Act’s hate speech provision‘limits freedom of expression’
In September 2014, Jon Qwelane — accused of hate speech — instituted a high court application to have sections 10 (1) and 11 of the Promotion of Equality and Prevention of Unfair Discrimination Act declared unconstitutional, saying they infringed on his right to freedom of expression.
Section 10 (1) reads: “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 be hurtful; be harmful or to incite harm; promote or propagate hatred.” Section 11 of the Act states that “no person may subject any person to harassment”.
Justice Minister Michael Masutha and the South African Human Rights Commission were cited as respondents and the Freedom of Expression Institute and the Psychological Society of South Africa later joined as friends of the court.
During his closing arguments this week, Qwelane’s advocate, Musatondwa Musandiwa, said the hate speech provisions of the Equality Act are unconstitutional as they were “overly broad” and therefore infringed on the right to freedom of expression.
“All rights are equally important, including the right to freedom of expression. Considering the history of this country, infringing on the right to freedom of expression would be infringing on the right to dignity,” Musandiwa said.
He was backed by the Freedom of Expression Institute, which said it did not “dispute the objects of the Act” but both sections limited the right to freedom of expression “to a degree that was neither reasonable nor justifiable” as they “did not give sufficient regard to the need to balance competing rights” and were “overly broad”.
The Human Rights Commission contested this, saying: “The Act must be interpreted in order to give effect to the Constitution, the provisions of which include the promotion of equality through legislative and other measures designed to protect or advance persons disadvantaged by past and present unfair discrimination.”
The Psychological Society said Qwelane’s challenge should be dismissed because “there is no merit in it. The sections pursue a critical constitutional objective and they are neither overbroad nor vague.”
The society said the right to freedom of expression, though broadly framed, did not extend to: propaganda for war, incitement to imminent violence and advocacy of hatred based on race, ethnicity, gender or religion and that constitutes incitement to imminent harm.
Kerry Williams, the society’s attorney, said Qwelane’s right to freedom of expression was “justifiably limited”.
“The Equality Act implements the broader equality project set out in the Constitution, which guarantees equality for all South Africans – including lesbian, gay, bisexual, transgender and intersex people.”