, without getting into trouble with the law? In South Africa, this question is becoming increasingly relevant (and the answer increasingly important) as more and more South Africans are being taken to task for saying things that range from politically incorrect, inflammatory, offensive to the downright abusive. This article endeavours to demystify and simplify things by looking at what our Supreme Court of Appeal (SCA) recently said about “hate speech” in the prominent case of John Qwelane v SAHRC & others (decided on 29 November 2019). (Note that the SCA’s judgment is coming up for confirmation before the Constitutional Court on 7 May 2020, when the parties will argue the matter before the Court).

Legal Framework

When it comes to the issue of speech, the three (3) laws that every South African should know about are the South African Constitution, the Promotion of Equality and Prevention of Unfair Discrimination Act of 2000 (PEPUDA, otherwise known as “the Equality Act”) and the common law crime of crimen iniuria. (For our previous article that gave an in-depth examination of the applicable laws, see here.) In addition to these three laws, we mention that Parliament is currently considering a new Bill, the Prevention and Combating of Hate Crimes and Hate Speech Bill (“the Hate Speech Bill”), which – if passed – will make “hate speech” a criminal act in South Africa with criminal consequences.

The focus of this specific article, however, is to look at what the SCA as the second-highest court in the country, has had to say about the constitutionality of the “hate speech” definition in the Equality Act in particular. This is important, because it determines the boundary between free speech (which is protected by the Constitution as a fundamental human right), and “hate speech” (which is not constitutionally protected and could get you into trouble with the law).

The right to freedom of expression (which is wider than mere words and includes e.g. certain actions that could be seen as forms of expression), is widely regarded as the very foundation of a democracy – the lifeblood necessary for its existence. In order to protect this vital freedom, the Constitution places very narrow limitations on the right to free expression (section 16 of the Constitution), only prohibiting speech which amounts to propaganda for war (section 16(2)(a)); incitement of imminent violence (section 16(2)(b)); or “hate speech”, which is narrowly defined as the “advocacy of hatred” on certain grounds and which also “constitutes an incitement to cause harm” (section 16(2)(c)).

The Equality Act of 2000 is meant to (amongst other things) promote equality and prohibit “hate speech”, as intended by the Constitution. However, what the Equality Act defines as “hate speech” (in section 10 of the Act) is – on the face of it – very different to the constitutional definition of “hate speech” (in section 16 of the Constitution). The Equality Act’s definition of hate speech is much wider (including for example speech that is merely “hurtful”), thereby effectively prohibiting speech which the Constitution itself protects!

For many, the most dangerous aspect of the Equality Act is that it has spawned other pieces of legislation (such as the Film and Publications Amendment Act (2019) and the notorious Prevention and Combating of Hate Crimes and Hate Speech Bill) that contain the wider definition of “hate speech” as in the Equality Act. The nett effect is to make the scope of “hate speech” increasingly wide, and conversely, the scope of free speech increasingly narrow. Concerningly, with particular reference on the broad phrasing and the wide contexts covered by this Act, it has consequently come into conflict with what should be the equally important and equally protected rights of freedom of speech as well as freedom of religion, conscience, belief and opinion.

Because the definition of “hate speech” in the Equality Act is wider than the definition in the Constitution itself, thereby prohibiting speech that the Constitution itself sees as protected speech, it is arguable that the definition of “hate speech” in the Equality Act unreasonably and unjustifiably limits the constitutional right to freedom of expression. As such, one could make a case that s 10 of the Equality Act prohibiting “hate speech”, is unconstitutional.

This, more or less, was the argument that Qwelane brought to the SCA. On the facts, Jon Qwelane was a journalist who wrote an article in the Sunday Sun newspaper entitled “Call me names – but gay is not okay”. In 2017 the Johannesburg High Court (sitting as an Equality Court) decided that certain statements in this article amounted to “hate speech” in terms of the Equality Act, on the basis that the statements were “hurtful; harmful, incited harm and propagated hatred”.

