South African Human Rights Commission v Qwelane; Qwelane v Minister for Justice and Correctional Services (EQ44/2009; EQ13/2012) [2017] ZAGPJHC 218; [2017] 4 All SA 234 (GJ); 2018 (2) SA 149 (GJ) (18 August 2017)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2017
>>
[2017] ZAGPJHC 218
|

|

South African Human Rights Commission v Qwelane; Qwelane v Minister for Justice and Correctional Services (EQ44/2009; EQ13/2012) [2017] ZAGPJHC 218; [2017] 4 All SA 234 (GJ); 2018 (2) SA 149 (GJ) (18 August 2017)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT AND EQUALITY COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: EQ44/2009 (EQ13/2012)
CASE
NO: 36314/2013
REPORTABLE
OF
INTEREST TO OTHER JUDGES
REVISED.
18/8/2017
In
the matter between:
SOUTH
AFRICAN HUMAN RIGHTS
COMMISSION
Applicant
and
QWELANE,
DUBULA JONATHAN
(“JON”)
Respondent
and
FREEDOM
OF EXPRESSION
INSTITUTE
First
Amicus Curiae
PSYCHOLOGICAL
SOCIETY OF SOUTH AFRICA
Second
Amicus Curiae
AND
JONATHAN
DUBULA
QWELANE
Applicant
and
MINISTER
FOR JUSTICE AND CORRECTIONAL
SERVICES
First
Respondent
SOUTH
AFRICAN HUMAN RIGHTS COMMISSION
Second
Respondent
and
FREEDOM
OF EXPRESSION
INSTITUTE
First
Amicus Curiae
PSYCHOLOGICAL
SOCIETY OF SOUTH AFRICA
Second
Amicus Curiae
SUMMARY
Equality
legislation - hate speech - what constitutes
onus
of proof -
defences thereto - sections 1, 10, 11 and 12 of the Promotion of
Equality and Prevention of Unfair Discrimination Act
4 of 2000 (the
Equality Act) - the applicant uttering statements in Sunday Sun
newspaper derogatory to homosexuals and members
of the Lesbian, Gay,
Bisexual, Transgender and lntersex (LGBTI) community - comparing
their conduct to bestiality - applicant challenging
constitutionality
of provisions of Equality Act in regard to hate speech - based on the
right to freedom of expression as enshrined
in section 16 of the
Constitution - however, right to freedom of speech is not limitless
as envisaged in section 36(1) of Constitution
- constitutional
challenge dismissed as not having merit - appropriate remedy in
equality legislation as envisaged in section 21
of the Equality Act.
JUDGMENT
MOSHIDI
J:
INTRODUCTION
[1]
This matter comes to me in the Equality Court, having its origin in
the Johannesburg Magistrate's Court (sitting as an Equality
Court),
and where the complaint was initially instituted by the South African
Human Rights Commission (the Commission) against
Mr Dubula Jonathan
Qwelane (Qwelane).
THE
BACKGROUND
[2]
The proceedings in the Johannesburg Magistrate's Court were in terms
of the provisions of s 10(1) of the Promotion of Equality
and
Prevention of Unfair Discrimination Act 4 of 2000 (the Equality Act),
(the Equality Court proceedings).
[3]
Shortly prior to the Equality Court proceedings being heard, Qwelane,
as applicant there, applied for the stay of the proceedings.
The
reason for the stay was in essence his challenge against the
constitutionality of the provisions of s 10(1) read with ss 1,
11 and
12 of the Equality Act in the High Court (the constitutional
challenge). For the sake of brevity, and in order to arrive
speedily
at what is before me presently, the matter came before Van Oosten J
of this local division during November 2014. This
culminated in an
order in the following terms:
"The
Equality Court proceedings and the constitutional challenge
proceedings are consolidated for hearing before
a
single judge sitting as
Equality Court and
as
High
Court. The costs of the application for consolidation shall be the
costs in the consolidated proceedings."
[1]
The matter is therefore properly before me.
THE
PARTIES
[4]
In these proceedings, and for convenience, I shall refer to Qwelane
as (the applicant), the Minister of Justice and Constitutional

Development (now Minister of Justice and Correctional Services) as
(the first respondent); the Commission as {the second respondent);

the Freedom of Expression Institute (as the first
amicus curiae)
and the Psychological Society of South Africa as (the second
amicus curiae),
respectively.
THE
EQUALITY COURT PROCEEDINGS
[5]
It is convenient to first deal with the second respondent's (the
Commission's) complaint and equality proceedings against the

applicant (Qwelane). This, for instant and proper context and content
of the entire matter. The complaint is instituted in terms
of the
provisions of s 10(1) of the Equality Act, which provides that:
"Subject to the proviso in
section 12, no person may publish, propagate, advocate or communicate
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."
Section
11 of the Act provides that
"no person may subject any person
to harassment”.
For the sake of completeness, s 12, in tum,
provides that:
"No person may -
(a)
disseminate or broadcast
any information;
(b)
publish or display any
advertisement or notice,
that could reasonably be construed
or reasonably be understood to demonstrate
a
clear intention
to unfairly discriminate against any person: Provided that bona fide
engagement in artistic creativity, academic
and scientific inquiry,
fair and accurate reporting in the public interest or publication of
any information, advertisement or
notice in accordance with
section 16 of the Constitution, is not precluded by this section."
[6]
In regard to the institution of proceedings, s 20(1) of the Equality
Act provides that:
"(1) Proceedings under this
Act may be instituted by -
(a)
any person acting in their own interest;
(b)
any person acting on behalf of another person who cannot act
in their own name;
(c)
any person acting as a member of, or in the interests of, a
group or class of persons;
(d)
any person acting in the public interest;
(e)
any association acting in the interest of its members;
(f)
the South African Human Rights Commission, or the Commission
for Gender Equality."
From
this, it is clear that the second respondent has the requisite
locus
standi
to institute the present proceedings. It is equally plain
that access to the Equality Court does not have the traditional and
restrictive
procedural red tape. The procedure thereat is also aimed
to be informal as mirrored by ss such as s 21(1) of the Equality Act
which
refers to an
"inquiry".
In my view, all of
this point to the fulfilment of the right to access to courts, as
enshrined in s 34 of the Constitution.
[7]
Indeed, there are other relevant provisions of the Act in
adjudicating complaints such as the one under discussion. However,

for present purposes, ss 1 (the definitions) and 2 (the objects),
come to the fore. Section 1 defines
'discrimination'
as
"any act or omission,
including
a
policy, law, rule, practice, condition or
situation which directly or indirectly -
(a)
imposes burdens, obligations or disadvantage on; or
a.
withholds benefits,
opportunities or advantages from, any person on one or more of the
prohibited grounds."
"Equality"
is defined as including
"the full and equal enjoyment of
rights and freedoms as contemplated in the Constitution and includes
de jure and de facto
equality and also equality in terms
of
outcomes''
"Harassment',
means
"unwarranted conduct which is
persistent or serious and demeans, humiliates or creates hostile or
intimidating environment
or is calculated to induce submission by
actual or threatened adverse consequences and which is related to
–
(a)
sex, gender or sexual
orientation, or
(b)  a
person's membership or
presumed membership of
a
group identified by one or more of
the prohibited grounds or a characteristic associated with such
groups.”
On
the other hand, and significantly relevant here, the
'prohibited
grounds',
are:
"(a)
race, gender, sex,
pregnancy, marital status, ethnic or social origin, colour, sexual
orientation, age, disability, religion, conscience,
belief, culture,
language and birth; or
(c) any other ground where
discrimination based on that other ground -
(i)
causes or perpetuates systemic disadvantage;
(ii)
undermines human dignity; or
(iii)
adversely affects the equal enjoyment of
a
person's rights
and freedoms in a serious manner that is comparable to discrimination
on a ground in paragraph (a)."
I
shall later below deal with the objects of the Equality Act, as well
as the importance and significance of the right to dignity,
and
freedom of expression and other rights entrenched in the Bill of
Rights. I shall also refer to other provisions of the Equality
Act,
where relevant and necessary.
THE
INSTANT COMPLAINT
[81
Having sketched partially the legal framework, I revert to the
instant complaint. The second respondent complains that the article

written by the applicant, and published in the Sunday Sun newspaper
on 20 July 2008 titled
"Call me names -
but gay is not
okay''
(the offending statements), contravene the provisions of s
10(1) of the Equality Act. At that stage, the applicant was a popular

columnist of the Sunday Sun newspaper which is owned by Media24 Ltd
(Media24).
THE
OFFENDI NG STATEMENTS IN FULL
[9]
It is appropriate for full and proper context, to reproduce the
pertinent parts of the offending statements in full:
" The real problem, as I see
it, is rapid degradation of values and traditions by the so-called
liberal influences of nowadays;
you regularly see men kissing other
men in public, walking holding hands and shamelessly flaunting what
are misleadingly termed
their 'lifestyle' and 'sexual preferences '.
There could be a few things I could take issue with Zimbabwean Robert
Mugabe, but
his unflinching and unapologetic stance over homosexuals
is definitely not among those. Why only this month - you'd better
believe
this - a man, in a homosexual relationship with another man,
gave birth to a child! ... And by the way, please tell the Human
Rights
Commission that I totally refuse to withdraw or apologise for
my views ... Homosexuals and their backers will call me names,
printable
and not, for stating as I have always done their 'lifestyle
and sexual preferences ',but quite frankly I don't give a damn: wrong

