THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 686/2018
In the matter between:

JONATHAN DUBULA QWELANE
APPELLANT

and

SOUTH AFRICAN HUMAN RIGHTS COMMISSION
FIRST RESPONDENT
MINISTER OF JUSTICE & CORRECTIONAL SERVICES
SECOND RESPONDENT

and

FREEDOM OF EXPRESSION INSITUTE

FIRST AMICUS CURIAE
PSYCHOLOGICAL SOCIETY OF SOUTH AFRICA
SECOND AMICUS CURIAE

Neutral citation: Qwelane v SAHRC & others (686/2018) [2019] ZASCA 167 (29 November
2019)
Coram:
Navsa, Wallis, Dambuza and Van der Merwe JJA and Dolamo AJA
Heard:
19 August 2019
Delivered:
29 November 2019

Summary:
Constitutional validity of s 10 of the Promotion of Equality and Prevention of
Unfair Discrimination Act 4 of 2000 – overbreadth and vagueness – freedom of
expression and regulation of hate speech.

_____________________________________________________________________

ORDER
______________________________________________________________________
On appeal from: Gauteng Local Division of the High Court, Johannesburg (Moshidi J
sitting as court of first instance):

1 The appeal is upheld with costs.
2 The order of Moshidi J is set aside and substituted as follows:
‘(a.) Section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act
4 of 2000 (PEPUDA) is declared to be inconsistent with the provisions of s 16 of the
Constitution and is therefore unconstitutional and invalid.
(b.) The complaint by the South African Human Rights Commission against Mr Qwelane
in terms of s 10 of PEPUDA is dismissed.
(c.) Parliament is afforded a period of 18 (eighteen) months from 29 November 2019 to
remedy the defect.
(d.) During the aforesaid period s 10 of PEPUDA shall read as follows:
“10(1) No person may advocate hatred that is based on race, ethnicity, gender, religion
or sexual orientation and that constitutes incitement to cause harm.
10(2) Without prejudice to any remedies of a civil nature under this Act, the court may,
in accordance with section 21(2)(n) and where appropriate, refer any case dealing
with the advocacy of hatred that is based on race, ethnicity, gender, religion or
sexual orientation, and that constitutes incitement to cause harm, as contemplated
in subsection (1), to the Director of Public Prosecutions having jurisdiction for the
institution of criminal proceedings in terms of the common law or relevant
legislation.”
(e.) Section 10, in the form set out in para (d.), will fall away upon the coming into
operation of a legislative amendment to s 10, or its repeal by a statute dealing with the
regulation of hate speech. Should Parliament fail to effect such changes by the end of the
period referred to in (c.) above, s 10 in the form set out in (d.) will become final.
(f.) This order is referred to the Constitutional Court in terms of s 172(2)(a) of the
Constitution for confirmation of the order of constitutional invalidity.’

______________________________________________________________________

JUDGMENT
______________________________________________________________________
Navsa JA (Wallis, Dambuza and Van der Merwe JJA and Dolamo AJA concurring):

Introduction, the principal issue and the background
[1] ‘Hatred makes us all ugly’. This statement is uttered by a character in a novel by
contemporary author, Laurell K. Hamilton. 1
It can rightly be said that espousing and fostering hatred is the antithesis of our
constitutional order. The preamble to the Constitution sets out the basis of our social
compact. It records that we, as a nation, whilst recognising our painful past, ‘[b]elieve that
South Africa belongs to all who live in it and that we are united in our diversity’. We also
undertake to ‘[h]eal the divisions of our past and establish a society based on democratic
values, social justice and fundamental human rights’.

