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There is a fine line between the freedom of expression and expression that constitutes hate speech. In our society there is a constant battle as to what can and cannot be said and the consequences the offending nature of one’s expression may cause. This was discussed in the case of Qwelane v South African Human Rights Commission and Another (Freedom of Expression Institute and Another as Amici Curiae) [2020] 1 All SA 325 (SCA) where the Supreme Court of Appeal (SCA) had to determine the constitutionality of s 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (the Act) insofar as it relates to the regulation of freedom of expression and hate speech.
The Qwelane case came before the SCA from the Gauteng Local Division of the High Court in Johannesburg. The matter came before the court a quo when ‘an admittedly offensive article’ written by Jonathan Qwelane, was published in the Sunday Sun. The article was captioned ‘Call me names – but gay is NOT okay’. The content of the article illustrated Mr Qwelane’s alleged disdain for the homosexual group as a whole. The content of the article caused a substantial outcry, in that text that constituted hate speech could be published. Complaints made to the SAHRC alleged that the article intended to be hurtful, cause harm and promote an element of hatred. It was claimed that the article infringed on multiple human rights conferred on homosexuals.
The South African Human Rights Commission (SAHRC) has a constitutional duty – in terms of s 184(1)(b) of the Constitution – to ‘promote the protection, development and attainment of human rights’ and has a subsequent power ‘to take steps to secure appropriate redress where human rights have been violated’. Section 2(f) of the Act states that the object of the Act is ‘to provide remedies for victims of unfair discrimination, hate speech and harassment and persons whose right to equality has been infringed’ in terms of s 20(1)(f) of the Act the SAHRC may institute proceedings.
On this basis, the SAHRC instituted proceedings between Media24 and Mr Qwelane, alleging that they had contravened s 10(1) of the Act. Both Media24 and Mr Qwelane instituted proceedings in the High Court with an application to have s 10(1) read with ss 11 and 12 of the Act declared unconstitutional based on the grounds that they are inconsistent with s 16 of the Constitution. A settlement agreement was reached between Media24 and the SAHRC, as a result, Media24 withdrew its application. The proceedings against Mr Qwelane continued in the Equality Court and were subsequently joined to the proceedings in the High Court.
The court a quo found the statements made by Mr Qwelane to be hurtful, to have incited harm and generated hatred and, therefore, the content constituted hate speech. Moshidi J dismissed Mr Qwelane’s application. He held, inter alia, that s 10(1) entailed an objective test and that if subss 10(1)(a) – (c) were read in conjunction with one another, they are in accordance with s 16 of the Constitution. Based on this judgment, Mr Qwelane appealed to the SCA.
It must be determined whether ss 10 and 12 of the Act are in fact unconstitutional as Mr Qwelane’s application was based on this ground. The SCA stated that ‘a decision in relation to the constitutionality of section 10(1) is foundational to the outcome of this appeal’.
Mr Qwelane’s argument was that s 10 of the Act limits the application of s 16 of the Constitution without justification in that the sections of the Act that were applied against Mr Qwelane were stretched far beyond the scope of s 16(2).
The court relied on South African National Defence Union v Minister of Defence and Another 1999 (4) SA 469 (CC) to determine the importance of allowing freedom of expression in a democratic state, where it was held that ‘freedom of expression is one of a “web of mutually supporting rights” in the Constitution. It is closely related to freedom of religion, belief and opinion (s 15), the right to dignity (s 10), as well as the right to freedom of association (s 18), the right to vote and to stand for public office (s 19) and the right to assembly (s 17). … The rights implicitly recognise the importance, both for a democratic society and for individuals personally, of the ability to form and express opinions, whether individually or collectively, even where those views are controversial.’
The case of S v Mamabolo (E TV and Others Intervening) 2001 (3) SA 409 (CC) was also relied on in this respect where the court held ‘[f]reedom of expression, especially when gauged in conjunction with its accompanying fundamental freedoms, is of the utmost importance in the kind of open and democratic society the Constitution has set as our aspirational norm. Having regard to our recent past of thought control, censorship and enforced conformity to governmental theories, freedom of expression – the free and open exchange of ideas – is no less important than it is in the United States of America. It could actually be contended with much force that the public interest in the open market-place of ideas is all the more important to us in this country because our democracy is not yet firmly established and must feel its way. Therefore, we should be particularly astute to outlaw any form of thought control, however respectably dressed.’
