Authored By: Neliswa Luthando Ntshangase
University of Fort Hare
CASE NAME AND CITATION
Qwelane V South African Human Rights Commission (2022) 2 BCLR 129 (SA)
COURT NAME
Constitutional Court of South Africa
DATE OF JUDGEMENT
30 July 2021
PARTIES INVOLVED
The matter is between Jonathan Dubula Qwelane, who is an applicant, and South African Human Rights Commission, a respondent together with Minister of Justice and Correctional Services, a second respondent.
FACTS OF THE CASE
An applicant, Jonathan Qwelane authored an article titled “call me names – but gay is not okay.” The article was accompanied by a cartoon of a man and a goat going through a nuptial process by a priest, there was also a bubble text which read” I now pronounce you man and goat”, and this was captioned, “when human rights meet animal rights.” This article raised issues as such that Qwelane was being homophobic, and his article promoted hate speech under section 10(1) of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (Equality Act). Section 10(1) of the Equality Act 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.”
The “prohibited grounds”, referred to in section 10(1), are defined in section 1 of the Act as follows: “(a) race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth. Qwelane argued that section 10(1) of the Equality Act infringed his right of freedom of expression provided in section 16 of the Constitution, and the word ‘hurtful’ was unclear and vague. The judgement from the High Court declared that Qwelane’s article constituted hate speech and he was ordered to apologise publicly, of which the production editor of the Sunday sun, newspaper that published the article, testified that they had already published an apology. The Supreme Court of Appeal confirmed that section 10(1) of the Equality Act was vague and still maintained a ruling from the High Court that the article did amount to hate speech.
ISSUES RAISED
- Whether the impugned provision entails a subjective or objective test. • Whether section 10(1)(a)-(c) must be read disjunctively or conjunctively. • Whether the impugned provision is impermissibly vague.
- Whether the impugned provision leads to an unjustifiable limitation of section 16 of the Constitution.
- If the constitutional challenge is successful, the appropriate remedy. • The complaint against Mr Qwelane in terms of the Equality Act.
- Costs.
ARGUMENTS OF THE PARTIES
Applicants’ submissions
Mr. Qwelane did not contend that the words “sexual orientation” as a prohibited ground are reasonable and justifiable, instead he contended his article does not advocate for hatred against homosexuals and does not incite others to cause harm. He further argued that the contested section violates section 16(1) in various ways because it goes beyond section 16(2)(c) of the Constitution. Firstly, compared to the Constitution, it sets a lower bar for evaluating hate speech. Secondly, subsections (a) to (c) must be interpreted independently to create a much larger category of hate speech that is forbidden by the Constitution, however, even a conjunctive reading unjustifiably restricts section 16(1) of the Constitution. thirdly, although the applicant does not contest the inclusion of sexual orientation, it contains more prohibited grounds than those mentioned in section 16(2)(c). lastly, it is not possible to interpret the proviso in section 12 in a way that would make the contested section constitutional.
He emphasised the significance of freedom of expression in our constitutional landscape when discussing fairness. He argued that the Equality Act’s noble goals do not justify the challenged provision or make it constitutional. The section’s broad scope violates the right to free expression by failing to strike a proper balance between it and the right to equality. It was emphasised that the limitation is clearly too general. And this would result to ordinary citizens being unable to determine in advance with a reasonable degree of certainty whether their expression will fall foul of the impugned section.
Mr. Qwelane argued that section 16(2)(c) of the Constitution appropriately sets the threshold for protection against hate speech. By identifying additional groups of vulnerable individuals who could legitimately be granted protection from such speech, equality can be promoted. Equality and freedom of expression are not sufficiently balanced by this overbroad restriction, nor is it effectively promoted. As such, it cannot be justified considering the goals it aims to accomplish. In its ruling, the Supreme Court of Appeal determined less restrictive methods by gradually increasing the list of grounds (and, consequently, the categories of vulnerable individuals shielded from hate speech) while preserving the threshold established by section 16(2)(c). Mr. Qwelane agreed with the Court’s broad logic and suggested remedy.
The defendant’s submissions
The SAHRC emphasised the importance of equality in our Constitution, outlining that the Equality Act fulfils the section 9 right in the Constitution. The section aims to protect human dignity and equality without compromising free speech. When speech violates equality and dignity, it is reasonable to limit the right to free expression. The SAHRC contended that the Supreme Court of Appeal had lost sight of the interpretation process as outlined in the section 39(2) of the Constitution which states that when interpreting a statute, it must promote the spirit, purport, and objects if the Bill of Rights. It also contended that the words “that could reasonably be construed to demonstrate a clear intention to” were clear and objective, the court was wrong in its fundings and saying it was subjective.
