Qwelane v South African Human Rights Commission and Another

• Jurisdiction: South Africa
• Citation: 2020 (2) SA 124 (SCA)

Qwelane v South African Human Rights Commission and Another
2020 (2) SA 124 (SCA)

2020 (2) SA p124

Citation	2020 (2) SA 124 (SCA)
Case No	686/2018; [2019] ZASCA 167
Court	Supreme Court of Appeal
Judge	Navsa JA, Wallis JA, Dambuza JA, Van der Merwe JA and Dolamo AJA
Heard	November 29, 2019
Judgment	November 29, 2019
Counsel	M Oppenheimer for the appellant.; T Ngcukaitobi (with O Mokgotho and T Ramogale) for the first respondent.; KD Mhango (with D Gondo) for the second respondent.; SL Shangisa (with MM Ka-Siboto) for the first amicus.; K Hofmeyr (with C Steinberg, D Smit and H Cassim) for the second amicus.

Flynote : Sleutelwoorde

Constitutional law — Legislation — Validity — Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000, s 10 — Hate speech prohibition — Overbroad and vague — Declared inconsistent with right to freedom of expression — Constitution, s 16(2)(c).

Constitutional law — Human rights — Right to freedom of expression — Hate speech — Equality Act — Hate speech prohibition — Overbroad and vague — Declared inconsistent with right to freedom of expression — Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000, s 10; Constitution, s 16(2)(c).

Headnote : Kopnota

Section 16 of the Constitution secures everyone the right to freedom of expression. All forms of expression are protected, except for those set out in ss (2) (see [51]), which include (ss 2(c)) 'advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm'. The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (the Equality Act) — enacted to give effect to s 9 of the Constitution, which secures everyone the right to equality — has as one of its objectives the regulation of hate speech. Section 10(1) of the Act reads:

'Subject to the proviso in section 12, 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.'

The principal questions in the present appeal heard before the Supreme Court of Appeal (the SCA) were the following. Did the Equality Act's hate speech provisions go further in restricting particular kinds of speech than the hate speech restriction in s 16(2)(c) of the Constitution, and accordingly infringe the right to freedom of expression? If so, was such limitation justifiable under s 36 of the Constitution?

The relevant background was the following. A newspaper — the Sunday Sun newspaper — on 20 July 2008 published a highly offensive article, written by Mr Jon Qwelane, a popular columnist, and titled 'Call Me Names'. In it the author called homosexuality 'wrong', and called for those provisions of the Constitution allowing same-sex marriage to be amended. The author also expressed admiration for the late ex-president of Zimbabwe, Robert Mugabe's 'unflinching and unapologetic' stance on homosexuality. A cartoon accompanied the article, depicting a man and a goat kneeling before a priest, with the captions 'When human rights meet animal rights' and 'I pronounce you man and goat'. The article led to a huge public outcry, and ultimately the Human Rights Commission's bringing an application against Mr Qwelane in the Equality Court, alleging that the article contravened s 10(1) of the Equality Act. Mr Qwelane subsequently brought proceedings

2020 (2) SA p125

in the High Court for an order declaring s 10(1), read with ss 12 and 1, of the Equality Act unconstitutional on the basis that it was inconsistent with s 16 of the Constitution. Proceedings in the High Court and the Equality Court were consolidated. The court hearing the matter dismissed Mr Qwelane's constitutional challenge (see [34]), and found the offending statements against homosexuals to amount to hate speech as envisaged in s 10 of the Equality Act. Mr Qwelane appealed to the SCA. There he argued that the impugned provisions were overbroad and vague, and did not pass constitutional muster.

Held, that s 10(1) of the Equality Act in curtailing freedom of expression in the manner it did, extended far beyond the limits of expression provided in s 16(2)(c) of the Constitution (see [53] and [77]).

•

Section 16(2)(c) of the Constitution excluded from constitutional protection under s 16(1) the advocacy of hatred that constituted incitement to cause harm based on the four stated grounds of race, ethnicity, gender or religion. Section 10(1) of the Equality Act, on the other hand, purported to extend those bases to include all of the categories set out under 'prohibited grounds' as defined in s 1, which included sexual orientation, the ground upon which the claims of hate speech against Mr Qwelane were based (see [53]). (Note: the SCA, however, found that the extension of hate speech to include the ground of sexual orientation was constitutionally permissible (see [60]). This was so, given the duty on the state, in terms of the Constitution, as well as various international treaties to which it was subject, to prohibit unfair discrimination, and to promote and protect the right to human dignity (see [54] – [60]).)

