Balancing Freedom of Expression and Hate Speech in South Africa

Abstract

This article examines the delicate balance between the constitutional right to freedom of expression and the prohibition of hate speech in South Africa. It focuses on Section 16 of the Constitution of the Republic of South Africa, 1996, which guarantees freedom of expression but excludes advocacy of hatred that incites harm. The discussion highlights how the Constitutional Court in Qwelane v South African Human Rights Commission (2021) clarified the meaning and limits of hate speech in line with democratic values. The article analyses the Court’s reasoning, its implications for human rights protection, and the role of the state in ensuring both freedom and dignity. Ultimately, it argues that South Africa’s constitutional framework must continue to protect open debate while ensuring that speech is not used as a weapon to harm or divide communities.

Introduction

Freedom of expression is one of the most important human rights in a democratic society. It allows people to share ideas, opinions, and beliefs without fear of punishment. In South Africa, this right is protected by Section 16 of the Constitution of the Republic of South Africa, 1996, which guarantees everyone the right to freedom of expression. However, this right is not absolute. The same section of the Constitution excludes certain types of speech such as hate speech, incitement of violence, and propaganda for war from protection. Balancing freedom of expression and the need to prevent hate speech has been one of the most difficult challenges for South Africa’s courts. On the one hand, South Africa’s past of racial discrimination makes it important to protect vulnerable groups from harm. On the other hand, the country’s commitment to democracy and open debate means that people must be allowed to express themselves freely, even when their opinions are unpopular or offensive.

The Constitutional Framework

This article examines how the Constitution and the courts, especially in the case of Qwelane v South African Human Rights Commission (2021), have tried to find a fair balance between these two values. Section 16(1) of the Constitution protects the right to freedom of expression, including freedom of the press, academic freedom, and artistic creativity. However, Section 16(2) limits this right by excluding:

(a) propaganda for war;

(b) incitement of imminent violence; and

(c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.

This means that not all forms of expression are protected under the Constitution. Speech that falls under Section 16(2) is considered unprotected speech, meaning the state may regulate or prohibit it without violating constitutional rights. The challenge lies in determining where to draw the line between protected expression and hate speech. Too much limitation can silence legitimate debate, while too little protection can allow harmful and divisive speech to flourish.

Legal definition and Background of Qwelane case

In South Africa, hate speech is also governed by legislation. The main law dealing with hate speech is Section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (the Equality Act). This section prohibits the publication, propagation, or communication of words based on prohibited grounds, such as race, gender, or religion, that could reasonably be interpreted to demonstrate an intention to be hurtful, harmful, or to incite hatred. While this law aims to protect individuals and groups from discrimination and harm, it has also raised constitutional concerns. Critics have argued that Section 10 of the Equality Act is too broad and restricts speech beyond what is allowed by Section 16(2) of the Constitution. This tension became the main issue in the landmark case of Qwelane v South African Human Rights Commission. 

In 2008, journalist Jon Qwelane wrote an article published in the Sunday Sun titled “Call me names, but gay is not okay.” In the article, he expressed strong disapproval of same-sex marriage and compared homosexuality to bestiality. The article led to public outrage, and the South African Human Rights Commission (SAHRC) filed a complaint before the Equality Court, arguing that Qwelane’s article amounted to hate speech under Section 10 of the Equality Act. The Equality Court found Qwelane guilty of hate speech. However, he appealed to the Supreme Court of Appeal (SCA), arguing that Section 10 of the Act was unconstitutional because it limited freedom of expression more than Section 16(2) of the Constitution allows. The case eventually reached the Constitutional Court, which had to decide whether Section 10 was constitutional and whether Qwelane’s article constituted hate speech.

The Constitutional Court, in its 2021 judgment, agreed that Section 10(1) of the Equality Act was unconstitutionally broad and invalid to the extent that it prohibited speech that does not constitute incitement to cause harm. The Court held that for speech to qualify as hate speech, it must:

1.Advocate hatred based on a listed ground (such as race, gender, or religion), and Constitute incitement to cause harm.

