Qwelane v South African Human Rights Commission and Another (686/2018) [2019] ZASCA 167; [2020] 1 All SA 325 (SCA); 2020 (2) SA 124 (SCA); 2020 (3) BCLR 334 (SCA) (29 November 2019)

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Qwelane v South African Human Rights Commission and Another (686/2018) [2019] ZASCA 167; [2020] 1 All SA 325 (SCA); 2020 (2) SA 124 (SCA); 2020 (3) BCLR 334 (SCA) (29 November 2019)

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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 686/2018
In
the matter between:
JONATHAN
DUBULA
QWELANE                                                                   APPELLANT
and
SOUTH
AFRICAN HUMAN RIGHTS COMMISSION                        FIRST

RESPONDENT
MINISTER
OF JUSTICE & CORRECTIONAL SERVICES           SECOND
RESPONDENT
and
FREEDOM
OF EXPRESSION INSITUTE                                     FIRST
AMICUS CURIAE
PSYCHOLOGICAL
SOCIETY OF SOUTH AFRICA                SECOND
AMICUS CURIAE
Neutral
citation:
Qwelane v SAHRC &
others
(686/2018)
[2019] ZASCA 167
(29
November 2019)
Coram:
Navsa, Wallis, Dambuza and Van der
Merwe JJA and Dolamo AJA
Heard:
19 August 2019
Delivered:
29 November 2019
Summary:
Constitutional validity of
s 10
of the
Promotion of Equality and Prevention of Unfair Discrimination Act 4
of 2000
– overbreadth and vagueness – freedom of
expression and regulation of hate speech.
ORDER
On
appeal from
:
Gauteng
Local Division of the High Court, Johannesburg (Moshidi J sitting as
court of first instance):
1 The appeal is upheld with costs.
2 The order of Moshidi J is set aside
and substituted as follows:
‘
(a.)
Section 10 of the Promotion of Equality and Prevention of Unfair
Discrimination Act 4 of 2000 (PEPUDA) is declared to be inconsistent

with the provisions of s 16 of the Constitution and is therefore
unconstitutional and invalid.
(b.)
The complaint by the South African Human Rights Commission against Mr
Qwelane in terms of s 10 of PEPUDA is dismissed.
(c.)
Parliament is afforded a period of 18 (eighteen) months from 29
November 2019 to remedy the defect.
(d.)
During the aforesaid period s 10 of PEPUDA shall read as follows:
“
10(1)  No person may
advocate hatred that is based on race, ethnicity, gender, religion or
sexual orientation and that constitutes
incitement to cause harm.
10(2) Without prejudice to any
remedies of a civil nature under this Act, the court may, in
accordance with section 21(2)
(n)
and where appropriate, refer
any case dealing with the advocacy of hatred that is based on race,
ethnicity, gender, religion or
sexual orientation, and that
constitutes incitement to cause harm, as contemplated in subsection
(1), to the Director of Public
Prosecutions having jurisdiction for
the institution of criminal proceedings in terms of the common law or
relevant legislation.”
(e.)
Section 10, in the form set out in para (d.), will fall away upon the
coming into operation of a legislative amendment to s
10, or its
repeal by a statute dealing with the regulation of hate speech.
Should Parliament fail to effect such changes by the
end of the
period referred to in (c.) above, s 10 in the form set out in (d.)
will become final.
(f.)
This order is referred to the Constitutional Court in terms of s
172(2)
(a)
of the Constitution for confirmation of the order of
constitutional invalidity.’
JUDGMENT
Navsa
JA (Wallis, Dambuza and Van der Merwe JJA and Dolamo AJA concurring):
Introduction,
the principal issue and the background
[1]
‘Hatred makes us all ugly’. This statement is uttered by
a character in a novel by contemporary author, Laurell
K. Hamilton.
[1]
It
can rightly be said that espousing and fostering hatred is the
antithesis of our constitutional order. The preamble to the
Constitution
sets out the basis of our social compact. It records
that we, as a nation, whilst recognising our painful past, ‘[b]elieve

that South Africa belongs to all who live in it and that we are
united in our diversity’. We also undertake to ‘[h]eal

the divisions of our past and establish a society based on democratic
values, social justice and fundamental human rights’.
[2]
On the other hand, freedom of expression is vital to - and indeed the
lifeblood of - a democratic society. Renowned author,
George Orwell,
who was preoccupied with government encroachment on individual
liberties, political correctness and ‘thought
police’,
said the following:
‘
If
liberty means anything at all, it means the right to tell people what
they do not want to hear.’
[2]
Author,
Mokokoma
Mokhonoana is reported to have said about freedom of speech:
‘
Freedom
of speech gives us the right to offend others, whereas freedom of
thought gives them the choice as to whether or not to
be
offended.’
[3]
Hate
speech, in constitutional terms, as the discussion later in this
judgment will show, travels beyond mere offensiveness and
is
regulated in comparable constitutional democracies. Our Constitution
guarantees freedom of expression with a qualification which,
as will
become apparent, is central to this appeal.
[3]
This appeal brings into focus the tension between hate speech and
freedom of expression and is concerned, principally, with
the
constitutionality of the hate speech provisions of the
Promotion
of Equality and Prevention of Unfair Discrimination Act 4 of 2000
(PEPUDA). The details of the constitutional challenge
are dealt with
later. At this point it is necessary to set out the factual
background culminating in the present appeal and the
related
legislative framework.
[4]
On 20 July 2008,
more than a decade ago, an
admittedly offensive article directed against the gay community was
published in the Sunday Sun, a national
tabloid newspaper. It was
penned by the appellant, Mr Jonathan Dubula Qwelane, a well-known
anti-apartheid activist and journalist
during National Party rule in
South Africa. A short time after the article was written, Mr Qwelane
was appointed South Africa’s
High Commissioner in Kampala,
Uganda. His term of office ended in 2013. Mr Qwelane wrote the
article as a columnist for the Sunday
Sun. The article was captioned
‘Call me names – but gay is NOT okay. . .’. The
offensive part appears hereunder:
‘
The
real problem, as I see it, is the 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
President
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! At least the
so-called husband in that relationship hit the jackpot, making me
wonder what it is these people have against
the natural order of
things. 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 my serious
reservations about 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?’
[5]
A cartoon appeared on the same page as the column, depicting a man on
his knees alongside a goat, appearing in front of a priest
to be
married. The caption above the man and the goat reads: ‘When
human rights meet animal rights’. The text inside
a speech
balloon attaching to the priest reads: ‘I now pronounce you,
man and goat’. It is common cause that the appellant
was not
the author or creator of the cartoon, nor was it shown to him for
approval before it was published.
[6]
The publication was met with a huge public outcry, with expressions
of outrage and disgust. The first respondent, the South
African Human
Rights Commission (the HRC), which, in terms of s 184 of the
Constitution has, amongst others, the obligation
to promote the
protection, development and attainment of human rights, received 350
complaints concerning the article and cartoon.
The press ombud also
received complaints concerning the article and cartoon. He conducted
an investigation against Mr Qwelane and
Media24, a public company
that owns the Sunday Sun.
[7]
A common refrain in the complaints lodged with the press ombud and
the HRC was that the article and the cartoon amounted to
hate speech.
It was contended that the hate speech complained of discriminated
against the gay community based on sexual orientation
and marital
status. The article, so it was asserted, advocated hatred against a
particular group of people, namely, homosexuals,
was intended to be
hurtful, harmful, incite harm, and promote or propagate hatred. It
was said that the article infringed upon
various constitutionally
guaranteed human rights and freedoms of homosexuals; and sought to
demoralise homosexuals by drawing a
comparison between homosexuality
and bestiality, and by implication, dehumanising and ‘criminalising’
homosexuals.
[8]
The press ombud, after considering the complaint against the Sunday
Sun, held that the newspaper was in breach of section 2.1
of the
South African Press Code on three counts.
[4]
The press
ombud considered that the newspaper had, to some degree, made amends
by publishing a poster proclaiming that Mr Qwelane
had taken a
beating, together with a flag on its front page to the same effect,
as well as publishing a page of letters from the
public condemning
the column. Consequently, the press ombud ruled that the Sunday Sun
should ‘complete the amends by publishing
an appropriate
apology’ in the form provided by the Ombudsman’s office.
The apology was duly published. The press and
media appeals panel
refused the HRC leave to appeal.
[9]
In terms of s 184(2) of the Constitution the HRC has additional
powers and functions as prescribed by national legislation.
Section
20(1)
(f)
of PEPUDA gives the HRC the power to institute proceedings in the
equality court. Section 2
(f)
of PEPUDA provides that one of its objects is ‘to provide
remedies for victims of unfair discrimination, hate speech and

harassment and persons whose right to equality has been infringed’.
[10]
The powers of the equality court, as set out in s 21 of PEPUDA,
are extensive. The equality court has, inter alia, the
power to make
declaratory orders,
[5]
order the
payment of compensation,
[6]
make orders
concerning remedial steps to be taken by persons who have engaged in
unfair discriminatory practices
[7]
and to
direct that an unconditional apology be rendered.
[8]
The equality
court also has the power to make an order ‘directing the clerk
of the equality court to submit the matter to
the Director of Public
Prosecutions having jurisdiction for the possible institution of
criminal proceedings in terms of the common
law or relevant
legislation’.
[9]
[11]
The HRC instituted proceedings against Media24 and Mr Qwelane in the
equality court, alleging that the article contravened
s 10(1) of
PEPUDA, the provisions of which read as follows:
‘
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.’
[10]
Section
10(2) of PEPUDA provides as follows:
‘
Without
prejudice to any remedies of a civil nature under this Act, the court
may, in accordance with section 21(2)
(n)
and where appropriate, refer any case dealing with the publication,
advocacy, propagation or communication of hate speech as contemplated

in subsection (1), to the Director of Public Prosecutions having
jurisdiction for the institution of criminal proceedings in terms
of
the common law or relevant legislation.’
[12]
The relevant part of s 1 of PEPUDA, which contains a definition
of ‘prohibited grounds’, and the related provisions
of
s 12 are set out hereafter:
‘
1(1)
In this Act, unless the context provides otherwise—
.
. . .
“
prohibited
grounds” are—
(a)
race,
gender, sex, pregnancy, marital status, ethnic or social origin,
colour, sexual orientation, age, disability, religion, conscience,