is wrong! I do pray that some day a bunch of politicians with their
heads affixed firmly to their necks will muster the balls to
rewrite
the Constitution of this country, to excise those sections which give
licence to men 'marrying ' other men, and ditto women.
Otherwise, at
this rate, how soon before some idiot demands to 'marry' an animal,
and argues that this Constitution 'allows' it?'
On
the same page of the offending statements, appeared a cartoon (the
cartoon) depicting a couple, that is a man and a goat kneeling
in
front of a priest to be
"married'.
Above the cartoon
appears the caption: “
WHEN HUMAN RIGHTS MEET ANIMAL
RIGHTS
”,
and “
I NOW PRONOUNCE YOU
MAN AND GOAT
”
.
It is common cause that the
applicant was not the author or creator of the cartoon.
FURTHER
COMMON CAUSE FACTS
[10]
The following is equally common cause: pursuant to the publication of
the offending statements, and the cartoon in the Sunday
Sun newspaper
on Sunday 20 July 2008, there was a huge public outcry expressing
disapproval. In addition, the Commission according
to the evidence
led, in particular the evidence of Mr Pandelis Gregoriou (Gregoriou),
the Commission's Head of Legal Services,
received some 350 complaints
from various people and sources relating to the publication of the
offending statements and cartoon.
Some of the complainants approached
the Press Ombudsman which conducted its own investigations against
the applicant and Media24.
Indeed, the outcomes of these
investigations are truly irrelevant for present purposes. It is,
however, noteworthy that some of
the complaints emanated from gay
persons; a cross-section of community members, and organisations such
as the Joint Working Group
(JWG) - a national network representing
twenty-four (24) Lesbian, Gay, Bisexual, Transgender and lntersex
(LGBTI) organisations
across South Africa, and People Opposed to
Women Abuse (POWA). The common tone and gist of the complaints came
to this:  that
the offending statements and accompanying cartoon
amount to hate speech; are based on the prohibited grounds of
discrimination
based on sexual orientation and marital status;
advocated hatred against a particular group of people, notably,
homosexuals; are
intended to be hurtful, harmful, incite harm, and
promote or propagate hatred; infringe upon various constitutionally
guaranteed
human rights and freedoms of homosexuals; and seek to
demoralise homosexuals by drawing a comparison between homosexuality
and
bestiality, and thereby violating their inherent right to human
dignity, and by implication, dehumanising and
'criminalising'
homosexuals. The complaint indeed forms the subject matter of the
present proceedings.
THE
PREAMBLE TO THE EQUALITY ACT
[11]
In addition to the legal framework sketched above, it is instructive
to refer to other provisions of the Equality Act at this
stage as
well as the Constitution. The preamble to the Equality Act provides,
inter alia,
that:
''To give effect to section 9 read
with item 23(1) of Schedule 6 to the Constitution of the Republic of
South Africa, 1996, so as
to prevent and prohibit unfair
discrimination and harassment; to promote equality and eliminate
unfair discrimination; to prevent
and prohibit hate speech; and to
provide for matters connected therewith.”
Other
significant parts of the preamble provide that:
Although significant progress has
been made in restructuring and transforming our society and its
institutions, systemic inequalities
and unfair discrimination remain
deeply embedded in social structures, practices and attitudes,
undermining the aspirations of
our constitutional democracy; the
basis for progressively redressing these conditions lies in the
Constitution which, amongst others,
upholds
the values of human dignity. equality, freedom and social justice in
a united, non-racial and non-sexist society where all
may flourish
;
South Africa also has international obligations under binding
treaties and customary international law in the field of
human
rights which promote equality and prohibit unfair discrimination
.
Among these obligations are those specified in the Convention on the
Elimination of All Forms of Discrimination Against Women
and the
Convention on the Elimination of All Forms of Racial Discrimination;
section 9 of the Constitution provides for the enactment
of national
legislation to prevent or prohibit unfair discrimination and to
promote
the
achievement of equality
..."
(emphasis added)
[2]
In
my view, from this, it is plain that: also in the sphere of equality
legislation, much is still left to be done to redress past

inequalities in our
'must be
jealously guarded
growing
democracy; that the rights to dignity and to have such dignity
respected and protected are critical;
[3]
that the rights to freedom and social justice in a non-sexist society
must be allowed to flourish; that South Africa has international

obligations under binding undertakings in the field of human rights
and which promote equality and forbid unfair discrimination;
and that
s 9 of the Constitution makes provision for the enactment of national
legislation to prevent or forbid unfair discrimination,
and to
achieve the objective of an equal society. I venture to suggest that,
since the advent of the Equality Act, there was/is
a clear mandate to
our courts to be actively involved in the creation and advancement of
the guiding jurisprudence on equality.
Indeed, this is mirrored in
the provisions of s 9 of the Constitution as well as the objects of
the Equality Act, as dealt with
immediately below.
THE
PROVISIONS OF SECTION 9 OF THE CONSTITUTION
[12]
Section 9 of the Constitution is of significant importance in the
context of the present proceedings.
[4]
The Equality Act is clearly the
'national
legislation'
envisaged in
the section. The section unequivocally entrenches the right to
equality where it guarantees everyone to the right of
equality before
the law, as well as the right to equal protection and benefit of the
law. The court in
Minister
of Home Affairs and Another v Fourie and Another (Doctors For Life
International and Others, Amici Curiae); Lesbian and
Gay
Equality Project and Others
v Minister of Home Affairs and Others,
[5]
said:
"A democratic, universalistic,
caring and aspirationally egalitarian society embraces everyone and
accepts people for who they
are.
To penalise people for being
who and what they are
is
profoundly disrespectful of
their human personality and violatory of equality. Equality means
equal concern and respect
across
difference. It does not
presuppose the elimination or suppression of difference. Respect for
human rights requires the affirmation
of self, not denials of self.
Equality therefore
does
not
imply
a
levelling
or homogenisation of behaviour or extolling one form
as
supreme, and another
as
inferior, but an
acknowledgement and acceptance of difference. At the very
least,
it affirms that difference
should not be the basis for exclusion, marginalisation and stigma. At
best, it celebrates the vitality
that difference brings to any
society. The issue
goes
well beyond assumptions of
heterosexual exclusivity,
a
source of connection in the
present case. The acknowledgment and acceptance of difference is
particularly important in our country
where for centuries group
membership based on supposed biological characteristics such as skin
colour has been the express basis
of advantage and disadvantage.
South Africans come in all shapes and sizes. The development of an
active rather than a purely formal
sense of enjoying a common
citizenship depends on recognising and accepting people with all
their differences, as they
are.
The Constitution thus
acknowledges the variability of human beings (genetic and
socio-cultural), affirms the right to be different,
and celebrates
the diversity of the nation. Accordingly, what is at stake is not
simply a question of removing an injustice experienced
by a
particular section of the community. At issue is a need to affirm the
very character of our society
as
one
based on tolerance and
mutual respect. The
test
for tolerance is not how one
finds space for people with whom, and
practices with which, one
feels comfortable, but how one accommodates the expression of what is
discomforting."
(footnotes
omitted)
[6]
[13]
From the provisions of s 9 of the Constitution, it is plain once more
that s 9(2) specifically makes provision for
'legislative and
other measures designed to protect or advance persons,
or
categories
of
persons, disadvantaged by unfair
discrimination'.
Section 9(4), which is more pertinent here,
makes provision for the enactment of national legislation to prevent
or prohibit unfair
discrimination. In this regard, Schedule 6 of the
Constitution under item 23(1) provides that:
"National legislation
envisaged in sections 9(4), 32(2) and 33(3) of the new Constitution
must be enacted within three years
of the date on which the new
Constitution took effect.”
As
mentioned elsewhere, the Equality Act, which commenced on 16 June
2003, is part of such national legislation. This demonstrates
the
close relationship between the Constitution and the Equality Act. It
is equally plain from the provisions of s 9 that all persons
should
not only be unfairly discriminated ·against, but should also
be provided with protection against utterances which
have a severe
impact on the psychological well-being of vulnerable minorities, such
as homosexuals in our society.
[14]
The above provisions of the Constitution are mirrored in certain
sections of the Equality Act, notably, s 2 of the Act, which
provides
as follows:
"The objects of the Act are
-
(a)
to enact legislation
required by section 9 of the Constitution;
(b)
to give effect to the
letter and spirit of the Constitution, in particular
(i)
the equal enjoyment of all rights and freedoms by every person;
(ii)
the promotion of equality;
(iii)
the values of non-racialism and non-sexism contained in section
1of the Constitution;
(iv)
the prevention of unfair discrimination and protection of human
dignity as contemplated in sections 9 and 10 of the Constitution;
(v)
the prohibition of advocacy of hatred, based on race,
ethnicity, gender
or
religion, that
constitutes
incitement to cause harm as contemplated in section 16(2)(e) of the
Constitution and section 12 of this Act;
...
More relevant and pertinent here,
sections 2(c), (d) and (f) of the Act makes provision for measures in
order to
facilitate
the eradication of unfair discrimination, hate speech and harassment.
particularly on the grounds of race, gender and
disability
:
and provision for procedures for the determination of circumstances
under which discrimination is unfair; provision of measures
to
educate the public and race public awareness on
the
importance of promoting equality and overcoming unfair
discrimination, hate speech and harassment
:
and, the provision for remedies
for
victims of unfair discrimination. hate speech and harassment and
persons whose right to equality has been infringed
,
respectively."
(underlining
added)
[7]
Indeed,
these objectives are rather profound and significant in the
adjudication of matters such as the instant proceedings. This
is so
especially when regard is had to the powers and functions of the
Equality Court in terms of s 21(1) of the Act, which provides,
inter
alia,
that the Equality
Court before which proceedings are instituted in terms of or under
this Act, must hold an inquiry in the prescribed
manner and determine
whether unfair discrimination, hate speech or harassment, as the case
may be, has taken place, as alleged.
In doing so, the Equality Court,
must bear in mind the burden of proof as set out in s 13 of the Act,
which loosely paraphrased
provides that, the complainant (in this
case, the Commission) must make out a
prima
facie
case of
discrimination, in which event, the respondent (in this case
Qwelane), must prove, on the facts before the court, that the

discrimination did not take place as alleged, or that the respondent
must prove that the conduct is not based on one or more of
the
prohibited grounds. Alternatively, if the discrimination occurred,
within the purview of the prohibited grounds, that ought
to be
classified as being unfair, unless the respondent is able to prove
that such discrimination is fair, or the discrimination
causes or
perpetuates systemic disadvantage; or undermines human dignity; or
adversely affects the equal enjoyment of a person's
rights and
freedoms in a serious manner that is comparable to discrimination on
a ground such as sexual orientation (as in this
case), then it is
unfair, unless the respondent succeeds in proving that the
discrimination is fair.
[8]
It appears to me that it would be the proper approach, when in
adopting the interpretational approach as envisaged in s 3 of the

Equality Act, as well as the burden of proof in s 3, the status and
profile of the offender are irrelevant for present purposes.
In
regard to the
onus
of
proof, it is now settled in our law that the Commission in this case
must make out its case on a balance of probabilities. The
locus
classicus
in our law is
Pillay v
Krishna and Another,
[9]
and as discussed in subsequent cases like
South
Cape
Corporation
(Pty) Ltd v Engineering Management Services (Pty) Ltd
.
[10]
These require no elaboration for present purposes.
[15]
It is significant to observe that in regard to the complaint in terms
of the Equality Act, the applicant (Qwelane) baldly disputes
that the
offending statements and cartoon are hurtful or cause harm to the
Lesbian, Gay, Bisexual, Transgender and lntersex ("LGBTI")

community. He however, claims entitlement to the publication of the
offending statements and cartoon, with exemption based on his
right
to freedom of expression as entrenched in s 16 of the Constitution.
He, in essence, is contending that the offending statements
and
cartoon are protected under the Constitution, and therefore do not
amount to hate speech, and he cannot therefore be held accountable

under the equality legislation. Incidentally, the applicant also
denies any involvement in the composition of the cartoon which

accompanied the publication of the statements.
[16]
Section 16 of the Constitution provides that:
"(1) Everyone has the right to
freedom of expression which includes –
(a)
freedom of the press and other media;
(b)
freedom to receive or impart information or ideas;
(c)
freedom of artistic creativity; and
(d)
academic freedom and freedom of scientific research.
(2) The right in subsection (1)
does not extend to
–
(a)
propaganda for war;
(b)
incitement of imminent violence; or
(c)
advocacy for hatred that is based on race, ethnicity, gender or
religion, and that constitutes incitement to cause harm."
[17]
It is so that much has been written both in our country and
internationally about the potential tension between the
constitutionally
entrenched right to freedom of expression and local
national legislation or regulation. It is equally accepted generally
that the
right to freedom of expression, although indispensable in a
democratic society, especially a developing democracy like ours, is

