The Constitutional Court has declared sections of the Promotion of Equality and Prevention of Unfair Discrimination Act (Equality Act) unconstitutional. However, in a unanimous judgment, the court also ruled that the newspaper article that brought the act into sharp focus amounted to hate speech.
The late columnist and former ambassador Jon Qwelane penned a column for the now defunct Sunday Sun headlined “Call me names – but gay is not okay” in 2008. The column elicited strong condemnation with almost 1 400 complaints from members of the public directed at both the South African Human Rights Commission (SAHRC) and the press ombudsman.
The court found section 10(1)(a), which states that “no person may publish, propagate, advocate or communicate words based on one or more of the prohibited grounds, against any person, that could reasonably be construed to demonstrate a clear intention to be hurtful” to be unconstitutional and violated the right to freedom of expression.
The SAHRC took the matter to the Equality Court originally on the basis that the article amounted to hate speech after the press ombudsman ruled against Media24 and Qwelane. At the time, Media24 and Qwelane challenged the constitutionality of the hate speech provision on the basis that it was vague and unconstitutional because it violated the right to freedom of expression. Media24 eventually conceded that the article was “reprehensible” and should not have been published. They reached an out of court settlement with the SAHRC, leaving Qwelane alone to answer on the case of hate speech.
The Equality Court dismissed Qwelane’s constitutionality challenge and found his article to be hate speech against the LGBTQIA+ community. At the Supreme Court of Appeal, however, Qwelane was successful in his constitutional challenge of section 10(1) of the Equality Act. The appeal court was of the view that the hate speech provision was unintelligible and unconstitutional because it unjustifiably limited the right to freedom of expression. The complaint against Qwelane was dismissed.
The matter then came before the Constitutional Court for confirmation and also on appeal by the SAHRC and the minister of justice. At the apex court hearing, the debate centred around the meaning of the word “hurtful” in the context of hate speech. In its judgment, the court held that “expressions that are merely hurtful, especially when understood in everyday parlance, are insufficient to constitute hate speech”.
Justice Steven Majiedt went on to say that the inclusion of the word “hateful” in defining hate speech “sets the bar rather low”. The court therefore concluded that the limitation on freedom of expression was too extensive and could not be constitutionally justified.
In a nutshell, the apex court agreed with Qwelane that “given the troubling meaning of ‘hurtful’ in the context of section 10(1), it is difficult for ordinary citizens to know whether their conduct will be ‘hurtful’ or ‘harmful’ and thus whether it meets the threshold required by section 10”.
The Constitutional Court concluded that section 10(1)(a) was irredeemably vague and unconstitutional. However, the court did not render the entire provision unconstitutional, but opted to salvage the good parts of section 10, namely 10(1)(b) and (c) of the Equality Act. It suspended the order of invalidity for 24 months to allow Parliament to fix the unconstitutional parts of section 10. In the interim, the word “hurtful” was removed in the recrafted provision pending the amendment by Parliament.
Zooming in on Qwelane
One of the major issues with the Supreme Court of Appeal judgment that was debated at length at the apex court hearing was that Qwelane was not held accountable for his grossly offensive article against the queer community. The appeal court had misdirected itself for relying on the criminal law principle of “no crime, no punishment without law”, the Constitutional Court reasoned.
It held that Qwelane’s death before the court handed down its judgment did not bar it from determining whether his statements amounted to hate speech.
“Mr Qwelane was advocating hatred, as the article plainly constitutes detestation and vilification of homosexuals on the grounds of sexual orientation. He was publicly advocating for law reform in favour of the removal of legal protection for same-sex marriages. In doing so, he was undermining the protection of the law, the dignity of the LGBT+ community and the public assurance of their decent treatment in society as human beings of equal worth, deserving of human dignity and the protection and enjoyment of the full panoply of rights under the Constitution,” read the judgment.
The court reasoned that Qwelane would not be prejudiced for being held liable under the recrafted provision. This is because clear provisions of 10(1) (b) and (c) have always been there and Qwelane was in breach of them and it cannot be said he was ignorant of the law.
The Constitutional Court ruled that “it would not be just and equitable to allow a person to escape liability in these circumstances”. Qwelane’s article amounted to hate speech on both the old provisions and the recrafted provision.
Qwelane was ordered to pay the legal costs of the SAHRC from the high court, appeal court and Constitutional Court proceedings. Because of the partial success of his constitutional challenge, the court held that it would be fair for the minister of justice to pay half of Qwelane’s legal costs.