belief, culture, language, birth and HIV/AIDS status; or
(b)
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)
.
12.
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.’
[11]
[13]
Both Mr Qwelane and Media24 subsequently launched an application in
the high court seeking to have s 10(1), read with
ss 12 and
1, and s 11 of PEPUDA declared unconstitutional, on the basis
that it was inconsistent with the provisions
of s 16 of the
Constitution. Section 11 of PEPUDA states that ‘no person may
subject any person to harassment’.
The HRC thereafter withdrew
the proceedings in the equality court against Media24, after a
settlement was reached, in terms of
which Media24 withdrew
its
application and an arrangement was arrived at in respect of costs.
The equality court proceedings against Mr Qwelane continued.
[14]
The proceedings in the high court and in the equality court were
consolidated.
[12]
Moshidi J,
sitting both as the equality court and the high court, adjudicated
the complaint by the HRC and the application by Mr
Qwelane to have
the provisions of PEPUDA referred to above declared unconstitutional.
Because of the constitutional challenge,
the second respondent, the
Minister of Justice and Correctional Services, was cited and
participated in the proceedings. The Freedom
of Expression Institute,
which has as its object the promotion of efforts to protect the
public’s right to receive and impart
information ideas and
opinions; to defend freedom of expression; to oppose censorship; and
to fight for the right of access to
information, participated as an
amicus
,
as did the Psychological Society of South Africa (the Society). More
about the Society later.
[15]
In relation to the complaint by the HRC, extensive evidence was led
before Moshidi J. The head of legal services of the
HRC, Mr
Pandelis Gregoriou, testified and explained that, even before the
offensive publication appeared, the HRC had received
numerous
complaints by members of the LGBTI community in relation to how they
were treated by persons who discriminated against
them based on their
sexual orientation. There had been many complaints by an organisation
called People Opposing Women Abuse (POWA).
POWA tended to victims
from previously disadvantaged communities. That organisation provided
details about horrific acts of violence
perpetrated against black
lesbians and transgender individuals. Mr Gregoriou’s evidence
in the equality court, that it was
difficult to have complaints by
members of the LGBTI community investigated by the South African
Police Service (the SAPS), and
that certain police officers
demonstrated an anti-LGBTI disposition, was uncontested. He testified
that members of the LGBTI community
complained of being denied access
to essential services and were repeatedly exposed to abuse by way of
expletives and hostile speech.
In his view, Mr Qwelane’s
alignment with the sentiments of Mr Robert Mugabe – that
homosexuals were worse than animals
– was particularly
offensive. He also considered it an aggravation that Mr Qwelane was
unrepentant about his bigotry and
strident in relation thereto.
[16]
The HRC also led the evidence of Ms Nonhlanhla Mokoena, the executive
director of POWA, which provides support, counselling
and shelter to
female survivors of domestic violence in previously disadvantages
communities, particularly to lesbians. Ms Mokoena
echoed those parts
of the evidence of Mr Gregoriou about how members of the LGBTI
community were treated. She reported an instance
where police
officers refused to open a case of rape because the complainant was a
lesbian and, according to the officers, ‘boys
cannot be raped’.
In this regard a number of complaints were lodged with the HRC. The
incidents testified to by Ms Mokoena
were horrific. So, for example,
a former woman’s national soccer team member had been
gang-raped and brutally murdered by
five men. Another incident
involved the stoning to death of a lesbian in KwaZulu-Natal. Yet
another involved the rape and murder
of both a member of a support
group for women living with HIV/AIDS and her 2-year old daughter.
[17]
A further witness called by the HRC, a black lesbian, testified about
how she was barred from the use of toilet facilities,
had been
attacked verbally and physically because of her sexual orientation
and had lost her job because of it. She testified about
her reaction
to the offensive article by Mr Qwelane. She considered it to be an
attack on her dignity and her right to equality.
She took the view
that the law did not protect people like her and had a sense of
‘having passed on’.
[18]
Mr Ben Viljoen, a deputy editor of the Sunday Sun at the time of the
publishing of the article, testified in support of Mr
Qwelane. At the
time of publication, Mr Viljoen was the production editor, which
meant that he drove the whole process before publication.
It involved
making certain that everybody submitted content on time and that it
was produced in line with the style of the newspaper.
Mr Qwelane’s
article fell under the ‘conversation pages’. That part of
the newspaper, was intended to deal with
current events and promote
debate about the issues raised. The success of the page could be
measured by responses, positive or
negative. Articles like Mr
Qwelane’s were submitted directly to the publisher for his or
her ultimate authority to publish.
Occasionally, the publisher would
discuss the content. If he or she was satisfied with the content,
grammar would be corrected
and it would then be ready for
publication. In the case of the Sunday Sun, the publisher took on the
role of the editor. Mr Qwelane
did not provide the headline to his
article. A copy sub-editor read the article and then put a headline
into the space above it.
Headline writing for a tabloid newspaper
such as the Sunday Sun is a very specific exercise. Headlines are
required to be ‘punchy’.
Mr Qwelane had no say in the
headline. As stated above, Mr Qwelane had no say in the cartoon
either, and would not have seen it
prior to publication. Cartoons are
not always related to the content that they neighbour. A contributor,
like Mr Qwelane, would
not necessarily expect a cartoon to accompany
the column or their contribution.
[19]
Mr Viljoen testified that a week after the article appeared a
headline banner for the newspaper indicated that Mr Qwelane had
taken
a beating. This related to a report in the newspaper that Mr
Qwelane’s article had caused an uproar. The Sunday Sun
also
published a full page of complaints. This was the only time that this
had occurred. The complainants were adamant that Mr
Qwelane was
guilty of hate speech and called for action to be taken against him.
[20]
It is uncontested that the readership of the Sunday Sun is 99 per
cent black. In Mr Viljoen’s view, the complaints did
not
emanate from the Sunday Sun’s regular subscribers. It does not
appear that the Sunday Sun took any disciplinary action
against Mr
Qwelane. Mr Viljoen was not aware of an unqualified apology by the
Sunday Sun. An apology by the publisher, Mr Du Plessis,
was diluted.
He stated that no wrong had been committed but he apologised anyway.
[21]
Mr Viljoen’s response to a question about whether he had found
the article offensive was that he thought it was ‘reprehensible’.

He took the view that the article should not have been published, but
was adamant that the drivel it contained should not be considered

illegal. Under cross-examination, Mr Viljoen agreed that members of
the LGBTI community would find the article offensive but testified

that Mr Qwelane’s views reflected those of a large proportion
of the Sunday Sun’s readers.
[22]
The Society adduced the evidence of Professor Nel, a research
professor at the University of South Africa. Professor Nel is
a
former president of the Society. He testified with reference to
articles he had co-authored and research that had been conducted.
The
first article he referred to is entitled ‘Exploring Homophobic
Victimisation in Gauteng, South Africa: Issues, Impacts
and
Responses’.
[13]
A report he
compiled, along with others, is entitled ‘Factors Affecting
Vulnerability to depression among gay men and lesbian
women in
Gauteng, South Africa’.
[14]
[23]
The Society’s membership comprises eminent psychologists who
have made valuable contributions in the field of psychology,
both
nationally and internationally. It has approximately 2000 members. At
the time that he testified, Professor Nel was a practising
clinical
psychologist. He had been involved for a considerable period of time
in leading psychological services in the SAPS. It
was within the
Police Service that Professor Nel’s activism around human
rights and LGBTI related work started unfolding.
He is a gay man
himself, and testified also of his own experience of exclusion and
the discrimination that he faced.
[24]
Professor Nel was adamant that the plight of the LGBTI community was
to be seen in light of the fact that they constitute sexual
and
gender minorities and that they are a vulnerable grouping within our
largely hetero-normative society. The LGBTI community
is often
considered abnormal and are not only discriminated against, but also
victimised. He compared the position of the LGBTI
community with
groupings who faced the brunt of racism and sexism.
[25]
In relation to hate crimes, Professor Nel testified about his
involvement in dealing with the phenomenon. He described his
work
with the Crimes Working Group, which is a national network of civil
society organisations that endeavours to address the vulnerability
of
a range of protected groupings, in accordance with the Constitution
and within the applicable legislative framework. Professor
Nel also
leads a psychotherapy support group for gay men and has published in
that area of work.
[26]
Professor Nel testified that feelings of shame, guilt, internalised
conflict and self-suppression within the LGBTI community
emanate from
being on the margins of society and being a minority. The context for
the LGBTI community is characterised by fears
of exclusion,
rejection, being shamed and being deprived of fundamental rights. It
is that psychological trauma to which they are
exposed.
[27]
In his evidence, Professor Nel described the fear related to gender
non-conformity. He testified that some gender non-conforming
people
are unable to walk to the shops in the communities where they live.
They are not free to enter public spaces after dark
or make use of
public transport. People opposed to the LGBTI community are often led
to violent actions. They regularly want to
‘correct’ what
they consider to be aberrant behaviour. This attitude has an
emotional impact and on occasion leads
to physical harm being
inflicted. Hate speech, according to Professor Nel, is what leads to
such behaviour and has a severe impact
on members of the LGBTI
community.
[28]
Professor Nel testified extensively about the vast body of
international literature that reflects on the vulnerability to
depression of lesbian and gay people. This comes about because of the
sustained taunting and hate-victimisation that lesbians and
gays are
subjected to. They are subjected to verbal and physical abuse.
[29]
In his testimony, Professor Nel described the pronounced
vulnerability of the LGBTI community in townships and informal
settlements.
According to him, research shows that it is where the
highest degree of verbal victimisation is experienced. He took the
view that
Mr Qwelane’s article sought to exploit that
situation. Topically, Professor Nel compared the vulnerability of the
LGBTI community
to the vulnerability of foreign nationals in a
xenophobic atmosphere. Research showed a high degree of hate-speech
victimisation
in South Africa.
[30]
Professor Nel testified about members of the LGBTI community being
subjected to secondary victimisation, for example, when
they present
complaints at police stations. A high percentage of the LGBTI
community took the view that the criminal justice system
did not
serve them which often resulted in a failure to report crimes to the
police. In Professor Nel’s view, the connection
between hate
speech and hate crime was undeniable. In this regard, he referred to
Nazi Germany and ethnic strife in Rwanda. In
Professor Nel’s
view, words matter. An utterance such as ‘we will show you that
you are a woman’ is an example
of verbal victimisation which
later translated into physical assaults.
[31]
Turning to deal specifically with Mr Qwelane’s article,
Professor Nel stated that it had created shock waves within the
LGBTI
community and was met with great indignation. Complaints were
speedily laid with the press ombudsman, the HRC and the Commission

for Gender Equality. In his view, the greatest impact of the article
was on the human dignity of members of the community. In relation
to
the reference to former Zimbabwean President, Robert Mugabe,
Professor Nel emphasised that it should be borne in mind that
President Mugabe had referred to homosexuals as being lower than pigs
and dogs and that this statement had been made a few months
before Mr
Qwelane’s article was published. It was degrading and
dehumanising.
[32]
Significantly, Professor Nel said that the teachings of churches were
hurtful, particularly when they tied in with the hurtful
stereotype
that same-sex orientation equated with bestiality. The sinfulness of
same-sex relationships was repeatedly referred
to. The threat of
undoing of constitutional protection for vulnerable groups was
directed at the LGBTI community, which affected
their psyche. The
article, even without the cartoon, was offensive. The statements in
the article, so Professor Nel said, have
to be seen against Mr
Qwelane’s status as a celebrity with struggle credentials. In
his view, what one could take from the
article is that homosexuality
is wrong and sinful and that it justifies victimisation, whether in
speech or in action. In Professor
Nel’s view, the outrage that
the article caused is in itself an indication of the hurt and harm
caused to the LGBTI community.
Mr Qwelane was someone with stature
who contrived a call to conscience, seeking others to follow his
convictions. In relation to
an apology being demanded, Professor Nel
was emphatic that the value of an apology should never be
underestimated. It led to healing.
[33]
What is set out above is the essence of the evidence adduced in the
court below and it is against that evidence that the complaint
by the
HRC was adjudicated. No evidence was presented to show a link between
the article and any subsequent physical or verbal
attacks on members
of the LGBTI community. Moshidi J upheld the complaint against Mr
Qwelane. The court declared that the offending
statements against
homosexuals were hurtful, incited harm and propagated hatred; and
that they thus amounted to hate speech, as
envisaged in s 10(1)
of PEPUDA.
[34]
Moshidi J dismissed Mr Qwelane’s application to have the
impugned sections of PEPUDA declared unconstitutional. He rejected