[2] On the other hand, freedom of expression is vital to - and indeed the lifeblood of -
a democratic society. Renowned author, George Orwell, who was preoccupied with
government encroachment on individual liberties, political correctness and ‘thought
police’, said the following:
‘If liberty means anything at all, it means the right to tell people what they do not want to hear.’2
Author, Mokokoma Mokhonoana is reported to have said about freedom of speech:
‘Freedom of speech gives us the right to offend others, whereas freedom of thought gives them
the choice as to whether or not to be offended.’3
Hate speech, in constitutional terms, as the discussion later in this judgment will show,
travels beyond mere offensiveness and is regulated in comparable constitutional
democracies. Our Constitution guarantees freedom of expression with a qualification
which, as will become apparent, is central to this appeal.

1 K. Hamilton Burnt Offerings (2002) 89.
2 Original preface to G Orwell Animal Farm; as published in I R Willison George Orwell: Some Materials
for a Bibliography (1953).
3 Mokokoma Mokhonoana good reads <https://www.goodreads.com/quotes/9560747-freedom-of-speech-
gives-us-the-right-to-offend-others> (accessed 25-09-2019).

[3] This appeal brings into focus the tension between hate speech and freedom of
expression and is concerned, principally, with the constitutionality of the hate speech
provisions of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of
2000 (PEPUDA). The details of the constitutional challenge are dealt with later. At this
point it is necessary to set out the factual background culminating in the present appeal
and the related legislative framework.

[4] On 20 July 2008, more than a decade ago, an admittedly offensive article directed
against the gay community was published in the Sunday Sun, a national tabloid
newspaper. It was penned by the appellant, Mr Jonathan Dubula Qwelane, a well-known
anti-apartheid activist and journalist during National Party rule in South Africa. A short
time after the article was written, Mr Qwelane was appointed South Africa’s High
Commissioner in Kampala, Uganda. His term of office ended in 2013. Mr Qwelane wrote
the article as a columnist for the Sunday Sun. The article was captioned ‘Call me names
– but gay is NOT okay. . .’. The offensive part appears hereunder:
‘The real problem, as I see it, is the rapid degradation of values and traditions by the so-called
liberal influences of nowadays; you regularly see men kissing other men in public, walking holding
hands and shamelessly flaunting what are misleadingly termed their “lifestyle” and “sexual
preferences”. There could be a few things I could take issue with Zimbabwean President Robert
Mugabe, but his unflinching and unapologetic stance over homosexuals is definitely not among
those. Why, only this month – you’d better believe this – a man, in a homosexual relationship with
another man, gave birth to a child! At least the so-called husband in that relationship hit the
jackpot, making me wonder what it is these people have against the natural order of things. And
by the way, please tell the Human Rights Commission that I totally refuse to withdraw or apologise
for my views. . . . 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! I do pray that some day a bunch of politicians
with their heads affixed firmly to their necks will muster the balls to rewrite the constitution of this
country, to excise those sections which give licence to men “marrying” other men, and ditto
women. Otherwise, at this rate, how soon before some idiot demands to “marry” an animal, and
argues that this constitution “allows” it?’

[5] A cartoon appeared on the same page as the column, depicting a man on his
knees alongside a goat, appearing in front of a priest to be married. The caption above
the man and the goat reads: ‘When human rights meet animal rights’. The text inside a
speech balloon attaching to the priest reads: ‘I now pronounce you, man and goat’. It is
common cause that the appellant was not the author or creator of the cartoon, nor was it
shown to him for approval before it was published.

[6] The publication was met with a huge public outcry, with expressions of outrage
and disgust. The first respondent, the South African Human Rights Commission (the
HRC), which, in terms of s 184 of the Constitution has, amongst others, the obligation to
promote the protection, development and attainment of human rights, received 350
complaints concerning the article and cartoon. The press ombud also received complaints
concerning the article and cartoon. He conducted an investigation against Mr Qwelane
and Media24, a public company that owns the Sunday Sun.

[7] A common refrain in the complaints lodged with the press ombud and the HRC
was that the article and the cartoon amounted to hate speech. It was contended that the
hate speech complained of discriminated against the gay community based on sexual
orientation and marital status. The article, so it was asserted, advocated hatred against a
particular group of people, namely, homosexuals, was intended to be hurtful, harmful,
incite harm, and promote or propagate hatred. It was said that the article infringed upon
various constitutionally guaranteed human rights and freedoms of homosexuals; and
sought to demoralise homosexuals by drawing a comparison between homosexuality and
bestiality, and by implication, dehumanising and ‘criminalising’ homosexuals.