however, not limitless.
[11]
As shown later below, it will always depend on the particular
circumstances of each case, and having due regard to other entrenched

rights, such as the critical rights to human dignity and equality
before the law, and the local or national legislation concerned,
as
well as the interpretational instruments applicable thereto.
[18]
In our country, and context, on a proper construction of s 16(2) of
the Constitution, the following emerge: the Commission's
complaint is
that the applicant's offending statements, strengthened by the
accompanying cartoon, amount to hate speech targeted
at homosexuals
in particular, as envisaged in the national legislation, namely s
10(1) of the Equality Act. However, the question
of hate speech is
properly addressed in, in my view, in s 16(2) of the Constitution.
The section stipulates that the right to freedom
of expression,
guaranteed in s 16(1), does not in fact extend to the conduct set out
in s 16(2). It therefore means that such conduct
is excluded from the
purview of the constitutional protection but is otherwise afforded to
expressive conduct. For in
Islamic
Unity Convention v Independent Broadcasting Authority,
[12]
our Constitutional Court
said:
"Section 16 is in two parts.
Subsection (1) is concerned with expression that is protected under
the Constitution. It is clear
that any limitation of this category of
expression must satisfy the requirements of the limitations clause to
be constitutionally
valid. Subsection (2) deals with expression that
is specifically excluded from the protection of the right. How is s
16(2) to be
interpreted? The words ‘[t]he right in ss
(subsection 1) does not extend ...' imply that the categories of
expression enumerated
in s 16(2) are not to be regarded as
constitutionally protected speech. Section 16(2) therefore defines
the boundaries beyond which
the right to freedom of expression does
not extend. In that sense, the subsection is definitional. Implicit
in its provisions is
an acknowledgment that certain speech does not
deserve constitutional protection because, among other things, it has
the potential
to impinge adversely on the dignity of others and cause
harm. Our Constitution is founded on the principles of dignity, equal
worth
and freedom, and these objectives should be given effect
to."
[13]
The
court proceeded to state as follows:
"Three categories of
expression are enumerated in s 16(2). They are expressed In specific
and defined terms. Section 16(2)(a)
and (b) are respectively
concerned with 'propaganda for war' and 'incitement of imminent
violence'. Section 16(2)(c) is directed
at what is commonly referred
to as hate speech. What is not protected by the Constitution is
expression of speech that amounts
to 'advocacy of hatred' that is
based on one or other of the listed grounds, namely race, ethnicity,
gender or religion and which
amounts to 'incitement to cause harm'.
There is no doubt that the State has a particular interest in
regulating this type of expression
because of the harm it may pose to
the constitutionally mandated objective of building the non-racial
and non­sexist society
based on human dignity and the achievement
of equality. There is accordingly no bar to the enactment of
legislation that prohibits
such expression. Any regulation of
expression that falls within the categories enumerated in s 16(2)
would not be a limitation
of the right in s 16."
[14]
[19]
I must observe immediately that the above interpretational guidance
to s 16 of the Constitution was made by our Constitutional
Court
after previously stating that:
"The right has been described
as 'one of the essential foundations of
a
democratic society; one of
the basic conditions for its progress and for the development of
every one of its members
...
As such it is protected in
almost every international human rights instrument. In Handy Side v
The United Kingdom the European Court
of Human Rights pointed out
that this approach
to
the right to freedom of expression is 'applicable not only to
"information" or "ideas" that are favourably

received or regarded
as
inoffensive or
as
a matter of indifference,
but
also
to
those that offend, shock or disturb
...
Such are the demands of that
pluralism, tolerance and broadmindedness without which there is no
'democratic society"'.
[15]
(footnotes omitted)
In
addition, it must also be observed that the Constitutional Court made
the findings referred to above in paragraphs 31 to 33,
pursuant to
finding that the right to freedom of expression in s 16(1) Is not
absolute, and like other rights, it is subject to
limitation under s
36(1) of the Constitution. The finding was also made after a careful
balancing of the right to freedom of expression
and other rights,
including those in national legislation. Finally, I must also observe
quite interestingly too, that in the present
matter, counsel for the
first
amicus curiae,
the Freedom of Expression Institute, Ms
Yacoob, has, with some attractive articulation, placed great reliance
on the right to human
dignity as enshrined in s 10 of the
Constitution, and sounding an interesting warning to this Court not
to
find the offending statements to amount to hate speech.
More about this submission later below when the constitutional
challenge
launched by the applicant is discussed.
[20]
Prior to discussing further what amounts to hate speech in the
context of the instant matter, and dealing briefly with the
evidence
led, Imust observe further that the constitutional prohibition on
hate speech has in fact been given practical legislative
effect by
the Equality Act. This Act was enacted following s 9(4) of the
Constitution which provides, as stated before, that national

legislation must be enacted in order to prevent or prohibit unfair
discrimination. As such, the hate speech, contended for by the

Commission here, falls squarely into the category of conduct that
perpetuates systemic patterns of discrimination, and as a direct

consequence, the Equality Act aims at prohibiting such conduct. In
Islamic Unity Convention
[16]
supra,
it
was held that, open and democratic societies permit reasonable
prescription of activities and expression that pose a real and

substantial threat to such values (of human rights, and the
achievement of equality and the advancement of human rights and
freedoms)
and to the constitutional order itself, and that many
societies also accept limits on free speech in order to protect the
fairness
of trials. Further, that, speech of an inflammatory or
unduly abusive kind may be restricted so as to guarantee free and
fair elections
in a tranquil
atmosphere.
[17]
Thomas J. Webb provides:
"Today, nearly every nation
across the globe regulates hate speech in some way to promote human
dignity and protect minorities
from verbal prosecution. The United
States, however, rests in the minority, and it remains the only
country to expressly protect
it. It protects hate speech under the
pretext of promoting individualism
as
a
'cornerstone' of society.
The United states holds the freedom of speech above other rights such
as human dignity and social good.
This approach, however, fails to
adequately implement provisions of key international covenants and
conventions; in other words,
the United States is in violation of
international law.  Furthermore, in the absence of
regulation, the United
States, in effect, has become
a
safe
haven for the promotion
of hate speech."
[18]
(footnotes omitted)
It
is therefore my view that the Equality Act ideally provides the
appropriate legislative framework within which the present complaint

must be adjudicated. There can clearly be no other approach.
[21]
With the above in mind, I turn firstly, to the evidence led in this
inquiry. The evidence is extensive which, in my view ought
to be
allowed within certain limitations and discretion by Equality Courts,
particularly in order for the courts to collate and
construct
sufficient jurisprudence in matters of this nature in a developing
democracy. There is a patent need for guidance to
lower courts in
what is relative legislation and the correct interpretational
approach thereto.
[19]
In the course of the exercise of my discretion, I disallowed
cross-examination of one of the applicant's witnesses, Mr Bennie
Viljoen (Viljoen) by counsel for the second
amicus
curiae.
This, after an
objection was raised by the applicant's counsel. I instead requested
such questions aimed at cross-examination to
be reduced to writing,
and shown to me in chambers after a brief adjournment. The decision
not to allow cross- examination was
based, having in mind the special
role of an
amicus curiae
tritely accepted, as well
as the interest of justice. For example,
In
re: Certain
Amicus
Curiae Applications: Minister of Health v Treatment Action
Campaign,
[20]
where the Constitutional
Court held that:
"The role of an amicus is to
draw the attention of the Court to relevant matters of law and fact
to which attention would not
otherwise be drawn. In return for the
privilege of participation in the proceedings without having to
qualify
as a
party,
an amicus has a special duty to the Court. That duty is to provide
cogent and helpful submissions that assist the Court.
The amicus must
not repeat arguments already made but must raise new contentions; and
generally these new contentions must
be
raised on the data already
before the Court. Ordinarily it is inappropriate for an amicus
to
try to introduce new
contentions based on fresh
evidence.
"
[21]
In
the end, the cross-examination was not persisted with and no visible
prejudice raised.
[22]
The significant point to be made in regard to the approach to s 10 of
the Equality Act is that the provisions of this section
ought to be
interpreted having due regard to the necessity of striking the
correct and delicate balancing between the right to
freedom of
expression and the right to equality and dignity which the Equality
Act aims to protect.
THE
ORAL EVIDENCE
[23]
In the course of substantiating its contentions that the offending
statements amount to hate speech, the Commission led the
evidence of
some three witnesses. As mentioned earlier, one of such witnesses is
Gregoriou. In short, he is employed by the Commission,
and dealt with
the present complaint at some stage in the course and scope of his
employment. According to his evidence the Commission
received
numerous complaints, in the region of about 530. This was unusually
high. However, and significantly, the complaints,
which were
categorised as based on sexual orientation, against members of the
LGBTI community, predated the publication of the
offending statements
in 2008. The complaints had already commenced in 2006 up to April
2009. One source of such complaints is POWA,
which shows recent
incidents of violence perpetrated against black lesbian and
transgender women in our country.
[24]
What is particularly worrisome revealed by the evidence of Gregoriou,
and other later witnesses called by the Commission, and
which was not
seriously contested, is the following: numerous of the complaints of
violence, and ill-treatment of the LGBTI community
were referred to
the South African Police Services (SAPS), with little or no success
at all. The statistics of the complaints were
tabled and some
continued from about 2012 to 2013 up to 2017, and long after the
publication of the offending statements.
[25]
If must at the outset observe that, the allegations levelled against
the SAPS by the Commission's witnesses, in particular
in regard to
the complaints referred to it for investigation, which appear to be
probable, bringing into reckoning immediately,
the provisions of s
21(4) of the Equality Act. The section provides,
inter alia,
that,
'the court may, during or after the inquiry, refer its concerns in
any proceedings before it, particularly in the case of
persistent
contravention or failure to comply with a provision of this Act or in
the course of systemic unfair discrimination,
hate speech or
harassment to any relevant constitutional institution for further
investigation'
(emphasis added). The relevance of this provision
becomes apparent later below.
[26]
The evidence of Gregoriou explains that the various complaints
systematically relate to physical assaults, expression of violence,

and discrimination against LGBTI members (these include refusal of
access to venues or denial of medical treatment); death threats
and
the calling of derogatory expletives; and generally hate speech.
Further, the denial of adoption to gay couples, and denial
or refusal
to marry same sex couples.
[27]
The gist of the evidence of Gregoriou, which mirrors the contention
of the Commission, is that: the offending statements and
cartoon,
constitute hate speech levelled against the LGBTI community. The
reference to President Robert Mugabe, with his unflinchingly
and
unapologetic stance towards homosexuals, that gays and lesbians don't
deserve constitutional protection, not deserving of human
rights;
compares gays and lesbians to animals. The applicant's unrepented
attitude towards homosexuals and their backers, insults
the inherent
part of their being. The applicant's call for the amendment of our
Constitution to not allow same sex couples to be
married, classifies
them as community outsiders, and classifies members of the LGBTI
community as different on the basis of their
sexual orientation; and
discriminates against and reduces their dignity, and not having the
same rights and privileges as other
human beings. The same applies to
the applicant's reference to,
'otherwise at this rate how soon
before some idiot’
demands to marry animals and argues that
this Constitution allows it,
'which illustrates dehumanization of
members of the LGBTI’;
Finally, that the entire offending
statements and cartoon, when properly analysed, and construed by a
reasonable person, is hateful,
harmful and incite harm in terms of
the severe psychological and emotional harm inflicted on the targeted
LGBTI members of the
community, and in violation of the applicable
equality legislation. The comparison of homosexuals to animals like
goats, which
relates to bestiality, was deeply concerning and
dehumanising.
THE
EVIDENCE OF MS N MOKOENA
[28]
The next witness for the Commission was Ms Nonhlanhla Mokoena
(Mokoena). Her evidence extends over some 42 pages of the transcript.

