Hate Speech in the Equality Act Following the Constitutional Court Judgment in Qwelane v SAHRC

Abstract

In its judgment in Qwelane v South African Human Rights Commission 2022 2 BCLR 129 (CC), the Constitutional Court declared section  10(1) of the Equality Act unconstitutional and invalid to the narrow extent that section 10(1)(a) refers to the intention to be "hurtful". The  prohibition on hate speech passed constitutional muster in all other respects. In addition, the court purposively interpreted aspects of the  application of section 10(1) so as to limit its impact on the right to freedom of expression. This contribution firstly welcomes the  court's reliance on the transformative goals of the Constitution and the Equality Act as its primary framework in interpreting section  10(1). The severance of section 10(1)(a) and the conjunctive reading of sections 10(1)(b) and (c) ("be harmful or to incite harm" and  ʺpromote or propagate hatred" respectively) also seem sensible considering the court's broad definition of "harm". The article further  emphasises that the terms of section 10 call for a proper consideration of context. In this regard, the court rightly considered the extreme  homophobia in the society addressed by Mr Qwelane, the particular vulnerability of the target group and the real threat of  devastating imminent consequences to conclude that Qwelane's words were clearly intended to "incite harm" and "propagate hatred".  Yet the court's view that the speaker's subjective intention is irrelevant in performing the requisite objective reasonableness assessment  from the ambit of section 10(1) is arguably less judicious, as is the categorical exclusion of expression in private. Ultimately, the objective  case-by-case reasonableness inquiry under section 10(1) should be whether a reasonable person in the speaker's position should have  refrained from making the impugned harmful discriminatory utterances. This inquiry involves a determination of wrongfulness based on  the constitutional duty not to discriminate unfairly. It invokes all the aspects of the Equality Act's definition of discrimination as well as all  the elements of fairness analysis set out in section 14 of the Equality Act. Factors to be considered include the value of the particular  expression, and the extent of the (potential) harm to individual members of a protected group and to society as a whole, as well as  justification considerations such as the respondent's legitimate and bona fide exercise of the right to freedom of expression and to  privacy.