How to make sense of the civil prohibition of hate speech in terms of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000

• Published date: 03 December 2019
• DOI: 10.10520/EJC-19c1570987
• Author: Anton Kok,Louis Botha
• Record Number: sapr1_v34_n1_a1
• Date: 03 December 2019
• Pages: 1-37

Southern African Public Law

https://doi.org/10.25159/2522-6800/3695

https://upjournals.co.za/index.php/SAPL

ISSN 2219-6412 (Print) | 2522-6800 (Online)

Volume 34 | Number 1 | 2019 | #3695 | 37 pages

© Unisa Press 2019

Article

How to Make Sense of the Civil Prohibition of Hate

Speech in Terms of the Promotion of Equality and

Prevention of Unfair Discrimination Act 4 of 2000

Louis Botha

Associate, Cliffe Dekker

Hofmeyr Attorneys

Louis.Botha@cdhlegal.com

Anton Kok

https://orcid.org/0000-0002-2746-2286

Associate Professor of Law,

University of Pretoria

anton.kok@up.ac.za

Abstract

In this article the authors offer a workable interpretation of section 10 of the

Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000.

Many constitutional law and freedom of expression scholars have argued that

section 10 is at least in part unconstitutional. The authors of this article analyse

these scholars’ views and chart a path towards saving section 10 from

unconstitutionality. Section 10 is analysed by interrogating each of the

requirements for hate speech as set out in the section: ‘no person’; ‘publish,

propagate, advocate or communicate words’; ‘based on one or more of the

prohibited grounds’; ‘that could reasonably be construed to demonstrate a clear

intention’; ‘to be hurtful; be harmful or to incite harm; promote or propagate

hatred’ and the defences listed in section 12. The article concludes with a

proposal for legislative amendments to section 10 to remove any doubt about its

constitutionality.

Keywords: Promotion of Equality and Prevention of Unfair Discrimination Act 4 of

2000, hate speech, freedom of expression

2

Introduction

Hate speech is prohibited in terms of section 10 of the Promotion of Equality and

Prevention of Unfair Discrimination Act.

1

Section 10 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:

a. be hurtful;

b. be harmful or to incite harm;

c. promote or propagate hatred.

Afri-forum v Malema (Vereniging van Regslui vir Afrikaans as Amicus Curiae) (‘Afri-

forum’)

2

is one of very few instances where a High Court sitting as an equality court has

dealt extensively with section 10. Equality courts at magistrate’s court level have made

numerous findings that particular words constituted hate speech, usually without

exhaustively interpreting and applying section 10.

3

Although the aims of the Equality

Act can be achieved without presiding officers having to write long and intricate

judgments, presiding officers should ideally explain and justify their decisions when

finding that hate speech has been committed. This is so that parties to a dispute

understand why a specific finding has been made and secondly, so that the courts can

develop a body of law relating to hate speech that will in turn create more consistency

and certainty in the application of the hate speech prohibition. The far-reaching ideals

of the Equality Act can only be achieved through a court system with presiding officers

who understand and properly apply the hate speech prohibition, especially at lower court

level as this is where most complaints are lodged.

In this article we discuss the relationship between section 10 of the Equality Act and

section 16 of the Constitution. Secondly, we set out the general considerations that

should be taken into account when interpreting section 10. Thirdly, we deal with each

requirement set out in section 10 separately. Where an element of the hate speech

definition in section 10 of the Equality Act limits the right to freedom of speech in

section 16(2) or differs from the definition of hate speech in section 16(2)(c) of the

Constitution, we consider if this limitation constitutes a justifiable limitation of the right

to freedom of expression.

1

Act 4 of 2000 (hereafter ‘Equality Act’).

2

Afri-Forum v Malema (Vereniging van Regslui vir Afrikaans as Amicus Curiae) 2011 (12) BCLR

1289 (EqC).

3

The researchers have collected the vast majority of complaints lodged at the Durban and

Johannesburg equality courts for the period 2008-2012. Many of these matters were concerned with

hate speech.

3

The Relationship Between Section 16 of the Constitution and Section

10 of the Equality Act

One of the objects of the Equality Act is to give effect to the hate speech provision in

section 16(2)(c) of the Constitution.

4

A question that arises is which of these provisions

must be applied when considering if a statement constitutes hate speech: Section 10 of

the Equality Act or section 16 of the Constitution?

In African National Congress v Harmse: In re Harmse v Vawda (Afri-forum and

Another Intervening),

5

the court stated that it is not clear whether section 16(2)(c) of the

Constitution or section 10 of the Equality Act should be applied or whether these

sections should be applied jointly. Albertyn and others argue that before section 10 is

applied, one should first ascertain whether the statement is protected in terms of section

12 of the Equality Act and section 16(1) of the Constitution and only then should section

10 be applied.

6

Alternatively, if the conduct falls under that which is described in section

16(2) of the Constitution, then one may proceed to apply section 10 to a given situation.

7

In our view the view expressed in Harmse and the approach suggested by Albertyn and

others are incorrect. The Constitutional Court explicitly stated in MEC for Education:

Kwazulu-Natal v Pillay

8

that a litigant cannot circumvent legislation enacted to give

effect to a constitutional right by relying directly on the constitutional right. Therefore,

a claim based on hate speech must be brought within the four corners of the Equality

Act, except where the complainant/applicant challenges the constitutionality of section

10, which would bring section 16 of the Constitution into play.

9

The view of Albertyn

and others, albeit expressed prior to the Pillay decision, is somewhat convoluted. In

Islamic Unity Convention v Independent Broadcasting Authority,

10

the Constitutional

Court held that section 16(2)(c) of the Constitution should not be understood as

prohibiting hate speech and thereby creating a cause of action upon which one can base

a claim in the event that someone uses words which would meet the threshold set out in

this section.

In other words, where hate speech is alleged, an applicant must base the claim on section

10 of the Equality Act and not on section 16(2)(c) of the Constitution. It is of course

open to any party to raise an argument that section 10 of the Equality Act is

unconstitutional. In deciding whether section 10 meets constitutional scrutiny or not,

section 16 of the Constitution will obviously come into play. Lastly, neither section 10

4

Equality Act, s 2(b)(v).

5

2011 (12) BCLR 1264 (GSJ) para 58 (‘Harmse’).

6

Cathi Albertyn, Beth Goldblatt and Chris Roedered (eds), Introduction to the Promotion of Equality

and Prevention of Unfair Discrimination Act 4 of 2000 (Witwatersrand University Press 2001) 94.

7

ibid.

8

2008 (1) SA 474 (CC) para 40 (‘Pillay’).

9

ibid.

10

2002 (4) SA 294 (CC) para 32 (‘Islamic Unity’).