•

Section 16(2)(c) of the Constitution proposed an objective test in which one had to establish the existence of both the advocacy of hatred on one or more of the four grounds and the incitement of harm (see [61] – [62]). On the other hand, under the Equality Act a finding of hate speech may follow in the absence of one or both requirements (see [64], [65] and [67]). Section 10(1) instead required the publication, propagation, advocacy or communication of words based on any one of the prohibited grounds that could reasonably be construed to have had any one of the results set out in s 10(1)(a) – (c) (see [61], [63] and [67]). (Note: the SCA held that ss 10(1)(a), (b) and (c) of the Equality Act, properly interpreted, had to be read disjunctively, not conjunctively (see [64]).)

•

The test under the Equality Act departed significantly from the objective constitutional test and replaced it with the subjective opinion of a reasonable person hearing the words (see [66]).

•

Under the Equality Act, mere communication of words based on prohibited grounds which could reasonably be construed to demonstrate a clear intention to be 'hurtful' was sufficient for liability to attach and for sanction to follow (see [65]). As such, given the definition of 'hurtful', words could qualify as hate speech without any potential, or actual, harm having to be shown ([65] and [68]); it was enough that a person's feelings were injured (see [68]). However, to prohibit words that had that effect would be going too far, considering that daily human interactions produced a multitude of instances in which such words were uttered (see [69]). While the harm envisaged in s 16 of the Constitution and contemplated in the provisions of s 10(1) of the Equality Act need not necessarily be physical harm, but could be related to psychological impact, the impact had to be more than just hurtful in the dictionary sense (see [70]).

2020 (2) SA p126

Held, further, that s 10(1) of the Equality Act was vague and difficult to understand, in particular with regard to determining what 'hurtful' was meant to capture. [See [68].]

Held, accordingly, that s 10(1) of the Equality Act could not on any reasonable interpretation be equated with the provisions of s 16(2) of the Constitution (see [77]). Further, the limitation of s 16(2) could not be justified under s 36 of the Constitution (see [78] and [88]). There was no other democratic country whose hate speech regulations equated with, or even came close to, the low threshold contained in s 10(1) (see [85]). The respondents, in seeking to provide justification, had referred to the repeated violations of the rights of members of the LGBTI community and the repeated efforts to marginalise the community (see [78]). In this regard, it could be agreed that it was important to protect the dignity of all citizens (see [85]), and that hate speech should not be allowed to threaten the constitutional project (see [87]). It was clear that the state wished to widen the protection against hate speech and it should be allowed to do so (see [85], [87] and [93]). However, the regulation had to be carefully tailored to minimise the impairment of freedom of expression (see [82] and [85]). Section 10(1) of the Equality Act, given its overbreadth and imprecision, was not (see [78] and [87]). Accordingly, s 10(1) in its present form was unconstitutional (see [88]). The appeal was to be upheld, and the order of the court a quo set aside (see [96]).

Held, that the state should be afforded the opportunity to widen the protection against hate speech, consonant with the Constitution (see [93]). Pending the finalisation of the legislative process, it was necessary to provide for an interim remedy (see [93]), that would protect vulnerable groupings against the dreadful consequences of hate speech, but that was tailored to meet constitutional prescripts (see [92] and [94]). As such, s 10(1) would, temporarily, read as follows: 'No person may advocate hatred that is based on race, ethnicity, gender, religion or sexual orientation and that constitutes incitement to cause harm.' (See order in [96])

Cases cited

Southern Africa

Abahlali Basemjondolo Movement SA and Another v Premier of the Province of Kwazulu-Natal and Others 2010 (2) BCLR 99 (CC) ([2009] ZACC 31): referred to

Case and Another v Minister of Safety and Security and Others; Curtis v Minister of Safety and Security and Others 1996 (3) SA 617 (CC) (1996 (1) SACR 587; 1996 (5) BCLR 609; [1996] ZACC 7): dictum in para [77]...