Grammy Award-winning American rapper and songwriter Nas seminally stated that “people fear what they don’t understand and hate what they can’t conquer”. This rings true with regard to “social phobias”.

Fear often translates to hatred as seen in cases of transphobia, blancophobia, xenophobia and homophobia, to name but a few. To be clear, fear is not the only reason minority groups are often targeted and an investigation into all the reasons for hate and discrimination falls beyond the focus of this article.

Fear is but one aspect of the full spectrum of reasons. When people do not understand aspects of other people’s identities, they often try to put them in one of the boxes with which they are familiar. When this approach fails, harmful stereotypes and prejudices are formed against minority groups leading to what is generally characterised as unfair discrimination.

A key example of this can be found in the contentious article written by the late Jon Qwelane 13 years ago. In the article, headlined “Call me names, but gay is not okay”, Qwelane endorsed former Zimbabwean president Robert Mugabe’s discriminatory stance against homosexuals. Qwelane went on to call the LGBTQI+ community “animals” and equated their sexual preferences with bestiality. Following publication of the article, there was a public outcry and calls for an apology, which Qwelane steadfastly refused to tender. Qwelane’s unwavering stance against homosexuality is mirrored in various sectors of our society today.

Our constitutional democracy fosters an environment that allows for the free and open exchange of ideas, regardless of how offensive, shocking, or disturbing those ideas may be to some. In Qwelane v South African Human Rights Commission and Another (2021) ZACC 22, the Constitutional Court stated that “a healthy democracy requires a degree of tolerance towards expression or speech that shocks or offends”. This creates an environment in which all forms of speech can thrive, and the line between free expression and hate speech becomes increasingly blurred.

To be clear, hate speech, as defined in the Qwelane judgment, is any expression that has the effect of violating the rights of another person or group of people on the basis of group identity. As a result, while the right to free expression should be treasured and safeguarded, it is also important to recognise the danger that exists when this right is unbounded.

The right to free expression is frequently invoked to defend harmful and discriminatory language. The drafters of the South African Constitution must have anticipated this quandary when they placed clear limitations on the right to free expression. Section 16(1) of the Constitution defines the scope of the right, while section 16(2) specifies what is not included in the scope of the right in section 16(1).

Section 16(2) forbids speech that constitutes propaganda for war, incitement of imminent violence, or advocacy of hatred based on race, ethnicity, gender, or religion — all of which constitute an incitement to cause harm.

Despite the existence of these limitations, inconsistencies between the Constitution and statutory anti-discrimination laws raise the question of how far the right to free expression protects hurtful or harmful speech. This question was recently answered by the Constitutional Court in the much-anticipated Qwelane decision.

Following the receipt of hundreds of complaints about Qwelane’s article, the South African Human Rights Commission (SAHRC) launched an investigation into Qwelane and Media24, the owner of the newspaper that published the disputed article. The Equality Court case was followed by a series of appeals to the Supreme Court of Appeal and, finally, the Constitutional Court.

The central issues in each of these cases remained the same. The SAHRC argued that Qwelane’s article violated section 10(1) of the Promotion of Equality and Prevention of Unfair Discrimination Act (Pepuda). This provision prohibits any person from publishing, propagating, advocating or communicating words that are based on prohibited grounds such as race, gender and sexual orientation, against any other person, where the words could “reasonably be construed to demonstrate a clear intention (a) to be hurtful; (b) be harmful or to incite harm; (c) promote or propagate hatred”.

In response to the allegations against him, Qwelane had challenged the constitutionality of section 10(1). He contended that this provision was overbroad in comparison to section 16(2) of the Constitution. Qwelane argued that section 10(1) of Pepuda prohibits hate speech on a variety of grounds, including “sexual orientation”, which is not a ground listed in section 16(2)(c) of the Constitution. Qwelane further argued that the requirement for a clear intention “to be hurtful” was extremely ambiguous. As a result, section 10(1) of Pepuda was challenged on the grounds that it was overbroad and vague, and would chill the fundamental right to free expression.

According to Qwelane, citizens would have difficulty determining whether their expression violated section 10 of Pepuda with a reasonable degree of certainty.

Remove Qwelane’s flimsy defence that his article did not constitute hate speech at all, and you’ll find that he correctly identified some inconsistencies between the legislation and the Constitution. The Constitutional Court agreed in its majority decision that section 10(1) of Pepuda was overbroad.

The court ruled that the word ‘hurtful’ encompasses more than what is proscribed in section 16(2) of the Constitution. In addition, given the difficulty in ascertaining the meaning of “hurtful” in the context of section 10(1), the Constitutional Court predicted that it would be challenging for ordinary citizens to know whether their conduct will be “hurtful” or “harmful”.

The Constitutional Court ruled that the word ‘hurtful’ in section 10(1)(a) was too broad and violated the rule of law. However, the Constitutional Court’s decision did not declare section 10 of Pepuda unconstitutional, but only removed the constitutionally offending section 10(1)(a) from the remainder of the provision.

In response to a challenge to the broadness of the impugned provision, the court determined that the prohibition of hate speech based on sexual orientation was justifiable because it would be impossible to protect the rights of the LGBTQI+ community without prohibiting hate speech based on sexual orientation.

Following the elimination of the first requirement that hate speech must demonstrate a clear intention to be “hurtful,” the court had to objectively determine whether Qwelane’s article could reasonably be construed to demonstrate a clear intention to be harmful or incite harm, as well as to promote or propagate hatred. The court determined that, contrary to the Supreme Court of Appeal’s decision, the remaining requirements must be read together. To put it another way, all of the remaining requirements in section 10 of Pepuda must be met before a determination that expression constitutes hate speech can be made.

As a consequence, the Constitutional Court determined that Qwelane’s article incited harm against homosexual people and spread hatred against the LGBTQI+ community because it was not only offensive, but also openly expressed hatred and detest for this targeted group.

A number of aspects of the Constitutional Court’s definition and approach to hate speech are worth highlighting. To begin, it is important to highlight the court’s emphasis on “group identity”. The court ruled that expression will only be considered hate speech if it targets a vulnerable group rather than an individual. Hate speech, by definition, is based on grounds such as religion, sexual orientation, race, and gender, and it assumes that a specific group of people is being targeted. Therefore, where an individual is the victim of harmful expression, they have to rely on provisions that prohibit unfair discrimination rather than hate speech.

Second, only public hateful speech has the potential to undermine a group’s social standing and assurance against discrimination and violence. The general position across jurisdictions with hate speech prohibitions is that private communications must not be included within the ambit of such provisions. To do so would be contrary to the purpose of prohibiting hate speech, which is to limit the effect of hate speech on the public. As a result, private communication will not be considered hate speech because it is unlikely to perpetuate negative stereotyping and unfair discrimination.

Finally, victims of hate speech do not need to demonstrate actual harm as a result of the expression; merely demonstrating a reasonable apprehension of societal harm as a result of hate speech is sufficient to prove the first element of hate speech.

The Constitutional Court’s Qwelane decision demonstrates that there is a fine line between radical expression, which is frequently offensive, and hate speech. However, the standard of hate speech is now clear — it is only where language crosses the line from hurtful to harmful and becomes unfairly discriminatory towards a group of people that it can be considered hate speech.

Of course, all the elements in section 10(1) must also be met but it is important to note that speech that is merely offensive, shocking or hurtful is constitutionally protected under the guarantee of freedom of expression. DM