Authored By: Gift Portia Mamba
University of Forthare
Introduction
On 30 July 2021, at 10:00 a.m., the Constitutional Bench of the Constitutional Court of South Africa delivered its judgment regarding an application to confirm an order of constitutional invalidity issued by the Supreme Court of Appeal (SCA). This was following an appeal from the High Court of South Africa, Gauteng Local Division, Johannesburg. The case centered on the constitutionality of Section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (Equality Act). The appellant, Mr. Jonathan Dubula Qwelane, challenged the validity of Section 10(1), arguing that it unjustifiably limited his right to freedom of expression, as guaranteed by Section 16 of the Constitution. The respondents in the case were the South African Human Rights Commission (SAHRC) and the Minister of Justice and Correctional Services, who opposed the appeal and argued in favour of maintaining the provision as a legitimate means to advance equality and protect human dignity.
Facts of the Case
In 2008, Jon Qwelane published a newspaper article titled “Call Me Names – But Gay Is Not Okay.” In this article, he compared gay and lesbian individuals to animals and asserted that they were responsible for the rapid decline of societal values. The article sparked public outrage, leading the South African Human Rights Commission (SAHRC) to receive over 350 complaints. In response, the SAHRC filed a complaint in the Equality Court, arguing that the article constituted hate speech under Section 10(1) of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (Equality Act). In turn, Mr. Qwelane initiated a constitutional challenge against Section 10(1) of the Equality Act, which defines and prohibits hate speech. The proceedings were consolidated for a hearing before a single judge, who served as both the Equality Court and the High Court of South Africa in the Gauteng Local Division, Johannesburg.
The Equality Court found Qwelane guilty of hate speech and ordered him to issue a written apology to the LGBTI+ community, as well as to pay the costs of the proceedings. Dissatisfied with the High Court’s decision, Mr. Qwelane appealed to the Supreme Court of Appeal. On 29 November 2019, the SCA ruled that section 10(1) “limits speech beyond what is allowed in terms of section 16(2)(c) of the Constitution.” The SCA stated that the term “hurtful” was vague and clarified that for expression to qualify as hate speech, it must be “more than just hurtful in the dictionary sense.” Consequently, the court declared Section 10(1) unconstitutional due to its vagueness and overbreadth, determining that it unjustifiably infringed upon the freedom of expression as protected under Section 16 of the Constitution.
The matter was referred to the Constitutional Court for confirmation of the SCA order of invalidity, as required by section 167(5), in conjunction with section 172(2) of the Constitution. Simultaneously, the SAHRC filed a cross-appeal challenging certain aspects of the SCA’s decision, including its ruling regarding the complaint against Mr. Qwelane. This cross-appeal brought the entire case under the jurisdiction of the Constitutional Court, as it was directly related to the confirmation proceedings.
Legal Issues
The issues for determination are:
(a) whether the impugned provision entails a subjective or objective test.
(b) whether section 10(1)(a)-(c) must be read disjunctively or conjunctively.
(c) whether the impugned provision is impermissibly vague.
(d) whether the impugned provision leads to an unjustifiable limitation of section 16 of the Constitution;
(e) If the constitutional challenge is successful, the appropriate remedy.
(f) The complaint against Mr Qwelane in terms of the Equality Act.
(g) and costs.
Arguments of the Parties
Mr Qwelane, the appellant, argued that while his article expressed strong views on homosexuality, it did not promote hatred against the LGBT+ community or incite harm to others; it was protected by his right to freedom of expression, as guaranteed by Section 16(1) of the Constitution. He contended that Section 10(1) of the Equality Act goes beyond the constitutional definition of hate speech found in Section 16(2)(c), setting a lower threshold for determining hate speech, including a broader category of prohibited expression and additional prohibited grounds, though he did not challenge the inclusion of sexual orientation. Mr. Qwelane emphasized that the impugned section uses a subjective test, “could reasonably be construed to demonstrate a clear intention”, rather than the objective standard outlined in Section 16(2)(c). He argued that it prohibits not only advocacy but also the mere publication, propagation, or communication of words based on the identified prohibited grounds.