In respect of the “hurtful” word, the SAHRC contended that dignity is the standard in which the impugned word must be evaluated. “Harmful or to incite harm” goes beyond physical harm, it includes psychological, emotional, and social harm that adversely affects the right to dignity, if the harm is severe enough to qualify as hate speech. The SAHRC accepted that the challenged section does infringe the right to freedom of expression but also submitted that the limitation of the right is acceptable in terms of section 36(1) of the Constitution. It emphasised that rather than illegalising hate speech, equality clause establishes legal remedies, the impugned section also give effect to section 9(2) of the Constitution. The SAHRC argued that the Supreme Court of Appeal misinterpreted in assuming that less restrictive means would align with section 16(2). Section 16(2) does not protect expression and does not entail any limiting analysis. In effect, section 16(2) would exclude the grounds of prohibition outlined in section 1 of the Equality Act, which aligns with section 9(3) of the Constitution. Section 12 currently protects journalists and artists, but this would be revoked.
The Minister’s submissions focused on the constitutionality of the challenged section. He acknowledged that the challenged clause restricts the right to freedom of expression but argued that the restriction is reasonable and justifiable. He argued that section 16(2)(c) prohibits expressions that go beyond its scope in three ways. The first section outlines prohibited kinds of expression, including publication, propagation, advocacy, and communication. This is not addressed in the Constitution. Second, hate speech is illegal under the Equality Act’s definition of “prohibited grounds”. The prohibited grounds for discrimination are listed in section 9(3) of the Constitution. Section 16(2)(c), on the other hand, specifies only four prohibited grounds: race, ethnicity, gender, and religion. The contested section differs from section 16(2)(c) in two ways: (a) it includes words intended to be “hurtful” or “harmful” and (b) it uses a different standard, “reasonably construed to demonstrate a clear intention to,” whereas section 16(2)(c) refers to “advocacy of hatred that is based on race, ethnicity, gender, or religion, and that constitutes incitement to cause harm.” The MEC supported most of the SAHRC arguments.
JUDGEMENT
- In respect of the confirmation application, the following order was made:
(a) The declaration of constitutional invalidity of section 10(1) of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (Equality Act) made by the Supreme Court of Appeal is confirmed in the terms set out in paragraph (b).
(b) It is declared that section 10(1) of the Equality Act is inconsistent with section 1(c) of the Constitution and section 16 of the Constitution and thus unconstitutional and invalid to the extent that it includes the word “hurtful” in the prohibition against hate speech.
(c) The declaration of constitutional invalidity referred to in paragraph (b) takes effect from the date of this order, but its operation is suspended for 24 months to afford Parliament an opportunity to remedy the constitutional defect giving rise to constitutional invalidity.
(d) During the period of suspension of the order of constitutional invalidity, section 10 of the Equality Act will read as follows: (1) Subject to the proviso in section 12, no person may publish, propagate, advocate or communicate words that are based on one or more of the prohibited grounds, against any person, that could reasonably be construed to demonstrate a clear intention to be harmful or to incite harm and to promote or propagate hatred. (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 publication, advocacy, propagation or communication of hate speech 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) The interim reading-in will fall away when the correction of the specified constitutional defect by Parliament comes into operation.
(f) Should Parliament fail to cure the defect within the period of suspension, the interim reading-in in paragraph (d) will become final.
- In respect of the appeal against the hate speech complaint:
(a) Leave to appeal is granted.
(b) The appeal by the South African Human Rights Commission is upheld.
(c) The order of the Supreme Court of Appeal is set aside.
(d) The offending statements (made against the LGBT+ community) are declared to be harmful, and to incite harm and propagate hatred; and amount to hate speech as envisaged in section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act No 4 of 2000.
- In respect of the constitutionality challenge, the Minister of Justice is ordered to pay half of Mr Jonathan Dubula Qwelane’s costs in the High Court, the Supreme Court of Appeal, and this Court.
- Mr Jonathan Dubula Qwelane is ordered to pay the costs of the South African Human Rights Commission in the High Court, the Supreme Court of Appeal and in this Court.
LEGAL REASONING
The court emphasised that as much as the right to freedom of expression is not absolute, it was still a cornerstone of democracy, and it was to be interpreted together with section 10(human dignity) and section 9(equality right) of the Constitution. The court outlined the section 16 of the Constitution which talks of freedom of expression. It held that Emerson identifies four specific values that support the right to free expression. These, as I see them, include: (a) the quest of truth; (b) its importance in ensuring the correct functioning of democracy; (c) the promotion of individual autonomy and self-fulfilment; and (d) the advocacy of tolerance. Dworkin provides two main explanations for these values: instrumental and constitutive. The idea that unrestricted criticism improves government quality is referred to as “a collective bet that free speech will do us more good than harm over the long run”. Freedom of expression is vital in a just political community where adults are treated as responsible moral actors, except for those who are legally incompetent.
