SA law shifts on hate speech vs freedom of expression

A very important test of our freedoms wrapped up recently at the Constitutional Court, but it kinda slipped under the radar.

The case dates back to 2008, when the Sunday Sun published a column by journalist Jon Qwelane, titled “Call me names, but gay is not okay”. In it, he compared same-sex marriage to bestiality. The column rightfully triggered a flood of hate speech complaints to the South African Human Rights Commission.

What followed was a test of the country’s conservative laws around hate speech. Qwelane, who went on to serve as SA’s ambassador to Uganda, was adamant that the hate speech provision of the Equality Clause in our Constitution’s Bill of Rights is vague and unconstitutional as it limits freedom of expression. His case worked its way through our legal system all the way up to the ConCourt, which has finally decided on the matter. (Qwelane passed away late last year.)

In a landmark judgment, the court confirmed the column was indeed hate speech, overturning a lower court’s decision to the contrary.

Importantly, the court also looked at whether the Equality Act was, as Qwelane contended, “vague and overbroad”, since it goes much further than the Constitution in also outlawing “hurtful” speech. As you can imagine, that makes the definition of hate speech very broad.

On this point, the Constitutional Court agreed: it has given parliament 24 months to rectify the defect in the act. It’s a win for freedom of expression – and our laws and processes.

This article appeared as part of The Wrap, 12 August 2021. Sign up to receive our weekly updates.