In 2008 Jonathan Dubula Qwelane, a prominent journalist, published an opinion article in the Sunday Sun titled “Call me names – but gay is not okay”, endorsing views that denigrated homosexuals and compared same-sex relationships to bestiality. The article was accompanied by a cartoon (not authored or approved by Qwelane) depicting a man marrying a goat. The publication triggered widespread public outrage, resulting in hundreds of complaints to the South African Human Rights Commission (SAHRC) and the Press Ombud. The Press Ombud found the newspaper in breach of the Press Code and required an apology. The SAHRC subsequently instituted proceedings in the Equality Court alleging that the article constituted hate speech under section 10(1) of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (Equality Act). Qwelane challenged the constitutionality of section 10(1), arguing that it was vague and overbroad and unjustifiably limited freedom of expression. The High Court dismissed the constitutional challenge and found the article to be hate speech. On appeal, the Supreme Court of Appeal (SCA) declared section 10(1) unconstitutional and dismissed the hate speech complaint. The matter came before the Constitutional Court for confirmation of constitutional invalidity and determination of the hate speech complaint.
The declaration of constitutional invalidity of section 10(1) of the Equality Act was confirmed to the extent that it includes the word “hurtful”. The declaration was suspended for 24 months to allow Parliament to remedy the defect, with an interim reading-in excluding “hurtful”. The SAHRC’s appeal on the hate speech complaint was upheld, the SCA’s order was set aside, and Qwelane’s statements were declared to constitute hate speech. Costs were apportioned between the Minister of Justice and Qwelane as ordered.
This case is a leading Constitutional Court authority on the constitutional limits of hate speech regulation in South Africa. It clarifies the proper balance between freedom of expression and the rights to dignity and equality, confirms that hate speech must involve harm and the promotion or propagation of hatred, and narrows statutory hate speech provisions to align with section 16 of the Constitution. The judgment provides authoritative guidance on interpreting section 10 of the Equality Act and has significant implications for equality jurisprudence, media law and legislative drafting.