the contention on behalf of Mr Qwelane that the provisions of s 10(1)
of PEPUDA were vague. Having regard to the ‘first
words’
of s 10(1), it was said that they could be clearly understood as
postulating an objective test. The learned judge
held that the
proviso to s 12 was not unclear and that, in any event, no facts
were placed before him in order for Mr Qwelane
to claim the benefit
thereof. Moshidi J held that the provisions of s 10(1)
(a)
-
(c)
had to be read conjunctively and, if that was done, the section would
be consonant with s 16 of the Constitution. He rejected
the
overbreadth
challenge on behalf of Mr
Qwelane. The full range of the orders made, both in relation to the
complaint and the opposition by Mr
Qwelane, are as follows:
‘
(i)
The complaint by the Commission as contained in the referral against
the applicant (Mr Qwelane) succeeds with costs.
(ii)
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 Discrimination Act No 4 of 2000
.
(iii)
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.
(iv)
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 Discrimination Act
4 of 2000 (the Equality Act).
(v)
The constitutional challenge of the applicant is dismissed with
costs.
(vi)
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.’
It
is against these orders that the present appeal, with the leave of
Moshidi J, is directed.
The
constitutional challenge
[35]
As indicated at the commencement of this judgment, the starting point
in determining this appeal is the constitutionality of
the impugned
sections of PEPUDA. It is under those provisions, more particularly
s 10(1) read with ss 1 and 12 of PEPUDA,
that the complaint
against Mr Qwelane was brought and in relation to which the findings
by Moshidi J, referred to in the preceding
paragraphs, were made.
Section 10(1) of PEPUDA has properly been described as the primary
vehicle in PEPUDA for regulating hate
speech.
[15]
A decision
in relation to the constitutionality of s 10(1) is foundational
to the outcome of this appeal.
[36]
Before us it was contended that the provisions of s 10(1) of
PEPUDA were unconstitutional because they unjustifiably limit
the
constitutionally guaranteed right to freedom of expression in s 16
of the Constitution, which reads as follows:
‘
(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 of
hatred that is based on race, ethnicity, gender or religion, and that
constitutes incitement to cause harm.’
In
short, it was submitted that the provisions of PEPUDA in terms of
which Mr Qwelane was charged in the equality court, in limiting

freedom of expression, impermissibly extended far beyond the speech
that is excluded from protection by s 16(2) of the Constitution.

It was also contended that the relevant provisions were overbroad and
vague and accordingly did not pass constitutional muster.
[37]
Section 16(2) of the Constitution is a provision that explains what
is not encompassed under freedom of expression, or what
it does not
extend to. It is known, colloquially, as the ‘hate speech
qualification’, although only one of its three
components,
namely, s 16(2)
(c)
,
deals with hate speech.
[16]
As pointed
out by Currie and De Waal, legal restrictions of speech falling
within one of the three listed categories are not limitations
of
freedom of expression and will require no justification. The manner
in which hate speech regulation is to be tested for constitutionality

is best illustrated by a decision of the Constitutional Court, a
detailed discussion of which follows hereafter. It is a decision
that
is directly relevant and generally instructive.
The
decision in
Islamic Unity Convention
[38]
In
Islamic
Unity Convention v Independent Broadcasting Authority &
others
[17]
the
Constitutional Court was called upon to adjudicate whether clause
2
(a)
of
the Code of Conduct for Broadcasting Services (the Code), contained
in Schedule 1 to the Independent Broadcasting Authority Act
153 of
1993, passed constitutional muster. Clause 2
(a)
of the Code provided:
‘
Broadcasting
licensees shall . . . not broadcast any material which is indecent or
obscene or offensive to public morals or offensive
to the religious
convictions or feelings of any section of a population or likely to
prejudice the safety of the State or the public
order or relations
between sections of the population.’
[39]
The South African Jewish Board of Deputies had lodged a complaint
with the Independent Broadcasting Authority about a radio
programme
broadcast by the applicant in that case. An individual being
interviewed by the radio station, amongst other things,
questioned
the legitimacy of the State of Israel and Zionism as a political
ideology, asserted that Jewish people had not been
gassed in
concentration camps during the Second World War but had, instead,
died of infectious diseases, particularly typhus, and
that only a
million Jews had died. In response to the complaint, the applicant
applied for an order declaring s 2
(a)
of the Code unconstitutional and therefore invalid, because of its
inconsistency with the right to freedom of expression in s 16
of
the Constitution.
[40]
The Constitutional Court considered the applicant’s contention,
that clause 2
(a)
was unconstitutional, largely on the grounds of vagueness and
overbreadth
. In the final analysis the
challenge was, however, restricted to that part of the clause which
prohibited material that is ‘likely
to prejudice relations
between sections of the population’. The Constitutional Court
proceeded to consider whether this was
a constitutionally permissible
limitation of the right to freedom of expression.
[41]
In addressing that question, the Constitutional Court referred to the
importance and relevance of freedom of expression in
a democratic
state. The court referred to two of its prior decisions. First,
South
African National Defence Union v Minister of Defence &
another
[18]
where, at
para 8, the following was stated:
‘
[F]reedom
of expression is one of a “web of mutually supporting rights”
in the Constitution. It is closely related to
freedom of religion,
belief and opinion (s 15), the right to dignity (s 10), as well as
the right to freedom of association (s
18), the right to vote and to
stand for public office (s 19), and the right to assembly (s 17) . .
. The rights implicitly recognise
the importance, both for a
democratic society and for individuals personally, of the ability to
form and express opinions, whether
individually or collectively, even
where those views are controversial.’
And
at para 7, where it pointed out that freedom of expression:
‘
.
. . lies at the heart of a democracy. It is valuable for many
reasons, including its instrumental function as a guarantor of
democracy, its implicit recognition and protection of the moral
agency of individuals in our society and its facilitation of the

search for truth by individuals and society generally. The
Constitution recognises that individuals in our society need to be
able to hear, form and express opinions and views freely on a wide
range of matters.’ (Citations omitted.)
Second,
it referred to what was said in
S
v Mamabolo
(E
TV and others intervening)
:
[19]
‘
Freedom
of expression, especially when gauged in conjunction with its
accompanying fundamental freedoms, is of the utmost importance
in the
kind of open and democratic society the Constitution has set as our
aspirational norm. Having regard to our recent past
of thought
control, censorship and enforced conformity to governmental theories,
freedom of expression – the free and open
exchange of ideas –
is no less important than it is in the United States of America. It
could actually be contended with
much force that the public interest
in the open market-place of ideas is all the more important to us in
this country because our
democracy is not yet firmly established and
must feel its way. Therefore we should be particularly astute to
outlaw any form of
thought control, however respectably dressed.’
[42]
The Constitutional Court noted that South Africa was not alone in its
recognition of the right to freedom of expression and
its importance
to a democratic society. It recorded that the right is protected in
almost every international human rights instrument.
In this regard it
referred to what the European Court of Human Rights said in
Handyside
v The United Kingdom
:
[20]
‘
[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”.’
[43]
The very next two paragraphs deal with necessary limitations to
freedom of expression:
‘
The
pluralism and broadmindedness that is central to an open and
democratic society can, however, be undermined by speech which

seriously threatens democratic pluralism itself. Section 1 of the
Constitution declares that South Africa is founded on the values
of
“human dignity, the achievement of equality and the advancement
of human rights and freedoms”. Thus, open and democratic

societies permit
reasonable
proscription of activities and expressions that pose a real and
substantial threat to such values and to the constitutional
order
itself
.
Many societies also accept limits on free speech in order to protect
the fairness of trials. Speech of an
inflammatory
or unduly abusive kind
may be restricted so as to guarantee free and fair elections in a
tranquil atmosphere.
There
is thus recognition of the potential that expression has to impair
the exercise and enjoyment of other important rights, such
as the
right to dignity, as well as other state interests, such as the
pursuit of national unity and reconciliation. The right
is
accordingly not absolute; it is, like other rights, subject to
limitation under s 36(1) of the Constitution. Determining its

parameters in any given case is therefore important, particularly
where its exercise might intersect with other interests. Thus
in
Mamabolo
, the following was said in the context of the
hierarchical relationship between the rights to dignity and freedom
of expression:
“
With
us the right to freedom of expression cannot be said automatically to
trump the right to human dignity. The right to dignity
is at least as
worthy of protection as the right to freedom of expression. How these
two rights are to be balanced, in principle
and in any particular set
of circumstances, is not a question that can or should be addressed
here. What is clear though and must
be stated, is that freedom of
expression does not enjoy superior status in our law.”’
[21]
[44]
The Constitutional Court analysed the two parts of s 16 of the
Constitution and said the following:
‘
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
subsection (1) does not extend to . . .” 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 acknowledgement that certain expression 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.’
[22]
[45]
The following dicta in paras 33 and 34 are particularly important:
‘
Section
16(2)
(c)
is
directed at what is commonly referred to as hate speech. What is not
protected by the Constitution is expression or 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 non-sexist 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.
Where
the State extends the scope of regulation beyond expression envisaged
in s 16(2), it encroaches on the terrain of protected
expression and
can do so only if such regulation meets the justification criteria in
s 36(1) of the Constitution.’
[46]
In dealing with the regulation of hate speech by the respondent in
Islamic
Unity
,
by way of clause 2
(a)
of the Code, the Constitutional Court took into account that the
respondent’s responsibility for the regulation of broadcasting

in South Africa was founded in s 192 of the Constitution.
[23]
However, in
fulfilling that function, the broadcasting authority was bound to
respect the provisions of the Bill of Rights. At para
37, the Court
said the following:
‘
In
the context of broadcasting, freedom of expression will have special
relevance. It is in the public interest that people be free
to speak
their minds openly and robustly, and, in turn, to receive
information, views and ideas. It is also in the public interest
that
reasonable limitations be applied, provided that they are consistent
with the Constitution.’
[47]
As in the present case, clause 2
(a)
of the Code in
Islamic
Unity
,
as stated above, was attacked on the basis of vagueness and
overbreadth. The Constitutional Court held that the prohibition in

that case, self-evidently limited the right to freedom of expression
as provided for in s 16(1) of the Constitution.
[24]
It found
that the phrase ‘section of the population’ in the
relevant part of clause 2
(a)
of the Code was less specific than ‘race, ethnicity, gender or
religion’ as spelt out in s 16(2)
(c)
and, therefore, travelled beyond the enumerated categories of
unprotected expression. Furthermore, it did not require that what
was
prohibited should amount to advocacy of hatred, ‘least of all
hatred based on race, ethnicity, gender or religion’.
It also
did not require that it should have any ‘potential to cause
harm’.
[25]
The
Constitutional Court pointed out that whilst each of the forms of
expression listed in s 16(2) of the Constitution would
be
‘likely to prejudice relations between sections of the
population’, as set out in the relevant part of the Code,
the
converse was not true. Not every expression of speech that is likely
to prejudice relations between sections of the population
would be
‘propaganda for war’, or ‘incitement of imminent
violence’ or ‘advocacy of hatred’
which also
constitutes ‘incitement to cause harm’. The
Constitutional Court noted that there might well be instances
where
the prohibition there in question coincided with what is excluded
from the protection of the right. The Constitutional Court
posed the
question to be addressed in that case: ‘whether the clause, in
prohibiting that which is not excluded from the
protection of
s 16(1), does so in a manner which is constitutionally
impermissible’. To answer that question, it turned
its
attention to the justification enquiry in terms of s 36(1) of
the Constitution.
[26]
[48]
The court noted that no ground for justification of the limitation to
the right to freedom of expression, in terms of s 36(1)
of the
Constitution, was provided by either the respondent in that case or
the Minister of Communications. On behalf of the board
of the
respondent it was submitted that the relevant part of clause 2
(a)
should be
interpreted to mean that only broadcasts which would probably cause
material damage to relations between readily identifiable
sections of
the population were hit by the proscription. ‘Sections of the
population’ should be understood to refer
to such sections as
were identifiable on the basis of race, ethnicity, gender and
religion. According to the argument, ‘relations’
was used
in the context of there being a target victim group on the one hand,
and a defined perpetrator group on the other, whose
expression moved
other defined groups, to demonise or stereotype the victim group, and
the victim group must, in turn, have blamed
the perpetrator group for
this.
[27]
[49]
Paras 43 and 44 are instructive. They read as follows:
‘
It
is obvious that the interpretation contended for would entail a
complicated exercise of interpreting the very wide language of
the
relevant part of clause 2
(a)
in the light of the very concise and specific provisions of s
16(2)
(c).
Whilst this process might assist in determining whether particular
expression can be regarded as hate speech,
I
fail to see how its meaning can coincide with that of the impugned
clause on any reasonable interpretation without being unduly

