If ever there was a law that should be clear and easy to understand, it is the prohibition on hate speech in the Promotion of Equality and Prevention of Unfair Discrimination Act.
This is South Africa after all — a vibrant and noisy democracy, but one that continues to grapple with its legacy of more than three centuries of racism. We all need to know what we are allowed to say to each other.
Yet section 10 of the equality Act — the section that deals with the prohibition on hate speech — was “barely intelligible”, the Supreme Court of Appeal said last Friday, when it struck down the law as unconstitutional.
This has, for years, been one of the problems with the law on hate speech. The judgment quotes an academic article that the prohibition is so vague that “it is doubtful that the average person will be able to use the Act to guide his or her conduct clearly”.
The appeal court said there was another problem. The Constitution protects freedom of expression in section 16, but, in terms of section 16 (2), the right to freedom of expression does not extend to “advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm”.
The problem is that the equality Act goes way, way further than this in a number of respects. One of these is that it has more grounds on which to found a claim of hate speech — not only those listed in section 16 (2) such as race and religion, but also pregnancy, marital status, HIV status and others. It also went much broader than the requirement of incitement to cause harm — something was considered hate speech if it was intended to be hurtful.
“The result is … an extensive infringement of the right to freedom of expression,” said Judge Mahomed Navsa on behalf of a unanimous appeal court.
A prohibition on hate speech has always been about balancing rights: freedom of expression on the one side of the scale and equality and human dignity on the other.
In another recent case on hate speech — the Masuku case, which was about alleged anti-Semitic hate speech — the Constitutional Court heard argument that the appeal court was wrongly preoccupied with section 16 (2), using it as the standard by which to measure the hate speech provision in the equality Act. Instead, the starting point should be the rights to equality and dignity, it was argued.
The Constitutional Court had previously found that section 16 (2) is “definitional” — its job is to define the ambit of what is constitutionally protected speech — by excluding the advocacy of hatred based on the listed grounds.
But legislation could go further and could still limit the right to freedom of expression if it was constitutionally justifiable. The Constitution allows for rights to be limited if the limitation is “reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom”.
In this latest judgment, the appeal court found that limitation of freedom of expression was not justifiable, because of how unclear it is and because it goes too far.
“Before us, unsurprisingly, no counsel could point to any decision or regulation in any comparable democratic system which equates with, or even comes close to, the lower threshold contained in section 10 (1) even assuming it is intelligible,” Navsa said.
But in its reasoning, the appeal court has stuck to its focus on section 16 (2). Navsa appears to agree that section 16 (2) is definitional, yet continues to use it as the standard — the very conceptual route that was warned of during argument in Masuku.
It remains to be seen whether the Constitutional Court, yet to hand down judgment in the Masuku case, will agree with this approach.
The appeal court struck down the legislation, giving Parliament 18 months to fix it. But in the meantime the court has, through “reading in” some words and cutting out others, created a new section 10 (1) to apply until Parliament amends the Act. The new section requires that there must be incitement to cause harm and sticks to the grounds in section 16 (2) of the Constitution — adding one, the ground of sexual orientation — to ensure that people are not “left without protection”.
“I am not unmindful to the threat to life, limb and psyche that the members of the LGBTI [lesbian, gay, bisexual transgender and intersex] community face,” said Navsa.
The clarity is to be welcomed, but the interim order has also left a gap — other vulnerable groups are without protection. For 18 months, people may go ahead and spew hatred on the basis of someone’s HIV status for example.
The judgment does not explain (only saying it appears necessary)why the court chose not to do what is often done with unconstitutional legislation — to strike down the law but suspend that order for a specified period to give Parliament time to fix it.
The perfect balance is to be sought and found by Parliament. But it
is unclear why, in the meantime, an imperfect balance should weigh in favour of freedom of expression. Arguably in South Africa, it should weigh towards dignity and equality.
At this point it would be appropriate to remember what Jon Qwelane said.
In his column in the Sunday Sun newspaper, more than a decade ago, he lamented the “rapid degradation of values and traditions by the so-called liberal influences of nowadays”.
He went on to write: “You regularly see men kissing other men in public, walking holding hands and shamelessly flaunting what are misleadingly termed their ‘lifestyle’ and ‘sexual preferences’ … Why, only this month — you’d better believe this — a man, in a homosexual relationship with another man, gave birth to a child!”
Qwelane said he didn’t care that others said: “Wrong is wrong … At this rate, how soon before some idiot demands to ‘marry’ an animal, and argues that this Constitution ‘allows’ it?”
And if, for any reason, Parliament does not make its deadline, the appeal court ordered that the interim version becomes final and the gap will remain for as long as Parliament takes to fix it.
This is not a hypothetical scenario — recently the justice department went cap in hand to the Constitutional Court for more time to fix up another unconstitutional law and the highest court sent it packing.