In brief, as a qualified social worker and Executive Director of
POWA, her organisation provides support, counselling and shelter
to
female survivors of domestic violence in the community, in particular
to lesbians. Most of the victims targeted, come from previously

disadvantaged communities, such as Soweto, Katlehong, Vosloorus,
Alberton and Tembisa.
[29]
The victims, who are brave enough to approach POWA, often endure
secondary victimisation when they report cases to the SAPS,
who
refuse to cooperate and investigate their complaints. Some of the
cases reported to SAPS are extremely serious, ranging from

harassment, physical assault, rape and even murder. Indeed, the
evidence in this regard is extensive on the record, and require
no
unnecessary repetition here, save for its impact, which is for
possible later consideration. The additional reason is that the

evidence could not be reasonably controverted. However, worthy of
mention here is a complaint received by POWA emanating from a
Lesbian
woman staying in Katlehong, just east of Johannesburg. The victim
approached the Katlehong Police Station after she was
raped. She was
accompanied by her lesbian partner. The police officer involved
refused to open a case of rape, because,
"boys cannot be
raped, we are not going to open
a case
for you because you are
boys. Boys cannot be raped'.
POWA has lodged numerous similar
complaints with the Commission.
[30]
In the view of Mokoena and POWA, the offending statements by the
applicant, are deeply hurtful and harmful to the targeted
group,
namely the LGBTI community. Mokoena testified further that the
salient basis for POWA's and Mokoena's unhappiness about
the
offending statements, in her words is that:
"Homosexuality is not a
lifestyle; homosexuals do not choose their lifestyles; they are human
beings, are equal before the
law; and in making the offending
statements, the applicant, was in a position of excessive power and
influence, fuelling potential
violence against the vulnerable LGBTI
community."
[22]
[31]
I mention in brief some of the specific complaints of violence
reported to POWA, on the evidence of Mokoena. There are at least
five
such: on 28 April 2008, one Ms Y Simelane (Simelane) a well-known
former football player for the national soccer team, Banyanya

Banyanya, was brutally murdered and allegedly gang raped by five men
in a township in KwaThema, Springs, east of Johannesburg.
She was a
lesbian; prior to that and on 7 July 2007, one Sizakele Sikasa, an
outreach coordinator at Positive Women's Network and
LGBTI rights
activists, and her friend, Salome Masuna, were tortured, raped, and
brutally murdered in Soweto. On 22 July 2007,
Thokozani Qwabe, a 23
year black lesbian, was found dead after being stoned, in a field in
Ladysmith, KwaZulu-Natal. In June 2007,
Smangele Nhlapho, a member of
a support group for women living with AIDS/HIV, was found dead with
her 2 year old daughter. They
were both raped and killed. On 4
February 2006, Zoliswa Nkonyana, a 19 year old black lesbian, was
slapped, beaten and stabbed
to death by a group of 20 men between the
ages of 17 and 20.
[32]
The above specific incidents of ill-treatment of members of the
LGBTI, are but a skeleton of the evidence of Mokoena. The transcript

of the record is replete with other incidents. All the incidents were
reported to the Commission and SAPS. However, what is of
significance
was Mokoena's evidence during cross-examination where she conceded
readily that her organisation, POWA, did not receive
specific
complaints of acts of violence aimed at the members of the LGBTI
community because of the applicant's publication in 2008.
In the view
of Mokoena, the reference made by the applicant to President Robert
Mugabe in the offending statements, suggested that
he shares the
views that homosexuals are animals, that is dogs and pigs. Mokoena
conceded that the publication of the article resulted
in a huge
public debate.
THE
EVIDENCE OF MS MN
[33]
The evidence of the final witness called by the Commission, Ms MN, a
52 year old lesbian, was, by agreement, heard
in
camera
on certain
conditions. Her evidence too, which was extensive, must be greatly
summarised for present purposes. In essence, she testified
about her
own personal experiences of homophobia in many instances and in
different forms and manner. She has been brutalised with
people
calling her by all sorts of derogatory names. For example, she has
been called anti-Christ or devil, with allegations that
she is a
lesbian because she has not had "real sexual intercourse"
with a man. If she did this, she will change and become

heterosexual.
[23]
The witness testified that she has been discriminated against as a
result of her sexual orientation. In this regard, she was barred
from
using a women's toilet, and was dismissed from her employment due to
insults from customers relating to her sexual orientation.
MN has
also been attacked physically as a result of her sexual orientation.
The attacks preceded the beatings by calling
her derogatory
names or challenging her to fight as she thinks she is a man. She has
been threatened with rape because the perpetrators
contend that this
will correct her and change her into a heterosexual. In the view of
MN, the offending statements of the applicant
are hurtful and showed
a disregard of the LGBTI community. In particular, to the extent that
the statements contend that by allowing
same sex marriages, soon
marrying an animal will be allowed, this is an attack on the dignity
and equality of the LGBTI and that
the statements are an insult to
her. It came as no surprise that, in the course of her evidence, MN
broke down when she recalled
the vicious nature of the attacks on
her. These attacks were accompanied by, as mentioned, hateful slurs,
while spectators stood
by and said she must defend herself because
she acts like a man. She never bothered to report some of the
incidents as in her words
"the
law does not protect people like me".
She
said that the persistent victimisation she experienced in her life
made her feel that she had
"passed
on",
namely that she
had died inside. Like Mokoena, MN said that the endorsement by the
applicant of the views of President Robert Mugabe
who called
homosexuals animals like dogs, were hurtful and painful utterances,
and displayed deep hatred to the LGBTI community.
[34]
The cross-examination of MN was limited and focussed on certain
issues only. She does not know the applicant personally except
seeing
him in the press. She believes that the applicant has never
interacted with people like her who he hates. Like Mokoena,
MN
conceded readily that the incidents perpetrated on her can not be
directly linked to the applicant's offending statements. However,
she
added that the offending statements were exacerbating the current
situation where people like her are being harassed.
THE
EVIDENCE OF MR B C VILJOEN
[35]
At the close of the Commission's case, one witness only, Mr Ben
Christiaan Viljoen (Viljoen), testified for the applicant.
At the
time of his testimony, he was the Deputy Editor of the Sunday Sun
newspaper in which the offending statements appeared in
July 2008. At
the time, Viljoen was the Production Editor of the newspaper. The
offending statements appeared in the conversation
column pages of the
newspaper, which is intended to encourage conversation and debate.
[36]
In regard to the internal processes of the newspaper, which are not
seriously relevant here, Viljoen testified that, once the
offending
statements were submitted by the applicant and approved, the column
would normally be accompanied by a cartoon. The applicant
had no part
to play in the creation of the cartoon.
[37]
Following the publication of the offending statements, the newspaper
received numerous complaints relating thereto. At the
time, the
target market, a mass market, was predominantly 99% black. It had a
readership of about 2,5 million, the majority of
which were black
living in the traditional townships, informal settlements, and in
suburbs. The target group is described as particularly
homophobic.
The newspaper subsequently published an apology through its
publisher, Mr Du Plessis. There were also proceedings brought
by the
Commission against both Media24 and the applicant.
[38]
It is rather significant, in the context of this matter, that Viljoen
in evidence-in-chief testified that the offending statements
ought
never to have been published in the first place. He said, in answer
to a question whether the statements were offensive:
"I think
it is reprehensible."
Later on he said:
"Yes, I think the column
should not have been published. I think it was a moral ssue and I
think there was poor judgment on
the publisher and the editorial
staff. I would say I wouldn't have published however I don't think
it's illegal to have published
dribble."
[24]
This
was repeated at the commencement of cross-examination, with the
addition and acceptance that the offending statements are hurtful
to
the members of the LGBTI. In further cross-examination, Viljoen
conceded that given the context of the residence, in which the
gay
and lesbians live, the offending statements have the potential of
further harming the group. He also conceded that according
to
President Robert Mugabe, gays and lesbians are animals and therefore
sub-humans, and when observed in the streets, they must
be arrested
and handed over to the police, which stance the applicant supports.
THE
EVIDENCE OF PROFESSOR S A NEL
[39]
At the conclusion of the applicants case, the Psychological Society
of South Africa (the second
amicus curiae),
led the evidence
of Professor Sean Adriaan Nel (Nel). He is a Research Professor at
the University of South Africa (UNISA) and duly
rated by the National
Research Foundation, under the Department of Science and Technology,
as a Research Psychologist. In addition
to research work and clinical
work at the SAPS, he became involved in LGBTI activism at UNISA. Nel,
himself is a gay person. He
testified extensively about his own
ill-treatment and discrimination meted out on him by virtue of his
gay and sexual orientation
status.
[40]
The evidence of Ne/ extends over some 180 pages of the transcript of
the record.
[25]
It too, requires extensive summary. In short, in relation to the
kinds of psychological impact that the applicant's offending
statements had on the LGBTI community, Nel said:
"The statements, coming from a
high profiled, a reputed struggle-hero and journalist, like the
applicant, as well as the platform
he had (a columnist on the Sunday
Sun newspaper), that these statements appeal to the deeply felt
cultural, religious and social
prejudices held by its audience; it
equated homosexuality to bestiality,
a
deeply entrenched
prejudice against the LGBTI community; the statements denigrated the
intimate relationships of the LGBTI people
and placed that community
outside of the norm; the statements assumed a sexual identity which
is not
a
choice, and treated it as if it were a
type of
lifestyle, which is susceptible
to
change or beaten out of
a
person or victim. Announcing or telling persons, at the time when
there were high levels of physical violence against the LGBTI
community, that they are 'not ok', as the statements highlighted, is
deeply damaging to their imposed psyche."
This
approach to the evidence of Nel is aptly described in the second
amicus curiae's heads of argument. There were no witnesses
called by
the remaining parties.
[41]
It is on the basis of the entirety of the above evidence, which was
allowed generally in this case, as well as the provisions
and objects
of the Equality Act, and limited mention of certain case law and
others, that the complaint of the Commission, coupled
with the
applicant's constitutional challenge, must now be adjudicated upon.
The elements of proper content and context remain
crucial, and from
the perspective of a reasonable reader, apart from the subjective
intentions of the offender.
[42]
First, as mentioned before, whether the Commission, as supported by
other parties, save for the Freedom of Expression Institute
(the
first
amicus curiae),
has succeeded in discharging the
onus
of proving, on a balance of probabilities, that the offending
statements amount to hate speech as envisaged in the applicable
equality
legislation outlined above.
HATE
SPEECH
[43]
Most recently, this Court, sitting as an Equality Court, and in the
matter of the
South African
Human Rights Commission, on behalf of the South African Jewish Board
of Deputies against Bongani Masuku
[first
respondent)
and Another
(Equality Court Case Number
01/2012), found that, the impugned statements made by the first
respondent concerning the Jewish people,
amount to hate speech as
envisaged in s 10 of the Equality Act.
[26]
The finding (excluding any constitutional challenge) was arrived at
pursuant to extensive review of what constitutes hate speech
here and
abroad. For present purposes, it is truly unnecessary to repeat all
such review.
[44]
However, briefly stated, hate speech, has been defined variously up
to now, as a readily discernible phenomenon. Also most
recently, in
this High Court, and in a matter which is currently highly topical,
and in
Afriforum and Another
v Malema and Another, supra,
had
to consider whether the singing of the song in
"Dubu/a
lbhunu"
(kill the
boer), by the African National Congress (ANC) Youth League's Julius
Malema, and whether the song constituted hate speech
in terms of the
Equality Act (s 10(1)). In the course of the judgment, the Court
(Lamont J), held that the song on its own, was
created at the time
when the oppressive apartheid regime was a system of government to be
overthrown, however, despite this the
political climate has changed,
and the singing of the song has the ability to incite harm to persons
belonging to the target group.
[27]
Webb,
states
the following:
"The power of words is
limitless. Although words can be used to inspire people and promote
good, they also can be used to destroy.
In the form of hate speech,
words can be 'used as weapons to ambush, terrorize, wound, humiliate
and degrade' ... On an individual
basis, hate speech inflicts
'emotional pain and distress, intimidation, and fear' on its targets
..."
[28]
[45]
I have already dealt with the importance and nature of the right to
freedom of expression, as entrenched in s 16 of the Constitution,