On the matter of proportionality, Mr. Qwelane contended that the overreach of Section 10(1) unfairly limits freedom of expression compared to the goal of promoting equality. He argued that this creates a chilling effect on ordinary citizens and fails to achieve a proper balance between equality and free expression. He maintained that the appropriate threshold for hate speech is already established in Section 16(2)(c) and that protecting additional vulnerable groups could be accomplished without broadly infringing on free expression. Supporting the Supreme Court of Appeal’s approach, he agreed that maintaining the threshold in Section 16(2)(c) while gradually expanding the list of grounds would represent a less restrictive and constitutionally justifiable solution.
The SAHRC, the respondent argued that equality is the foundation of South Africa’s constitutional democracy and that the Equality Act gives effect to section 9(2) of the Constitution, which authorises legislative measures to promote and protect equality. The SAHRC emphasised that the purpose of section 10(1) is to safeguard human dignity and equality, and that any limitation on freedom of expression is reasonable and justifiable under section 36(1). It argued that the Supreme Court of Appeal had failed to interpret section 10 through the lens of section 39(2), which requires legislation to be read in a manner that promotes the spirit, purport, and objects of the Bill of Rights.
The SAHRC disagreed with the SCA’s finding that section 10 introduced a subjective test and submitted that section 10 requires that “the speech must objectively demonstrate the requisite intention” and that the intention must be “clear”. It argued that terms such as “hurtful”, “harmful”, and “to incite harm” encompass not only physical but also emotional, psychological, and social harm, affecting dignity, which is consistent with the Constitution’s emphasis on human worth.
The Commission acknowledged that section 10(1) imposes limitations on expression but asserted that these limitations are aimed at promoting equality and dignity without criminalizing speech since the Equality Act provides civil, not criminal, remedies. The Commission rejected the Supreme Court of Appeal’s perspective that less restrictive measures could simply replicate section 16(2)(c), explaining that such a stance would exclude the broader categories of prohibited grounds outlined in section 1 of the Equality Act and would undermine the protection against discrimination established in section 9(3).
Supporting these arguments, the Minister of Justice and Correctional Services also argued that the limitation to the right to freedom of expression was reasonable and justifiable. While the Minister acknowledged that section 10 goes beyond section 16 of the Constitution, he emphasized that the State has a constitutional obligation to “respect, protect, promote, and fulfill the rights to equality and human dignity.” In balancing these competing rights, he argued that the right in section 16(1) must yield to the rights to equality and dignity.
Judgment / Final Decision
The Constitutional Court upheld the Supreme Court of Appeal’s declaration of invalidity, but only with respect to the term “hurtful” in section 10(1). The Court held that this term rendered the provision inconsistent with sections 1(c) (rule of law) and 16 (freedom of expression) of the Constitution. The declaration of invalidity was suspended for 24 months to allow Parliament time to address the constitutional issue. During this suspension, the Court provided an interim version of section 10(1) by removing the word “hurtful.” It clarified that hate speech includes any expression that “could reasonably be construed to demonstrate a clear intention to be harmful, to incite harm, and to promote or propagate hatred.” The Court also supported the South African Human Rights Commission’s appeal, ruling that Qwelane’s article constituted hate speech because it dehumanised the LGBTQ+ community and incited intolerance. As a result, the Supreme Court of Appeal’s order was set aside, and a declaratory order was issued confirming that Qwelane’s statements violated section 10 of the Equality Act. Additionally, the Court ordered the Minister of Justice to pay half of Qwelane’s costs across all courts regarding the constitutional challenge, while Qwelane was instructed to cover the SAHRC’s costs in all proceedings.
Legal Reasoning / Ratio Decidendi
The Constitutional Court’s reasoning focused on balancing the constitutional rights to equality, dignity, and freedom of expression. It asserted that the Equality Act should be interpreted in a way that advances the transformative goals of the Constitution, particularly as mandated by Section 39(2). The Court emphasised that hate speech regulation aims to protect the dignity and social standing of historically marginalised groups, in accordance with Section 9(2) of the Constitution. It clarified that while freedom of expression is essential to democracy, personal autonomy, and the pursuit of truth, it is not absolute and cannot be used to undermine the rights of others.