This test ensures that only the most serious and dangerous forms of expression — those likely to cause real harm  can be restricted. The Court also emphasised that offensive or hurtful speech, while undesirable, is still protected under the Constitution unless it crosses into incitement. In other words, freedom of expression includes the right to express unpopular or even distasteful opinions, as long as they do not threaten the dignity, safety, or equality of others. Ultimately, the Court declared Section 10(1) unconstitutional but suspended the declaration for 24 months to allow Parliament to amend the law. The Court also set aside the previous findings against Qwelane, holding that his article, though offensive, did not meet the high threshold of hate speech as defined by Section 16(2)(c).

The court’s reasoning and implication

The Constitutional Court made several important points about balancing freedom of expression and the prohibition of hate speech, Democracy and Open Debate: The Court stated that free expression is vital for democracy because it allows individuals to question authority, share ideas, and promote tolerance. Historical Context: Given South Africa’s apartheid past, it is important to protect groups that have been victims of discrimination. However, the Constitution requires this to be done in a way that does not undermine free expression. Narrow Interpretation of Hate Speech: The Court emphasised that hate speech should be interpreted narrowly to avoid punishing speech that merely offends or insults. The focus must be on “incitement to cause harm.” Equality and Dignity: The Court recognised that hate speech can harm people’s dignity and equality, but the remedy must be proportional. Laws that are too broad can silence legitimate expression, which would also harm democracy.

The Qwelane judgment has important implications for constitutional and human rights law in South Africa, Legal Clarity: It clarified the legal meaning of hate speech and ensured that laws are consistent with Section 16 of the Constitution. Freedom of Expression Strengthened, It reaffirmed that South Africa protects even unpopular speech, as long as it does not incite violence or hatred. Legislative Reform: Parliament must now amend the Equality Act to align with the Court’s decision, ensuring that hate speech provisions are precise and constitutionally sound. Guidance for Courts and Media: The judgment provides clearer guidelines for journalists, activists, and courts on the limits of acceptable speech.

Balancing freedom of expression and protection from hate speech remains complex. South Africa’s constitutional model adopts a rights-based approach, recognising that rights may be limited under Section 36 of the Constitution, but only if such limitations are reasonable and justifiable in an open and democratic society. The Qwelane decision shows that the courts are committed to protecting freedom of expression while still addressing hate speech that threatens social harmony. Future challenges will involve applying these principles to online platforms and social media, where hate speech spreads more easily and quickly.

As society evolves, lawmakers and courts must continue refining how these rights interact  ensuring that the protection of human dignity does not silence democratic debate, and that freedom of expression does not become a shield for harm.

Conclusion

The South African Constitution is built on the values of dignity, equality, and freedom. Balancing these values in the context of freedom of expression and hate speech is not easy. The Qwelane case represents a major step in finding this balance. It reaffirms that free speech is a cornerstone of democracy, but it also reminds us that speech which incites hatred or harm against others has no place in a constitutional democracy. South Africa’s courts continue to shape a legal culture that respects both freedom and responsibility. The ultimate goal is a society where people can speak freely without fear  and without using that freedom to destroy the dignity or equality of others.

Bibliography (OSCOLA Referencing)

1. Constitution of the Republic of South Africa, 1996. https://www.justice.gov.za/constitution/SAConstitution-web-eng.pdf. Accessed on 28 October 2025.

2. Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000. https://www.justice.gov.za/legislation/acts/2000-004.pdf. Accessed on 28 October 2025

3. Qwelane v South African Human Rights Commission and Another [2021] ZACC 22. https://www.saflii.org/za/cases/ZACC/2021/22.html. Accessed on 28 October 2025

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7. De Vos P, ‘Freedom of Expression and Hate Speech in South Africa’ (Constitutionally Speaking, 2021). https://www.dailymaverick.co.za/opinionista/2021-08-03-mind-your-language-hate-speech-cannot-be-morally-or-legally-protected-by-the-right-to-freedom-of-expression/. Accessed on 31 October 2025.