Supreme Court of Appeal declares hate speech provision unconstitutional

Qwelane v South African Human Rights Commission and Another [2019] ZASCA 167

Date of judgment: 29 November 2019

Court: Supreme Court of Appeal

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The relevance of the case

The Supreme Court of Appeal (SCA) declared the hate speech provision contained in section 10(1) of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (PEPUDA) to be unconstitutional. The matter has now been referred to the Constitutional Court for confirmation of the order of constitutional invalidity.

Background

In July 2008, Mr Qwelane wrote a column for the Sunday Sun titled “Call me names – but gay is NOT okay”. The column contained various offensive references with regard to homosexuality and was accompanied by a cartoon depicting a man on his knees alongside a goat, appearing in front of a priest to be married. The caption read: “When human rights meet animal rights”.

The South African Human Rights Commission (SAHRC) instituted proceedings in the Equality Court, arguing that the column contravened section 10(1) of PEPUDA. This provision read as follows:

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.

Qwelane challenged the constitutionality of section 10(1) of PEPUDA, on the basis that it was consistent with the right to freedom of expression contained in section 16 of the Constitution of the Republic of South Africa, 1996 (the Constitution). Before the Equality Court, Moshidi J dismissed the constitutional challenge to section 10(1) of PEPUDA. Qwelane then appealed the matter to the SCA.

Findings of the SCA

The SCA began with an analysis of section 16 of the Constitution, which is divided into two parts: sub-section (1) contains a general right to freedom of expression; while sub-section (2) sets out the categories of speech that are not protected by the right, namely propaganda for war, incitement of imminent violence, or advocacy of hatred based on race, ethnicity, gender or religion and that constitutes incitement to cause harm. The crux of the argument before the SCA was that section 10(1) of PEPUDA impermissibly extended beyond the speech excluded from protection in terms of section 16(2) of the Constitution. Qwelane also contended that the relevant provisions in PEPUDA were overbroad and vague, and therefore did not pass constitutional muster.

The SCA noted that the constitutional standard involves an objective test: a primary assessment of whether the expression complained of comprises advocacy of hatred based on one of the prohibited grounds, and then a further assessment of whether the advocacy of hatred constitutes incitement to cause harm. On the other hand, section 10(1) of PEPUDA commenced 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 looked 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”. Before the SCA, all parties conceded that the provisions of sub-sections 10(1)(a) to (c) must be read disjunctively.

According to the SCA, the disjunctive interpretation of section 10(1) of PEPUDA departed significantly from the objective constitutional test, and replaced it with the subjective opinion of a reasonable person hearing the words. The SCA described this as “an extensive infringement on the right to freedom of expression”. In respect of the issue of justification, the SCA stated (at para 87) as follows:

In the present case, in interpreting the legislation in question, one should be aware that one is dealing with competing for constitutional rights and with the Legislature’s understandable concern that hate speech should not be allowed to threaten the constitutional project. It is clear, as observed by commentators, that it wanted to regulate hate speech as broadly as possible. Unfortunately, it did not do so with the necessary precision and within constitutional bounds. Bearing in mind the Legislature’s purpose, one should not, however, lose sight of other significant factors, which I allude to hereafter. The powers of an Equality Court adjudicating a complaint as provided for in s 21 of PEPUDA are extensive. If a complaint is held to be justified, the court may, after an enquiry, inter alia, make an order for payment of damages. Furthermore, it may grant interdictory and/or mandatory relief. An Equality Court may order an audit of policies of practices implicated by an enquiry. Significantly, an Equality Court may, in terms of s 21(4) of PEPUDA, direct the clerk of the court to refer the matter before it to the Director of Public Prosecutions for the possible institution of criminal proceedings in terms of the common law or relevant legislation.

In sum, the SCA held that the provisions of section 10 of PEPUDA could not be saved by an interpretive exercise, finding that “[t]he problems … in relation thereto are too extensive and s 10(1) of PEPUDA cannot be interpreted so as to render it consistent with, rather than inimical to, the Constitution.” Accordingly, the SCA held section 10(1) of PEPUDA to be unconstitutional and referred the matter to the Constitutional Court for confirmation of the order of constitutional invalidity.

Order of the SCA

In the result, the SCA made the following order:

1. The appeal is upheld with costs.
2. The order of Moshidi J is set aside and substituted as follows:

(a) Section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (PEPUDA) is declared to be inconsistent with the provisions of s 16 of the Constitution and is therefore unconstitutional and invalid.

(b) The complaint by the South African Human Rights Commission against Mr Qwelane in terms of s 10 of PEPUDA is dismissed.

(c) Parliament is afforded a period of 18 (eighteen) months from 29 November 2019 to remedy the defect.

(d) During the aforesaid period s 10 of PEPUDA shall read as follows:

“10(1)  No person may advocate hatred that is based on race, ethnicity, gender, religion or sexual orientation and that constitutes an incitement to cause harm.

10(2) Without prejudice to any remedies of a civil nature under this Act, the court may, in accordance with section 21(2)(n) and where appropriate, refer any case dealing with the advocacy of hatred that is based on race, ethnicity, gender, religion or sexual orientation, and that constitutes incitement to cause harm, as contemplated in subsection (1), to the Director of Public Prosecutions having jurisdiction for the institution of criminal proceedings in terms of the common law or relevant legislation.”

(e) Section 10, in the form set out in para (d.), will fall away upon the coming into operation of a legislative amendment to s 10, or its repeal by a statute dealing with the regulation of hate speech. Should Parliament fail to effect such changes by the end of the period referred to in (c.) above, s 10 in the form set out in (d.) will become final.

(f) This order is referred to the Constitutional Court in terms of s 172(2)(a) of the Constitution for confirmation of the order of constitutional invalidity.

The full judgment is accessible (via SAFLII) here.

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