[8] The press ombud, after considering the complaint against the Sunday Sun, held
that the newspaper was in breach of section 2.1 of the South African Press Code on three
counts.4 The press ombud considered that the newspaper had, to some degree, made
amends by publishing a poster proclaiming that Mr Qwelane had taken a beating, together

4 The three counts were:
(a) Publishing denigratory references to people’s sexual orientation in the column by Qwelane;
(b) Implying that homosexuals are a lower breed than heterosexuals; and
(c) In the cartoon accompanying the column, which was also disparaging of homosexuals.

with a flag on its front page to the same effect, as well as publishing a page of letters from
the public condemning the column. Consequently, the press ombud ruled that the Sunday
Sun should ‘complete the amends by publishing an appropriate apology’ in the form
provided by the Ombudsman’s office. The apology was duly published. The press and
media appeals panel refused the HRC leave to appeal.

[9] In terms of s 184(2) of the Constitution the HRC has additional powers and
functions as prescribed by national legislation. Section 20(1)(f) of PEPUDA gives the HRC
the power to institute proceedings in the equality court. Section 2(f) of PEPUDA provides
that one of its objects is ‘to provide remedies for victims of unfair discrimination, hate
speech and harassment and persons whose right to equality has been infringed’.

[10] The powers of the equality court, as set out in s 21 of PEPUDA, are extensive. The
equality court has, inter alia, the power to make declaratory orders,5 order the payment
of compensation,6 make orders concerning remedial steps to be taken by persons who
have engaged in unfair discriminatory practices7 and to direct that an unconditional
apology be rendered.8 The equality court also has the power to make an order ‘directing
the clerk of the equality court to submit the matter to the Director of Public Prosecutions
having jurisdiction for the possible institution of criminal proceedings in terms of the
common law or relevant legislation’.9

[11] The HRC instituted proceedings against Media24 and Mr Qwelane in the equality
court, alleging that the article contravened s 10(1) of PEPUDA, the provisions of which
read as follows:
‘Subject to the proviso in section 12, no person may publish, propagate, advocate or communicate
words based on one or more of the prohibited grounds, against any person, that could reasonably
be construed to demonstrate a clear intention to –
(a) be hurtful;
(b) be harmful or to incite harm;

5 Section 21(2)(b).
6 Section 21(2)(d) and (e).
7 Section 21(2)(f)-(i).
8 Section 21(2)(j).
9 Section 21(2)(n).

(c) promote or propagate hatred.’10
Section 10(2) of PEPUDA provides as follows:
‘Without prejudice to any remedies of a civil nature under this Act, the court may, in accordance
with section 21(2)(n) and where appropriate, refer any case dealing with the publication,
advocacy, propagation or communication of hate speech as contemplated in subsection (1), to
the Director of Public Prosecutions having jurisdiction for the institution of criminal proceedings in
terms of the common law or relevant legislation.’

[12] The relevant part of s 1 of PEPUDA, which contains a definition of ‘prohibited
grounds’, and the related provisions of s 12 are set out hereafter:
‘1(1) In this Act, unless the context provides otherwise—
. . . .
“prohibited grounds” are—
(a) race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation,
age, disability, religion, conscience, belief, culture, language, birth and HIV/AIDS status; or
(b) any other ground where discrimination based on that other ground—
(i) causes or perpetuates systemic disadvantage;
(ii) undermines human dignity; or
(iii) adversely affects the equal enjoyment of a person’s rights and freedoms in a serious manner
that is comparable to discrimination on a ground in paragraph (a).
12. No person may—
(a) disseminate or broadcast any information;
(b) publish or display any advertisement or notice,
that could reasonably be construed or reasonably be understood to demonstrate a clear intention
to unfairly discriminate against any person: Provided that bona fide engagement in artistic
creativity, academic and scientific inquiry, fair and accurate reporting in the public interest or
publication of any information, advertisement or notice in accordance with section 16 of the
Constitution, is not precluded by this section.’11