strained
.
This segment of the clause is accordingly not reasonably capable of
being unduly strained.
This
segment of the clause is accordingly not reasonably capable of being
read to give the meaning which is favoured by the Board
.
The
next question to be considered is whether the provision is
nevertheless justifiable despite its inability to be read in the
way
that the Board suggests. The prohibition against the broadcasting of
any material which is “likely to prejudice relations
between
sections of the population” is cast in absolute terms; no
material that fits the description may be broadcast. The
prohibition
is so widely-phrased and so far-reaching that it would be difficult
to know beforehand what is really prohibited or
permitted.
No
intelligible standard
has been provided to assist in the determination of the scope of the
prohibition. It would deny both broadcasters and their audiences
the
right to hear, form and freely express and disseminate their opinions
and views on a wide range of subjects.
The
wide ambit of this prohibition may also impinge on other rights, such
as the exercise and enjoyment of the right to freedom
of religion,
belief and opinion guaranteed in s 15 of the Constitution
.’
[28]
[50]
The ultimate finding of the court is at para 51:
‘
There
is no doubt that the inroads on the right to freedom of expression
made by the prohibition on which the complaint is based
are far too
extensive and outweigh the factors considered by the Board as
ameliorating their impact. As already stated, no grounds
of
justification have been advanced by the IBA and the Minister for such
a serious infraction of the right guaranteed by s 16(1)
of the
Constitution. It has also not been shown that the very real need to
protect dignity, equality and the development of national
unity could
not be adequately served by the enactment of a provision
which
is appropriately tailored and more narrowly focussed
.
I find therefore that the relevant portion of clause 2
(a)
impermissibly limits the right to freedom of expression and is
accordingly unconstitutional.’
[29]
I
will, in due course, deal with the remedy crafted by the
Constitutional Court in
Islamic Unity
.
[51]
The effect of this is that all expression is protected save anything
that falls within s 16(2)
(c)
.
Moseneke J summarised this in
Laugh
It Off
[30]
in saying
that ‘unless an expressive act is excluded by s 16(2) it
is protected expression’. Legislation may be
passed that limits
otherwise protected freedom of expression, but it must then be
justified in terms of s 36 of the Constitution.
This does not
mean that s 16(2)
(c)
is irrelevant to the justification analysis. It provides a baseline
against which to measure the extent of any limitation so that
the
greater the intrusion into freedom of expression and the further the
departure from that baseline the stricter the scrutiny
that is
required.
[31]
Section
10(1) of PEPUDA – a closer look
[52]
The provisions of s 10(1) of PEPUDA self-evidently restrict the
right of freedom of expression provided for in s 16(1)
of the
Constitution. This was not in contestation. What was in dispute is
whether they extend beyond the provisions of s 16(2)
(c)
of the Constitution and, if so, whether they were justifiable. At the
outset, it is necessary to record that the Minister’s
response
to Mr Qwelane’s application to have relevant sections of PEPUDA
declared unconstitutional was, at best, sparse,
both literally and
figuratively. It encompassed four pages. In respect of content, it
was even more limited. The stance adopted
by the Minister was that
the facts of any case should be considered to determine whether or
not the expression complained of is
protected by s 16 of the
Constitution and that a constitutional issue beyond that would not
arise. An inconsistency between
s
10(1)
of PEPUDA and s 16 of the Constitution was denied. The Minister
was of the view that the inclusion of ‘sexual orientation’

as one of the prohibited grounds beyond the grounds set out in
s 16(2) of the Constitution was legitimate, serving to extend

equality, in line with s 39 of the Constitution. The Minister
postulated that the civil and criminal sanctions provided for
in
s 10(2)
[32]
read with
s 21(2)
(n)
of PEPUDA, were founded on the common law or applicable legislation
and that ‘the Equality Act does not create the aforesaid

sanctions’. There was a general unsubstantiated assertion by
the Minister, that s 10(1) is justifiable under s 36
of the
Constitution. That, then, in essence, was the sum total of the
purported opposition to the application and the ‘justification’

for the limitation, by way of s 10(1) of PEPUDA, of the right to
freedom of expression.
[53]
Does s 10(1) of PEPUDA, in limiting freedom of expression,
extend beyond the provisions of s 16(2)
(c)
of the
Constitution? The short answer is yes. The first manifestation is
that s 16(2)
(c)
of the Constitution does not exclude from
constitutional protection under s 16(1) the advocacy of hatred
that constitutes
incitement to cause harm beyond the four stated
grounds of race, ethnicity, gender or religion. Section 10(1) of
PEPUDA, on the
other hand, purports to extend those bases to include
all of the categories set out under prohibited grounds in s 1 of
the
definition, which the reader will be reminded, are as follows:
‘
prohibited
grounds’
are
–
(a)
race, gender, sex,
pregnancy, marital status, ethnic or social origin, colour, sexual
orientation, age, disability, religion, conscience,
belief, culture,
language, birth and HIV/AIDS status; or
(b)
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)
.’
[54]
The first question therefore is whether the extension of ‘prohibited
grounds’ to include sexual orientation is
constitutionally
permissible. In relation to the extension of ‘prohibited’
grounds beyond those stated in s 16(2),
it is necessary to have
regard to s 9 of the Constitution, which is the equality provision.
Section 9(4) obliged the State to enact
legislation to prevent or
prohibit unfair discrimination. Item 23(1) of Schedule 6 of the
Constitution provided a timeline of three
years, within which such
legislation should be enacted. The long title of PEPUDA is in line
with those commendable ends. It reads
as follows:
‘
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.’
[55]
The objects of PEPUDA are set out in s 2 of that legislation as
follows:
‘
The
objects of this 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 1 of
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)
(c)
of the Constitution and
section 12 of this Act;
(c)
to provide
for measures to facilitate the eradication of unfair discrimination,
hate speech and harassment, particularly on the
grounds of race,
gender and disability;
(d)
to
provide for procedures for the determination of circumstances under
which discrimination is unfair;
(e)
to provide
for measures to educate the public and raise public awareness on the
importance of promoting equality and overcoming
unfair
discrimination, hate speech and harassment;
(f)
to
provide remedies for victims of unfair discrimination, hate speech
and harassment and persons whose right to equality has been

infringed;
(g)
to
set out measures to advance persons disadvantaged by unfair
discrimination;
(h)
to
facilitate further compliance with international law obligations
including treaty obligations in terms of, amongst others, the

Convention on the Elimination of All Forms of Racial Discrimination
and the Convention on the Elimination of all Forms of Discrimination

against Women.’
[56]
Section 3 of PEPUDA, which deals with its interpretation, provides,
inter alia, that any person interpreting this Act may be
mindful of
international law, particularly the international agreements referred
to in s 2 and customary international law,
as well as comparable
foreign law.
[33]
I shall, in
due course, when considering whether s 10(1) of PEPUDA, in its
comprehensive form, is a justifiable limitation
of the right to
freedom of expression, deal with relevant foreign case law.
[57]
International treaties and covenants to which we are signatories
provide for protection against discrimination and also the
regulation
of hate speech.
[34]
The
Universal Declaration of Human Rights (UDHR)
[35]
recognises
the inherent dignity and equality amongst the human family
[36]
and states
that individual liberties such as freedom of expression may be
limited to secure ‘due recognition and respect for
the rights
and freedoms of others and of meeting just requirements of morality,
public order and general welfare in a democratic
society’.
[37]
The UDHR
also provides that all people are entitled to equal protection
against any discrimination and against any incitement to
such
discrimination.
[38]
[58]
Article 19 of the International Covenant on Civil and Political
Rights (the ICCPR)
[39]
provides for
the right to freedom of expression, but restricts that right when
necessary. Article 20 limits expression if it is
hate speech. It
provides that ‘[a]ny advocacy of national, racial or religious
hatred that constitutes incitement to discrimination,
hostility or
violence shall be prohibited by law’. Article 2(2) of the ICCPR
calls upon state parties to adopt legislation
to enforce those
provisions. The European Convention for the Protection of Human
Rights and Fundamental Freedoms (ECPHRFF),
[40]
applicable
to the European Union, confirms the dangers of hate speech and
requires ratifying states to ensure its prevention and
punishment.
[59]
Thus, the State has a legitimate interest in promoting equality and
prohibiting hate speech that impinges on equality. There
can be no
doubt that the State has an interest in extending the protection
against discrimination, to include protection against
discrimination
based on sexual orientation.
[41]
In the
present case it is that category with which we are concerned and it
is in relation thereto that extensive evidence was led.
Moreover, the
State has an obligation to promote and protect the right to human
dignity of members of the LGBTI community, as provided
for in the
Constitution,
[42]
which it
purported to do by way of s 10 of PEPUDA, read with associated
provisions.
[60]
In light of what is set out above and the clear evidence of the
discrimination directed at members of the LGBTI community there
is
clearly no merit to the contention on behalf of Mr Qwelane, that the
extension of protection to include protection against discrimination

based on sexual orientation and against hate speech in relation
thereto, is constitutionally impermissible. I pause to record that

the other prohibited grounds provided for in s 1 of PEPUDA, beyond
those set out in s 16(2) of the Constitution, were not in issue

before us and no evidence was directed to them. The problems,
however, in relation to the constitutionality of s 10(1) of