including that it is not an absolute right. In addition, the
Universal Declaration of Human Rights defines· freedom of
expression as the right of any individual,
'to
hold
opinions
without interference and to seek, receive and impart information and
ideas through any media and regardless of frontiers'.
[29]
However, it is plain that
the right of freedom of expression, with all its broadmindedness and
pluralism required for an open and
democratic society, like ours, can
in fact be compromised by speech which seriously threatens democratic
pluralism itself. For
Christa van Wyk,
[30]
states that:
"Section 16(2) places certain
forms of expression
-
including certain forms of 'hate speech'
-
outside the right of freedom of expression and removes them
from the ambit of constitutional protection. The right to freedom of

expression does not extend to the listed categories of speech, which
in advance have been singled out by the framers of the South
African
Constitution as not deserving constitutional protection, since they
have, amongst other things, the potential to impinge
adversely on the
dignity (one of the core values of the Constitution) of others and
cause them harm."
In
my view, from this, the argument of the first
amicus curiae
in
the present matter, and in emphasising the right to dignity, although
sound, is misplaced in the context of the equality legislation

complaint.
[46]
In addition, Article 4 of the Elimination of All Forms of Racial
Discrimination of 1965 [ICERD] describes hate speech as:
"[A]ny
speech,
gesture or conduct, writing, or display which is forbidden because it
may incite violence or prejudicial action against
or by
a
protected individual or
group, or because it disparages or intimidates a protected individual
or group.
"
[31]
This
is defined elsewhere as:
"[S]peech or expression which
is capable of instilling or inciting hatred of, or prejudice towards,
a
person
or group of people on
a
specified ground including
race, nationality, ethnicity, country of origin, ethno-religious
identity, religion, sexuality, gender
identity or gender.
"
[32]
[47]
Indeed, our Constitutional Court has, on several occasions,
highlighted the interest of the State in regulating hate speech
since
it may cause harm to the constitutionally mandated aim of building a
non-racial and non-sexist society based on human dignity
and the
achievement of equality. See for example
Islamic
Unity Convention v Independent Broadcasting Authority and Others,
supra,
at paragraph [33].
In my view, the Equality Court should also follow this approach. The
word
"hatred',
and
what it entails, was described as
"hatred'
is not a word of casual
connotation. To promote hatred is to instill detestation, enmity,
ill-will and malevolence in another.
[33]
[48]
With all the above principles in mind, I must revert to the present
complaint under the Equality Act. The applicable provisions
of the
Act have been sketched above. It may be helpful at this stage also to
have in mind the provisions of s 11 of the Act quoted
above. The word
"harassment'
in this section is defined in s 1, as
" ...
means unwarranted conduct
which is persistent or serious and demeans, humiliates or creates
a
hostile or intimidating environment or
is
calculated to
induce submission by actual or threatened adverse consequences and
which is related to
–
(a)
sex, gender or sexual
orientation, or
(b)
a person's membership or
presumed membership of
a
group identified by one or more of
the prohibited grounds or
a
characteristic associated with
such group."
More
about this provision later if necessary.
[49]
The offending statements uttered by the applicant, when evaluated
objectively, in content and context, speaks ill of the gay
and
lesbian community, and went further by suggesting that the next step
for South Africa will be allowing people to marry animals.
It can
never be acceptable, in the context and content of the equality
legislation, and our democratic society, to equate human
beings to
bestiality or animals, and suggest to them that they are
"other''
or
"unnatural'.
It severely undermines
their ability to feel that they belong and have support, which is
essential to psychological health and well-
being of all humans. It
equally did not help that the offending statements were uttered
barely some month after President Robert
Mugabe had called gay and
lesbian people worse than dogs and pigs. The witness Nel, for the
Commission, testified in this regard.
*In the article Mugabe called
on the South African people to strip the LGBTI community of their
equal concern and respect. There
can never be any direct frontal
attack on their dignity than this. The offending statements plainly
and unequivocally indicate
hatred of homosexual individuals. It is
common knowledge from the evidence of Nel and the other witnesses of
the Commission that
gay and lesbian people, who constitute a
vulnerable group in society, and have been subjected to societal
discrimination purely
on the ground of sexual orientation. They are a
permanent minority in society and have suffered in the past from
various patterns
of disadvantage. The SAPS too, have not come to the
party on the credible evidence. Indeed, this is a matter which must
be addressed
appropriately later below. The evidence, in particular
that of Mokoena and MN, showed convincingly that the offending
statements
were deeply hurtful and harmful to the victims and
targeted group. In addition, all the lay witnesses, as shown above,
including
Viljoen for the applicant, and Gregoriou, testified and
confirmed that in the context in which the offending statements were
published,
they had the potential to cause harm to members of the
LGBTI community. The hurt is exacerbated by the applicant's failure
to apologise
to the LGBTI community, just like the racist employee in
the
South African Revenue
Service v Commission for Conciliation, Mediation and Arbitration and
Others
[2017] 1 BLLR 8
(CC)
at paragraph [45]. It is significant that the evidence of Viljoen,
called by the applicant, conceded that the statements were

reprehensible, coupled with the above other concessions. It is
equally significant that the applicant does not dispute making the

statements or their possible implications, but rather rely on his
entitlement thereto on the provisions of s 16 of the Constitution.

However, as shown later in order to achieve the purpose in s 9(4) of
the Constitution, it is permissible for the Equality Act to
limit the
right in s 16 of the Constitution further than the internal carve out
contained in s 16(2), subject to s 36 of the Constitution.
The
applicant admits this.
[34]
[50]
The Constitutional Court in
National
Coalition for Gay and Lesbian Equality and Others,
[35]
observed that, society at
large has generally, accorded far less respect to them and their
intimate relationship with one another
than to heterosexuals and
their relationships. More importantly, the Constitutional Court
proceeded to state that:
"Sting of the past and
continuing discrimination against both gays and lesbians is the clear
message that it conveys, namely,
that they, whether viewed as
individuals or in their same-sex relationships, do not have the
inherent dignity and are not worthy
of the human respect possessed by
and accorded to heterosexuals and their relationships. This
discrimination occurs at a deeply
intimate level of human existence
and rationality. It denies the gays and lesbians that which is
foundational to our Constitution
and the concepts of equality and
dignity, which at this point are closely intertwined, namely that all
persons have the same inherent
worth and dignity as human beings,
whatever their other differences may be. The denial of equal dignity
and worth all too quickly
and insidiously degenerates into a denial
of humanity and leads to inhuman treatment by the rest of society in
many other ways.
This is deeply demeaning and frequently has the
cruel effect of undermining the confidence and sense of self-worth
and self-respect
of lesbians and gays."
[36]
The
last quoted sentence, in particular, is of great significance in the
context of the instant matter. In the first place, it accords
fully
with the evidence of in particular, MN and Mokoena. The exception is
their honest concession of not directly linking the
offending
statements to the attacks and discrimination and ill-treatment
contained in their evidence. However, this may be irrelevant
for
purposes of the Equality Act. The actual intention of the perpetrator
of hate speech is also not essential when the assessment
and
evaluation is made properly in context and content and objectively.
The second significance from the above quotation is that,
it clearly
puts paid to the argument based on the rights to equality and dignity
in favour of the applicant when all the rights
in the Bill of Rights
are equally balanced. The further significance, is as I see it, the
constitutional and statutory obligation
enjoined to the Equality
Courts are to protect the rights of brutalised and discriminated
minority groups in society, where appropriate,
as discussed more
fully immediately below.
[51]
The Equality Act was enacted to implement s 9 of the Constitution,
essentially to prohibit unfair discrimination and harassment;
to
promote equality; to prohibit hate speech, and to provide for matters
connected therewith, as seen from its preamble and objects,
and read
with the prohibited grounds in s 1. Interestingly, Van Wyk elucidates
the interaction between the hate speech provisions
of the
Constitution and Equality Act, as follows:
"The Act implements and
clarifies the constitutional hate speech provision. While the
Constitution puts these forms of expression
outside constitutional
protection, the Act clearly prohibits hate speech and creates rights.
It provides remedies to counter the
harmful effects of hate
speech.
"
[37]
One
of the important objects of the Equality Act is to give effect to the
letter and spirit of the Constitution, in particular,
the prevention
of unfair discrimination and protection of human dignity as
contemplated in ss 9 and 10 of the Constitution, and
the prohibition
of advocacy of hatred, based on race, ethnicity, gender or religion,
that constitutes incitement to cause harm
as contemplated in s
16(2)(c) of the Constitution.
[38]
[52]
As stated by this Court previously, s 10 of the Equality Act creates
two requirements for hate speech, namely:
(1)  It must be based on a
prohibited ground as contemplated in section 1 of the Act, or any
other ground where discrimination
based on that other ground promotes
or perpetuates systemic disadvantage, and undermines human dignity or
adversely affects the
equal enjoyment of a person's rights and
freedoms in a serious manner that is comparable to discrimination on
a ground specifically
listed; and
(2)
It must be reasonably construed
to indicate a clear intention to be hurtful, be harmful or incite
harm, or to promote or propagate
hatred.
[39]
It
is also plain that s 10(1) is contingent on a significant proviso,
namely the
bona fide
engagement in artistic creativity,
academic and scientific inquiry, fair and accurate publication of
information, and advertisement
of notice in terms of s 16 of the
Constitution, are not precluded from the section. It is also rather
significant that the Equality
Act uses distinct categories of
expression, which it seeks to forbid, and which extends beyond the
forms of hate speech which s
16 of the Constitution puts outside the
purview of constitutional protection. It is therefore clear that the
limitation in s 10(1)
of the Equality Act is expressly made subject
to, or subordinate to the proviso in s 12 of the Act, as stated
above. There is no
evil in the proviso at all, since provisos are
frequently incorporated in legislative provisions by reference, as
argued by the
Minister of Justice and Constitutional Development (as
it
was), in this matter. The offending statements uttered by
the applicant contain no constitutional value. It is plain that the
offending
statements were not produced in order to encourage a debate
on homosexuality, but rather to persuade readers of his own views, to

