Qwelane v SA Human Rights Commission
Hate speech appeal was argued in the Constitutional Court concerning the judgment of the Supreme Court of Appeal dated 29 November 2019 and we now know that judgment will handed down on 30 July 2021.
(CCT 13/2020) : 22 September 2020
Awaiting judgment to be delivered on 30 July 2021
On Tuesday 22 September 2020 the Constitutional Court heard an application concerning the constitutionality of section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (the Equality Act). The application concerned the judgment and order of the Supreme Court of Appeal (SCA), wherein it declared section 10 of the Equality Act unconstitutional, to the extent that it is inconsistent with the right to freedom of expression as enshrined in section 16 of the Constitution and accordingly dismissed a hate speech complaint against Mr Qwelane.
Quotations from judgment
Judgment to be handed down on 30 July 2021 in the Constitutional Court
The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
“On Tuesday, 22 September 2020 at 10h00 the Constitutional Court will hear an application concerning the constitutionality of section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (the Equality Act).
This application concerns the judgment and order of the Supreme Court of Appeal (SCA), wherein it declared section 10 of the Equality Act unconstitutional, to the extent that it is inconsistent with the right to freedom of expression as enshrined in section 16 of the Constitution and accordingly dismissed a hate speech complaint against Mr Qwelane.
The applicant, Mr Qwelane, a popular columnist penned an article titled “Call me names – but gay is not okay”, which was published by the Sunday Sun Newspaper on 20 July 2008. In the article, the applicant compared gay and lesbian people to animals and postulated that they were responsible for the rapid degeneration of values in society.
This article was met by a public outcry resulting in the first respondent, the South African Human Rights Commission, receiving over 350 complaints that the article constituted hate speech, and thus contravened section 10(1) of the Equality Act on the grounds of sexual orientation and marital status. The first respondent referred the alleged hate speech complaint against the applicant to the Equality Court. Responding to this complaint, the applicant instituted a constitutional challenge against section 10(1) of the Equality Act in the High Court.
The proceedings of the constitutional challenge and hate speech complaint were consolidated for hearing before a single judge sitting as both the Equality Court and the High Court of South Africa, Gauteng Local Division, Johannesburg (High Court). The matter was eventually heard in March 2017.
The applicant argued that the article did not constitute hate speech and he could not be held liable in terms of section 10(1) of the Equality Act. The applicant contended that sections 10(1) read with sections 1, 11 and 12 of the Equality Act are too broad in that they unjustifiably limit the right to free expression (overbreadth challenge). Further, he argued that section 10(1) is impermissibly vague, especially when it is read with section 12 of the Equality Act (vagueness challenge).
The High Court dismissed the applicant’s overbreadth challenge. It reasoned that section 10(1) of the Equality Act was not overbroad because it can be read in conformity with section 16(2)(c) of the Constitution, and passed the limitations test pursuant to section 36 of the Constitution. Similarly, the High Court dismissed the vagueness challenge. It held that the test for vagueness is whether the impugned provision indicates with reasonable certainty to those who are bound by it what is required of them. It found that the proviso in section 12 qualifies section 10(1).
Accordingly, the High Court found that the article was hurtful, harmful and has the potential to incite harm and promote hatred against the LGBTI+ community.
Therefore, the High Court held that the applicant’s impugned statements constituted hate speech as contemplated in section 10(1) of the Equality Act.
The High Court ordered that the applicant tender a written apology to the LGBTI+ community and pay the costs of the proceedings.
Supreme Court of Appeal
Discontented with the High Court outcome, the applicant, relying on the same arguments, appealed the judgment at the SCA.
In a unanimous judgment handed down on 29 November 2019, the SCA upheld the appeal.
The SCA dismissed the applicant’s argument that section 10(1) of the Equality Act is unconstitutional on the basis that it extends the prohibited grounds beyond the ones listed in section 16(2)(c).
However, it upheld the overbreadth challenge on the basis that section 10(1) of the Equality Act limits freedom of expression beyond section 16(2)(c) of the Constitution as it assessed hate speech on a subjective test, contrary to section 16(2)(c), which imposes an objective test.
It also held that section 10 limits section 16(1) by prescribing that mere communication of words based on prohibited grounds which could reasonably be construed to demonstrate a clear intention to be “hurtful” is sufficient for liability to attach and for sanction to follow.
Regarding the vagueness challenge, the SCA found that the proviso in section 12 of the Equality Act does not narrow the limitation of freedom of expression caused by section 10(1).
Rather, the proviso in section 12 is difficult to understand, in particular, if one has regard to the concluding part of it.
Ultimately, the SCA found that section 10 of the Equality Act cannot be saved by an interpretative exercise and constitutes an unjustifiable limitation of section 16(1) of the Constitution.
For these reasons, the SCA declared section 10 of the Equality Act to be inconsistent with section 16 of the Constitution and therefore unconstitutional and invalid. In addition, the SCA ordered an interim reading-in that largely mirrors section 16(2)(c), but includes the prohibited ground of “sexual orientation”.
The SCA dismissed the hate speech complaint against the applicant.
