## Facts

- In July 2008, a South African newspaper published Jonathan Qwelane’s column “Call me names – but gay is NOT okay…,” containing homophobic statements that compared gay and lesbian people to animals and blamed them for social “degeneration.”
- The South African Human Rights Commission (SAHRC) received over 350 complaints and referred a hate-speech complaint to the Equality Court under section 10(1) of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (PEPUDA).
- Qwelane defended the complaint and challenged section 10(1) as vague and overbroad, alleging it unjustifiably limited freedom of expression under section 16 of the Constitution.
- A single judge (sitting as Equality Court and High Court) rejected the constitutional challenge, found the column constituted hate speech, and ordered Qwelane to publish a written apology (with costs).
- The Supreme Court of Appeal held section 10(1) unconstitutional and invalid, requiring confirmation by the Constitutional Court.
- The Constitutional Court heard confirmation and related appeal issues, including whether Qwelane’s statements met the hate-speech standard under the properly interpreted statute.

## Issues

1. Whether section 10(1) applies an objective “reasonable person” standard or a subjective standard.
2. Whether the elements in section 10(1)(a)–(c) operate conjunctively or disjunctively.
3. Whether section 10(1) is impermissibly vague or overbroad, particularly through inclusion of the term “hurtful.”
4. Whether section 10(1) unjustifiably limits freedom of expression under section 16, applying the constitutional limitations analysis.
5. What remedy is appropriate if any part of section 10(1) is unconstitutional.
6. Whether Qwelane’s column constitutes hate speech under section 10(1) as interpreted and remedied.

## Decision

- The Constitutional Court held section 10(1) unconstitutional only to the extent it included the word “hurtful” within the hate-speech definition.
- The Court applied an objective “reasonable person” test, assessed from the standpoint of a reasonable person in the position of the targeted group.
- The Court read the statutory elements conjunctively, requiring expression to be harmful (or incite harm) and to promote or propagate hatred on a prohibited ground.
- The Court suspended the declaration of invalidity for 24 months to allow Parliament to amend the statute and ordered an interim reading limiting section 10(1) to expression that is harmful and incites hatred.
- Applying the narrowed standard, the Court held Qwelane’s statements were harmful, incited harm, and propagated hatred against the LGBTIQ+ community, and thus constituted hate speech.
- The Court treated the limitation on Qwelane’s expression as justified under the Constitution’s general limitations clause and issued costs orders consistent with constitutional-litigation practice given the mixed outcome.

## Legal Principles

- Statutory hate-speech prohibitions must be interpreted consistently with constitutional free-expression guarantees and the Constitution’s express exclusion of “advocacy of hatred” that constitutes “incitement to cause harm.”
- “Hurtful” speech, standing alone, is too vague and broad to define prohibited hate speech because it risks capturing protected but offensive expression.
- Hate speech under section 10(1), as narrowed, requires an objective assessment and a conjunctive showing: harm (or incitement to harm) plus the promotion or propagation of hatred on a prohibited ground.
- Courts may craft interim remedies (including suspension and reading-in) to prevent a regulatory gap while preserving legislative space to cure constitutional defects.
- Even under a narrowed statute, expression that targets a vulnerable group in a manner that is harmful and incites harm while propagating hatred may be restricted as a justified limitation on expression.

## Conclusion

The Court partially confirmed invalidity of PEPUDA’s hate-speech provision by striking “hurtful,” imposed a constitutionally aligned interim reading requiring harmful expression that incites hatred, and nonetheless upheld the hate-speech finding against Qwelane’s homophobic column as a justified restriction on expression.


Qwelane v. S. Afr. Hum. Rts. Comm’n, [2021] ZACC 22 (S. Afr. 2021)