Hurtful, Harmful, Hateful: Heeding Qwelane
The hate speech provision in the Promotion of Equality and Prevention of Unfair Discrimination Act[i] (PEPUDA) has long bedevilled the courts, resulting in a string of conflicting judgments over the span of two decades. In July 2021, the Constitutional Court finally laid to rest the confusion in Qwelane v South African Human Rights Commission[ii] (“Qwelane”). This brief sets out the questions of law that the Court has now settled, and celebrates that the judgment has created certainty on various contentious phrases that appear in the provision.
Pepuda And The Constitution
The Constitution, while protecting the right to freedom of expression, states that the right does not extend to “advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm”.[iii]
The prohibition of hate speech was taken a step further in s10 of PEPUDA, which (prior to Qwelane) read as follows:
“Subject to the proviso in s12, no person may publish, propagate, advocate or communicate words based on one or more of the prohibited grounds,[iv] 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”
Clearly, PEPUDA is framed in broader language than the Constitution. The phrasing of the hate speech provision in PEPUDA caused no small amount of trouble, and had been described by the courts as containing phrases which were “tortuous”,[v] “exceptionally difficult to understand”,[vi] and “absurdly broad”.[vii] It was not until Qwelane that the Constitutional Court had a chance to weigh in.
The Qwelane Matter
The Qwelane case has its origins in an article titled “Call me names – but gay is not okay” by Jonathan Dubula Qwelane,[viii] published in the Sunday Sun newspaper on 20 July 2008, in which Qwelane vilified the LGBTQ+ community. The reception of multiple complaints prompted the South African Human Rights Commission (SAHRC) to take legal action against him on the basis of the hate speech provision in s10 of PEPUDA. In response, Qwelane challenged the constitutionality of the section, arguing that it introduced a lower threshold for hate speech than the Constitution, was overly-broad because subsections (a)-(c) had to be read disjunctively, and because it included prohibited grounds that did not feature in the Constitution.[ix]
The High Court found that the article qualified as hate speech, and dismissed Qwelane’s constitutional challenge. On appeal, the Supreme Court of Appeal (SCA) reversed the High Court, finding that the words “reasonably construed to demonstrate a clear intention” in section 10 introduced a subjective standard of assessment of expression, contrary to the objective standard contemplated in the Constitution. Further, the SCA agreed that paragraphs (a)-(c) had to be interpreted disjunctively, which was an impermissible widening of the Constitution. Finally, the SCA noted that the term “hurtful” was an unclear criterion and overly broad, because while the harm caused by hate speech need not necessarily be physical, it had to be more than just hurtful. As such, the court found s10 of the PEPUDA to be inconsistent with the provisions of section 16 of the Constitution, and therefore invalid.
Qwelane In The Constitutional Court
In this context, the CC had to decide whether to uphold the declaration of unconstitutionality, and on which bases. In the process, the Court made important pronouncements on other aspects of the hate speech provision which had been contested by the courts in other cases. Eight main points may be extracted from the judgement:
1. Subjective Or Objective?[x]
On whether the words “that could reasonably be construed to demonstrate a clear intention” postulated a subjective or objective test, the CC found, contrary to the SCA, that the phrase was plainly objective and required one to consider whether a reasonable reader would construe the author to have intended to commit hate speech. In making this determination, one should consider the facts and circumstances surrounding the expression and the effect of the text, and not the author’s actual intention nor the target group’s perception of the words.
2. Conjunctive Or Disjunctive?[xi]
Subsections 10(a)-10(c) were divided by semi-colons instead of conjunctions, leading to confusion about whether the section should be read disjunctively (with “or” separating the subsections) or conjunctively (with “and” separating the subsections). The CC found that the SCA’s disjunctive reading would cause s 10 to prohibit merely hurtful communication, which would be too broad a limitation of free speech and therefore unconstitutional. Since the law requires an interpretation that is constitutionally compliant, and the section was reasonably capable of a such a reading, the CC stated that the subsections should be read conjunctively.
3. Showing A Link Between Harm And Hate Speech[xii]
The CC held that our law does not require a causal link between the expression and harm, and that “a reasonable apprehension of societal harm as a result of hate speech” is sufficient.
4. Only Words?[xiii]
The CC noted that speech prohibited by s 10 should be interpreted to include “ideas behind the words themselves and both verbal and non-verbal expressions”, since the Constitution, the language of PEPUDA, international law and comparative foreign law seem to support this interpretation. This finding has important implications in the ‘Old Flag’[xiv] case due be heard by the SCA. In that case, Afriforum argued that s 10(1) mentions “words” and that other forms of expression like displaying the old flag did not constitute hate speech. This argument will no longer be feasible, in light of the CC’s pronouncement.
5. Publication/Communication[xv]
Private conversations do not fall under the ambit of the hate speech prohibition, since the purpose of regulating hate speech, said the CC, was to prevent speech which “undermines the target group’s dignity, social standing and assurance against exclusion, hostility, discrimination and violence”.[xvi] Since private speech would be unlikely to have these effects, expression must be publicly disseminated before it is regarded as hate speech.
6. Individual Or Group?[xvii]
Responding to the contention that hate speech ought to focus on group or societal harm and not solely individual harm, and that the words “against any person” used in s10 may shift the focus away from the protection of targeted groups, the CC reasoned that “hate speech may be directed at an individual but impact ... the group to which that individual belongs.” [xviii] Of course, even if the hate speech targets one specific person, it must still be publicly disseminated to an audience beyond that person in order to qualify as hate speech.
