SETTLING THE HATE SPEECH QUESTION: JON QWELANE CASE IN COURT
The long standing hate speech case of the South African Human Rights Commission (SAHRC) vs Jon Qwelane finally began on 06 March 2017 in the Johannesburg High court and is due to run until 17 March 2017. The Freedom of Expression Institute is due to present argument this afternoon.
In defence of free expression, the FXI made its original application to be admitted as amicus curiae (friend of the court) in the SAHRC matter in November 2011 with an interest in assisting the court in its determination. FXI sought to present a principled framework for approaching the adjudication of hate speech matters, including relevant factors and considerations that should and could inform the determination and contravention of the applicable legislation, the establishment that particular speech constitutes hate speech and remedies that follow.
In the FXI’s submission focuses on the importance courts must place on the context in assessing the parameters of hate speech and the manner in which it may, in various circumstances, cause the same speech to be deemed either to be acceptable or to be hate speech. The FXI also made submissions on the consequences of this adjudication and the determination of the appropriate remedy for such matters.
Through an analysis of South African legislation, test cases on hate speech in South Africa and reference to international case law, FXI sought from the very beginning to highlight the dangers of a broad definition of hate speech and significantly its conflict with section 16(2)(c) of the Constitution.
In the matter brought by Qwelane, the FXI again in its role as amicus sought to make submissions in the constitutional application in the hopes that its objective position would be helpful to the court in determining the constitutionality of section 10 and 11 of PEPUDA.
The FXI submits that goes beyond the confines of what section 16(2) of the constitution has removed from constitutional protection. Apart from expanding the grounds from those listed on the section 16(2)(c) to those listed in section 9(3) of the Constitution section 10 of PEPUDA expands the definition of hate speech in the following ways;
- It expands the action that is prohibited from “advocacy of hatred” to include publication, propagation or simply, communication of words
- It expands the nature of the prohibited action from one that “constitutes incitement” to one that “could reasonably be construed to demonstrate a clear intention”
- It expands the consequence that the prohibited action from incitement to “cause harm” to an intention to “be hurtful”, “be harmful” or to incite harm”, or to “promote or propagate hatred”
This is going beyond the parameters of speech that is not protected by the Constitution and therefore limiting the right to free expression that is protected speech by section 16. This limitation further falls short of the qualifying criteria under section 36 of the Constitution and the FXI will demonstrate this to the court highlighting that such limitation is not reasonable NOR justifiable in a democratic society.
To date hate speech as a definition has been tested on a case-by-case basis and FXI is looking forward to a consolidated, narrow and unambiguous definition of hate speech that does not infringe upon the guaranteed right to free expression.
BACKGROUND:
The court is required to accommodate the consolidated arguments in regard to an Equality Court application that was brought by the SAHRC in 2009 after receiving several complaints from the public about statements made by Qwelane in his article “Call me names but gay is not okay” published in the Sunday Sun (20 July 2008).
The SAHRC submitted that the utterances by Qwelane constituted hate speech in terms of section 10(1) of the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA). The court will also have to make a determination in regard to a challenge brought by Qwelane on the constitutionality of hate speech law, particularly section 10 and section 11 of PEPUDA.
After a postponement in August 2016 due to Mr Qwelane’s ill health, the matter will be proceeding in the absence of Mr Qwelane (once more due to his ill health). The Freedom of Expression Institute (FXI) is pleased that the matter will finally be ventilated before the courts.
Of significance, the issue of hate speech has gained greater media attention largely due to controversial utterances on social media platforms such as Facebook and twitter. This has prompted the Department of Justice to move on the much talked about Prevention and Combating of Hate Crimes and Hate Speech Bill (Hate Crimes and Hate Speech Bill). The FXI hopes that the trial of Qwelane will provide an opportunity to review current hate speech legislation in the hopes that a precedent setting judgement would prevail in guiding proposed legislation.
While the prohibition on hate speech as per s16(2) of the Constitution must be accepted as limiting the parameters of what kind of speech is protected, the courts and the legislature are obliged to tread carefully and not limit speech that is protected by the Constitution. The FXI considers freedom of speech as an essential requirement for a robust and healthy democracy. The freedom not only to have ideas and opinions but to impart and defend those ideas and opinions and challenge the ideas and opinions of others is fundamental to the political process envisaged by the Constitution.
Statement issued by Sheniece Linderboom, Head of Law Clinic, Freedom of Expression Institute and Mpho Lehlongwa, Digital and Social Media Co-ordinator, Freedom of Expression Institute, 15 March 2017
