Qwelane v South African Human Rights Commission and Another

Jonathan Qwelane, a prominent journalist, wrote an article in the Sunday Sun on 20 July 2008 titled "Call me names – but gay is not okay". The article endorsed former Zimbabwe President Robert Mugabe's comparison of homosexuals to animals, claimed homosexuality violated the "natural order", and called for the Constitution to be amended to remove protection for same-sex marriages. The SAHRC received 350 complaints (its largest ever from a single incident) and instituted proceedings in the Equality Court alleging the article constituted hate speech under section 10(1) of the Equality Act. Qwelane challenged the constitutionality of section 10(1), arguing it was vague and unjustifiably limited freedom of expression. The High Court found the article constituted hate speech and dismissed the constitutional challenge. The Supreme Court of Appeal declared section 10(1) unconstitutional but dismissed the complaint against Qwelane. Qwelane passed away on 24 December 2020 during these proceedings.

• Whether section 10(1) of the Equality Act entails a subjective or objective test
• Whether section 10(1)(a)-(c) must be read disjunctively or conjunctively
• Whether section 10(1) is impermissibly vague
• Whether section 10(1) constitutes an unjustifiable limitation of section 16 of the Constitution
• Whether the inclusion of 'sexual orientation' as a prohibited ground is justified
• Whether Qwelane's article constituted hate speech
• The appropriate remedy for constitutional invalidity
• Whether Qwelane could be held liable under a recrafted provision

Declaration of constitutional invalidity of section 10(1) of the Equality Act confirmed only insofar as it includes the word "hurtful". Order suspended for 24 months for Parliament to remedy the defect. During suspension, section 10(1) reads without the word "hurtful". Leave to appeal granted to the SAHRC. Appeal upheld. Supreme Court of Appeal order set aside. Qwelane's statements declared to be hate speech. Minister of Justice ordered to pay half of Qwelane's costs. Qwelane (estate) ordered to pay SAHRC's costs in all courts.

The binding legal principles are: (1) Section 10(1) of the Equality Act is unconstitutional to the extent that it includes the word "hurtful" because it is impermissibly vague in violation of the rule of law under section 1(c) of the Constitution, and it creates an unjustifiable limitation of freedom of expression under section 16; (2) Section 10(1)(a)-(c) must be read conjunctively, not disjunctively, to avoid unconstitutionality; (3) The test for hate speech under section 10(1) is objective - words must objectively demonstrate a clear intention to be harmful or incite harm and promote or propagate hatred, assessed from the perspective of a reasonable person considering context and circumstances; (4) The inclusion of "sexual orientation" as a prohibited ground in the definition of hate speech is a justified limitation of freedom of expression necessary to protect the dignity and equality rights of the LGBT+ community; (5) Hate speech must go beyond merely offensive or hurtful expression and must constitute "extreme detestation and vilification which risks provoking discriminatory activities"; (6) "Harmful" in section 10(1) means deep emotional and psychological harm that severely undermines the dignity of the targeted group; (7) Civil hate speech remedies do not require proof of a direct causal link between the expression and actual harm - a reasonable apprehension of harm suffices; (8) Expression that vilifies and debases persons based on their membership in a vulnerable group, undermining their dignity and public assurance against exclusion and violence, constitutes hate speech.

The Court made several significant non-binding observations: (1) The Equality Act innovatively creates a statutory delict offering specific remedies concerning equality rights, actionable in the Equality Court; (2) Hate speech is the antithesis of democratic values - while free speech advances democracy, hate speech destroys it; (3) The regulation of hate speech in South Africa is inextricably linked to the constitutional project of healing past injustices and establishing an egalitarian society; (4) Intersectionality is relevant in analyzing inequality in South Africa's grossly unequal society; (5) The Court did not decide whether other prohibited grounds beyond sexual orientation (such as "conscience" and "belief") are constitutional, leaving this to Parliament; (6) Private communications should generally not fall within hate speech prohibitions - public dissemination is required; (7) The Court expressed concern about ongoing violence and discrimination against the LGBT+ community in South Africa; (8) The death of Qwelane did not render the declaratory relief moot because: (a) the harm to the LGBT+ community is ongoing; (b) declaratory relief serves the Equality Act's objectives of providing remedies to victims and vindicating constitutional rights beyond punishing wrongdoers; (c) it serves South Africa's international law obligations; (9) Courts must be mindful not to inadvertently "reify prejudices" when applying reasonable person tests in diverse societies; (10) The Court emphasized that substantive equality, not merely formal equality, underpins South Africa's constitutional framework.

This landmark judgment provides authoritative guidance on hate speech regulation in South Africa. It balances freedom of expression with equality and dignity rights, establishing that: (1) Hate speech prohibitions must be clear and cannot extend to merely offensive or hurtful speech; (2) The threshold for hate speech requires more than hurt feelings - it requires severe harm to dignity and risk of propagating hatred; (3) Sexual orientation is a constitutionally protected ground for hate speech prohibition; (4) An objective reasonable person test applies in assessing hate speech; (5) Context, speaker identity, impact and likelihood of harm are key factors in determining hate speech; (6) Civil hate speech remedies do not require proof of actual causal harm - reasonable apprehension suffices; (7) Hate speech regulation serves the Constitution's transformative project of building an inclusive, egalitarian society; (8) The judgment affirms constitutional protection for the LGBT+ community and recognizes ongoing systemic discrimination they face. The case demonstrates the judiciary's role in holding Parliament accountable for clear, rights-compliant legislation while respecting separation of powers.