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The SCA declares Section 10(1) of the Equality Act Unconstitutional

In an article dated 5 February 2020, I focused attention on two recent judgments dealing with the hate speech provisions of Section 16(2) of the Constitution and the legislation that gives effect to Section 16(2) of the Constitution - Section 10(1) of the Equality Act (Act No. 4 of 2000). I stressed in my article that Section 16(2) contemplates that advocacy of hatred, however offensive, does not become hate speech unless the element of “incitement to cause harm” is present.

What I did not anticipate in my previous article is that the omission of the requirement of “incitement to cause harm” in Section 10(1) of the Equality Act would render Section 10(1) unconstitutional. But that is exactly what the SCA did in a recent judgment Qwelane v South African Human Rights Commission and Another 2020 (2) SA 124 (SCA) when it struck down Section 10(1) of the Equality Act as unconstitutional.

The facts of this case were that on 20 July 2008, an offensive article directed against the gay community was published in the Sunday Sun, a national tabloid newspaper. The article was written by the appellant, Mr Jonathan Dubula Qwelane. The article was met with a huge public outcry and various complaints were lodged with the Press Ombud and the South African Human Rights Commission (HRC). A common theme in the complaints was that the article amounted to hate speech.

The HRC instituted proceedings against Mr Qwelane and Media 24 which owns the Sunday Sun in the Equality Court alleging that his article contravened Section 10(1) of the Equality Act. Mr Qwelane and Media 24 subsequently launched an application in the High Court seeking to have s 10(1) of the Equality Act declared unconstitutional on the basis that it is inconsistent with the provisions of s 16 of the Constitution. Moshidi J, sitting both as the Equality Court and the High Court, dismissed Mr Qwelane’s constitutional challenge to s 10 of the Equality Act and declared that the offending statements against homosexuals were hurtful, incited harm and propagated hatred and therefore amounted to hate speech in terms of s 10(1) of the Equality Act.

On appeal to the SCA, the court (per Navsa JA) explained that s 16(2) of the Constitution defines the boundaries of freedom of speech. What is not protected by the Constitution is expression or speech that amounts to “advocacy of hatred” and which amounts to “incitement to cause harm.”

The court went on to examine whether Section 10(1) impermissibly goes beyond the Constitution and found that it did for the following reasons:

      Section 16 of the Constitution limits incitement to harm on the grounds of race, ethnicity, gender or religion. By allowing sexual orientation to be included as an additional ground, Section 10(1) went beyond the Constitution.
      Section 10(1) allows mere communication of words which could reasonably be construed to demonstrate a clear intention to be hurtful to be sufficient for liability. It is not necessary for (i) the potential of harm or actual harm to be shown, or (ii) advocacy of hatred to be proven. The absence of these requirements places Section 10(1) in conflict with Section 16(2) of the Constitution.
      The objective test of advocacy of hatred and incitement to cause harm in s 16(2) of the Constitution is replaced in s 10(1) of the Equality Act with a subjective test of what a reasonable person hearing the words would consider hurtful. It would be dangerous to ban all speech that could be construed as being hurtful because it would stifle the views of those who speak out of genuine conviction in an open and democratic society.

For these reasons the court concluded that s 10(1) of the Equality Act could not be reconciled with the provisions of s 16(2) of the Constitution, and declared s 10(1) unconstitutional. The court afforded the legislature 18 months to remedy the defect and provided draft legislation that would take effect in the interim.

Closing Thoughts
When one considers the logic used by the SCA in Qwelane, it is difficult to understand why the court struck down s 10(1) as unconstitutional. It would have been much more practical to interpret s 10(1) as being in accordance with the constitutional imperative (see s 9 of the Constitution) of promoting equality and prohibiting hate speech that impinges on equality. Instead the court took the unnecessary step of striking down the entire section and coming up with replacement legislation that would take effect until the legislature amended the section. In so doing, the court went too far in usurping the role of the legislature when a less invasive step would have been more appropriate.

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Ivor Heyman is an advocate at the Johannesburg Bar. He publishes articles of interest to attorneys and their clients. For questions or comments you can reach him at adv.heyman@gmail.com or 061-120-8740.