PEPUDA, with regard to the regulation of hate speech, read with the
associated sections of PEPUDA, go much deeper. In addressing
those, I
will continue to bear in mind the duty resting on a court, in terms
of s 39 of the Constitution, when interpreting
the Bill of
Rights, to promote the values that underlie an open and democratic
society based on human dignity, equality and freedom.
A court must
also have regard to international law and may consider foreign
law.
[43]
[61]
I turn to address the problems alluded to in the preceding paragraph.
First, s 16(2)
(c)
of
the Constitution provides that the right to freedom of expression
does not extend to
advocacy of hatred
that is based on ‘race, ethnicity, gender or religion,
and
that constitutes incitement to cause
harm
’. Section 10(1) of PEPUDA,
on the other hand, states that 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’. As will be shown, these are two
distinct standards.
[62]
The constitutional standard involves an objective test – a
primary assessment of whether the expression complained of
comprises
advocacy of hatred based on one of the prohibited grounds and then a
further assessment of whether the advocacy of hatred
constitutes
incitement to cause harm. This ties in with the international
jurisprudential basis for regulating freedom of expression,
namely,
the preservation of public order and the general welfare of society.
The ‘advocacy of hatred’ and ‘incitement
to cause
harm’ are inextricably linked.
[63]
In relation to the exercise envisaged by s 10(1) of PEPUDA, one
commences by considering whether a person
published
,
propagated
,
advocated
or
communicated
words
based on one or more of the prohibited grounds against any person and
then looks to see whether the words complained of could ‘
reasonably
be construed
to demonstrate
a
clear intention to be
hurtful
,
harmful
or
to
incite
harm
,
promote
or propagate hatred
’ – as
provided for in subsections
(a)
,
(b)
and
(c)
of s
10(1) of PEPUDA.
[64]
It is necessary to record that, in oral argument before us, the HRC,
the Minister and the Society all conceded that ss 10(1)
(a)
,
(b)
and
(c)
of
PEPUDA must be read disjunctively. Commentators have interpreted the
provisions in that manner.
[44]
The
concessions and the commentary are warranted. Section 10(1) is
structured in that way. Each of the three subsections appear
after
the long dash, following on the introductory words and each of the
first two subsections ends with a semicolon. The subsections
are not
connected with the word ‘and’, which one would have
expected, if it was intended for the sections to be construed

conjunctively. The reason for providing alternatives within
subsections
(b)
and
(c)
by use of the word ‘or’ is not readily apparent. The
alternatives could just as easily have been added as further
subsections
(d)
and
(e)
.
This is another factor that supports the disjunctive reading of the
subsections. The formulation of the subsections as alternatives

decouples the constitutional requirements of advocating hatred and
incitement to cause harm, so that one or neither of these may
lead to
a finding of hate speech. That is also an extensive infringement of
the right.
[45]
[65]
The words ‘publish, propagate, advocate or communicate’,
in the lead-in part of s 10 of PEPUDA, are all also

disjunctively placed. Any one of those forms of expression that can
reasonably be construed to demonstrate a clear intention, to
have any
of the results in subsections
(a)
,
(b)
and
(c)
,
can lead to liability. In terms of s 10(1)
(a)
,
mere ‘communication’ of words based on prohibited
grounds, which could reasonably be construed to demonstrate a clear

intention to be ‘hurtful’ is sufficient for liability to
attach and for sanction to follow. It is not necessary for
the
potential of harm or actual harm to be shown. Moreover, advocacy of
hatred is not a necessary requirement for liability to
attach.
[46]
Counsel on
behalf of the Minister conceded that in terms of s 10 of PEPUDA
any one of the forms of expression that might not
necessarily
constitute advocacy of hatred nor incitement to harm are prohibited.
This is another respect in which the section limits
the right in
s 16(1).
[66]
In relation to the words being ‘reasonably construed’ to
demonstrate a clear intention to have any of the results
set out in
ss
10(1)
(a)
-
(c)
,
Albertyn
et al
postulate that the test is not strictly one of actual intention. They
say the following at 93:
‘
It
does not require that a reasonable person
would
interpret the conduct in such a way, only that it is possible that he
might construe it in this way.’
[47]
I
agree with that view. The result is to depart significantly from the
objective constitutional test and replace it with the subjective

opinion of a reasonable person hearing the words. This is an
extensive infringement on the right of freedom of expression.
[67]
A purposive and contextual approach to the interpretation of s 10
of PEPUDA leads to the compelling conclusion that the
legislature
sought to provide protection as broadly as possible, by imposing
liability for expressions in any of the forms set
out in the lead-in
part of s
10(1) that can reasonably be
construed to have
any one
of the results set out in subsections
(a)
,
(b)
and
(c)
.
C
Albertyn, B Goldblat and C Roedere
Introduction to the
Promotion
of Equality and Prevention of Unfair Discrimination Act 4 of 2000
ed
(2001
), describe PEPUDA as an ‘obvious
attempt by the legislature to widen the cover of hate speech’.
I pause to observe
that the provisions of
s 10(1)
are more
restricted in one limited sense, namely, that it prohibits the
publishing, propagation, advocacy or communication of ‘words’,

which is a narrower limitation than the constitutional limitation on
‘expression’ which extends beyond words. One might

rightly ask why that distinction is drawn.
[68]
The difficulty in dealing with the standard set in
s 10(1)
of
PEPUDA in relation to the constitutional standard provided by
s 16(2)
(c)
is that the former is barely intelligible. Albertyn
et
al
cannot be faulted for stating that
s 10
of PEPUDA as well as
other sections of that legislation, ‘are exceptionally
difficult to understand’.
[48]
The authors
go on to state that it is doubtful that the average person ‘will
be able to use the Act to guide his or her conduct
clearly’.
They contend, in my view correctly, that in addition to the vagueness
that attends the sections generally, there
are certain provisions
that are particularly vague. In this regard, the authors point to the
difficulty of determining what ‘hurtful’
in s 10(1)
(a)
of
PEPUDA was meant to capture. I cannot agree more. ‘Hurtful’
is defined in the
Concise
Oxford English Dictionary
[49]
as ‘causing
distress; upsetting’. It involves and attack on a person’s
feelings or emotions as in ‘that
was a very hurtful remark’.
The
Shorter
Oxford English Dictionary
[50]
makes it
clear that injury to feelings is the primary consequence of words
that are hurtful. It give ‘causing hurt; harmful;
detrimental;
wounding to feelings’ as its definition. The
Cambridge
Dictionary
defines it as ‘causing emotional pain. The
Merriam-Webster
Dictionary
gives the definition as ‘causing injury, detriment or
suffering’. The
Collins
English Dictionary
explains
that ‘if someone’s comments or actions are hurtful, you
mean that they are unkind or upsetting’. The
common feature of
all these definitions is that they are concerned with a person’s
subjective emotions and feelings in response
to the actions of a
third party. This does not equate with causing harm or incitement to
harm.
[69]
The reader will recall that Professor Nel considered repeated
pronouncements by churches, that homosexuality is a sin, as hurtful.

One could say that pronouncements by agnostics and atheists, that the
clergy and people of faith believe in fairy tales and could
rightly
be condemned for being irrational and that they have no place in an
evolved society, would be equally hurtful to those
targeted. Of
course, it does not mean that pronouncements by any of the
constituencies referred to above, might not, depending
on their
nature and what is being advocated, in addition to statements of
belief or conviction, enter upon territory that might
bring them
within the limitation contemplated by s 16(2)
(c)
of the Constitution or, indeed, that it might not attract criminal
sanction depending on what is being advocated or expressed.
However,
besides the question of how control could be exercised
jurisprudentially in respect of hurtful words, daily human
interaction
produces a multitude of instances where hurtful words are
uttered
[51]
and thus, to
prohibit words that have that effect, is going too far. So, too, a
host of jokes might be hurtful to those who bear
the brunt of them.
Are we to entertain complaints that extend to jokes that are not
within the limitations of s 16(2)
(c)
of the Constitution? In the Canadian case of
Lund
v Boisson
,
2012 ABCA 300
, the following was said:
‘
Language
which is offensive and hurtful to others does not necessarily qualify
as hateful or contemptuous speech.’
[52]
Professor
Pierre de Vos, in dealing with hurtfulness as a concept and in
contending that everyday conversation in South Africa would,
in terms
of s 10(1)
(a)
be prohibited, says the following:
‘
This
is so absurdly broad that it is difficult to see how . . . the hate
speech provision is nevertheless justifiable in terms of
the
limitation clause.’
[53]
He
goes on to state:
‘
The
current provision is also bad on policy grounds. In a vibrant
democracy which respects difference and diversity – also

diversity of opinion – it would be dangerous to ban all speech
that could be construed as intending to be hurtful to another
person
merely because of that person’s race, sex, sexual orientation,
religion, language, ethnicity, culture or age. Some
of us remember
all too well how the apartheid government tried to censor our
thoughts and our speech. Do we really want to go back
to a situation
where we are so scared to express our deeply and sincerely held and
honest opinions that we shut up because we fear
we might be found
guilty of hate speech?’
[70]
I accept unreservedly that harm envisaged in s 16 of the
Constitution and contemplated in the provisions of s 10(1)
of
PEPUDA, need not necessarily be physical harm, but can be related to
psychological impact. However, the impact has to be more
than just
hurtful in the dictionary sense. What is clear is that s 10, as
best as can possibly be discerned, travels far beyond
the limitation
envisaged by s 16(2)
(c)
of the Constitution. One must be careful not to stifle the views of
those who speak out of genuine conviction and who do not fall
within
the limitation set by s 16(2)
(c)
and where there is no justification for such limitation in an open
and democratic society based on human rights, dignity, equality
and
freedom.
[71]
In an attempt to overcome the difficulties described above, it was
submitted on the Minister’s behalf that the complaint
lodged in
the equality court was lodged, both in terms of ss 10 and 11 of
PEPUDA as well as in terms of s 16 of the Constitution.
That
submission is fallacious. First, the founding affidavit by the HRC is
adamant that the application was brought in terms of
s 20(1)
(f)
of PEPUDA, which reads as follows:
‘
(1)
Proceedings under this Act may be instituted by –
.
. .
(f)
the South
African Human Rights Commission, or the Commission for Gender
Equality.’
Proceedings
in the equality court are instituted in terms of s 20 of PEPUDA
and are conducted within that legislative framework.
Orders are
issued in terms of s 21. It is thus to the provisions of PEPUDA,
primarily s 10(1), read with associated sections,
that one must
turn one’s attention.
[72]
Second, the founding affidavit by the HRC makes it clear that the
complaint was based squarely on the prohibition of hate speech
in
terms of s 10 of PEPUDA. In this regard, the relevant part of
para 21 of the affidavit is pertinent. It reads as follows:
‘
[T]he
contents of the article and cartoon amount to hate speech as
contemplated in section 10 of PEPUDA, read with section 9(4)
of the
Constitution, which provides as follows:
21.1.1
Section 10 of PEPUDA
“
(1)
Subject to the proviso in section 12, no person may publish,
propagate, advocate or communicate words based on one or more of
the
prohibition 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.”
21.1.2
Section 9(4) of the Constitution
“
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.”’
[73]
Third, the HRC made no reference to s 11 of PEPUDA in its founding
affidavit.
Section 11 of PEPUDA provides:
‘
No
person may subject any person to harassment.’
The
proceedings in the equality court were conducted on the basis of an
enquiry in relation to s 10 of PEPUDA, read with the necessarily

associated provisions. Section 11 is dealt with summarily in the
judgment of Moshidi J and the issue of harassment was referred
to the
SAPS for possible prosecution in terms of the Harassment Act 17 of
2011. There was no finding by the equality court that
Mr Qwelane was
guilty of harassment. Mr Qwelane’s attack on s 11 in his
application to have it declared unconstitutional
must be seen in
light of the afore-going. It is thus understandable that, before us,
no attention in oral argument was paid to
the provisions of s 11
by any of the parties or the
amici
.
[74]
Fourth, in relation to the Minister’s reliance on s 16, it must
be pointed out that there is no such thing in the equality
court as a
complaint or enquiry in terms of s 16 of the Constitution. In the
present case s 16 was raised because of the challenge
to the
constitutionality of the provisions of s 10(1) read with s 1 of
PEPUDA. In any event, the submission on behalf of the Minister

