Ngizwe Mchunu, the Equality Court and the constitutional limits of freedom of expression

The recent Equality Court judgment against Ngizwe Mchunu is an important reminder that constitutional rights do not exist in isolation. While freedom of expression remains one of the cornerstones of South Africa’s constitutional democracy, the judgment underscores that the exercise of this right must be balanced against the rights and dignity of others. Courts are frequently called upon to balance competing rights, with the underlying principle that rights must be exercised in a manner that does not infringe upon the rights of others.

South Africa’s constitutional commitment to freedom of expression is rooted in a painful history of censorship, repression and exclusion. During apartheid, dissenting voices were routinely silenced, making freedom of expression indispensable to the democratic project that emerged in 1994. Yet, the Constitution deliberately stops short of protecting all forms of expression. Section 16(2) excludes certain categories of expression from protection, including advocacy of hatred that constitutes incitement to cause harm. This reflects an important constitutional principle: freedom of expression carries responsibilities, and when abused, it may lose constitutional protection.

The Equality Court’s decision arose from a series of online videos posted by Mchunu in 2025, in which he directed derogatory and inflammatory remarks at members of the LGBTQIA+ community following a same-sex wedding involving traditional Zulu attire. The remarks reportedly compared gay people to animals, accused them of grooming children, and suggested that they deserved imprisonment or death. Mchunu subsequently organised a demonstration targeting LGBTQIA+ persons.

The court found that such conduct amounted to hate speech, harassment and unfair discrimination. In a particularly powerful passage, Wright J stated:

“The statements of Mr Mchunu are, quite obviously, hate speech, harassment and unfair discrimination under sections 10, 11 and 6 of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000. Mr Mchunu has acted against the Constitution and he has insulted and threatened persons who enjoy Constitutional rights.”

The court’s language reflects the seriousness with which it viewed both the content of the statements and their impact on the rights and dignity of LGBTQIA+ persons.

What makes the judgment particularly significant is not merely the finding of liability, but the nature of the remedies granted. The court ordered Mchunu to make a substantial financial contribution to organisations engaged in promoting education, sensitisation, social cohesion and the prevention of hate crimes and bias.

It further required him to undergo human rights sensitisation training, issue a public apology to LGBTQIA+ persons, refrain from participating in discriminatory demonstrations, and pay the legal costs of the applicants. These remedies reflect an understanding that constitutional adjudication should not only punish wrongdoing, but also contribute to education, accountability and social transformation.

Given Mchunu’s influence and ability to mobilise large audiences, the judgment also underscores that public prominence does not excuse constitutional responsibility. It confirms that the rights of others are just as vital as the freedom to speak or organise. The decision therefore raises an important constitutional question: where should the line be drawn between protected speech and harmful speech?

This question has long generated controversy. Critics often argue that restrictions on speech threaten democratic debate and may suppress unpopular opinions. These concerns should not be dismissed lightly. Democracy requires space for disagreement, criticism, satire and even offensive expression, provided it falls within the sphere of protected speech. As the Constitutional Court observed in Qwelane v South African Human Rights Commission:

“These dictates of pluralism, tolerance and open-mindedness require that our democracy fosters an environment that allows a free and open exchange of ideas, free from censorship no matter how offensive, shocking or disturbing these ideas may be. However, as stated by this Court in Mamabolo, this does not mean that freedom of expression enjoys superior status in our law. Similarly, a unanimous Court in Khumalo v Holomisa stated that, although freedom of expression is fundamental to our democratic society, it is not a paramount value.”

The court’s observation captures the delicate balance that lies at the heart of South Africa’s constitutional order. Freedom of expression is indispensable to democratic life, but it does not trump all other rights. Rather, it must be interpreted alongside the constitutional rights to dignity and equality.

It is for this reason that there is a fundamental difference between expression that contributes to public discourse and expression that dehumanises individuals or groups on the basis of their identity. The Constitutional Court in Qwelane ultimately affirmed that speech which promotes hatred and causes harm may legitimately fall outside the scope of constitutional protection.

South Africa’s history provides an important context for this distinction. The constitutional commitment to dignity and equality emerged from a society built on exclusion, racial hierarchy and systemic discrimination. The protection against hate speech is therefore not an exception to constitutional democracy; it is one of the mechanisms through which democracy protects itself from forms of expression that seek to undermine the equal worth of others.

This commitment to equality and dignity has long been reflected in South Africa’s constitutional jurisprudence. In National Coalition for Gay and Lesbian Equality v Minister of Justice, the Constitutional Court struck down laws criminalising consensual same-sex sexual conduct, affirming that discrimination based on sexual orientation is incompatible with the values of dignity, equality and freedom.

The judgment marked an important moment in South Africa’s constitutional journey, recognising that LGBTQIA+ persons are entitled to the same respect, protection and concern as all other members of society. The Ngizwe matter must therefore be understood against a constitutional backdrop in which the rights and dignity of LGBTQIA+ persons have repeatedly been affirmed and protected by the courts.

Importantly, the court did not confine its findings to hate speech alone. It held that Mchunu’s conduct also constituted harassment and unfair discrimination, illustrating that constitutional harm may arise not only from the content of speech but also from broader patterns of conduct directed at vulnerable groups.

The Ngizwe judgment also reminds us that courts do not merely apply legal rules mechanically. Rights require interpretation, and interpretation is often influenced by broader social understandings of identity, dignity, equality and harm. This is particularly significant in hate speech cases, where courts must determine not only the meaning of words, but also the social context in which those words are spoken and the harm they are capable of causing. In this sense, the judiciary plays a critical role in shaping the normative standards that govern democratic life.

The judgment also speaks to the realities of the digital age. Social media platforms have dramatically expanded opportunities for participation in public discourse. Yet, they have simultaneously amplified the reach and impact of harmful content.

A single post or video can reach thousands, if not millions, of people within hours, particularly when the poster is well known and has a large following. The challenge facing courts is no longer simply whether harmful speech exists, but how constitutional principles should be applied in a rapidly evolving digital environment in order to balance freedom of expression with other fundamental rights.

This challenge is compounded by the fact that many social media platforms operate outside South Africa’s jurisdiction, making accountability difficult to achieve. Even where courts provide remedies against individuals, enforcing accountability against global technology companies remains a complex legal and practical task. The development of judicial guidelines, specialised training and stronger regulatory frameworks will therefore become increasingly important.

The significance of the Ngizwe judgment ultimately lies in its affirmation that constitutional rights are relational. Freedom of expression cannot be understood without reference to dignity, equality and the lived realities of those who bear the consequences of harmful speech.

Courts do more than resolve disputes; they shape the normative standards that govern democratic life. Through its remedial approach, the Equality Court recognised that addressing hate speech requires more than punishment alone. It requires education, accountability and a commitment to building a society in which constitutional rights are exercised responsibly and in harmony with one another.

Accordingly, the lesson from the Ngizwe matter is not that freedom of expression is under threat. Rather, it is that constitutional democracy depends on maintaining the delicate balance between protecting robust public debate and safeguarding the dignity and equality of all who participate in it.

As courts continue to confront difficult questions involving alleged Afrophobic speech and other contested forms of expression, maintaining this equilibrium will remain one of the defining challenges of South Africa’s constitutional project. In a society still grappling with the legacies of exclusion and discrimination, the careful balancing of freedom, dignity and equality remains as imperative as ever. DM