Qwelane v South African Human Rights Commission and Another

Case Summary

Case Citation and Basic Information

Case Name: Qwelane v South African Human Rights Commission and Another

Citation: 2021 (6) SA 579 (CC)

Court: Constitutional Court of South Africa

Date of Judgment: 30 July 2021

Bench composition: Khampepe J, Madlanga J, Majiedt J, Mathopo AJ, Mhlantla J, Theron J, Tshiqi J and Victor AJ

Introduction

The Qwelane v South African Human Rights Commission and Another is a significant Constitutional case dealing with the balancing of rights, namely the freedom of expression, dignity and equality. The case focused on the constitutional validity of section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (Equality Act) which is also known as PEPUDA, dealing with hate speech.  The matter arose when Jon Qwelane, a journalist and former government official, published a newspaper article which raised controversy. The article contained controversial statements that many people found to be discriminatory against the LGBTQ+ community. The Constitutional Court had to balance section 16 of the Constitution which is the right to freedom of expression against section 10(1) of the PEPUDA. The judgment of this case is fundamental as it clarifies what is deemed hate speech and how the constitution is used to balance freedom of expression against other rights to ensure a peaceful democratic society.  The judgment also highlighted how the South African courts use the constitution to protect the vulnerable community from hate speech while still preserving the freedom of expression in a democratic society.

III. Facts of the Case.

In July 2008, the applicant Jon Qwelane published an article in the Sunday Sun newspaper titled “Call me names, but gay is NOT okay.” The article raised several controversies to homosexuality and same-sex marriage as it was found to contain statements comparing homosexuality to undesirable behavior, he compared homosexual individuals to animals stating that they are the reason behind demoralization in society, this was seen as being offensive towards the LGBTQ+ community. The article promoted hate speech under section 10(1) Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (PEPUDA) as this legislation prevents unfair discrimination and promotes equality in South Africa. The Act becomes violated by hate speech when it includes speech that has an intention to hurt or insult other groups in society, or when it promotes hatred against other groups of people based on the listed prohibited grounds. Hate speech refers to any form of communication that promotes or encourages discrimination against other groups. The Act focuses on the importance of protecting the LGBTQ+ members and other members of society from any form of speech that infringes on their right to dignity and equality.

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, color, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

Several complaints were raised to the South African Human Rights Commission (SAHRC). Due to the high number of complaints, the matter was then referred to the Equality Court in terms of PEPUDA. The SAHRC argued that the article constituted hate speech under section 10(1) of PEPUDA as it promoted hatred and discrimination against individuals based on sexual orientation.The Equality Court upheld the SAHRC’s argument as it found that Qwelane’s statements constituted hate speech under section 10(1) PEPUDA and ordered him to issue out a public apology directed to the LGBTQ+ community, given that his article discriminated against the members of the community.

Qwelane appealed the decision of the court to the Supreme Court of Appeal, he argued that argued that section 10(1) of the Equality Act infringed his right of freedom of expression provided in section 16 of the Constitution. He based his statement on the fact that the prohibited speech was merely offensive or hurtful, given that such speech did not amount to incitement of harm. The SCA confirmed the High Court’s ruling, found that the article did amount to hate speech, and it also confirmed that section 10(1) PEPUDA was vague.The matter then reached the Constitutional Court to determine whether Qwelane’s article amounted to hate speech in line with the Constitution and to evaluate the constitutionality of section 10 of PEPUDA.

IV: The legal questions

The following legal questions were presented before the court:

Issue one

Whether section 10 PEPUDA infringed the constitutional right to freedom of expression under section 16 of the constitution?

Issue two

Whether the wording of section 10 of PEPUDA was vague and overly broad, particularly regarding the prohibition of speech that is “hurtful.”

Issue three

Whether Qwelane’s article constituted hate speech in terms of constitutional framework and PEPUDA.

Issue four

Whether the limitations on hate speech were justifiable and reasonable in an open and democratic society based on dignity, equality and freedom?

Issue five

How should constitutional rights such as dignity and equality be balanced against freedom of expression?