position his homophobia and invite others to join him in it. He
remains unapologetic for his views. In any event, if it was indeed

for the offending statements to spark debate, on issues affecting gay
and lesbian people, it would have been up to the applicant
to give
such evidence in court. As we know, this never happened. This was
regrettable. I make no conclusive finding on the reason
for such
default, since there remains some room for speculation. It is
interesting that the second
amicus curiae
in this matter
suggested very strongly that the offending statements were also
produced for financial gain on the part of the newspaper.
CONCLUSION
[53]
For all the above reasons, I must conclude, as I do in the ultimate
order below that the Commission has succeeded in making
out a case,
on a balance of probabilities, that the offending statements amount
to hate speech as contemplated in s 10(1) of the
Equality Act. More
specifically, the offending statements are hurtful and harmful and
have the potential of inciting harm towards
the LGBTI community, and
plainly propagate hatred towards them. It must be recalled that s
10(1) is part of the scheme of the Equality
Act designed to give
effect to the guarantee of equality and freedoms and the prohibition
against unfair discrimination aimed at
in s 9 of the Constitution.
The prohibition is intended to protect vulnerable groups against
utterances that are intended or calculated
to hurt such groups; to
incite harm against them, or to promote or propagate harm against
such group. In order to achieve this,
an objective assessment is
required of the offending statements in their factual and social
context and content to determine whether
such an intention is
manifest, and that harm, including in the form of hurt or hatred, is
possible. As dealt with in the second
part of this judgment, s 10(1)
is manifestly broader in scope than s 16(2) of the Constitution,
since it includes in its s 1, sexual
orientation as a prohibited
ground, whereas s 16(2) of the Constitution does not contain such a
ground; further that the s (10(1))
does not require incitement to
cause harm to be proved for purposes of all subsections (a), (b) and
(c) of s 10(1), as quoted above;
and prohibits speech that might not
necessarily constitute advocacy of hatred.  More about this
later. I also conclude that
the defences of the applicant proffered
in terms of s 16 of the Constitution must fail in the context of the
complaint under the
Equality Act. It also appears to me that, in
order for speech to meet the second requirement of s 16(2)(c) of the
Constitution,
that is that, which constitute incitement to cause
harm, does not require proof of actual harm resulting from the
offending statements.
It is sufficient that the speech has the
potential to cause harm.
[40]
In regard to the appropriate remedy in the present matter, and on
which substantive submissions were made by the parties, I deem
it
necessary to deal with same later below.
THE
CONSTITUTIONAL CHALLENGE
[54]
I must deal with the constitutional challenge of the applicant. The
contentions in this regard are extensive. In essence, as
alluded to
briefly previously, the applicant contends that he was entitled to
utter the offending statements since these are protected
by s 16 of
the Constitution.
[41]
He seems to suggest that his utterances, without leading any
evidence, do not amount to hate speech and protected in particular
by
s 16(2) of the Constitution and that the hate speech provisions of
the Equality Act, in particular, ss 1, 10, 11 and 12, are

unconstitutional on the basis that the sections are overbroad and
vague. Stated succinctly, the overbreadth challenge alleges that
s
10(1) of the Equality Act prohibits excessive speech, whilst the
vagueness challenge, contends that, when s 10 is read with the

proviso in s 12 of the Act, s 10 is rendered meaningless. The
question for decision is therefore whether the challenges are capable

of withstanding scrutiny. All these ss are quoted fully in the first
part of this judgment. It is not an easy task, clearly.
[55]
I commence with the vagueness challenge. It is trite that the test in
this regard is a strict one, and not without difficulty,
as correctly
pointed out by the Minister of Justice and Constitutional
Development. For example, in
Affordable
Medicines Trust and Others v Minister of Health of RSA and
Another,
[42]
the constitutionality of
certain aspects of a licensing scheme introduced by the government
was challenged. The scheme provided
that health care providers such
as medical practitioners and dentists would not be permitted to
dispense medicines unless they
had been issued by the Director-
General of the Department of Health (DG) with a licence to do so. The
challenge was directed at
the powers of the DG to prescribe the
different conditions listed in the matter. The Court stated that:
"Sub-regulation (18)(5) was
challenged on the basis that it was vague and does not conform to the
principle of legality. The
doctrine of vagueness is one of the
principles of common law that was developed by courts to regulate the
exercise of public power.
As pointed out previously, the exercise of
public power is now regulated by the Constitution which is the
supreme law. The doctrine
of vagueness is founded on the rule of law,
which, as pointed out earlier, is a foundational value of our
constitutional democracy.
It requires that laws must be written in a
clear and accessible manner. What is required is reasonable certainty
and not perfect
lucidity. The doctrine of vagueness does not require
absolute certainty of Jaws. The law must indicate with reasonable
certainty
to those who are bound by it. What is required of them so
that they may regulate their conduct accordingly? The doctrine of
vagueness
must recognise the role of government to further legitimate
social and economic objectives. And should not be used unduly to
impede
or prevent the furtherance of such objectives. As the Canadian
Supreme Court observed after reviewing the case Jaw of the European

Court of Human Rights on the issue:
'Indeed ... laws that are framed in
general terms may be better suited to the achievement of their
objectives, inasmuch as in the
fields governed by public policy
circumstances may vary widely in time and from one case to another. A
very detailed enactment
would not provide the required flexibility,
and it might furthermore obscure its purposes behind a veil of
detailed provisions.
The modern State intervenes today in fields
where some generality in the enactments is inevitable. The substance
of these enactments
remains nonetheless intelligible. One must be
wary of using the doctrine of vagueness to prevent or impede State
action in furtherance
of valid social objectives, by requiring the
law to achieve a degree of precision to which the subject-matter does
not lend itself.
A delicate balance must be maintained between social
interests and individual rights. A measure of generality all
sometimes allows
for greater respect for fundamental rights, since
circumstances that would not justify the invalidation of a more
precise enactment
may be accommodated through the application of a
more general one. '"
[43]
(footnotes omitted)
The
Court went on to say:
"Where,
as
here, it is contended that
the regulation is vague for uncertainty,
the
court must first construe the regulation applying the normal rules of
construction including those required by constitutional
adjudication.
The ultimate question is whether so construed. the regulation
indicates with
reasonable certainty
to those who are bound by it what is required of them.
'"
[44]
(emphasis added)
[56]
From the above principles, several guidelines become clear: the
provisions of s 39 of the Bill of Rights come into play. In

particular, s 39(2) provides that:
"When interpreting any
legislation, and when developing the common law or customary law,
every court, tribunal or forum must
promote the spirit, purport and
objects of the Bill of Rights."
The
normal rules of construction apply. The question should be asked if
so construed whether the legislative provision under attack,

indicates with reasonable certainty to those who are bound by it,
what is required of them. Reasonable certainty is required, and
not
perfect lucidity. Caution is undoubtedly required in using the
doctrine of vagueness to prevent or impede State action in
furtherance of valid social objectives and a delicate balance must be
maintained between societal interests and individual rights.

Additionally, s 39(3) of the Bill of Rights guarantees that it does
not deny the existence of any other rights or freedoms that
are
recognised or conferred by,
inter alia,
legislation, to the
extent that they are consistent with the Bill (emphasis added). In
applying all of the above principles to the
facts of the instant
matter, it is difficult to discern any impermissible vagueness in the
provisions of s 10 of the Equality Act.
[57]
The objects of the Equality Act have been sketched and dealt with
previously. The objects include the enactment of legislation
required
by s 9 of the Constitution, and also include the provision of
remedies for victims of unfair discrimination, hate speech
and
harassment and persons whose rights to equality have been infringed.
The Equality Act must therefore be seen or interpreted
in this manner
in order to give effect to the Constitution, and be based on the
above principles. The provisions of the Equality
Act specifically
include the promotion of equality through legislative and other
measures designed to protect or advance persons
disadvantaged by past
and present unfair discrimination. Section 4, in particular, deals
with the guiding principles. It provides
that, when applying the Act,
the existence of systemic discrimination and inequalities;
particularly in respect of race, gender
and disability in all spheres
of life as a result of past and present unfair discrimination brought
about by colonialism, the apartheid
system and patriarchy should be
considered. Also, the necessity to take remedial measures at all
levels to eliminate such discrimination
and equalities; must be
considered with the objectives and provisions in mind. In light of
this, the impugned provisions are difficult
to attack.
[58]
To add to the above finding. The first words in s 10(1) of the
Equality Act, are clear that the section imposes an objective
test in
order to determine whether the words in question reflect the
requisite intention. Furthermore, the proviso in s 12 is not

susceptible to any uncertainty. It is plain that speech that falls
within the proviso is not prohibited by s 10, more so that no
case
has been made out to place the offending statements in the proviso.
Furthermore, the words
'hurtful
and
'harmful
are
capable of easy and intelligible meaning. Hurt connotes hurt to
feelings and harmful relates to physical harm of whatever nature.
The
evidence led put these concepts into proper context and content.
[59]
Having said the above, namely that the proviso under s 12 protects
speech that would otherwise be prohibited under s 10 of
the Act, it
may be argued that the proviso under s 12 of the Act is broad to the
extent that it provides
inter alia
that,
bona fide
engagement in artistic creativity, academic and fair and accurate
reporting in the public interest or publication of any information,

advertisement or notice in accordance with s 16 of the Constitution,
is not precluded by this section. This is so since it is conceivable

