When there is a clash between rights, then equality and dignity must be the stars that guide us on the path to resolution, Tembeka Ngcukaitobi SC contends in his written argument in the upcoming Constitutional Court matter on the limits of free speech.
In 2008, Qwelane penned an opinion piece for the Sunday Sun with the headline, “Call me names, but gay is NOT okay.”
Qwelane wrote — among other offensive statements — “Homosexuals and their backers will call me names, printable and not, for stating as I have always done my serious reservations about their ‘lifestyle and sexual preferences’, but quite frankly I don’t give a damn: wrong is wrong!”
The article was accompanied by a cartoon of a man marrying a goat, with the caption, “When human rights meet animal rights.”
The South African Human Rights Commission (SAHRC) received an unprecedented 350 complaints about the article. The press ombudsman received a further 1 000 complaints.
In 2017, the SAHRC, represented by Ngcukaitobi, took on Qwelane in the Johannesburg high court and won. The core of the SAHRC’s case was that the article constituted hate speech as defined in the Equality Act.
Qwelane sought to have section 10 of the Act — which prohibits the publishing of hurtful statements that cause harm or spread hate — declared unconstitutional, because it infringes on the right to freedom of speech.
In 2019, the Supreme Court of Appeal agreed that section 10 should be struck down.
In his ruling, Judge Mohamed Navsa said the section “extends far beyond the limitations on freedom of expression provided for in the Constitution and in many respects is unclear”.
He deemed the section’s use of the word “hurtful” particularly vague, adding that all definitions of the word “are concerned with a person’s subjective emotions … in response to the actions of a third party. This does not equate with causing harm or incitement to harm.”
But in his heads of argument to the Constitutional Court, Ngcukaitobi contends that there is no basis for this criticism.
“Viewed from the equality and dignity lens, ‘hurtful’ is not merely concerned about the subjective emotions and feelings of a person in response to the actions of a third party — instead, it is concerned about injuries or impairments on a person’s dignity.”
Earlier in his submission, Ngcukaitobi states that the effect of inequality “is to strike at the core of everyone’s human worth as an individual; racism and sexism destroy the dignity of each of us. And if they do so, our collective being is fundamentally threatened.”
Pillay contends that the state “must not only avoid harming rights but is obliged to take positive steps towards the realisation of those rights. This duty extends to taking steps to eradicate racism and other harmful behaviour that is reminiscent of our abhorrent past.”
Advocate Mark Oppenheimer, who represents Qwelane, argues in his written submission that, to qualify as hate speech, the offending words must incite harm.
He contends that the homophobic article “does not amount to propaganda for war, nor is there an incitement to imminent violence against anyone”.
“While the article is strongly worded, evinces a strident position on homosexuality and is (or ought arguably to be) offensive to a broad range of society, it nonetheless does not advocate hatred against homosexuals,” he adds.
“Likewise, there is no incitement by the applicant for others to cause harm to homosexuals. The applicant expresses his view, but falls short of imploring or instigating others to take action, let alone harmful action, against homosexuals.”
But Pillay states that Oppenheimer’s assessment of what constitutes hate speech “cannot be an accurate reflection of the position under our Constitution”.
She contends that it must be enough that words were spoken that could reasonably be construed to demonstrate an intention to be hurtful or harmful and promote or propagate hatred.
There is no debate about the importance of free speech in a democracy, but when weighed against the purpose of section 10 — to protect the right to human dignity — “it is evident that it is outweighed”, Pillay adds.
She concludes that, even if section 10 limits the right to freedom of expression, it “is a reasonable and justifiable limitation”.