A precedent-setting hate speech and harassment Judgment regarding privately disseminated hate speech was handed down by the Supreme Court of Appeal on 7 October 2026.The case concerns three racial statements made by a white business associate, Mr Ackerman, to another, Mr Wellman. The statements, made on different occasions, each involved Mr Ackerman using the k-word and referring to black people in a derogatory manner. The statements were also subsequently shared by Mr Wellman to his black business partner, Mr Amaning.
At the outset, the Supreme Court of Appeal accepted that the statements were made and constituted hate speech in terms of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (“the Act”). Whilst this may appear to be a ‘black-and-white’ case of hate speech, the Supreme Court of Appeal was tasked with engaging the Constitutional Court Judgment of Qwelane v South African Human Rights Commission - [2021] ZACC 22 and the Supreme Court of Appeal Judgment of Afriforum NPC v Nelson Mandela Foundation Trust and others - [2023] ZASCA 58 to answer the question whether the statements constituted hate speech even if they were made privately by one white person to another?
The Supreme Court of Appeal confirmed that the test for hate speech is whether communication is based on a prohibited ground, such as race, and whether there was an intention to incite harm and/or propagate hatred on that ground. The fact that the communication was directed to another white person does not change that. Moreover, the Court held that, in addition to the communication constituting hate speech, it also constituted an act of harassment towards Mr Wellman. The reason for this finding is that the communication was directed towards Mr Wellman based on his race, under the assumption that by virtue of his race, he would be familiar with racism against black South Africans.
In Qwelane, the Constitutional Court held that hate speech prohibitions should not extend to private communications, because it is unlikely that private conversations would have the effect of perpetuating stereotyping and unfair discrimination. Mr Ackerman relied on Qwelane in an attempt to argue that his communications with Mr Wellman constituted private communications, thus not meeting the requirements of hate speech. The Supreme Court of Appeal correctly asserted that the Constitutional Court in Qwelane accepted that the communication requirement for hate speech includes private communications, and any exclusion is limited to what is necessary to protect most private communications forming part of the inner sanctum of a person, which does not include the WhatsApp communications between business associates. The Supreme Court of Appeal also held that privacy cannot be abused and used to shield actions that are unrelated to protecting the right to privacy and dignity.
A similar argument was relied upon in Afriforum, in relation to private displays of the old flag, a landmark case which our Firm, on behalf of the Nelson Mandela Foundation, prevailed in. The Supreme Court of Appeal did not then rule on the issue but stated that it would be difficult to find that the private display of the old flag within one’s home, to which family members and children may be indoctrinated in racism and white supremacy, would not violate the Act.
The “repetition rule”, which says that the re-publisher of a defamatory statement will be treated as if he or she were the original author, was held by the Court to not apply to the repetition of hate speech in this matter. The Court’s view was that the Act already provided a complete legal framework for dealing with hate speech making it unnecessary to apply the repetition rule. Additionally, the Court found that Mr Wellman had no defamatory intention when communicating the statements to Mr Amaning and the republication did not attract liability on Mr Wellman.
The Judgment has provided much needed clarity on the relationship between the rights to equality, dignity, freedom of expression, and privacy, which has remained up for debate since Qwelane and Afriforum.