In its reasoning the court referred to the case of Islamic Unity Convention v Independent Broadcasting Authority (2002) 5 BCLR 433 (SA) and held that “Freedom of expression is applicable, not only to information or ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the state or any sector of the population. Such are the demands of that pluralism, tolerance, and broadmindedness without which there is no democratic society.” The court accepted that the plain reading of section 10 of the Equality Act was broader than section 16(2) of the Constitution.
Regarding hate speech the court looked back to international law which said “Restricting expression because it may offend or hurt sentiments fails to recognize the importance of expression in personal fulfilment, the pursuit of truth, and free political conversation. Prohibiting representation that ‘ridicules, belittles, or otherwise affronts the dignity of’ protected groups may limit expression that is offensive to most people but does not expose the target group to extreme detestation or vilification, potentially leading to discriminatory behaviour. A general prohibition, rather than tailored to specific requirements, would significantly limit freedom of expression.” International law ensures that freedom of expression is protected and limited in a way that it does not amount to hate speech.
The Mandela Foundation contended that section 10(1) is a unique statutory delict that provides specific remedies for the right to equality. Parliament created new statutory delicts to protect victims from discrimination, hate speech, and harassment, making them actionable in the Equality Court. The court agreed with this submission. The Court discussed whether the wording “that could reasonably be construed to demonstrate a clear intention” implies a subjective or objective standard. The court says it is a clear objective norm that necessitates a reasonable person test. The phrase “reasonably be construed” and “to demonstrate a clear intention” suggest an objective test that considers the facts and circumstances surrounding the expression, rather than relying solely on the targeted group’s assumptions. Objective standards better reflect the spirit, purpose, and objectives of the Bill of Rights. However, relying on the target group’s subjective perception could limit freedom of expression by allowing allegations to be based on insignificant behaviours by overly sensitive individuals. However, if based on the speaker’s subjective intention, the threshold for civil culpability would be far greater.
The court held that the limitation of section 16 was proportionate and reasonable and the expansion of the listed grounds to include analogous grounds, does not render the definition of prohibited grounds unconstitutional. The extended prohibited grounds are narrowly crafted to fulfil the purpose of the hate speech prohibition. The court referred to Islamic Unity Convention v Independent Broadcasting Authority (2002) 5 BCLR 433 (SA) which held that “where the State extends the scope of regulation beyond expression envisaged in section 16(2), it encroaches on the terrain of protected expression and can do so only if such regulation meets the justification criteria in section 36(1) of the Constitution”.
The court further held that, the usage of “hurtful” on a conjunctive reading appears redundant and contributes to the section’s unclear meaning. The term “harmful” encompasses both emotional and psychological injury to the targeted group’s dignity, as well as physical harm. “Hurtful” could fairly be interpreted as “harmful,” which includes both emotional and psychological pain. There is no reason to have both. One answer is to redefine “hurtful” to signify something other than emotional harm, something less. However, the conjunctive reading requires those making claims to demonstrate both emotional and physical harm. It may be true that destructive speech is always detrimental. If it is, the omission of the word “hurtful” due to its vagueness prevents redundancy, which can lead to a lack of clarity.
Regarding Mr. Qwelane’s article this court referred to what it said in the case of National Coalition for Gay and Lesbian Equality v Minister of Justice (1998) 12 BCLR 1517 (SA), it held that, “Society respects gays and lesbian relationships less than heterosexual ones, reflecting ongoing discrimination. This mistreatment conveys that gay individuals lack the inherent dignity and respect accorded to heterosexuals. Such discrimination undermines the foundational principles of equality and dignity in the Constitution, suggesting that all individuals possess the same worth regardless of their differences. The denial of equal dignity can lead to inhumane treatment, which adversely affects the self-worth and confidence of gay and lesbian individuals.”
The court considered Mr. Qwelane’s influence in the Black community, which took his views seriously. The speech attacked and demeaned the LGBT+ community. Its scope and impact were indisputably broad and fatal. Mr Qwelane’s words clearly constitute hate speech. Mr Qwelane was inciting hatred, as the piece clearly condemns and vilifies gay people based on their sexual orientation. He publicly advocated for removing legal protections for same-sex marriages. The Equality Act’s Section 10(1)(a) has been deemed unconstitutional due to its vagueness and unjustified limitation on Section 16 of the Constitution. The Supreme Court of Appeal’s determination of invalidity is upheld only to that extent. The complaint against Mr Qwelane is upheld as hate speech under section 10(b) and (c) of the Equality Act, which are constitutional prohibitions.
CONCLUSION
Section 10 of the Equality Act was indeed broad and inconsistent with the fundamental values in the Constitution; it was vague and caused confusion as to its interpretation. Mr. Qwelane’s article did amount to hate speech against gay people, and it was also inciting others to cause harm to the gay people, in violation of constitutional protection.
