Qwelane v South African Human Rights Commission

The Constitutional Court held that section 10(1) of the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) is overbroad and unconstitutional to the extent that it prohibits expression that hurts or harms but does not incite harm or promote hatred. The Court severed the impugned words, reading down the hate speech provision to align with the Constitution's protection of freedom of expression.

Jon Qwelane wrote a newspaper column in 2008 expressing views critical of homosexuality and same-sex marriage. The South African Human Rights Commission (SAHRC) referred the matter to the Equality Court, alleging the column constituted hate speech under section 10(1) of PEPUDA. Qwelane challenged the constitutionality of section 10(1), arguing it infringed freedom of expression.

Whether section 10(1) of PEPUDA, which prohibited speech that could reasonably be construed to demonstrate a clear intention to be hurtful, harmful, or incite harm, constitutionally limited freedom of expression under section 16 of the Constitution.

Section 10(1) of PEPUDA is unconstitutional and invalid to the extent that it prohibits expression on the grounds that it is hurtful, harmful, or incites harm. The provision was severed and read down to require that hate speech must advocate hatred and constitute incitement to cause harm.

Hate speech legislation must balance equality and dignity with freedom of expression by requiring a threshold of advocacy of hatred that incites harm, not merely expression that hurts or harms feelings.

The Court found that the words 'be hurtful', 'be harmful', and 'incite harm' in section 10(1) were impermissibly vague and set too low a threshold, capturing protected expression. The Court applied the test for constitutional limitation under section 36, finding the broad prohibition unjustifiable. Severance was appropriate to preserve the valid core of the provision while excising the unconstitutional elements.

The Court emphasized the importance of robust public debate in a constitutional democracy and cautioned against chilling legitimate expression on controversial matters through overly broad hate speech prohibitions.

This case is a foundational judgment on the constitutional boundaries of hate speech regulation in South Africa, clarifying the high threshold required to limit free expression and establishing the principle that hurt or harm alone is insufficient to constitute prohibited hate speech under PEPUDA.

Qwelane v South African Human Rights Commission 2021 (6) SA 579 (CC) [2021] ZACC 22