The Constitutionality of the Prohibition of Hate Speech in terms of Section 10(1) of the Equality Act: A Reply to Botha and Govindjee

Marais, Marelize; Pretorius, J.C.

doi:10.17159/1727-3781/2019/v22i0a5718

PER

2019

DOI: 10.17159/1727-3781/2019/v22i0a5718

|View full text |Cite

The Constitutionality of the Prohibition of Hate Speech in terms of Section 10(1) of the Equality Act: A Reply to Botha and Govindjee

Marelize Marais

J.C. Pretorius

Abstract: This is a reply to a critique by Botha and Govindjee (2017 PELJ 1-32) of our interpretation of the hate speech provisions of the Equality Act (Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000) in Marais and Pretorius (2015 PELJ 901-942), in which we considered the constitutionality of section 10(1) of the Act, amongst other things. We address Botha and Govindjees' rejection of our view that hate speech is a form of unfair discrimination and that the most appropriate constitutional fr… Show more

Help me understand this report

Search citation statements

Order By: Relevance

Paper Sections

Select...

Citation Types

Supporting

Mentioning

Contrasting

Year Published

2021

2023

Publication Types

Select...

Article2

Relationship

Self Cite0

Independent2

Authors

Journals

Cited by 2 publications

References 13 publications

Supporting

Mentioning

Contrasting

Order By: Relevance

A Duty Perspective on the Hate Speech Prohibition in the Equality Act

Marais¹

2021

PER

View full text Add to dashboard Cite

In this contribution, I argue that every person's duty to respect others is central to section 10(1) of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 ("the Equality Act"), otherwise known as the "hate speech" prohibition. This duty should therefore also be a central consideration in its interpretation. Related duties are those of the state to enact legislation, and of courts to interpret and apply the law to promote the spirit, purport and objects of the Bill of Rights. Our courts have in many instances considered the duty to respect others, as well as the state's and the courts' related duties, in the interpretation of socioeconomic rights and the development of the common law. In doing so, they have consistently employed the reasonableness standard. Therefore, references to relevant case law in various legal contexts provide the framework within which I examine legal duties in the context of unfair discrimination and, in particular, hate speech in terms of section 10(1) of the Equality Act. I examine the constitutional obligations of the state, the courts and private persons to promote respect for the dignity of others. I reiterate the state's specific obligation in terms of section 9(4) of the Constitution of the Republic of South Africa, 1996, to enact legislation to prevent or prohibit unfair discrimination on the grounds listed in section 9(3). Finally, I relate these duties to the section 10(1) prohibition in the Equality Act. I apply the reasonableness standard to conclude that the prohibition gives due effect to the duties of the state and every person, and that the courts are duty-bound to interpret it accordingly. This conclusion refutes the Supreme Court of Appeal's ruling in Qwelane v South African Human Rights Commission ("Qwelane")[1] that the section 10(1) prohibition was vague, overbroad and, therefore, unjustifiably infringing the right to freedom of expression. [1] 2020 3 BCLR 334 (SCA).

show abstract

A Duty Perspective on the Hate Speech Prohibition in the Equality Act

Marais¹

2021

PER

View full text Add to dashboard Cite

show abstract

Hate Speech in the Equality Act Following the Constitutional Court Judgment in Qwelane v SAHRC

Marais

2023

PER

View full text Add to dashboard Cite

In its judgment in Qwelane v South African Human Rights Commission 2022 2 BCLR 129 (CC), the Constitutional Court declared section 10(1) of the Equality Act unconstitutional and invalid to the narrow extent that section 10(1)(a) refers to the intention to be "hurtful". The prohibition on hate speech passed constitutional muster in all other respects. In addition, the court purposively interpreted aspects of the application of section 10(1) so as to limit its impact on the right to freedom of expression. This contribution firstly welcomes the court's reliance on the transformative goals of the Constitution and the Equality Act as its primary framework in interpreting section 10(1). The severance of section 10(1)(a) and the conjunctive reading of sections 10(1)(b) and (c) ("be harmful or to incite harm" and ʺpromote or propagate hatred" respectively) also seem sensible considering the court's broad definition of "harm". The article further emphasises that the terms of section 10 call for a proper consideration of context. In this regard, the court rightly considered the extreme homophobia in the society addressed by Mr Qwelane, the particular vulnerability of the target group and the real threat of devastating imminent consequences to conclude that Qwelane's words were clearly intended to "incite harm" and "propagate hatred". Yet the court's view that the speaker's subjective intention is irrelevant in performing the requisite objective reasonableness assessment from the ambit of section 10(1) is arguably less judicious, as is the categorical exclusion of expression in private. Ultimately, the objective case-by-case reasonableness inquiry under section 10(1) should be whether a reasonable person in the speaker's position should have refrained from making the impugned harmful discriminatory utterances. This inquiry involves a determination of wrongfulness based on the constitutional duty not to discriminate unfairly. It invokes all the aspects of the Equality Act's definition of discrimination as well as all the elements of fairness analysis set out in section 14 of the Equality Act. Factors to be considered include the value of the particular expression, and the extent of the (potential) harm to individual members of a protected group and to society as a whole, as well as justification considerations such as the respondent's legitimate and bona fide exercise of the right to freedom of expression and to privacy.

show abstract

scite is a Brooklyn-based organization that helps researchers better discover and understand research articles through Smart Citations–citations that display the context of the citation and describe whether the article provides supporting or contrasting evidence. scite is used by students and researchers from around the world and is funded in part by the National Science Foundation and the National Institute on Drug Abuse of the National Institutes of Health.

Contact Info

hi@scite.ai

10624 S. Eastern Ave., Ste. A-614

Henderson, NV 89052, USA

Blog Terms and Conditions API Terms Privacy Policy Contact Cookie Preferences Do Not Sell or Share My Personal Information

Made with 💙 for researchers

Part of the Research Solutions Family.

The Constitutionality of the Prohibition of Hate Speech in terms of Section 10(1) of the Equality Act: A Reply to Botha and Govindjee

Cited by 2 publications

References 13 publications

A Duty Perspective on the Hate Speech Prohibition in the Equality Act

A Duty Perspective on the Hate Speech Prohibition in the Equality Act

Hate Speech in the Equality Act Following the Constitutional Court Judgment in Qwelane v SAHRC

Contact Info

Product

Resources

About