66].The Court held that a “purposive and contextual interpretation of s 10 of PEPUDA leads to the compelling conclusion that the legislature sought to provide protection as broadly as possibly” [para. The Court also mentioned the European Convention for the Protection of Human Rights and Fundamental Freedoms and how it confirmed the danger of hate speech.Accordingly, the Court acknowledged that “the State has a legitimate interest in promoting equality and prohibiting hate speech that impinges on equality” [para. The newspaper acknowledged that the article should not have been published but maintained that its publication should not be illegal, and testified that although the LGBTI community would find the article offensive it did represent a large proportion of the newspaper’s readership’s views.The Psychological Society submitted evidence about the discrimination and victimization of the LGBTI community in a largely hetero-normative society, and argued that Qwelane’s article would be seen as justifying that victimization.The Court – sitting as both the Equality and High Court – ruled that the article constituted hate speech because it contained statements that were hurtful, incited harm and propagated hatred and therefore infringed section 10 of PEPUDA. It referred to the US cases of.Accordingly, the Court held that section 10 of PEPUDA was unconstitutional and ordered the legislature to redraft the provision. 59]. The Constitutional Court will decide whether section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (PEPUDA) is unconstitutional and inconsistent with section 16 of the Constitution. "Nobody can intervene and prevent the provision of food," says the South African Human Rights Commission . However, the Court ordered that until a new provision was enacted, section 10 would read “(1) No person may advocate hatred that is based on race, ethnicity, gender, religion or sexual orientation and that constitutes incitement to cause harm. Join Maverick Citizen editor Mark Heywood in conversation with the Chairperson of the SA Human Rights Commission (SAHRC), Professor Bongani Majola and Adv Faranaaz Veriava of SECTION27 as they take a critical look at the past 25 years of the SAHRC and ask what role the Commission should now play in the face of SA's greatest ever human rights crisis,FREE WEBINAR SPONSORED BY THE SOUTH AFRICAN HUMAN RIGHTS COMMISSION. On Wednesday 22 July editor of Maverick Citizen Mark Heywood hosted a webinar to talk about the South African Human Rights Commission’s performance over the past 25 years.
In addition, the Court noted that the phrase “reasonably construed” amounts to a subjective opinion of a reasonable person, which is distinct from the Constitution’s objective standard [para. 69].
The obligation to protect the dignity of members of the LGBTI community is also a constitutional requirement and the Court held that, contrary to Qwelane’s argument, it was constitutionally permissible for PEPUDA to extend the prohibition of discrimination to discrimination on the grounds of sexual orientation.The Court focused on PEPUDA’s regulation of hate speech and the difference in language between the Constitution and PEPUDA: PEPUDA defines as hate speech conduct 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”, whereas the constitutional definition is “advocacy of hatred … that constitutes incitement to cause harm” [para. After a journalist had published a homophobic article, the South African Human Rights Commission argued that the article amounted to hate speech under the Promotion of Equality and Prevention of Unfair Discrimination Act. He also submitted that section 10(1) of PEPUDA was justifiable under section 36 of the Constitution, the general limitations clause.The Court noted that section 16(2) of the Constitution “explains what is not encompassed under freedom of expression, or what it does not extend it” and that it is known colloquially as the “hate speech qualification” – even though only one of the three qualifications in section 16(2) relates to hate speech [para. The SCA acknowledged the importance of protecting the rights to dignity and equality of individuals, but held that the Act’s prohibition of conduct which did not advocate hatred and incite harm went too far and was an infringement of the right to freedom of expression.On July, 20 2008, Jonathan Qwelane, a South African journalist, published a homophobic article in a South African tabloid, the Sunday Sun.
Global Freedom of Expression is an academic initiative and therefore, we encourage you to share and republish excerpts of our content so long as they are not used for commercial purposes and you respect the following policy:Attribution, copyright, and license information for media used by Global Freedom of Expression is available on our.The Supreme Court of Appeal (SCA) in South Africa held that a law prohibiting speech that is hurtful was an unjustifiable limitation of the right to freedom of expression.
4].Following the publication of the article the South African Human Rights Commission (the Commission) received 350 complaints about the article on the grounds that it constituted hate speech. The press ombud – which had also received a number of complaints about the article – found that the article violated the South African Press Code by “publishing denigratory references to people’s sexual orientation” and “implying that homosexuals are a lower breed than heterosexuals” [Footnote 4]. 2020-05-21 13:08. in News.
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