In 2002 South Africa’s Constitutional Court in the case of Islamic Unity Convention v Independent Broadcasting Authority and Others definitively explained how courts should interpret the freedom of expression clause contained in section 16 of the Constitution. Section 16(1) guarantees for everyone the right to freedom of expression. Section 16(2) then explains that the right to freedom of expression guaranteed in section 16(1) does not extend to certain types of expression – including hate speech – listed in section 16(2).

Section 16(2) of the Constitution does not prohibit or regulate hate speech. Instead, it lists types of speech that are not protected by the Constitution and that could, therefore, be regulated or prohibited by the legislature without infringing on the right to freedom of expression guaranteed in section 16(1). As the Constitutional Court explained in Islamic Unity Convention:

“The words [in section 16(2) that] ‘[t]he right in subsection (1) does not extend to . . .’ imply that the categories of expression enumerated in section 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.”

The Court held that “the state has a particular interest in regulating” the types of expression listed in section 16(2) “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.”

While the Constitution therefore does not prohibit hate speech, it allows the legislature to do so. As the Constitutional Court explained in Islamic Unity Convention:

“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 section 16(2) would not be a limitation of the right in section 16. Where the state extends the scope of regulation [by passing legislation to that effect] beyond expression envisaged in section 16(2), it encroaches on the terrain of protected expression and can do so only if such regulation meets the justification criteria in section 36(1) of the Constitution.”

Parliament enacted such legislation when it passed section 10, read with section 12, of PEPUDA. These provisions in PEPUDA – which now regulate hate speech – extend beyond expression envisaged in section 16(2) and therefore limit the right to freedom of expression.

A litigant is therefore free to challenge the constitutionality of section 10, read with section 12, of PEPUDA, by arguing that the limitation of the right to freedom of expression imposed by PEPUDA is not justifiable in terms of the limitation clause contained in section 36(1) of the Constitution. But if the litigant fails to do so, he or she is bound by the relevant provisions of PEPUDA, and when considering a hate speech complaint a court is therefore also bound by PEPUDA and must apply its provisions to the case before it.

For reasons that are unfathomable to me, the SCA ignored this clear exposition of the law (which is binding on that court) in its recent judgment in Masuku and Another v South African Human Rights Commission obo South African Jewish Board of Deputies. The case dealt with allegations that specific speech directed at Jewish students and Jewish families constituted hate speech in contravention of section 10, read with section 12, of PEPUDA. The High Court – sitting as an Equality Court – found that the relevant speech did constitute hate speech as defined in PEPUDA.

The SCA overturned this judgment. In doing so, it ignored the applicable law contained in PEPUDA and wrongly dealt with the case as if section 16(2) is the applicable provision that prohibits speech. It explained its approach by claiming that the respondents had disavowed reliance on PEPUDA and had accepted “that the statements, like any other form of speech, would be excluded from protection (as hate speech) under s 16(1) of the Constitution only if they fell afoul of s 16(2) thereof”.

There appears to be some dispute about whether the respondents in fact disavowed reliance on PEPUDA. Be that as it may, it was not possible for the respondents to do so, as courts can only consider hate speech cases by relying on the relevant provisions of PEPUDA.

It appears that the SCA ignored the law that applied to the case before it because of concerns that the relevant provisions of PEPUDA may constitute an unconstitutional infringement on the right to freedom of expression. The SCA thus remarked that there “is cause for concern that the provisions of s 10 of the Equality Act have the effect of condemning speech that is protected under s 16(1) of the Constitution”.

This statement is clearly correct, but as anyone familiar with Bill of Rights adjudication knows, legislative provisions can only be declared unconstitutional if a limitation of a right is not justifiable in terms of the limitation clause contained in section 36(1) of the Bill of Rights.

The SCA seemed to have been unaware that a section 36(1) analysis is always required when legislation is found to limit a particular right. Commenting on arguments by academic authors that while PEPUDA clearly regulates speech that is protected by section 16(1) of the Constitution, this may be justified in terms of the limitation clause, the SCA made the following remark that displays a lack of understanding of Bill of Rights adjudication:

“The contention that a more extensive definition of hate speech can be justified under s 36 is at the least debatable as s 16(2) provides an internal limitation clause.”

As I have noted above, the Constitutional Court has held that section 16(2) is definitional as it lists types of unprotected speech. It does not take the place of the limitation clause analysis required by section 36(1). To suggest, as the SCA did, that no section 36(1) analysis is required when legislation limits a right that contains an internal limitation is to ignore the vast jurisprudence of the Constitutional Court emphasising that any legislation that limits a constitutional right must be tested against the limitation clause in section 36(1).

In any event, the constitutionality of sections 10 and 12 of PEPUDA was not raised in this case and the SCA did not consider the constitutionality of these provisions. The SCA therefore had no choice but to apply the (for the moment, constitutionally valid) provisions of PEPUDA. It was therefore impermissible for the SCA to ignore the applicable law contained in PEPUDA and apply section 16(2) instead.

But even if we ignore these well-established legal principles, and wrongly assume that section 16(2) of the Constitution does prohibit speech, the SCA was prohibited from applying section 16(2) instead of the provisions of PEPUDA because of the well-established principle of subsidiarity.

This principle – confirmed for the umpteenth time in the recent Constitutional Court judgment of De Lange v Presiding Bishop of the Methodist Church of Southern Africa – holds that where legislation gives effect to a constitutional right, the litigants must rely on the underlying legislation (in this case PEPUDA) and are not permitted to invoke the constitutional provision directly. So, even if one were to agree with the clearly wrong belief that section 16(2) prohibits hate speech, the SCA was bound by the principle of subsidiarity to apply the provisions of PEPUDA instead of section 16(2) of the Constitution.

To be fair, not all judges worked in the field of Constitutional Law before their appointment to the Bench and it is to be expected that they would not all have an encyclopaedic knowledge of Constitutional Law. But because Constitutional Law now permeates all areas of the law, there may be an urgent need for more intensive judicial training. Such training, I would argue, is needed to familiarise judges with the basic principles of constitutional adjudication and with the most important Constitutional Court judgments.

But no amount of judicial education will assist judges called upon to interpret and apply the hate speech provisions contained in PEPUDA. Different judges in different courts have applied these provisions in distinctly different ways. It is for this reason that it would be helpful if the Masuku judgment is appealed to the Constitutional Court, which would then be provided with the opportunity to give a definitive interpretation of the rather convoluted hate speech sections contained in PEPUDA. DM