7. Prohibited Grounds [xix]
As stated above, the “prohibited grounds” [xx] mentioned in s10 of PEPUDA goes beyond those in section 16(2) of the Constitution (race, ethnicity, gender or religion). The CC noted that this entailed a greater limitation of freedom of expression and thus had to be justified. Although the Court found that the inclusion of sexual orientation was a justifiable limitation, the other grounds were not before the Court, and it will therefore remain a question for another day.
8. Hurtful[xxi]
The SCA had found that the word “hurtful” in s10 was overly broad and unconstitutionally limited the right to free speech. The CC considered that if speech that was hurtful alone was banned, it would be unjustifiable, but given that it had
accepted a conjunctive reading, it noted that speech would have to be hurtful AND be harmful/incite harm AND promote/propagate hatred.
The court found that the word “harmful” included “emotional and psychological harm that severely undermines the dignity of the targeted group”,[xxii] and that hurtful could mean the same thing, and was therefore redundant, which could lead to a lack of clarity. As such, the CC found that s 10(1) was invalid to the extent that it includes the word “hurtful” in the prohibition against hate speech. It suspended the invalidity for 24 months to give Parliament a chance to correct the defect giving rise to constitutional invalidity.
In the interim, it excised s 10(1)(a) (the words “be hurtful”) and, in line with its finding that the section should be read conjunctively, added the word “and” between s 10(1)(b) and (c). As such, until Parliament amends the Act, s10(1) reads “[s]ubject to the proviso in section 12, no person may publish, propagate, advocate or communicate words that are based on one or more of the prohibited grounds, against any person, that could reasonably be construed to demonstrate a clear intention to be harmful or to incite harm and to promote or propagate hatred”.
Conclusion
The much-awaited and long-delayed Qwelane judgment saw the CC dissect s10 of PEPUDA, and provide welcome clarity on aspects of the complex provision. Some of the findings– that the section should be read conjunctively and the excision of the word hurtful– are unlikely to cause a dramatic change, since it does not seem that any court (apart from the SCA in Qwelane) had read the section disjunctively, or that the word “hurtful” presented problems in making a finding of hate speech. The CC’s other findings– such as that expressions other than words may be hate speech– will directly impact upcoming cases. Further, the pronouncement of the Court that some of the prohibited grounds in PEPUDA may not be justifiable opens the doorway to submissions when the amendment Bill is put out for public comment. Finally, the CC provided an explanation of “harmful” and “hurtful” that will guide future courts, but in the next brief, I explain why the Court’s interpretation of “harmful” is problematic.
Media Enquiries
Zeenat Emmamally
zeenat@hsf.org.za
[i] Act 4 of 2000.
[ii] (CCT 13/20) [2021] ZACC 22 (31 July 2021).
[iii] Constitution of the Republic of South Africa, 1996, section 16(2)(c).
[iv] The “prohibited grounds”, referred to in s10(1), are set out in s1 as follows:
“(a) race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience. belief, culture, language and birth; or
(b) any other ground where discrimination based on that other ground—
(i) causes or perpetuates systemic disadvantage:
(ii) undermines human dignity; or
(iii) adversely affects the equal enjoyment of a person’s rights and freedoms in a serious manner that is comparable to discrimination on a ground in paragraph (a).”
[v]South African Human Rights Commission v Khumalo 2019 (1) SA 289 (GJ) para 88
[vi]Qwelane v South African Human Rights Commission 2020 (2) SA 124 (SCA) para 68, citing C Albertyn, B Goldblat and C Roedere Introduction to the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 ed (2001) at 94.
[vii] Ibid para 69, citing Pierre de Vos ‘Why the hate speech provisions might be unconstitutional’ (2010) Constitutionally Speaking,https://constitutionallyspeaking.co.za/why-the-hate-speech-provisions-may-be-unconstitutional/.
[viii] The article read: “The real problem, as I see it, is the rapid degradation of values and traditions by the so-called liberal influences of nowadays; you regularly see men kissing other men in public, walking holding hands and shamelessly flaunting what are misleadingly termed their ‘lifestyle’ and ‘sexual preferences’. There could be a few things I could take issue with Zimbabwean President Robert Mugabe, but his unflinching and unapologetic stance over homosexuals is definitely not among those. Why, only this month – you’d better believe this – a man, in a homosexual relationship with another man, gave birth to a child! At least the so-called husband in that relationship hit the jackpot, making me wonder what it is these people have against the natural order of things. And by the way, please tell the Human Rights Commission that I totally refuse to withdraw or apologise for my views. . . . Homosexuals and their backers will call me names, printable and not, for stating as I have always done my serious reservations about their ‘lifestyle and sexual preferences’, but quite frankly I don’t give a damn: wrong is wrong I do pray that someday a bunch of politicians with their heads affixed firmly to their necks will muster the balls to rewrite the Constitution of this country, to excise those sections which give licence to men ‘marrying’ other men, and ditto women. Otherwise, at this rate, how soon before some idiot demands to ‘marry’ an animal, and argues that this Constitution ‘allows’ it?
[ix] Note ii, para 34.
[x] Ibid para 96-101.
[xi] Ibid para 102- 112.
[xii] Ibid para 107-112.
[xiii] Ibid paras 113-114.
[xiv]Nelson Mandela Foundation Trust v Afriforum NPC 2019 (6) SA 327 (GJ)
[xv] Note ii, para 115-120.
[xvi] Ibid para 118.
[xvii] Ibid para 121-122.
[xviii] Ibid para 122.
[xix] Ibid paras 126-134.
[xx] See note iv.
[xxi] Note ii paras 135-144, 152-157.
[xxii] Ibid para 154.