that information published under s 16 of the Constitution may vary
extensively and cover all practical speech under s 10. The
consequence may be that all speech will fall under the proviso and
therefore no such speech will be protected under s 1O of the
Equality
Act. It is however clear that the legislature has left it open to
speakers, whose words cause severe harm, psychological
trauma or
other forms of harm, to nonetheless escape sanction under the
Equality Act if they succeed in proving that their speech
pursued one
of the central objectives, as argued by the second
amicus curiae.
However, in whatever other manner construed, there is no room for
vagueness in s 10 or the proviso in s 12, as indicated.
[60]
The provisions of ss 1, 10(1), 11 and 12 of the Equality Act must be
interpreted in terms of s 39(2) of the Constitution. The
provisions
of s 10(1)(a) to (c) must be read conjunctively to ensure that s 1(1)
is consistent with section 16 of the Constitution.
It is also an
interpretation which on general principles is permissible.
[45]
In addition, the application of the proviso in s 12 of the Act in
relation to s 10 is not impermissibly vague. Section 10(1) only

incorporates the proviso in s 12, and not the entirety of s 12. The
proviso qualifies the whole of the prohibition in s 10(1).
THE
OVERBREADTH CHALLENGE
[61]
I must deal with the overbreadth challenge. Based on the principles
enunciated above, it is extremely difficult to appreciate
this
challenge. In essence, the challenge is that s 10(1) of the Equality
Act is overbroad because it limits more speech than s
16(2) of the
Constitution. In the heads of argument it is contended that s 10(1)
of the Equality Act in its current form stifles
any forms of public
debate emanating from speech based on the protected grounds,
especially when certain members of the public
would reasonably
construe that speech as being hurtful, harmful or offensive. It is
further argued that the true test for
"hate speech"
lies
in s 16 of the Constitution since s 10(1) of the Equality Act is
broader than what the Constitution intended it to be. The
argument is
supported by the first
amicus curiae,
whilst the second
amicus
curiae
opposes it.
[62]
In short, the challenge attacks the disjunctive reading of s 10, and
contends that it is not legitimate to interfere with speech
merely on
the basis that it is hurtful, and that hurtful speech ought not be
prohibited. In this regard, reliance is placed on
several case law,
including certain foreign case law, such as
Saskatchhewan
v Human Rights Commission
(a
Canadian Supreme Court decision).
[46]
[63]
The provisions of s 16 of the Constitution have already been dealt
with. It is not a limitless right as entrenched in s 36
of the
Constitution. The challenge is unfounded since s 16(2) of the
Constitution does not protect speech, but lists the three
categories
of speech that is not constitutionally protected. In order for the
challenge to succeed, based on protected speech in
s 16(1) of the
Constitution, it must demonstrate firstly, why a particular
legislative interference is unconstitutional. Secondly,
the challenge
must show that s 10(1) of the Equality Act prohibits more speech than
is reasonable and justifiable. Webb stated
that:
"Recently, South Africa
followed the international movement to regulate speech. The racial
divisions during apartheid in South
Africa played a prominent role in
its push to adopt hate speech regulations. In fact, the concept of
human dignity in the South
African constitution was added to 'combat
the extreme abuses of human dignity in the apartheid era of South
Africa. The South African
approach includes the addition of a
constitutional provision limiting the Freedom of Speech under certain
circumstances. In doing
so, South Africa formulated its regulation
in
a manner that can better withstand constitutional challenges.
"
[47]
(footnotes omitted)
[64]
The challenged provisions of the Equality Act exclude, not only the
"advocacy of hatred',
as does s 16(2) of the
Constitution, but also the publication, propagation and communication
of words based on the listed grounds.
These provisions (of the
Equality Act) require that the speech act
"could
reasonably be construed to demonstrate
a
clear intention",
whereas s 16(2) of the
Constitution requires speech that, in fact,
"constitutes
incitement to cause harm".
The
factors in s 10(1) of the Equality Act are broader than the concepts
of
"hatred'
or
"incitement to cause
harm"
in s 16(2). It
is plain that s 16 of the Constitution protects even bad faith
engagement in any of the activities listed in its
proviso. A proper
reading down of s 10(1) of the Equality Act brings into the ambit of
s 16(2) of the Constitution. In any event,
even if the challenged
provisions of the Equality Act prohibits more speech than s 16(2) of
the Constitution, that in itself can
never be interpreted to
constitute overbreadth. It is apparent from the Constitutional
Court's jurisprudence that the concept of
"overbreadth"
is limited to instances
where the means used, that is the impugned Jaw itself, properly
construed, exceeds its constitutionally
legitimate underlying
objectives.
[48]
As a consequence, it can hardly be said that a statute suffers from
"overbreadth"
until it is proved that it
fails to meet the requirements of the limitations clause in s 36 of
the Constitution. It is plain that
the impugned provisions of the
Equality Court in the present matter do not fail the limitations
test, merely because they prohibit
more speech than s 16(2) of the
Constitution. In my view, and to the contrary, these provisions
constitute a reasonable and justifiable
limitation of the right to
freedom of expression, relied upon by the applicant, because the hate
speech of and extent of the harm
that could be caused by speech of
the kind prohibited by s 10(1) of the Equality Act, by far outweighs
the limited interests of
speakers in nevertheless communicating such
speech.
[65]
The probable effect of the offending statements, coming from a
speaker and platform such as proved by the evidence in this
case, has
been shown by the evidence of Nel. According to him, these types of
statements from people in positions of authority
have a deeply
traumatising impact on members of the LGBTI community. The word
"hurtful'
in s 10(1)(a) of the Equality Act means this
type of severe psychological impact. Section 10(1)(a) of the Equality
Act should be
seen and interpreted in this manner, which will not
produce any result of overbreadth. In any event, on proper
construction, as
stated earlier, the potential of any overbreadth has
been narrowed by the first words therein,
"Subject to the
proviso in section 12".
The proviso clearly provides a
defence to a person (speaker) whose speech would otherwise fall foul
of the section. For all these
reasons, I find that the constitutional
challenge to the impugned provisions of the Equality Act has no
merit, and must fail. The
finding includes the challenge levelled
against s 11 of the Equality Act. As is apparent from its provisions,
this section merely
provides that, no person may subject any person
to harassment. The challenge in this regard is that the section is
poorly formulated.
Again, whether or not a s of legislation is
unconstitutional depends on its proper interpretation, assessed
against specific provisions
of the Constitution. The interpretation
contended for by an interested party only is an irrelevant
consideration. Section 11, in
simple terms, prohibits harassment. The
definition of
"harassment'
in s 1 of the Equality Act
does not detract from the provisions of s 16(2) of the Constitution.
There is nothing constitutionally
impermissible here.
REMEDY
[66]
I must deal with the appropriate remedy. Section 21 of the Equality
Act sets out the powers and functions of the Equality Courts.
The
remedies provided, pursuant to the holding of en inquiry, such as the
present, range from remedies such as issuing an interim
order, to an
order ordering costs against any party to the proceedings. What
appears to be an attractive remedy for present purposes,
are remedies
ordering that an unconditional apology be made and an order directing
the clerk of the Equality Court (in this case
the registrar of the
court) to submit the matter to the Director of Public Prosecutions
having jurisdiction for the possible investigation
of criminal
prosecutions in terms of the common law or relevant legislation.
[67]
The provisions of s 21(3) and s 21(4) of the Equality Act are equally
significant. These provisions provide that an order made
by the
Equality Court has the same effect as an order of court made in a
civil action. And more importantly that, the Equality
Court has the
power to refer,
"its
concerns in any proceedings before it, particularly in the use of
persistent contravention
or
failure to comply with
a
provision of this Act or in
the use of systemic unfair
discrimination, hate speech
or harassment to any relevant constitutional institution for further
investigation".
In the
present case, this remedy brings to mind immediately the alleged
conduct of the SAPS, as revealed by the evidence of POWA
and MN, in
failing to open cases by them and victims of the LGBTI community. For
this reason, I deem it appropriate, if not obligatory,
to refer these
proceedings to the National Police Commissioner for further
investigation and to report back to this Court. At this
point, it is
of interest to look at the Harassment Act 17 of 2011 (Harassment
Act). Section 18 of the Harassment Act criminalises
harassment.
Harassment is defined as "indirectly or indirectly engaging in
conduct that the respondent knows or ought to know
causes harm or
inspires the reasonable belief that harm may be caused to the
complainant or a related persons by unreasonably engaging
in verbal,
electronic or any other communication aimed at the complainant or a
related person; by any means, whether or not conversation
ensues.
[49]
Mnyandu v Padayachi
[50]
provides that for conduct
to amount to
harassment "the
conduct engaged in must necessarily either have a repetitive element
which makes it oppressive and unreasonable,
thereby tormenting or
inculcating serious fear
or
distress in the victim; alternatively, the conduct must be of such an
overwhelmingly oppressive nature that
a
single act has the same
consequences".
[51]
One seeking therefore to
institute proceedings against the applicant based on harassment would
have to prove that the conduct was
of such an overwhelmingly
oppressive nature inducing serious fear or distress in the victim.
Section 18(1)(a) provides that where
an interim or final protection
order has been granted, a person who contravenes the order by
contravening any prohibition, condition,
obligation or order imposed,
is guilty of an offence and liable on conviction to a fine or
imprisonment for a period not exceeding
five years. Therefore,
persons aggrieved by Qwelane's publication are at liberty to approach
the courts for an interim or final
protection order prohibiting the
applicant from committing harassment in terms of the Harassment Act,
and follow the necessary
procedures stated therein. However if I
refer these proceedings to the National Police Commissioner for
further investigation I
would irrespective of the ultimate outcome of
the present case, shall be contributing, hopefully, to carrying out
the objects of
the equality legislation. It will be helpful for the
South African Human Rights Commission and POWA to submit to the
National Commissioner
of the South African Police Service further and
better particulars of all the complaints lodged at various police
stations, as
revealed by the evidence.
[68]
At the conclusion of the proceedings, various and opposing
submissions were made regarding an appropriate remedy. For example,

the Commission contended for a remedy ordering the payment of damages
for emotional or psychological suffering as a result of,
inter
alia,
hate speech, and an order for an unconditional apology. I
have had due regard to all the submissions. However, in the exercise
of
my discretion, I am persuaded that in considering all the relevant
circumstances of this matter cumulatively, the order made below,
will
be just and equitable.
COSTS
[69]
In regard to costs, which equally is a discretionary matter, I
received opposing submissions. The Commission argued, rather