Before this Court, the applicant submits that section 10(1) of the Equality Act extends beyond the scope of section 16(2)(c) and unjustifiably limits the right to freedom of expression in section 16(1).
The applicant advances an array of reasons for this, including that section 10 does so by imposing a subjective test for determining hate speech contrary to the objective test imposed by section 16(2)(c) and that it renders a far broader category of speech as prohibited speech that section 16(2)(c).
In addition, the applicant submits that section 12 of the Equality is difficult to interpret and compounds the constitutional inconsistencies in section 10(1).
The applicant contends that section 10(1), which suffers from overbreadth and vagueness, is not a reasonable and justifiable limitation of section 16(1).
The applicant claims that the overbroad and vague language may have a chilling effect on the exercise of freedom of expression.
However, the applicant accepts that the inclusion of the prohibited ground “sexual orientation” is a permissible limitation.
First respondent’s appeal
The first respondent appealed against the findings of the SCA.
It submits that section 10(1) of the Equality Act is capable of a constitutionally compliant interpretation if regard is had to the purpose and objects of the Equality Act.
The first respondent claims that the primary objective is to ensure that human dignity and equality are not sacrificed in the name freedom of expression, and seeks to ensure that these rights co exist.
The first respondent accepts that section 10(1) of the Equality Act is a limitation of section 16(1), but submits that it is a reasonable and justifiable one in terms of section 36 of the Constitution.
The first respondent criticises the SCA’s finding in relation to the vagueness challenge, and in turn submits that section 12 of the Equality Act adds nothing more than what is already contained in section 16(1) of the Constitution.
The second respondent, the Minister of Justice and Correctional Services, who is responsible for the administration and implementation of the Equality Act, echoes the first respondent’s submission that while section 10(1) of the Equality Act is broader than section 16(2)(c) and limits section 16(1) of the Constitution, the limitation is a reasonable and justifiable one in terms of section 36 of the Constitution.
Further, the second respondent submits that the test in section 10(1) is an objective one and argues that the constitutional attack on section 10(1) on the basis of overbreadth is a misplaced one.
The second respondent submits that section 12 of the Equality Act excludes from the scope of section 10(1) any bona fide expression that would be regarded as hate speech in terms of section 10(1), which in any event fall within the protected expression in section 16(1) of the Constitution.
First amicus curiae
The South African Holocaust and Genocide Foundation (SAHGF) has been admitted as the first amicus curiae. It submits that section 10(1) is critical to our constitutional mandate as it protects marginalised and vulnerable groups from speech that erodes their dignity and undermines the achievement of equality. It submits that the impugned provision is capable of a constitutionally permissible interpretation as it strikes the right balance between competing rights. SAHGF submits that even if section 10 does limit section 16(1), on a limitations analysis section 10(1) passes constitutional muster.
Second amicus curiae
The Psychological Society of South Africa (PsySSA) has been admitted as the second amicus curiae. PsySSA positions the hate speech complaint in context and analyses the impugned statements in conjunction with the impact on the LGBTI+ communities. It underscores the psychological and social effects of hate speech and emphasises the importance of these effects to illustrate the exigency of section 10(1) for the protection of vulnerable and marginalised groups.
Third amicus curiae
The third admitted amicus curiae is the Women’s Legal Centre Trust (WLC). WLC makes submissions on the impact of speech on women. In particular, it submits that the State has a constitutional duty to address systemic inequality against women and protect women from violence in all its forms, which includes regulating sexist, gendered or misogynistic speech.
Fourth amicus curiae
The fourth amicus curiae is the Southern African Litigation Centre (SALC). SALC submits that the right to freedom of expression and to be protected from hate speech are protected by international law. It claims that international law provides clear parameters for the lawful limitation of the right to freedom of expression and that international law has developed tests to permissibly limit expression.
It submits further that international law prohibits hate speech on the basis of sexual orientation. SALC argues therefore that South Africa is required to ensure that protection against hate speech is extended to the LGBTI+ community.
Fifth amicus curiae
The Freedom of Expression Institute (FXI) has been admitted as the fifth amicus curiae. FXI agrees with the applicant that section 10 is unconstitutional as it is vague and overly broad and thus cannot be rescued regardless of what interpretation this Court adopts. It submits that there are less restrictive means to achieve the purposes of the Equality Act.
Sixth amicus curiae
The sixth amicus curiae admitted, Nelson Mandela Foundation (NMF), argues that section 10(1) of the Equality Act creates a statutory delict to protect and vindicate the right to equality by limiting speech that infringes it. It submits that section 10 strikes an appropriate balance between the right to free expression and the right to equality, in a similar way to the common law delicts of defamation and iniuria in respect of the right to dignity.
It submits that section 10(1) imposes a justifiable limitation on freedom of expression.
Seventh amicus curiae
The seventh amicus curiae admitted, Media Monitoring Africa (MMA) submits that section 10(1) of the Equality Act can only conceivable pass constitutional must if it is read in the most restrictive manner. However, it submits that it ultimately suffers from overbreadth and vagueness. When conducting a limitations analysis, it notes various problems.
It claims that when hate speech legislation is cast in terms that are too broad or vague, there is a real risk that members of marginalised groups will be prevented from expressing their views.”