[13] Both Mr Qwelane and Media24 subsequently launched an application in the high
court seeking to have s 10(1), read with ss 12 and 1, and s 11 of PEPUDA declared
unconstitutional, on the basis that it was inconsistent with the provisions of s 16 of the

10 (My emphasis.)
11 (My emphasis.)

Constitution. Section 11 of PEPUDA states that ‘no person may subject any person to
harassment’. The HRC thereafter withdrew the proceedings in the equality court against
Media24, after a settlement was reached, in terms of which Media24 withdrew its
application and an arrangement was arrived at in respect of costs. The equality court
proceedings against Mr Qwelane continued.

[14] The proceedings in the high court and in the equality court were consolidated.12
Moshidi J, sitting both as the equality court and the high court, adjudicated the complaint
by the HRC and the application by Mr Qwelane to have the provisions of PEPUDA
referred to above declared unconstitutional. Because of the constitutional challenge, the
second respondent, the Minister of Justice and Correctional Services, was cited and
participated in the proceedings. The Freedom of Expression Institute, which has as its
object the promotion of efforts to protect the public’s right to receive and impart
information ideas and opinions; to defend freedom of expression; to oppose censorship;
and to fight for the right of access to information, participated as an amicus, as did the
Psychological Society of South Africa (the Society). More about the Society later.

[15] In relation to the complaint by the HRC, extensive evidence was led before
Moshidi J. The head of legal services of the HRC, Mr Pandelis Gregoriou, testified and
explained that, even before the offensive publication appeared, the HRC had received
numerous complaints by members of the LGBTI community in relation to how they were
treated by persons who discriminated against them based on their sexual orientation.
There had been many complaints by an organisation called People Opposing Women
Abuse (POWA). POWA tended to victims from previously disadvantaged communities.
That organisation provided details about horrific acts of violence perpetrated against black
lesbians and transgender individuals. Mr Gregoriou’s evidence in the equality court, that
it was difficult to have complaints by members of the LGBTI community investigated by
the South African Police Service (the SAPS), and that certain police officers demonstrated

12 See Minister of Environmental Affairs and Tourism v George [2006] ZASCA 57; 2007 (3) SA 62 (SCA)
para 19; Manong & Associates (Pty) Ltd v Department of Roads and Transport, Eastern Cape & another
(No 1) [2009] ZASCA 59; 2009 (6) SA 574 (SCA) paras 30-31; Manong & Associates (Pty) Ltd v Department
of Roads and Transport, Eastern Cape & others (No 2) [2009] ZASCA 50; 2009 (6) SA 589 (SCA) paras
54 and 57 and De Lange v Presiding Bishop of the Methodist Church of Southern Africa for the Time Being
& another [2015] ZACC 35; 2016 (2) SA 1 (CC) paras 55-58.

an anti-LGBTI disposition, was uncontested. He testified that members of the LGBTI
community complained of being denied access to essential services and were repeatedly
exposed to abuse by way of expletives and hostile speech. In his view, Mr Qwelane’s
alignment with the sentiments of Mr Robert Mugabe – that homosexuals were worse than
animals – was particularly offensive. He also considered it an aggravation that Mr
Qwelane was unrepentant about his bigotry and strident in relation thereto.