Arguments Presented

5.1 Applicant’s Arguments

Mr. Qwelane, argued that his article expressed strong views on homosexuality, reflecting his personal moral and religious beliefs, which are merely opinions which form part of the public debate protected under section 16 Constitution. His article did not promote the incitement of harm or hatred towards the members of the LGBTQ+. He asserted that section 10 of PEPUDA was unconstitutional as it limited its freedom of expression under section 16(1) of the constitution. He further argued that section 10 PEPUDA infringes on section 16(1) as it exceeds the threshold set in section 16(2)(c) of the Constitution, limiting his freedom of speech. Section 16 (1) of the Constitution states that everyone has the right to freedom of expression which includes freedom of press and media, freedom of artistic creativity , however section 16 (2) does not protect such rights if they promote propaganda for war , incitement of violence and advocacy of hatred based on race , ethnicity , gender or religion and that  constitutes incitement to cause harm. Section 16(2) maintains the threshold protecting vulnerable groups, the SCA decided to maintain this threshold while narrowing the list of grounds presenting a less restrictive measure to support the vulnerable groups.

5.2 Respondents’ Arguments.

The South African Human Rights Commission argued that Qwelane’s article was homophobic, promoted harmful stereotype and discriminatory against members of the LGBTQ+ community. It further submitted that the right to equality is of significance in South Africa’s democracy therefore freedom of expression should not be treated as absolute and it must be aligned with other constitutional values of the constitution. Qwelane’s article amounted to hate speech which undermines the constitutional purpose of creating an inclusive and democratic society founded on respect for human dignity. The SAHRC brought it into light that section 10(1) PEPUDA is to promote human dignity and equality and prevent unfair discrimination, protecting vulnerable groups from harmful expression. It argued that the SCA had failed to interpret section 10 through the lens of section 39(2) which requires the legislation to be read in the manner that promotes the spirit and purport of the Bill of Rights. Qwelane’s article amounted to hate speech as it advocated hatred which could incite harm to the LGBTQ+ community and exceeded the freedom of expression.

Court’s Reasoning and Analysis

The Constitutional Court recognized freedom of speech as part of South Africa’s democratic system given its historical context. Citing the case of Khumalo v. Holomisa, it highlighted that freedom of expression is “constitutive of dignity” and serves as a cornerstone of democratic participation. The court had a duty to promote individual autonomy and democratic participation. It also had the duty to decide whether the definition of hate speech was consistent with the Constitution of the Republic of South Africa. However, it also made it clear that this constitutional right does not exist in isolation, it should be considered with other important values such as the right to equality and dignity. The judges noted that hate speech can result in severe damage such as psychological and social harm upon vulnerable groups and it can reinforce patterns of discrimination and exclusion.

The court applied an objective test for the definition of hate speech which is a test that examines how a reasonable person would interpret a statement rather than solely focusing on the intention. An objective test balances the right to freedom of expression and the right to equality and human dignity. Section 36 of the Constitution, which is the limitation clause, was used to limit certain rights if they are not reasonable and justifiable in society. Section 10 (1) of PEPUDA was used by the court, taking into consideration sections 16 and 9 of the Constitution. The court decided on whether Qwelane’s speech is protected under section 16 of the Constitution or not, however the court found that the article was harmful but it did not directly insight harm as required by section 16 (2) (c) as a result the speech was protected under section 16 (1).The Court held that any legislative limitation on expression must align more closely with this constitutional standard.

The court used Section 10 of PEPUDA to assess whether the article contained hate speech or not and it found that the term “hurtful” was broad and vague making it unconstitutional, the court interpreted section 10 narrowly to ensure constitutional compliance. It held that hate speech must involve serious discriminatory expression amounting to advocacy of hatred and capable of causing harm.

Applying the provisions to the facts, the Court found that Qwelane’s article depicted homosexual individuals as inferior and socially undesirable, it was highlighted that his article clearly targeted members of the LGBTQ+ community in a degrading and harmful manner. The article was found to be degrading as it impaired the dignity and equality of the LGBTQ+ community promoting discrimination against the members.

Qwelane’s reasoning on that his article was solely based on personal religious or moral beliefs was rejected. The judges held that constitutional protection is not awarded to speech that advocates hatred and harms vulnerable groups. The court further emphasized that the constitution aims at promoting dignity, equality, and inclusivity, taking into consideration the country’s history of marginalization and discrimination, laws prohibiting the use of hate speech protect the vulnerable communities by preventing the normalization of prejudice. The court held that section 10 PEPUDA was not inline with the constitution as it was too broad and  had to be interpreted in a way that it becomes consistent with the constitution, the term “hurtful” was broad and vague and it restricted freedom of speech in South Africa making it inconsistent with the constitution, the court then requested for the removal of the word “hurtful” from section 10 (1) of PEPUDA. Qwelane’s article was nonetheless found to be harmful and constituted hate speech under the constitution.

