Limitations of free speech argued in SA’s top court

The Constitutional Court recently heard arguments in the drawn-out legal battle that has followed in the wake of a reviled and homophobic article written by Jon Qwelane in 2008.

“All counsels are online!”

This was how the Constitutional Court clerk announced the virtual hearing pitting former journalist Jon Qwelane against the South African Human Rights Commission (SAHRC) held on Tuesday 22 September. The usual court etiquette of “All rise” could not be followed because of the Covid-19 pandemic that has forced court hearings to move online. 

At the core of this hearing was whether Section 10(1) of the Promotion of Equality and Prevention of Unfair Discrimination Act, commonly known as the Equality Act, infringes on the constitutional right of freedom of expression and whether such infringement can be justifiable. This follows the decision of the Supreme Court of Appeal declaring the section unconstitutional.    

In 2008, the Sunday Sun published a grossly offensive article by Qwelane titled “Call me names – but gay is not okay”. The article carried the vilest statements against gay and lesbian communities, such as that they were responsible for the rapid degeneration of societal values. It said gay and lesbian communities must be denied the freedom and right to marry. Qwelane quoted the late former Zimbabwean president Robert Mugabe, who had likened members of the gay and lesbian community to animals.

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Following the publication of the article, almost 400 members of the public lodged complaints with the SAHRC. This was the largest number of complaints received about a single incident, according to the Psychological Society of South Africa. The Press Ombudsman received about 1 000 complaints.

Acting on behalf of these members of the public, the SAHRC initiated a formal complaint of hate speech against Qwelane at the Equality Court, under the Equality Act. Qwelane denied that his article amounted to hate speech and sought to challenge the constitutionality of Section 10. He also said the Equality Court lacked the jurisdiction to hear the matter. The high court in Johannesburg and the Equality Court, sitting as one court, found Qwelane’s statements to be grossly offensive and hurtful and ordered him to apologise. 

Qwelane appealed this decision and the court found in his favour, dismissing the complaint and declaring Section 10 to be unconstitutional. It also ordered Parliament to fix the wording of this section within 18 months.    

Constitutional Court arguments 

It is this decision of the appeal court that was the subject of debate at the Constitutional Court. 

Advocate Mark Oppenheimer, representing Qwelane, told the court that the decision of the appeal court had been correct. Section 10 is vague and overbroad, and it unjustifiably limits the right to freedom of expression. For Oppenheimer, this right is central to a functioning democracy. He argued that Section 10, before it was declared unconstitutional by the appeal court, had had a chilling effect on ordinary citizens, who could not know beforehand what speech was prohibited. The grounds were too broad and did not mirror the Constitution, said Oppenheimer, and he further insisted that Qwelane’s statements were permissible speech under the Constitution despite them being controversial.

Responding to Oppenheimer, Tembeka Ngcukaitobi, the lead senior counsel for the SAHRC, said that “to say that this speech is controversial is to sugar-coat it”. The article amounted to hate speech as it caused actual harm to a community of people, argued Ngcukaitobi. 

The Freedom of Expression Institute and Media Monitoring Africa, both of which were admitted as friends of the court, agreed with Oppenheimer that the Constitutional Court need not change the appeal court decision. 

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Representing the institute, advocate Mfesani Ka-Siboto told the court that Parliament had an obligation to make clear laws. Section 10 of the Equality Act is vague, overbroad and unjustifiable under the Constitution, and ordinary people will not know what kind of speech is prohibited under the section, he argued. For the institute, the section could not be saved and has to be declared unconstitutional. 

Advocate Gilbert Marcus, who represented Media Monitoring Africa, agreed with Ka-Siboto that Section 10 is vague and cautioned the court not to be deterred by the fact that it is a creature of the Constitution. The court needed to be guided by the rule-of-law principle in understanding the provision, insisted Marcus. Media Monitoring Africa told the court that the problems with the Equality Act are beyond the facts of this case, the outcome of which will have far-reaching implications. In its current form, Section 10 will not pass constitutional muster because it is in contravention of the right to freedom of expression.    

