‘Few legal provisions have given our courts more trouble to interpret and apply than section 10 of Pepuda (Promotion of Equality and Prevention of Unfair Discrimination Act). Different courts have given wildly different interpretations of this hate speech provision. No wonder then that the SCA complained last week in Qwelane v SAHRC and Others that section 10(1) of Pepuda was ‘‘barely intelligible’’.’

Constitutional law expert Professor Pierre de Vos agrees that section 10(1) of Pepuda is ‘not a model of clarity’.

It prohibits any person from publishing, propagating, advocating or communicating ‘words based on one or more of the prohibited grounds, against any person, that could reasonably be construed to demonstrate a clear intention to (a) be hurtful; (b) be harmful or to incite harm; (c) promote or propagate hatred’.

In his analysis on his Constitutionally Speaking blog, De Vos notes that the High Court narrowed the scope by reading the grounds conjunctively. However, the SCA found that they needed to be read disjunctively, which De Vos says makes more sense.

De Vos says the SCA correctly held that section 10(1) of Pepuda regulated expression far broader than that described in section 16(2)(c) of the Constitution:

* Section 10 regulated speech based on grounds not listed in section 16(2)(c). While the latter provision only excludes hate speech based on ‘race, ethnicity, gender or religion’ from constitutional protection, section 10(1) of Pepuda prohibits hate speech on many other grounds as well – including on the ground of sexual orientation.

* Section 10(1) was far too broad and regulated speech that is protected, specifically because it extended hate speech to types of speech that were merely ‘hurtful’.

De Vos says as a result, the SCA held that section 10(1) of Pepuda went much further than the exclusion in section 16(2)(c) of the Constitution and therefore constituted a limitation on the right to freedom of expression contained in section 16(1) of the Constitution.

De Vos says at the heart of the conclusion reached by the SCA was the fact that section 10(1) of Pepuda was overbroad and vague.

‘Although the court did not say so explicitly, the SCA in essence held that the limitation on freedom of expression was not justifiable because the important purpose of regulating hate speech could have been achieved by limiting the right to freedom of expression in a less restrictive manner.’

Importantly, adds De Vos, the court held: ‘There can be no doubt that the state has an interest in extending the protection against discrimination, to include protection against discrimination based on sexual orientation. Moreover, the state has an obligation to promote and protect the right to human dignity of members of the LGBTI community, as provided for in the Constitution.’

He says this means that when the legislature redrafts the hate speech provision in Pepuda, it will have to include sexual orientation (along with race, gender, ethnicity or religion) as a ground on which hate speech could be regulated. De Vos adds if the judgment and remedy is confirmed by the Constitutional Court, section 10(1) of Pepuda will read as follows until such time as Parliament redrafts the section: ‘No person may advocate hatred that is based on race, ethnicity, gender, religion or sexual orientation and that constitutes incitement to cause harm’.

De Vos believes that that this is probably stricter than would be permissible under the limitation clause, and that if the judgment is confirmed by the Constitutional Court, the legislature will ‘have some discretion to redraft a hate speech provision that strikes the correct balance between protecting freedom of expression on the one hand, and protecting individuals against harmful speech aimed at them because of their race, gender or sexual orientation, on the other’.

Full analysis on the Constitutionally Speaking blog

Qwelane v SAHRC & Others