VII. Judgment and Ratio Decidendi

The Constitutional Court held that some of the provisions of section 10 of PEPUDA were too broad as they restricted freedom of expression than permitted under section 16 of the Constitution. However, the court did not strike down the entire provisions instead of invalidating them, the court narrowed the interpretation of section 10 of PEPUDA so that it would apply only to genuine hate speech involving advocacy of hatred and incitement to cause harm. The Court further held that Qwelane’s article amounted to hate speech as it promoted hatred against members of the LGBTQ+ and impaired their constitutional rights to dignity and equality. Therefore, the appeal was dismissed.

Ratio Decidendi

The courts reasoned that although freedom of expression plays an important role in a democratic society, it should be limited in a way that does not result in speech that advocates hatred and incites harm against vulnerable groups. The Constitutional Court held that laws governing hate speech must balance freedom of expression against constitutional rights to equality and dignity. Legislative restrictions on hate speech must be narrowly tailored and aligned with section 16(2) of the Constitution.

VIII. Critical Analysis

8.1 Significance of the Decision

The Qwelane case sets precedent as to how courts should approach future cases that are associated with hate speech, and this proves that discrimination will not be condemned in South Africa. The case illustrates a balance between two competing rights, which is the right to freedom of expression and equality. The court demonstrated that the right to freedom of expression does not override the right of others to live freely from discrimination and harm. The judgement was that harmful speech is limited when it undermines the dignity of others. The judgment provided clarity on the constitutional boundaries of hate speech in South Africa and reinforces the idea that constitutional principles must be interpreted together rather than in isolation.

The case promotes the idea of transformative constitutionalism, also showcased the constitutional inclusivity to all and substantive equality, affording protections for members of the LGBTQ+ community by affirming their equal dignity and constitutional status within South African society. Furthermore, the judgment provided important guidance regarding the interpretation of section 10 of PEPUDA and clarified the relationship between statutory hate speech protections and constitutional freedom of expression.

8.2 Implications and Impact

The judgment has led to a change in the way we view our constitutional and public discourse of South Africa. It sets a precedent for future equality and discrimination cases while also established clearer standards for determining when expression amounts to unlawful hate speech.

The decision of the judgment signified the role of our courts in using the constitution to balance the rights to ensure protection for all, including the vulnerable communities from harmful and exclusionary speech. The Court acknowledged that hate speech undermines democratic values. In addition, it contributes to ongoing global debates concerning the balance between freedom of expression and protection against discriminatory speech.

8.3 Critical Evaluation

The judgment takes a balanced approach, the court neither treated freedom of expression as absolute nor undermined its importance in democratic society. Instead, the Court carefully balanced competing constitutional rights and values. The court in balancing these constitutional rights it took into consideration the country’s historical background, given that South Africa has a history of discrimination, thus it is constitutionally significant to protect vulnerable groups from harmful speech.

The Court should be praised for narrowing the wording of section 10 to avoid the infringement of the people’s right to democratic expression. This prevented the provision from criminalizing merely offensive speech while still protecting individuals from harmful discriminatory expression.

However, the judgement is criticized by some, who argue that it leaves uncertainty as it is not clear about what is considered hate speech and what is just offensive speech. Questions remain concerning how courts should distinguish controversial opinions from harmful advocacy of hatred.

Others argue that restricting hateful expression may create risks for open democratic debate. Nevertheless, supporters of the judgment assert that limitations of some rights such as freedom of expression are important to maintain the protection of dignity and equality of all groups from harmful practices that dehumanize them.

Overall, the judgment represents a significant contribution to South African constitutional jurisprudence and demonstrates the Constitutional Court’s commitment to balancing democratic freedoms with substantive equality and dignity.

Conclusion

Qwelane v South African Human Rights Commission and Another is a landmark Constitutional Court judgment that clarified the constitutional meaning of hate speech in South Africa.

The case illustrates a balance between two competing rights, which is the right to freedom of expression and equality. The court stressed the importance of freedom of expression in a democratic society but emphasized that it should not extend to speech advocating hatred and harm against vulnerable communities. The judgment reinforced the constitutional values of dignity, equality, and inclusivity while ensuring that limitations on speech are set to be in line with the constitutional values. The decision of the court shapes the South African constitutional jurisprudence concerning freedom of expression, equality, and discrimination. It signifies that democratic freedom must coexist with humanity and dignity for all people.

Reference(S):

Constitution of the Republic of South Africa, 1996.

Khumalo and Others v Holomisa 2002 (5) SA 401 (CC).

Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000.

Qwelane v South African Human Rights Commission and Another 2022 (2) SA 579 (CC)