In applying these principles, the Court reasoned that Section 10(1) of the Equality Act should be interpreted in a manner that upholds all three intersecting rights, such as equality, dignity, and freedom of expression. Citing the cases of Khumalo v. Holomisa and Case v. Minister of Safety and Security, it highlighted that freedom of expression is “constitutive of dignity” and serves as a cornerstone of democratic participation. However, it made a distinction between hate speech and mere offensive or unpopular speech, defining hate speech, drawing from the Canadian case Saskatchewan (Human Rights Commission) v. Whatcott, as “extreme detestation and vilification which risks provoking discriminatory activities.” The Court referenced Islamic Unity Convention v. Independent Broadcasting Authority as the leading authority on interpreting Section 16 of the Constitution, reaffirming that any restriction on expression beyond the categories listed in Section 16(2) must pass the limitations test outlined in Section 36.
In its analysis, the Court found that “hurtful” speech extended beyond the limits defined by Section 16(2)(c), rendering Section 10(1) overbroad and inconsistent with the rule of law (Section 1(c)) and the right to freedom of expression (Section 16). It applied the principle of severability, striking out the term “hurtful” but preserving the remainder of the section as constitutionally valid. The Court upheld the inclusion of sexual orientation as a protected ground, arguing that it furthered substantive equality and constituted a justifiable limitation under Section 36. Relying on R v. Keegstra and SAHRC v. Khumalo, the Court interpreted “harmful” to encompass significant psychological and social injury that undermines human dignity.
Finally, the Court assessed Qwelane’s article and determined that it constituted hate speech, as it dehumanized and incited hatred against the LGBTQ+ community. Referring to the European Court of Human Rights cases, Vejdeland v Sweden and Beizaras and Levickas v. Lithuania, the Court concluded that homophobic expression falls outside the scope of free speech protection. Therefore, the established legal principle is that while freedom of expression remains vital, it must yield when it undermines equality and dignity through hate speech. The Court’s decision reaffirmed that the rights to equality and dignity can justifiably limit expression that promotes hatred, and that hate speech regulation must be precise, objective, and consistent with constitutional values.
Conclusion / Observations
The Qwelane decision confirmed the Constitutional Court’s commitment to balancing freedom of expression with equality and dignity. It also ensured that legislative provisions comply with principles of legality and fairness. The ruling clarified hate speech regulations by providing a clear objective test for assessing such claims and emphasised South Africa’s alignment with international human rights standards. This judgment is a significant step in South Africa’s law, ensuring that the Equality Act can effectively combat discrimination while also protecting free speech, which is crucial for democracy.
Reference(S):
European Court of Human Rights cases
- Vejdeland and Others v Sweden App no 1813/07 (ECtHR, 9 February 2012) https://globalfreedomofexpression.columbia.edu/cases/case-of-vejdeland-and-others-v sweden/ accessed 31 October 2025
- Beizaras and Levickas v Lithuania App no 41288/15 (ECtHR, 14 May 2020) https://hudoc.echr.coe.int/fre#{%22itemid%22:[%22001-200344%22]} accessed 31 October 2025
South African Cases:
- Khumalo and Others v Holomisa [2002] ZACC 12 (CCT53/01, 14 June 2002)
- Curtis v Minister of Safety and Security and Others [1996] ZACC 7 (CCT20/95, CCT21/95, 9 May 1996)
- Islamic Unity Convention v Independent Broadcasting Authority and Others [2002] ZACC 3 (CCT36/01, 11 April 2002)
- South African Human Rights Commission v Khumalo [2018] ZAGPJHC 528; 2019 (1) SA 289 (GJ) (5 October 2018) https://www.saflii.org/za/cases/ZAGPJHC/2018/528.html accessed 31 October 2025
Canadian Cases:
- Saskatchewan (Human Rights Commission) v Whatcott 2012 SCC 11 (27 February 2013) https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/12876/index.do accessed 30 October 2025
- R v Keegstra [1990] 3 SCR 697 (21118, 13 December 1990) https://decisions.scc-csc.ca/scc csc/scc-csc/en/item/695/index.do accessed 31 October 2025