offends against the principle of subsidiarity. The Constitutional
Court has repeatedly held that where legislation has been enacted
to
give effect to a right, litigants should rely on that legislation in
order to give effect to the right or, alternatively, challenge
the
legislation as being inconsistent with the Constitution.
[54]
In the
present case, the HRC and the LGBTI community sought relief in terms
of the provisions of PEPUDA. It is under that legislation
that the
proceedings in the equality court were instituted and it is in terms
of provisions of PEPUDA that Moshidi J made certain
findings. The
challenge to PEPUDA by Mr Qwelane was that it was unconstitutional in
that it was inconsistent with the provisions
of s 16 of the
Constitution. That is the principal issue in this appeal. It is now
necessary to consider whether the proviso in
s 12 of PEPUDA narrows
the ambit of s 10(1) of PEPUDA so as to render it constitutionally
permissible.
The
proviso in s 12 of PEPUDA
[75]
It has been suggested that the proviso in s 12 of PEPUDA might assist
in narrowing the limitation on freedom of expression
by s 10 of
PEPUDA.
[55]
Section 10
is said to be subject to ‘the proviso’ in s 12. For
convenience, I once again set out the proviso:
‘
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.’
The
proviso, by its nature and content is clearly an exclusionary
enactment. It excludes from the limitation of freedom of expression

the engagement in or promotion of any of the stipulated
activities.
[56]
[76]
It will be recalled that Moshidi J held that it was plain that Mr
Qwelane did not publish the offending article in order to
engage in
or promote any of the activities envisaged in the proviso to s 12 of
PEPUDA. It is fair to say that this conclusion cannot
be faulted. Mr
Qwelane gave vent to his bigotry, was strident, provocative and
unapologetic about it. The article had nothing to
do with the
proviso. That having been said, it must be noted that Albertyn
et
al
are also correct in stating that s
12 is difficult to interpret. That is especially so with the
concluding part of the proviso,
namely, publication of any
information, advertisement or notice
in
accordance
with s 16 of the
Constitution. It is difficult to discern what that means. For present
purposes it is not necessary to explore
this aspect any further.
[77]
It is clear from the preceding paragraphs that s 10(1) of PEPUDA
cannot on any reasonable interpretation be equated with the

provisions of s 16(2) of the Constitution. It extends far beyond the
limitations on freedom of expression provided for in the Constitution

and in many respects is unclear.
Justification
[78]
As shown above, the affidavit opposing the application by Mr Qwelane,
to have the impugned provisions declared unconstitutional,
provided
virtually no justification by the Minister for the present form of s
10(1) of PEPUDA and the associated provisions. It
was submitted on
behalf of the Minister that what has to be borne in mind, in
considering whether there was indeed justification
in terms of s 36
of the Constitution, are the repeated violations of the rights of
members of the LGBTI community and the repeated
efforts to
marginalise and dehumanise the community. The provisions of s 10(1)
of PEPUDA are opaque and as best as can be discerned,
travel far
beyond the reach of the prohibition in s 16 of the Constitution and
cannot be construed in the manner favoured by the
HRC and the
Society, namely, that it does approximate the provisions of s 16 or
that it is narrowed by application of the proviso
in s 12. I intend
to consider whether, on an examination of comparable constitutional
regimes, limitations that are akin to or
come close to the provisions
of s 10 of PEPUDA can be found elsewhere.
[79]
T J Webb ‘Verbal
Poison – Criminalizing Hate Speech: A Comparative Analysis and
a Proposal for the American System’,
[57]
as stated earlier, is a useful guide to international instruments
dealing with hate speech and to comparable foreign law. At the

outset, the author recognises that the regulation of hate speech
poses a complex constitutional problem because it conflicts with

freedom of expression. The author wrote principally in relation to
the United States of America (the USA), and noted that the emphasis

that the country places on free speech is unique. The first amendment
provides that congress shall make no law abridging the freedom
of
speech, or of the press, and recognises that free speech is the
cornerstone of American society. That, notwithstanding, the

constitutional protection of free speech in the USA does not
encompass all forms of expression. Certain categories of speech may

be regulated. Categories that are exempt from limitations on the
government’s power to regulate speech, include fighting
words,
advocacy of crime, defamation, obscenity, matters of national
security and commercial speech. In
Beauharnais
v Illinois
343 U.S. 250
(1952), the U.S. Supreme Court upheld a man’s conviction for
violating an Illinois statute, forbidding the publication of
material
that would expose ‘any race, color, creed or religion to
contempt, derision, or obloquy or which is productive of
breach of
the peace or riots’. Additionally, such presentation must be
‘made in public places and by means calculated
to have a
powerful emotional impact on those to whom it was presented’.
[80]
In
Virginia v Black
[2003] USSC 2763
;
538 U.S. 343
, the court heard a
consolidated case of two individuals convicted under a Virginia
statute making it ‘unlawful for any person
. . . with the
intent of intimidating any person or group of persons, to burn or
cause to be burned, a cross on the property of
another, a highway or
other public place’. The court held that the government may
possibly regulate such actions, because
of the harm resulting from
intimidation. The court’s decision emphasized the importance of
establishing a
mens rea
connection. Specifically, it must be
proven that the actor had the actual intent to intimidate.
[81]
The cases referred to in the preceding two paragraphs involve
regulation of hate speech by way of establishing a criminal offence

and providing a sanction. Establishing
mens
rea
must be seen in that
context and it is far removed from the reasonably construed intention
of s 10 of PEPUDA. By opting for regulation
of hate speech by way of
PEPUDA, our legislature has up to now not followed the United States
example of regulation of hate expression
by way of specific criminal
offences with concomitant sanction. This might well be because
incitement to cause physical or significant
psychological harm could
be met in South Africa by existing criminal law such as the
Intimidation Act 72 of 1982
.
[58]
There is currently for consideration before Parliament the Prevention
and Combating of Hate Crimes and Hate Speech Bill, which
no doubt
Parliament will take time to ensure is tailored to be within
constitutionally permissible parameters. The enactment of
PEPUDA
appears to have been motivated more by the drive to promote equality
than to prevent hate speech. The hate speech provision
appears to be
tagged onto PEPUDA, which is concerned principally with promoting
equality and preventing discrimination with the
emphasis on remedial
action.
[82]
Webb points to Canada as a country that offers ‘the most
balanced and developed examples of hate speech regulation’.

Like most, if not all democratic systems, Canada accepts that freedom
of expression is a critical feature of democracy, but takes
the
approach that freedom of expression is not absolute. Hate speech is
criminalised and regulated within the criminal justice
system. In
Canada, unlike the USA, where the right to freedom of expression has
a unique position, greater emphasis is placed on
the right to
equality and the value of diversity and multiculturalism. Hate speech
is thus more rigorously regulated in Canada.
In this regard see
R
v Keegstra
[1990] 3 R.C.S at 697. However, the following is also
stated at 771:
‘
The
criminal nature of the impugned provision, involving the associated
risks of prejudice through prosecution, conviction and the
imposition
of up to two years’ imprisonment, indicates that the means
embodied in hate propaganda legislation
should
be carefully tailored so as to minimize impairment of the freedom of
expression
. It
therefore must be shown that
s. 319(2)
is a measured and appropriate
response to the phenomenon of hate propaganda, and that it does not
overly circumscribe the
s. 2
(b)
guarantee.’ (My emphasis.)
The
tailoring envisaged in the dictum is in line with what is set out in
para 51 of
Islamic Unity
and referred to in para 50 above. It is also worth mentioning that we
do not have a hierarchy of rights with one trumping another.
[59]
When rights come into conflict, the constitutional standard is one of
proportionality as envisaged in s 36 of the Constitution.
[83]
Webb also deals with the regulation of hate speech in Germany. German
law rejects free speech protection when there is an attack
on human
dignity. Its hate law provisions protect against insult, defamation
and other forms of verbal assault. It must of course
be remembered
that regulation in Germany must be seen in the context of atrocities
orchestrated historically under the Nazi regime.
Section 130(1) of
the German criminal code makes it unlawful to ‘in a manner
capable of disturbing the peace . . . incite
hatred against
segments of the population or call for violent or arbitrary measures
against them; or . . . assault the human
dignity of others by
insulting, maliciously maligning or defaming segments of the
population . . . .’ Other provisions prohibit
disseminating,
displaying, supplying, producing, or facilitating the use of written
materials that incite hatred. There, too, there
is regulation by way
of criminal prosecution and sanction.
[84]
In relation to South Africa, Webb remarks that we followed the
international movement to regulate speech by adopting s 16(2)
of the
Constitution. In this regard, he asserts that our historical racial
divisions must have played a prominent role in adopting
hate speech
regulation. He correctly notes that human dignity is emphasised in
our constitution. In relation to the limitation
clause, he had regard
to the provisions of PEPUDA and, more particularly, s 10(1). He
accepts that it sets ‘a low threshold
for violation’ and
that speech need only be reasonably construed as being intended to
have certain consequences. I have already
dealt at length with that
threshold. Although it is unclear, he appears to suggest that a
constitutional amendment entrenching
the lower threshold might be an
option to be considered.
[60]
[85]
None of the democracies referred to by Webb have regulation in a form
that is akin to or that even comes close to s 10(1) of
PEPUDA. Before
us, unsurprisingly, no counsel could point to any decision or
regulation in any comparable democratic system which
equates with, or
even comes close to, the lower threshold contained in s 10(1) even
assuming that it is intelligible. We can all
agree that it is
important to protect the dignity of all our citizens. Equally, we
must agree, given our history, that freedom
of expression must also
be prized. That does not mean that hate speech beyond the provisions
of s 16 cannot be proscribed. It must,
however, be tailored so as to
comply with constitutional prescripts and it must survive a
justification analysis.
[86]
The interpretation of legislation in conformity with the
Constitution, often called ‘reading-down’, is to avoid

inconsistency between the law and the Constitution. It is important
to bear in mind that this exercise is limited to what the text
is
reasonably capable of meaning. It is to be distinguished from the
‘reading-in’ of missing words from a statutory
provision.
In this regard, see the decision of the Constitutional Court in
Moyo
& another v Minister of Police & others
;
Sonti & another v
Minister of Police & others
.
[61]
At para 57, the court said the following:
‘
When
attempting to interpret legislation by “reading-down” a
section in order to bring it into conformity with the Constitution,

care should be taken to stay within the boundaries of a reasonable
and plausible construction that does not rewrite the text. To

overstep this mark would be tantamount to the actual “reading-in”
of words into the statute. To do so would be a clear
breach of the
separation of powers. So much was said in
Abahlali
,
[62]
where
an approach that sought to add at least six qualifications to the
text was held to be “an intrusive interpretation”
that
“offends requirements of the rule of law and the separation of
powers”.
[87]
In the present case, in interpreting the legislation in question, one
should be aware that one is dealing with competing constitutional

rights and with the Legislature’s understandable concern that
hate speech should not be allowed to threaten the constitutional

project. It is clear, as observed by commentators, that it wanted to
regulate hate speech as broadly as possible. Unfortunately,
it did
not do so with the necessary precision and within constitutional
bounds. Bearing in mind the Legislature’s purpose,
one should
not, however, lose sight of other significant factors, which I allude
to hereafter. The powers of an Equality Court
adjudicating a
complaint as provided for in s 21 of PEPUDA are extensive. If a
complaint is held to be justified, the court may,
after an enquiry,
inter alia
, make an order for payment of damages. Furthermore,
it may grant interdictory and/or mandatory relief. An Equality Court
may order
an audit of policies of practices implicated by an enquiry.
Significantly, an Equality Court may, in terms of s 21(4) of PEPUDA,