Therefore, as seen from the Qwelane case, as well as from the two aforementioned cases, there is great importance in preserving one’s freedom of expression, however, that does not mean that the protection of freedom of expression outweighs the significance of other fundamental rights. Our courts illustrated this in the case of Mamabolo above, where the court held: ‘With us the right to freedom of expression cannot be said automatically to trump the right to human dignity. The right to dignity is at least as worthy of protection as the right to freedom of expression. How these two rights are to be balanced, in principle and in any particular set of circumstances, is not a question that can or should be addressed here. What is clear though and must be stated, is that freedom of expression does not enjoy superior status in our law.’
There was never a question of whether s 10 of the Act limits the right of freedom of expression as provided for in s 16 of the Constitution. The question is whether the section in the Act reaches beyond the scope of s 16(2) of the Constitution and, if so, can this be justified? In the Qwelane case, the court stated that s 10 does extend beyond the scope of s 16(2). When interpreting the infringements of rights, the test to be applied is an objective one. Therefore, the first question to be asked will be ‘was the expression of hatred displayed based on one of the prohibited grounds?’ Thereafter, the subsequent question will then be ‘did the expression of hatred provoke the causing of harm?’ The SCA applied the objective test in terms of s 10 ‘in relation to the exercise envisaged by section 10(1) of [the Act], one commences by considering whether a person published, propagated, advocated or communicated words based on one or more of the prohibited grounds against any person and then looks to see whether the words complained of could “reasonably be construed to demonstrate a clear intention to be hurtful, harmful or to incite harm, promote or propagate hatred” – as provided for in subsections (a), (b) and (c) of section 10(1) of [the Act].’
What is interesting to note is that the SAHRC, the Minister of Justice and Correctional Services and the Psychological Society of South Africa all conceded that the subsections of s 10 were to be read individually. Because of this, the subsections are applied in the alternative and not conjunctively and so, it could be quite possible that the expression displayed can be found not to be hate speech. The SCA held that this application of the subsections could in fact entail an infringement on the very right the provisions are trying to protect.
The SCA makes reference to Cathi Albertyn, Beth Goldblatt and Christopher Roedere (eds) Introduction to the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (Johannesburg: Witwatersrand University Press 2001) who are of the opinion that the provisions of the Act as a whole are quite frankly, ‘exceptionally difficult to understand’ and due to this, the average person is in no position to understand what conduct is expected of them.
The court then avers a viewpoint on the problem of curtailing freedom of expression in that ‘besides the question of how control could be exercised jurisprudentially in respect of hurtful words, daily human interaction produces a multitude of instances where hurtful words are uttered and thus, to prohibit words that have that effect, is going too far. So, too, a host of jokes might be hurtful to those who bear the brunt of them. Are we to entertain complaints that extend to jokes that are not within the limitations of s 16(2)(c) of the Constitution?’
It was determined that s 10 of the Act does reach further than the scope provided for in s 16(2) of the Constitution. Section 10 of the Act was declared inconsistent with s 16 of the Constitution and is therefore, unconstitutional. The SCA held that ‘we should be allowed to be firm in our convictions and to differ on the basis of conscience. What we are not free to do is to infringe the rights of others and we certainly are not free to inflict physical or psychological harm on others’.
The court has a responsibility in terms of s 172(1) of the Constitution, once finding that a provision is unconstitutional, to make an order in respect of the particular provision by limiting the retrospective effect and declaring invalidity for a period in order for the relevant body to correct the provision. The court subsequently made the necessary temporary amendments, giving Parliament 18 months to remedy the provision from the date of 29 November 2019. In accordance with s 172(2)(a) of the Constitution, the order of constitutional invalidity was referred to the Constitutional Court for confirmation and their final decision is yet to be handed down.
The SCA made mention of the article by Pierre de Vos ‘Why the hate speech provisions may be unconstitutional’ (https://constitutionallyspeaking.co.za, accessed 4-8-2020) where it was stated that ‘[i]n a vibrant democracy which respects difference and diversity – also diversity of opinion – it would be dangerous to ban all speech that could be construed as intending to be hurtful to another person merely because of that person’s race, sex, sexual orientation, religion, language, ethnicity, culture or age. Some of us remember all too well how the Apartheid government tried to censor our thoughts and our speech. Do we really want to go back to a situation where we are so scared to express our deeply and sincerely held and honest opinions that we shut up because we fear we might be found guilty of hate speech?’
The above extract illustrates that while the regulation of hate speech is important, it must not detract one from the importance that freedom of expression gives an individual. Both rights are equally important, and one does not enjoy superiority over the other. However, one cannot be too quick in finding a form of expression constituting hate speech as what are the implications on one’s rights when they feel voiceless?
Kathleen Mukheibir LLB (Unisa) Higher cert in Business Principles and Practice (IIE) is a copywriter in Cape Town. Ms Mukheibir was a candidate legal practitioner at the time of writing the article.
This article was first published in De Rebus in 2020 (Sept) DR 16.