Appeal court judgment criticised

Ngcukaitobi did not hold back in his criticism of the appeal court judgment. He told the Constitutional Court that the appeal court had been misdirected when applying the law. The analysis it had deployed was outdated and wrong, hence its ruling of unconstitutionality. 

The appeal court had never given any meaningful consideration to South Africa’s “home-grown jurisprudence” in terms of the limitation clause, said Ngcukaitobi. It is permissible in the South African context for the legislature to regulate speech that degrades and undermines a group of people because of the country’s history. The prohibition of hate speech in the Equality Act, Ngcukaitobi argued, is not a “disproportionate response to a societal menace”, as Oppenheimer had argued. 

“On a proper construction of Section 10(1), there is no ambiguity whatsoever,” said Ngcukaitobi, adding that it had been incorrect to declare the section unconstitutional. The overlapping meaning of the words “hurtful” and “harmful” in the section should not be grounds for declaring it unconstitutional, he said, insisting that the appeal court had come to its conclusion because it applied a wrong legal test and interpreted the statute outside of its proper context. As a starting point, it should have tested the provision against Section 9(4) of the Constitution. 

This view was also shared by the minister of justice and five other organisations – the Nelson Mandela Foundation, Psychological Society of South Africa, South African Holocaust and Genocide Foundation, Southern African Litigation Centre and Women’s Legal Centre Trust – which were admitted as friends of the court. 

The appeal court judgment had failed to take into account the testimonies of witnesses as evidence of the harm Qwelane’s article had caused, argued Ngcukaitobi. This point was also emphasised by the Psychological Society of South Africa, which said the article had caused actual psychological harm and had not been simply abstract speech. It was regrettable that the court had failed to give proper consideration to the evidence given by witnesses and survivors of hate crimes that the article added fuel to the societal menace of violence, murder and rape perpetrated against LGBTQIA+ people. 

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The Constitutional Court justices all recognised that the judgments of both the appeal and high courts were substantively different and raised concern. For the minister of justice, the SAHRC and Qwelane should not escape liability regardless of the conclusion the court reaches in terms of the provision’s constitutionality. 

Advocate Wim Trengove, representing the South African Holocaust and Genocide Foundation, insisted that Qwelane was guilty of hate speech and needed to apologise for his comments. This was echoed by the five friends of the court that supported the SAHRC.

More speech to counter hate speech

In demonstrating that South Africa was tolerant of vile and homophobic statements, Oppenheimer told the court that his client’s article did not incite violence as some passages in the Bible do, yet it remains in print in the country. In response, Justice Margaret Victor reminded Oppenheimer that South Africa is a secular and constitutional democracy with many people who do not believe in the Bible. Justice Rammaka Mathopo said he doubted that the appeal court had drawn inspiration from Bible passages in making its decision.

Oppenheimer insisted in his argument that vulnerable and minority groups in society need to use words to counter hate speech. He told the court that without freedom of speech South Africa would not have same-sex marriages. “We live in a diverse country and if we are to see each other as equals, we must be allowed to express our differences and to engage in speech to point out those differences,” said Oppenheimer.   

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To make his point, he used the analogy of the hashtag #MenAreTrash and the term “white monopoly capital”, saying they would be deemed hateful under the Equality Act if freedom of expression is not allowed.

Trengove took issue with Oppenheimer’s argument that “vulnerable people should be afforded the freedom to speak for themselves”. “With the greatest of respect, that is an unrealistic approach,” he said. “Are you saying in South Africa the lesbian who gets correctively raped every now and then, who is too afraid to go [to] the shops by day, should be left exposed to that violence of words and conduct on the basis that she is to speak for herself? She has no voice … 

“And to try to defend freedom of expression on the basis that those vulnerable people should not be pampered but should be allowed to speak out for themselves is entirely unrealistic and out of keeping with the choices made by our Constitution,” said Trengove. 

Advocate Frances Hobden, representing the Women’s Legal Centre Trust, implored the court not to declare Section 10 unconstitutional, as it proportionately balances rights. She further told the court that it was trite to regulate hate speech, particularly misogynistic hate speech, as it undermines substantive equality and entrenches patriarchal attitudes that create conditions for violence against women and the LGBTQIA+ community.   

Justice Sisi Khampepe reserved judgment.  

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