Jonathan Dubula Qwelane v South African Human Rights Commission and others

In July 2008, Mr Qwelane, a well-known journalist and anti-apartheid activist, published an article in the Sunday Sun newspaper expressing strong views against homosexuality. The article stated that homosexuality was wrong, praised Robert Mugabe's stance on homosexuals, and suggested the Constitution should be amended to prevent same-sex marriage. A cartoon depicting a man marrying a goat appeared alongside the article (though not created by Qwelane). The article generated 350 complaints to the South African Human Rights Commission (HRC). The press ombudsman found the article breached the Press Code and required an apology, which was published. The HRC instituted proceedings in the equality court under section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA), alleging hate speech. Qwelane challenged the constitutionality of section 10(1) of PEPUDA, arguing it violated section 16 (freedom of expression) of the Constitution. The high court (Moshidi J) found the article constituted hate speech under PEPUDA and dismissed the constitutional challenge. Qwelane appealed.

• Whether section 10(1) of PEPUDA is constitutionally valid in light of section 16 of the Constitution
• Whether section 10(1) of PEPUDA is unconstitutionally vague and overbroad
• Whether section 10(1) of PEPUDA extends beyond the hate speech exclusion in section 16(2)(c) of the Constitution
• Whether the limitation imposed by section 10(1) on freedom of expression is justified under section 36 of the Constitution
• What remedy is appropriate if section 10(1) is found to be unconstitutional

The appeal was upheld with costs. The order of Moshidi J was set aside. Section 10 of PEPUDA was declared inconsistent with section 16 of the Constitution and therefore unconstitutional and invalid. The complaint by the HRC against Qwelane in terms of section 10 of PEPUDA was dismissed. Parliament was given 18 months from 29 November 2019 to remedy the defect. During this period, section 10 was to read: "10(1) No person may advocate hatred that is based on race, ethnicity, gender, religion or sexual orientation and that constitutes incitement to cause harm. 10(2) Without prejudice to any remedies of a civil nature under this Act, the court may, in accordance with section 21(2)(n) and where appropriate, refer any case dealing with the advocacy of hatred that is based on race, ethnicity, gender, religion or sexual orientation, and that constitutes incitement to cause harm, as contemplated in subsection (1), to the Director of Public Prosecutions having jurisdiction for the institution of criminal proceedings in terms of the common law or relevant legislation." The interim section 10 would fall away upon legislative amendment or repeal, or become final if Parliament failed to act within 18 months. The order was referred to the Constitutional Court for confirmation under section 172(2)(a) of the Constitution.

Section 10(1) of PEPUDA is unconstitutional because it impermissibly limits freedom of expression guaranteed by section 16(1) of the Constitution. The provision extends far beyond the hate speech exclusion in section 16(2)(c) by: (1) using disjunctive rather than conjunctive requirements, allowing liability based on speech that is merely "hurtful" or that "promotes hatred" without requiring incitement to cause harm; (2) employing a vague and subjective test ("could reasonably be construed") rather than the objective constitutional standard; (3) failing to require the essential constitutional elements of both "advocacy of hatred" AND "incitement to cause harm" working together. Hate speech legislation must be carefully tailored to minimize impairment of freedom of expression. The constitutional standard in section 16(2)(c) requires advocacy of hatred based on specified grounds (race, ethnicity, gender, religion) that constitutes incitement to cause harm - these elements are inextricably linked and cannot be decoupled. While prohibited grounds may be extended beyond those in section 16(2)(c) to protect vulnerable groups (such as extending protection based on sexual orientation), any regulation beyond the constitutional baseline must be justified under section 36 and must be sufficiently precise for citizens to understand what conduct is prohibited. Prohibiting speech that is merely "hurtful" (causing emotional distress) without requiring advocacy of hatred or incitement to harm is constitutionally impermissible as it is vague, overbroad, and unjustifiable in an open and democratic society.

The court made several significant obiter observations: (1) Freedom of expression is vital to democracy and must be protected even when speech "offends, shocks or disturbs", but is not absolute and can be limited to protect other rights like dignity; (2) South Africa does not have a hierarchy of rights - freedom of expression does not automatically trump dignity, nor vice versa; conflicts are resolved through proportionality analysis under section 36; (3) The connection between hate speech and hate crime is real, as demonstrated by historical examples (Nazi Germany, Rwanda); (4) Evidence showed serious discrimination and violence against the LGBTI community in South Africa, including police reluctance to investigate crimes against them; (5) Churches' teachings that homosexuality is sinful may be hurtful but do not necessarily constitute hate speech unless they advocate hatred and incite harm; (6) The court cannot engage in extensive "reading-down" that rewrites legislation - this would violate separation of powers; (7) The rule against retrospectivity (nullum crimen sine lege) means the new interim formulation of section 10 cannot apply retrospectively to Qwelane's article; (8) The court urged Qwelane to consider seeking rapprochement with the LGBTI community to preserve his anti-apartheid legacy; (9) South Africans should "find a way to relate to each other more graciously" and disagree on matters of conscience without inflicting physical or psychological harm; (10) PEPUDA appears to have been motivated more by promoting equality than preventing hate speech, with hate speech provisions "tagged on" to equality legislation; (11) The informal, less costly equality court process should be preserved for vulnerable groups, but within constitutional constraints.

This is a landmark judgment on the regulation of hate speech in South African constitutional law. It clarifies the relationship between the constitutional protection of freedom of expression (section 16(1)), the hate speech exclusion (section 16(2)(c)), and legislative regulation of hate speech. The judgment establishes that: (1) Legislation regulating hate speech must not extend beyond the constitutional baseline in section 16(2)(c) unless the limitation can be justified under section 36; (2) Hate speech regulation must be precise and clearly defined - vague and overbroad provisions violate constitutional requirements; (3) The constitutional test for unprotected hate speech requires both "advocacy of hatred" AND "incitement to cause harm" - these elements cannot be decoupled; (4) Prohibiting speech that is merely "hurtful" goes far beyond constitutional limits; (5) While extending protection to groups beyond those listed in section 16(2)(c) (such as sexual orientation) may be constitutionally permissible, the regulation must still meet constitutional standards of clarity and proportionality; (6) The court has power to craft interim remedies (reading-in and severance) to avoid dangerous gaps in protection while giving Parliament time to enact constitutional legislation. The judgment is significant for its detailed engagement with international instruments (UDHR, ICCPR) and comparative foreign law (USA, Canada, Germany) on hate speech regulation. It balances the important constitutional values of freedom of expression and equality/dignity, recognizing both the need to protect vulnerable groups (particularly the LGBTI community) from hate speech and the imperative to preserve robust freedom of expression in a democracy. The judgment will have significant implications for Parliament's ongoing work on the Prevention and Combating of Hate Crimes and Hate Speech Bill.