The Supreme Court of Appeal (SCA) has found that the definition of hate speech in the Promotion of Equality and Prevention of Unfair Discrimination Act (Equality Act) is unconstitutional, and has given Parliament 18 months to remedy the defect.

The order is contained in a ruling in favour of an appeal by columnist and former South African ambassador to Uganda Jon Qwelane against a 2017 conviction for hate speech in the South Gauteng High Court. That court found that Qwelane’s comments about same-sex relationships in a 2008 newspaper column headed Call me names, but gay is not okay were ‘hurtful, harmful, incited harm and propagated hate and amounted to hate speech’.

The case had been brought by the South African Human Rights Commission under section 10 of the Equality Act, on the grounds that it believed Qwelane had advocated hatred against gay people.

In Friday’s 46-page SCA judgment, however, Judge Mahomed Navsa (with four judges concurring) said of section 10 of the Equality Act: ‘It is clear [that the legislature] wanted to regulate hate speech as broadly as possible. Unfortunately, it did not do so with the necessary precision and within constitutional bounds.’

Judge Navsa said that ‘no counsel could point to any decision or regulation in any comparable democratic system which equates with, or even comes close to, the lower threshold contained in [the Equality Act], even assuming that it is intelligible’.

He added: ‘We can all agree that it is important to protect the dignity of all our citizens. Equally, we must agree, given our history, that freedom of expression must also be prized.’

The court found that to qualify as hate speech, a comment must actually incite violence or cause harm. 

IRR analysts welcomed the ruling, noting that certain words would not banish the sentiments behind them, and that if uttering such words was prohibited, the underlying issues could not be properly debated.

The SCA’s decision was welcome because, in bringing the issue of free speech back within the purview of the Constitution, it widened rather than narrowed the scope for free expression, a position the IRR had long argued for, the analysts said.

[Picture: Ben Bezuidenhout, https://commons.wikimedia.org/w/index.php?curid=42156193]

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