Qwelane v South African Human Rights Commission and Others

In July 2008 Jonathan Qwelane, a journalist and anti-apartheid activist, authored a column in the Sunday Sun titled ‘Call me names – but gay is NOT okay…’, containing derogatory and offensive statements about homosexual people and endorsing views equating homosexuality with moral decay and bestiality. A cartoon depicting a man marrying a goat appeared alongside the article, though Qwelane was not responsible for it. The publication prompted widespread public outrage and hundreds of complaints to the South African Human Rights Commission (SAHRC), alleging hate speech under s 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (PEPUDA). The SAHRC instituted proceedings against Qwelane in the Equality Court. Qwelane challenged the constitutionality of s 10 of PEPUDA in the High Court, arguing that it unjustifiably limited freedom of expression under s 16 of the Constitution due to overbreadth and vagueness. The matters were consolidated. The High Court dismissed the constitutional challenge and upheld the hate speech complaint. Qwelane appealed to the Supreme Court of Appeal (SCA).

The appeal was upheld with costs. The High Court order was set aside and replaced with an order declaring section 10 of PEPUDA unconstitutional and invalid. The SAHRC’s complaint against Qwelane was dismissed. Parliament was given 18 months to remedy the defect. An interim reading-in limiting s 10 to expression that constitutes advocacy of hatred based on specified grounds and incitement to cause harm was ordered, subject to confirmation by the Constitutional Court.

This case is a leading authority on the constitutional limits of hate speech regulation in South Africa. It clarified that legislation regulating hate speech must closely track the wording of s 16(2) of the Constitution and cannot prohibit speech merely because it is offensive or hurtful. The judgment reinforced freedom of expression while recognising the need to combat genuine hate speech, and it shaped subsequent legislative and constitutional debates on hate speech regulation.