Qwelane then appealed the case to the SCA, and (amongst other things) argued that the Equality Act’s definition of “hate speech” was unconstitutional, because it was over-broad and unjustifiably limited his constitutional right to freedom of expression. The SCA agreed.

What the Supreme Court of Appeal found

The SCA has a track record of staunchly defending freedom of expression in various of its decisions:

In June 2018, in the case of Moyo v Minister of Justice and Constitutional Development, the SCA said that:

unless hate speech, incitement of imminent violence or propaganda for war as proscribed in … the Constitution are involved, no one is entitled to be insulated from opinions and ideas that they do not like, even if those ideas are expressed in ways that place them in fear But that does not entitle them to expect the State to lock up those whose chosen forms of expression placed them in a subjective state of fear or might reasonably (but not in fact) have placed them in fear.” [Own emphasis.]

Six months later (in December 2018), the SCA confirmed this narrow concept of “hate speech” in the case of SAHRC on behalf of the SA Jewish Board of Deputies v Bongani Masuku. The SCA decided Masuku’s case not under 10 of the Equality Act, but under s 16 of the Constitution instead (a clear indication that it felt uncomfortable with the Equality Act’s wide definition of “hate speech”, although the constitutionality of the Equality Act was not the issue before the Court) and found that:

a hostile statement is not necessarily hateful in the sense envisaged under s 16(2)(c) of the Constitution”.

Likewise, “the fact that a particular expression may be hurtful of people’s feelings, or wounding, distasteful, politically inflammatory or downright offensive, does not exclude it from protection”. [Own emphasis.] (The Bongani case was subsequently appealed to, and argued before, the Constitutional Court. Judgment is currently pending).

On the back of these judgments, advocates for free speech were thus hopeful that the SCA would – when presented with the opportunity to do so in Qwelane’s case – declare the Equality Act’s definition of “hate speech” unconstitutional, and it did not disappoint.

In its judgment, the SCA said that the definition of “hate speech” in section 10 of the Equality Act, was so wide that there was no possible way to interpret it in a way that was not at odds with the Constitution. The definition extended far beyond the limitations on freedom of expression provided for in section 16(2) of the Constitution and in many respects was unclear, making it vague and overbroad.

The SCA thus declared the “hate speech” provision in the Equality Act to be unconstitutional and gave Parliament eighteen (18) months to remedy same. In the meanwhile (until Parliament remedies the Act), the SCA substituted the provision with a much narrower provision of its own, essentially stating (as the Constitution does) that: “No person may advocate hatred that is based on race, ethnicity, gender, religion or sexual orientation and that constitutes incitement to cause harm.”

Next Steps

The SCA, in line with what the Constitution requires of it when declaring a statutory provision to be unconstitutional (section 172(2)(a) of the Constitution), referred its decision to the Constitutional Court for confirmation. The matter is set down for hearing on 7 May 2020.

Although the judgment of the Constitutional Court could take some time after the hearing of the matter, the judgment is expected to fully and finally settle the definition of “hate speech” in South African law – and therefore, the boundary between permissible free speech and impermissible “hate speech”. It is critically important that clarity is obtained in this regard – particularly also with a view to other laws (such as the Film and Publications Act, the Cybercrimes Bill and the Hate Speech Bill) which likewise contain “hate speech” provisions) – as ordinary South Africans have a right to know what they can, and cannot say, to avoid trouble with the law.

Daniela is a duly qualified Attorney of the High Court of South Africa. She obtained a BCom LLB degree from Rhodes University. Daniela first worked for Médecins sans Frontières before completing her articles of clerkship at G van Zyl Attorneys, where she stayed on after being admitted as an attorney and practised, specialising in litigation. Daniela has loved Jesus since she was young and is a member of a local church in Cape Town where she is actively involved.
Nadene is an Advocate, and practised as a member of the Cape Bar for a number of years. She holds both a BA LLB degree from the University of Stellenbosch and a LLM degree in International Human Rights Law (cum laude) from the University of Essex. She currently serves as a Next Generation Board Member on the Advocates Africa Board, representing Southern Africa.



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