direct the clerk of the court to refer the matter before it to the
Director of Public Prosecutions for the possible institution
of
criminal proceedings in terms of the common law or relevant
legislation.
[88]
To sum up, mindful of the provisions of s 39 of the Constitution, the
provisions of s 10 of PEPUDA cannot be saved by an interpretive

exercise. The problems set out above in relation thereto are too
extensive and s 10(1) of PEPUDA cannot be interpreted so as to
render
it consistent with, rather than inimical, to the Constitution. What
was said in
Case v Minister
of Safety and Security; Curtis v Minister of Safety and Security
[63]
in relation to the overbroad statutory definition there in question,
might well be said of the proscription in s 10(1) of PEPUDA.
The
following appears at para 77:
‘
The
overbreadth of the definition with which we are here concerned can
scarcely be described as marginal. It is not as if we are
confronted
merely with a peripheral excess in scope, surrounding an identifiable
proscriptive core that targets constitutionally
unprotected material.
Rather, the virtually unlimited range of unconstitutional potential
application of the Act overwhelms whatever
permissible proscription
might be identified.’
One
does not know beforehand what conduct is prohibited and citizens
cannot be expected to know what is required of them. As noted
in
Investigating Directorate:
Serious Economic Offences & others v Hyundai Motor Distributors
(Pty) Ltd & others: In Re Hyundai
Motor Distributors (Pty) Ltd &
others v Smit NO & others
:
[64]
‘
[T]he
Legislature is under a duty to pass legislation that is reasonably
clear and precise, enabling citizens and officials to understand
what
is expected of them.’
[65]
For
all the reasons set out above, s 10(1) of PEPUDA, in its present form
is unconstitutional.
Remedy
[89]
In light of the conclusion reached in the preceding paragraph, s
172(1) of the Constitution looms large. That section of the

Constitution reads as follows:
‘
(1)
When deciding a constitutional matter within its power, a court -
(a)
must declare that any law or
conduct that is inconsistent with the Constitution is invalid to the
extent of its inconsistency; and
(b)
may make any order that is just
and equitable, including -
(i)
an order limiting the retrospective effect of the declaration of
invalidity; and
(ii)
an order suspending the declaration of invalidity for any period and
on any conditions, to allow the competent authority to
correct the
defect.’
[90]
In
Islamic Unity
, the Constitutional Court taught that various
considerations come into play in deciding on an appropriate order. It
said the following
at para 54:
‘
On
the one hand, there is recognition of the importance of regulation in
the public interest. The implications of striking down
the impugned
provision for government and for the public interest must be
assessed, as well as the time it will take for Parliament
to come up
with new legislation. On the other hand, there is the need for this
Court to fulfil a judicial and not a legislative
role, while at the
same time ensuring that as far as possible the relief protects
freedom of expression as enshrined in the Constitution.’
[91]
In that case the Constitutional Court considered various forms of
relief, including severance, notional severance and the striking
down
of the relevant portion of clause 2
(a)
of the Code, with
nothing in its place. It also had regard to the suggestion of a
declaration of invalidity for a specific period
to enable Parliament
to enact appropriate legislation. The court was concerned that if the
clause was struck down in its entirety,
with nothing to replace it, a
dangerous gap would result and held that it was not in the public
interest to do so. In that case
it urged the government to attend to
the matter with some urgency, in order for it to fulfil its
constitutional mandate. At para
57 of
Islamic Unity
, Langa DCJ
said the following:
‘
I
consider that an order which is just and equitable would be a
notional severance formulated so as to ensure that the relevant
part
of clause 2
(a)
is rendered ineffective in its application to protected expression,
but that a prohibition is left in place to prevent the broadcasting

of unprotected expression as referred to in s 16(2) of the
Constitution. Such an approach would meet the concerns of the
applicant,
address the legitimate concerns raised by the Board about
protecting people’s dignity and the values of equality and
national
unity, while at the same time ensuring that the requirements
of the Constitution are met. It will be open to the Legislature to

decide to keep regulation at this minimal level or to regulate
further subject to the provisions of s 36(1).’
What
follows is the relevant part of the order in that case:
‘
3.
The decision of the Witwatersrand High Court declining to consider
the issue of the constitutionality of clause 2
(a)
of the Code of Conduct for Broadcasting Services as contained in
Schedule 1 to the Independent Broadcasting Authority Act 153 of
1993
is hereby set aside.
4.
Clause 2
(a)
of the said Code of Conduct for Broadcasting Services is declared to
be inconsistent with s 16 of the Constitution and invalid
to the
extent that it prohibits the broadcasting of material that is “likely
to prejudice relations between sections of the
population”;
provided that this order does not apply to (i) propaganda for war;
(ii) incitement of imminent violence; or
(iii) advocacy of hatred
that is based on race, ethnicity, gender or religion, and that
constitutes incitement to cause harm.’
[92]
In engaging in severance and/or reading-in the court must be astute
to ensure that the result is sufficiently precise so as
to ‘impair
the legislative purpose as little as possible while removing the
constitutional complaint’.
[66]
In the present case it appears to me to be desirable to keep in place
a form of redress through the informal, less costly, process
of
proceedings in the equality court for vulnerable groups,
[67]
whilst staying within the constraints of the Constitution. This will
involve not only severance in relation to provisions of s
10(1) of
PEPUDA, but also a reading-in of provisions in line with s 16(2)
(c)
of the Constitution. So, too, the consequent s 10(2) of PEPUDA
requires concomitant retailoring. One can hardly argue that the

legislature was not intent on ensuring at least the minimum
protection by way of limitation of free expression in the terms set

out in s 16(2)
(c)
and that would be in keeping with the framework of PEPUDA the object
of which is to promote equality and regulate hate speech.
[93]
As stated earlier, it is clear that the legislature intended widening
the protection against hate speech, even though it did
so in
constitutionally impermissible terms. It should be afforded an
opportunity to broaden the protection in terms consonant with
the
Constitution. It appears to me to be necessary to provide for an
interim measure pending the finalisation of the legislative
process,
which already appears by way of the Bill referred to above to have
commenced, or by way of an amendment to s 10(1) of
PEPUDA.
[68]
[94]
I am not unmindful of the threat to life, limb and psyche that
members of the LGBTI community face. I will take care in crafting
a
remedy to ensure that they are not left without recourse. It must be
emphasised that in crafting a remedy that will protect vulnerable

groupings against the dreadful consequences of hate speech, care must
be taken to ensure that it is tailored to meet constitutional

prescripts.
[95]
The effect of crafting an interim order pending the legislative
process must mean that the finding of the equality court falls
to be
set aside and that the HRC and the LGBTI community have to make
further choices in relation to dealing with the decade long
complaint
against Mr Qwelane. The exercise of reading-in so as to provide an
interim measure cannot, in terms of the fundamentals
of the rule of
law, have retrospective effect. A statutory proscription is in
place.
[69]
It was not in that form when the article was published or the
complaint adjudicated. In the Criminal Law sphere the rule against

retrospectivity is given effect to by the maxim,
nullum
crimen sine lege
, which is
an expression of the principle of legality, an incident of the rule
of law. It also implicates the rule against retrospectivity.
[70]
We were informed by counsel on Mr Qwelane’s behalf that he was
ailing. He had iconic status and fought hard against the divisions
of
the past. He might well want to consider that it is worth preserving
that legacy by seeking rapprochement, even now. I urge
him to do so.
We have to, in our beloved country, find a way in which to relate to
each other more graciously. Even the most fleeting
exposure to news
items reveals how particularly in public discourse we disagree in the
most disagreeable manner. Differences of
opinion are often laced with
vitriol. We should be allowed to be firm in our convictions and to
differ on the basis of conscience.
What we are not free to do is to
infringe the rights of others and we certainly are not free to
inflict physical or psychological
harm on others.
[96]
The following order is made:
1 The appeal is upheld with costs.
2 The order of Moshidi J is set aside
and substituted as follows:
‘
(a.)
Section 10 of the Promotion of Equality and Prevention of Unfair
Discrimination Act 4 of 2000 (PEPUDA) is declared to be inconsistent

with the provisions of s 16 of the Constitution and is therefore
unconstitutional and invalid.
(b.)
The complaint by the South African Human Rights Commission against Mr
Qwelane in terms of s 10 of PEPUDA is dismissed.
(c.)
Parliament is afforded a period of 18 (eighteen) months from 29
November 2019 to remedy the defect.
(d.)
During the aforesaid period s 10 of PEPUDA shall read as follows:
“
10(1) No person may advocate
hatred that is based on race, ethnicity, gender, religion or sexual
orientation and that constitutes
incitement to cause harm.
10(2) Without prejudice to any
remedies of a civil nature under this Act, the court may, in
accordance with section 21(2)
(n)
and where appropriate, refer
any case dealing with the advocacy of hatred that is based on race,
ethnicity, gender, religion or
sexual orientation, and that
constitutes incitement to cause harm, as contemplated in subsection
(1), to the Director of Public
Prosecutions having jurisdiction for
the institution of criminal proceedings in terms of the common law or
relevant legislation.”
(e.)
Section 10, in the form set out in para (d.), will fall away upon the
coming into operation of a legislative amendment to s
10, or its
repeal by a statute dealing with the regulation of hate speech.
Should Parliament fail to effect such changes by the
end of the
period referred to in (c.) above, s 10 in the form set out in (d.)
will become final.
(f.)
This order is referred to the Constitutional Court in terms of s
172(2)
(a)
of the Constitution for confirmation of the order of
constitutional invalidity.’
_________________
M S Navsa
Judge
of Appeal
APPEARANCES
For
Appellant:

M
Oppenheimer
Instructed
by:
Jurgens Bekker
Attorneys, Bedfordview
Rossouws Attorneys,
Bloemfontein
For
First Respondent:

T
Ngcukaitobi (with him O Mokgotho and T Ramogale)
Instructed by:
Bowman Gilfillan
Attorneys, Sandton
Honey Attorneys,
Bloemfontein
For
Second Respondent:
K D Mhango (with her D Gondo)
Instructed by:
The State Attorney,
Johannesburg
The State Attorney,
Bloemfontein
For
First
Amicus
:

S L Shangisa (with him M M Ka-Siboto)
Instructed by:
Freedom of
Expression Institute, Richmond
SMO Seobe
Attorneys, Bloemfontein
For
Second
Amicus
:

K Hofmeyr (with her C Steinberg, D Smit and H  Cassim)
Instructed by:
Webber
Wentzel Attorneys, Sandton
Webbers
Attorneys, Bloemfontein
[1]
K. Hamilton
Burnt Offerings
(2002) 89.
[2]
Original preface to G Orwell
Animal
Farm
; as published in I R
Willison
George Orwell:
Some Materials for a Bibliography
(1953).
[3]
Mokokoma Mokhonoana
good
reads
<
https://www.goodreads.com/quotes/9560747-freedom-of-speech-gives-us-the-right-to-offend-others
>
(accessed
25-09-2019).
[4]
The three
counts were:
(a)
Publishing denigratory references to
people’s sexual orientation in the column by Qwelane;
(b)
Implying that homosexuals are a lower
breed than heterosexuals; and
(c)
In the cartoon accompanying the column,
which was also disparaging of homosexuals.
[5]
Section 21(2)
(b).
[6]
Section 21(2)
(d)
and
(e)
.
[7]
Section 21(2)
(f)
-
(i)
.
[8]
Section 21(2)
(j)
.
[9]
Section 21(2)
(n)
.
[10]
(My
emphasis.)
[11]
(My
emphasis.)
[12]
See
Minister of
Environmental Affairs and Tourism v George
[2006] ZASCA 57
;
2007 (3) SA 62
(SCA) para 19;
Manong
& Associates (Pty) Ltd v Department of Roads and Transport,
Eastern Cape & another (No 1)
[2009] ZASCA 59
;
2009 (6) SA 574
(SCA) paras 30-31;
Manong
& Associates (Pty) Ltd v Department of Roads and Transport,
Eastern Cape & others (No 2)
[2009]
ZASCA 50
;
2009 (6) SA 589
(SCA) paras 54 and 57 and
De
Lange v Presiding Bishop of the Methodist Church of Southern Africa
for the Time Being & another
[2015] ZACC 35
;
2016 (2) SA 1
(CC) paras 55-58.
[13]
J A Nel & M Judge ‘
Exploring
homophobic victimisation in Gauteng, South Africa: Issues, impacts
and responses’ 21 (2008) 1
Acta
Criminologica
19-36.
[14]
L A Polders, J A Nel, P Kruger & H L Wells ‘
Factors
affecting vulnerability to depression among gay men and lesbian
women in Gauteng, South Africa’ (2008) 38
South
African Journal of Psychology
673-687.
[15]
S Teichner ‘The 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) 19
SAJHR
349
at 353, 372.
[16]
For a
useful discussion, see I Currie & J De Waal
The
Bill of Rights Handbook
6
ed (2013) at 354-361.
[17]
Islamic
Unity Convention v Independent Broadcasting Authority & others
[2002] ZACC
3;
2002
(4) SA 294 (CC).
[18]
South
African National Defence Union v Minister of Defence & another
1999
(4) SA 469 (CC).
[19]
S v
Mamabolo (E TV and others intervening)
[2001] ZACC 17
;
2001
(3) SA 409
(CC), para 37.
[20]
Handyside
v The United Kingdom
[1976] ECHR 5
;
(1976) 1
EHRR 737
at 754. See also
United
States v Schwimmer
[1929] USSC 103
;
279
US 644
(1929) where Holmes J stated:
‘
If there is
any principle of the Constitution that more imperatively calls for
attachment than any other, it is the principle
of free thought –
not free thought for those who agree with us but freedom for the
thought that we hate.’
[21]
Paras 29 and 30.
(My
emphasis; footnotes omitted.)
[22]
Paras 31 and 32.
[23]
Section 192 of the Constitution provides:
‘
National legislation must
establish an independent authority to regulate broadcasting in the
public interest, and to ensure fairness
and a diversity of views
broadly representing South African society.’
[24]
Para 35.
[25]
Para 35.
[26]
In para 38 of
Islamic
Unity
, the court said the
following:
‘
Section 36(1) of the
Constitution sets out the criteria for the limitation of rights. The
limitation must be by means of a law
of general application and
determining what is fair and reasonable is an exercise in
proportionality, involving the weighing
up of various factors in a
balancing exercise to determine whether or not the limitation is
reasonable and justifiable in an
open and democratic society founded
on human dignity, equality and freedom.’
[27]
See para 42 of
Islamic
Unity Convention v Independent Broadcasting Authority
2002 (4) SA 294 (CC).
[28]
(My
emphasis.)
[29]
(My
emphasis.)
[30]
Laugh It Off Promotions CC
v SAB International (Finance) BV t/a Sabmark International (Freedom
of Expression Institute as Amicus
Curiae)
[2005] ZACC 7
;
2006 (1) SA 144
(CC) para 47.
[31]
Our courts
have accepted that the publication of child pornography (
De
Reuck v Director of Public Prosecutions
[2003]
ZACC19
[2003] ZACC 19
; ;
2004 (1) SA 406
(CC) paras 48-50); commercial speech (
City
of Cape Town v Ad Outpost (Pty) Ltd
2000 (2) SA 733
(C) at 748) and nude dancing (
Phillips
& another v Director of Public Prosecutions, Witwatersrand Local
Division & others
[2003]
ZACC 1
;
2003 (3) SA 345
(CC) are all capable of protection under
s 16(1).
[32]
Section 10(2) provides:
‘
Without prejudice to any
remedies of a civil nature under this Act, the court may, in
accordance with s 21(2)
(n)
and where appropriate, refer
any case dealing with the publication, advocacy, propagation or
communication of hate speech as
contemplated in subsection (1), to
the Director of Public Prosecutions having jurisdiction for the
institution of criminal proceedings
in terms of the common law or
relevant legislation.’
[33]
See s 3(2)
(b)
and
(c)
of PEPUDA. Section 2
(h)
states that one of the objects of PEPUDA is to facilitate further
compliance with international law obligations including treaty

obligations in terms of, amongst others, the Convention on the
Elimination of All Forms of Racial Discrimination and the Convention

on the Elimination of All Forms of Discrimination against Women.
[34]
For a useful discussion on international regulation of hate speech,
see T J Webb ‘Verbal Poison – Criminalizing Hate
Speech:
A Comparative Analysis and a Proposal for the American System’(2011)
50
Washburn LJ
at 445.
[35]
Universal Declaration of Human Rights (adopted 10 December 1948)
UNGA Res 217 A(III)
[36]
Preamble, Art 1.
[37]
Article 29.
[38]
Article 7.
[39]
International
Covenant on Civil and Political Rights (adopted 16 December 1966,
entered into force 23 March 1976) 999 UNTS 171.
[40]
European Convention for the Protection of Human Rights and
Fundamental Freedoms (adopted 4 November 1950, entered into force
3
September 1953) ETS 5.
[41]
In this regard see para 33 of
Islamic
Unity
.
[42]
Section 10 of the Constitution reads as follows:
‘
Everyone has inherent dignity
and the right to have their dignity respected and protected.’
[43]
Section 39(2) and (3) of the Constitution read as follows:
‘
(2) When interpreting
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.
(3) The Bill of Rights does not deny
the existence of any other rights or freedoms that are recognised or
conferred by common
law, customary law or legislation, to the extent
that they are consistent with the Bill.’
[44]
See Teichner at 354-355. See also C Albertyn, B Goldblat and C
Roedere
Introduction to the
Promotion of Equality and Prevention of Unfair Discrimination Act 4
of 2000
ed
(2001
) at
94. See also Pierre de Vos ‘Why the hate speech provisions
might be unconstitutional’ (2010)
Constitutionally
Speaking,
<
https://constitutionallyspeaking.co.za/why-the-hate-speech-provisions-may-be-unconstitutional/
>
(accessed
25-09-2019).
[45]
The finding
in
South
African Human Rights Commission v Khumalo
[2018] ZAGPJHC 528;
2019 (1) SA 289
(GJ), that the subsections are
to be read conjunctively, at para 82, is therefore wrong.
[46]
See Albertyn
et al
,
fn 44 above, at 92 and 95-96.
[47]
(Emphasis
in original.)
[48]
Albertyn
et al
,
fn 44 above, at 96.
[49]
A Stevenson
& M Waite
Concise
Oxford English Dictionary
12ed (2011).
[50]
Shorter Oxford English
Dictionary on Historical Principles
6
ed A-M (2007).
[51]
In this regard see Albertyn
et
al
, fn 44 above, at 96.
[52]
Para 60.
[53]
See De Vos,
fn 44 above.
[54]
See
Mazibuko & others v
City of Johannesburg & others
[2009] ZACC 28
;
2010 (4) SA 1
(CC). See also the discussion in C
Hoexter
Administrative Law
in South Africa
2 ed
(2012) at 132-133 and the authorities there cited.
[55]
See Albertyn
et al
,
fn 44 above, at 93-94.
[56]
In Albertyn
et al
the following is stated at 93:
‘
Thus, the proviso limits the
scope of the definition of “hate speech” under the Act
and allows certain expression,
that would otherwise be prohibited by
s 10, to be protected.’
[57]
T J Webb ‘Verbal Poison – Criminalizing Hate Speech: A
Comparative Analysis and a Proposal for the American System’

(2011) 50
Washburn LJ
445-482.
[58]
See ss 1 and 2 thereof.
[59]
In this regards, see, amongst others,
Laugh
It Off Promotions CC v SAB International (Finance) BV
t/a Sabmark International
(Freedom of Expression Institute as
amicus
curiae
)
[2005] ZACC 7
;
2006 (1) SA 144
(CC) para 47.
[60]
Webb, fn 57 above, 463-464.
[61]
Moyo &
another v Minister of Police & others; Sonti & another v
Minister of Police & others
[2019]
ZACC 40
para 56.
[62]
Abahlali baseMjondolo
Movement SA & another v Premier of the Province of Kwazulu-Natal
& others
[2009] ZACC
31; 2010 (2) BCLR 99 (CC).
[63]
1996 (1) SACR 587 (CC).
[64]
[2000] ZACC 12
;
2001 (1) SA 545
(CC) para 24. (Citations omitted.)
[65]
See also
Dawood &
another v Minister of Home Affairs & others; Shalabi &
another v Minister of Home Affairs; Thomas & another
v Minister
of Home Affairs & others
[2000] ZACC 8
;
2000 (3) SA 936
(CC) paras 47-48.
[66]
See D W Freedman, R M Robinson and E S Pugsley ‘Constitutional
Law: Bill of Rights’
Lawsa
2 ed (2012) 5(4), para 56
and the cases there cited, including
National
Coalition for Gay and Lesbian Equality & another v Minister of
Justice & others
1999
(1) SA 6
(CC) para 56;
S v
Manamela & another (Director-General of Justice Intervening)
2000 (3) SA 1
(CC) para 56;
Dawood
& another v Minister of Home Affairs & others; Shalabi &
another v Minister of Home Affairs & others; Thomas
&
another v Minister of Home Affairs
& others
[2000] ZACC 8
;
2000
(3) SA 936
(CC) para 62;
S
v Niemand
2002 (1) SA 21
(CC) para 32;
Zondi v MEC
for Traditional and Local Government Affairs & others
[2004]
ZACC 19
;
2005 (3) SA 589
(CC),
South
African Liquor Traders’ Association & others v
Chairperson, Gauteng Liquor Board & others
[2006] ZACC 7
;
2009 (1) SA 565
(CC) paras 29-34; and
Gory
v Kolver NO & others (Starke and others Intervening)
[2006] ZACC 20; 2007 (4) SA 97 (CC).
[67]
See
Manong & Associates
(Pty) Ltd v Department of Roads and Transport, Eastern Cape, &
others (No 2)
[2009] ZASCA
50
; 2009 (6) 589 (SCA) paras 52-53
[68]
See the order crafted by the Constitutional Court in
Minister
of Justice & others v Prince & others
[2019] ZACC 30
;
2018 (6) SA 393
(CC) para 128.
[69]
See
Phaahla
v Minister of Justice and Correctional Services & another
[2019] ZACC 18
;
2019 (2) SACR 88
(CC)
para
85 and
Savoi
& others v National Director of Public Prosecutions &
another
[2014] ZACC 5
;
2014 (5) SA 317
(CC) paras 74-76.
See
also an interesting discussion on the formal and substantive aspects
of the rule of law in Lord Bingham ‘The Rule of
Law’
(2007) 66
Cambridge
LJ
67-85.
[70]
See J M
Burchell (ed)
South
African Criminal Law and Procedure
(1997)
at 28-30.