convincingly, for an order of costs against the applicant. In favour
of the argument is the fact that, despite his conduct, the
applicant
(Qwelane) chose to abscond from this Court throughout the proceedings
for suspect reasons. The first
amicus
curiae
argued against a
costs order levelled against it. There is merit in the submission,
which should apply equally to the second
amicus
curiae.
They were invited
as friends of the court and discharged their role in an admirable
manner, for which the court is grateful. In
fact, the court is
indebted to all the counsels who took part in this matter, and their
invaluable contributions towards what is
relatively a novel matter in
equality proceedings. In the exercise of my discretion, and
considering all the relevant circumstances,
as envisaged in
Biowatch
Trust v Registrar, Generic Resources
[52]
,it will be just and proper
for the applicant to pay the costs.
ORDER
[70]
In the result I make the following order:
70.1. The complaint by the Commission
as contained in the referral against the applicant (Mr Qwelane)
succeeds with costs.
70.2. The offending statements (made
against the LGBTI community) are declared to be hurtful; harmful,
incite harm and propagate
hatred; and amount to hate speech as
envisaged in section 10 of the Promotion of Equality and Prevention
of Unfair Promotion Act
No 4 of 2000.
70.3. The applicant (Mr Qwelane) is
ordered to tender to the LGBTI community (in particular the
homosexuals) an unconditional written
apology within thirty (30) days
of this order, or within such other period as the parties may agree
pursuant to negotiation and
settlement of the contents of such
apology. The apology shall be published
in
one edition of a
national Sunday newspaper of the same or equal circulation as the
Sunday Sun newspaper, in order to receive the
same publicity as the
offending statements. Thereafter proof of the publication of such
written apology shall be furnished to this
Court immediately.
70.4. The Registrar of this Court is
ordered to have the proceedings of this matter transcribed
immediately and forwarded, with
a copy of the revised judgment, to
the Commissioner of the South African Police Service for further
investigation as envisaged
in section 21(4) of the Promotion of
Equality and Prevention of Unfair Promotion Act 4 of 2000 (the
Equality Act).
70.5. The constitutional challenge of
the applicant is dismissed with costs.
70.6. The applicant (Mr Qwelane) is
ordered to pay the costs of these proceedings. Such costs shall
include the costs occasioned
by the postponement of the matter
previously, and the costs of senior counsel.
_____________________
D
S S MOSHIDI
JUDGE
OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
COUNSEL
FOR THE COMMISSION
T NGCUKAITOBI
ASSISTED
BY

Z NGWENYA
AND
ASSISTED BY

O MOKGOTHO
INSTRUCTED
BY

BOWMAN GILFILLAN ATTORNEYS
COUNSEL
FOR THE APPLICANT
M MUSUNDIWA
ASSISTED
BY

UNKNOWN
INSTRUCTED
BY

JURGENS BEKKER ATTORNEYS
COUNSEL
FOR THE MINISTER
OF
JUSTICE AND CONSTITUTIONAL
DEVELOPMENT

N H MAENETJE SC
ASSISTED
BY

K MHANGO
INSTRUCTED
BY

THE STATE ATTORNEY
JOHANNESBURG
COUNSEL
FOR THE
FIRST
AMICUS CURIAE
S YACOOB
INSTRUCTED
BY

MS M XELE ATTORNEYS
(FREEDOM
OF EXPRESSION
INSTITUTE)
COUNSEL
FOR THE SECOND
AMICUS
CURIAE
K HOFMEYR
ASSISTED
BY

C STEINBERG
ASSISTED
BY

DANIE SMIT
ASSISTED
BY

HASINA CASSIM
INSTRUCTED
BY

WEBBER WENTZELATTORNEYS
DATES
OF HEARING

6 MARCH 2017 TO 16 MARCH 2017
DATE
OFJUDGMENT

18 AUGUST 2017
[1]
Qwelane v Minister of Justice and Constitutional Development and
Others
2015 (2) SA 493
(GJ) para 11.
[2]
The rest of the preamble to the Equality Act reads as follows:
"This
implies the achievement, by special legal and other measures, of
historically disadvantaged individuals, communities
and social
groups who were dispossessed of their land and resources, deprived
of their human dignity and continue to endure the
consequences; this
Act endeavours to facilitate the transition to a democratic society,
united in its diversity, marked by human
relations that are caring
and compassionate, and guided by the principles of equality,
fairness, equity, social progress, justice,
human dignity and
freedom.”
[3]
See section 10 of the Constitution which provides that:
"Everyone
has the inherent dignity and the right to have their dignity
respected and protected.”
[4]
See section 9 which provides that:
(1)
Everyone is equal before the law and has the right to equal
protection and benefit of the law.
(2)
Equality includes the full and equal enjoyment of all rights and
freedoms. To promote the achievement of equality, legislative
and
other measures designed to protect or advance persons, or categories
of persons, disadvantaged by unfair discrimination may
be taken.
(3)
The state may not unfairly discriminate directly or indirectly
against anyone on one or more grounds, including race, gender,
sex,
pregnancy, marital status, ethnic or social origin, colour, sexual
orientation, age, disability, religion, conscience, belief,
culture,
language and birth.
(4)
No person may unfairly discriminate directly or indirectly against
anyone on one or more grounds in terms of subsection (3).National

legislation must be enacted to prevent or prohibit unfair
discrimination.
(5)
Discrimination on one or more of the grounds listed in subsection
(3) is unfair unless it is established that the discrimination
is
fair.”
[5]
Minister of Home Affairs
and Another v Fourie and Another (Doctors For Life International and
Others, Amici Curiae); Lesbian and
Gay Equality Project and Others v
Minister of Home Affairs and Others
2006 (1) SA 524 (CC).
[6]
Minister of Home Affairs and Another v Fourie and Another (Doctors
For Life International and Others, Amici Curiae); Lesbian
and Gay
Equality Project and Others v Minister of Home Affairs and Others
supra para 60.Para 61 reads as follows:
"'As
was said by this Court in Christian Education there are a number of
constitional provisions that underline the constitutional
value of
acknowledging diversity and pluralism in our society, and give a
particular texture to the broadly phrased right to
freedom of
association contained in s18. Taken together, they affirm the right
of people to self-expression without being forced
to subordinate
themselves to the cultural and religious norms of others, and
highlight the importance of individuals and communities
being able
to enjoy what has been called the 'right to be different. In each
case, space has been found for members of communities
to depart from
a majoritarian norm. The point was made in Christian Education that
these provisions collectively and separately
acknowledge the rich
tapestry constituted by civil society, indicating in particular that
language, culture and religion constitute
a strong weave in the
overall pattern. For present purposes it needs to be added that
acknowledgment of the diversity that flows
different forms of sexual
orientation will provide an extra and distinctive thread to the
national tapestry. The strength of
the nation envisaged by the
Constitution comes from its capacity to embrace all its members with
dignity and respect .In the
words of the Preamble, South Africa
belongs to all who live in it, united in diversity. What is at stake
in this case, then,
is how to respond to legal arrangements of great
social significance under which same sex couples are made to feel
like outsiders
who do not fully belong in the universe of equals."
(footnotes omitted)
[7]
See entire section 2
[8]
See the rest of section 13 of the Equality Act.
[9]
Pillay v Krishna and Another
1946 AD 946
at 951.
[10]
South Cape Corporation
(Ply) Ltd v Engineering Management Services (Pty) Ltd
1977 (3) SA 534
(A) at 548.
[11]
See section 36(1) of the Constitution.
[12]
Islamic Unity Convention v Independent Broadcasting Authority
[2002] ZACC 3
;
2002
(4) SA 294
(CC).
[13]
Islamic Unity Convention v Independent Broadcasting Authority supra
para 31
[14]
Islamic Unity Convention v Independent Broadcasting Authority supra
para 33.
[15]
Islamic Unity Convention v Independent Broadcasting Authority supra
para 28.
[16]
Islamic Unity Convention v Independent Broadcasting Authority supra.
[17]
supra, para 29.
[18]
Thomas J. Webb 'Verbal Poison-Criminalizing Hate Speech: A
comparative Analysis and a Proposal for the American System'
50
Washburn L.J. 445
2010-201 1 at 446.
[19]
Afriforum and Another v Malema and Another
2011 (6) SA 240
[EqC]
para 58.
[20]
In re: Certain Amicus Curiae Applications: Minister of Health v
Treatment Action Campaign
2002 (5) SA 713
(CC).
[21]
In re: Certain Amicus Curiae Applications: Minister of Health v
Treatment Action Campaign
2002 (5) SA 713
(CC) para 5. See also Fose
v Minister of Safety and Security
[1997] ZACC 6
;
1997 (3) SA 786
(CC) para 9 and
Uniform Rule 16A.
[22]
See transcript record, vol 1, page 135.
[23]
See her statement as MN and marked X6.
[24]
See transcript, vol 1, pages 229 to 230.
[25]
See transcript from page 258 to 439.
[26]
See judgment delivered on 29 June 2017.
[27]
Ibid, paragraph [108] of judgment.
[28]
Supra, at 445.
[29]
United Nations General Assembly Universal Declaration of Human
Rights 10 December 1948, 217 A (Ill), Article 19. See also Irwin
Toy
v Quebec (AG) (1989) 1SCR 927 at 970, and Handy Side v The United
Kingdom. 7 December 1976, Application NO 5493/72 European
Court of
Human Rights para 49.
[30]
"Hate Speech in South Africa" - available at http.www
.stopracism.ca/content/hate speech ­ South African Accessed

03/03/2017.
[31]
Article 4.
[32]
Linda Daniel (MA Journalism} Candidate, UTS - 'Regulation of Media:
Hate Speech Essay' available at
https://lindadaniele.wordpress.com/2013/02/03/regulation-of-the-media-hate­

speech-essay/ -accessed 9 February 2017.
[33]
R v Andrews 43 CCC 3rd 193.
[34]
See replying affidavit at 493-495
[35]
National Coalition for Gay and Lesbian Equality and Others 2000 (1)
BCLR 39 (CC).
[36]
Supra, para 42.
[37]
Supra, para 7.
[38]
Shaun Teichner, in "Hate Speech Provisions of the
Promotion of
Equality and Prevention of Unfair Discrimination Act 4 of 2000
: 'The
Good, the Bad and the Ugly'
2003 SAJHR 349
at 352.
[39]
Van Wyk, supra, para 7.
[40]
Islamic Unity Convention supra para 35.
[41]
See constitutional challenge, bundle 1, para 66 68.
[42]
Affordable Medicines Trust and Others v Minister of Health of RSA
and Another 2005 (6) BCLR 529 (CC).
[43]
Affordable Medicines Trust and Others v Minister of Health of RSA
and Another supra para 108.
[44]
Affordable Medicines Trust and Others v Minister of Health of RSA
and Another supra para 109.
[45]
Ngcobo v Salimba CC;Ngcobo v Van Rensburg 1999 (2) SA 1057 (SCA).
[46]
Saskatchhewan v Human Rights Commission [2013)
1 SCR 467
para 109.
[47]
Webb supra at 463.
[48]
For example, Case v Minister of Safety and Security: Curtis v
Minister of Safety and Security
[1996] ZACC 7
;
1996 (3) SA 617
(CC) para 49; and
South African National Defence Union v Minister of Defence
[1999] ZACC 7
;
1999 (4)
SA 469
(CC) para 18
[49]
Section 1(1)(a)(ii) of the Harassment Act.
[50]
Mnyandu v Padayachi 2017 (1) SA 151 (KZP).
[51]
Supra, para 68.
[52]
Biowatch Trust v Registrar, Generic Resources
2009 (6) SA 232
(CC).