[16] The HRC also led the evidence of Ms Nonhlanhla Mokoena, the executive director
of POWA, which provides support, counselling and shelter to female survivors of domestic
violence in previously disadvantages communities, particularly to lesbians. Ms Mokoena
echoed those parts of the evidence of Mr Gregoriou about how members of the LGBTI
community were treated. She reported an instance where police officers refused to open
a case of rape because the complainant was a lesbian and, according to the officers,
‘boys cannot be raped’. In this regard a number of complaints were lodged with the HRC.
The incidents testified to by Ms Mokoena were horrific. So, for example, a former woman’s
national soccer team member had been gang-raped and brutally murdered by five men.
Another incident involved the stoning to death of a lesbian in KwaZulu-Natal. Yet another
involved the rape and murder of both a member of a support group for women living with
HIV/AIDS and her 2-year old daughter.

[17] A further witness called by the HRC, a black lesbian, testified about how she was
barred from the use of toilet facilities, had been attacked verbally and physically because
of her sexual orientation and had lost her job because of it. She testified about her reaction
to the offensive article by Mr Qwelane. She considered it to be an attack on her dignity
and her right to equality. She took the view that the law did not protect people like her and
had a sense of ‘having passed on’.

[18] Mr Ben Viljoen, a deputy editor of the Sunday Sun at the time of the publishing of
the article, testified in support of Mr Qwelane. At the time of publication, Mr Viljoen was
the production editor, which meant that he drove the whole process before publication. It
involved making certain that everybody submitted content on time and that it was
produced in line with the style of the newspaper. Mr Qwelane’s article fell under the

‘conversation pages’. That part of the newspaper, was intended to deal with current
events and promote debate about the issues raised. The success of the page could be
measured by responses, positive or negative. Articles like Mr Qwelane’s were submitted
directly to the publisher for his or her ultimate authority to publish. Occasionally, the
publisher would discuss the content. If he or she was satisfied with the content, grammar
would be corrected and it would then be ready for publication. In the case of the Sunday
Sun, the publisher took on the role of the editor. Mr Qwelane did not provide the headline
to his article. A copy sub-editor read the article and then put a headline into the space
above it. Headline writing for a tabloid newspaper such as the Sunday Sun is a very
specific exercise. Headlines are required to be ‘punchy’. Mr Qwelane had no say in the
headline. As stated above, Mr Qwelane had no say in the cartoon either, and would not
have seen it prior to publication. Cartoons are not always related to the content that they
neighbour. A contributor, like Mr Qwelane, would not necessarily expect a cartoon to
accompany the column or their contribution.

[19] Mr Viljoen testified that a week after the article appeared a headline banner for the
newspaper indicated that Mr Qwelane had taken a beating. This related to a report in the
newspaper that Mr Qwelane’s article had caused an uproar. The Sunday Sun also
published a full page of complaints. This was the only time that this had occurred. The
complainants were adamant that Mr Qwelane was guilty of hate speech and called for
action to be taken against him.

[20] It is uncontested that the readership of the Sunday Sun is 99 per cent black. In Mr
Viljoen’s view, the complaints did not emanate from the Sunday Sun’s regular
subscribers. It does not appear that the Sunday Sun took any disciplinary action against
Mr Qwelane. Mr Viljoen was not aware of an unqualified apology by the Sunday Sun. An
apology by the publisher, Mr Du Plessis, was diluted. He stated that no wrong had been
committed but he apologised anyway.

[21] Mr Viljoen’s response to a question about whether he had found the article
offensive was that he thought it was ‘reprehensible’. He took the view that the article
should not have been published, but was adamant that the drivel it contained should not

be considered illegal. Under cross-examination, Mr Viljoen agreed that members of the
LGBTI community would find the article offensive but testified that Mr Qwelane’s views
reflected those of a large proportion of the Sunday Sun’s readers.

[22] The Society adduced the evidence of Professor Nel, a research professor at the
University of South Africa. Professor Nel is a former president of the Society. He testified
with reference to articles he had co-authored and research that had been conducted. The
first article he referred to is entitled ‘Exploring Homophobic Victimisation in Gauteng,
South Africa: Issues, Impacts and Responses’.13 A report he compiled, along with others,
is entitled ‘Factors Affecting Vulnerability to depression among gay men and lesbian
women in Gauteng, South Africa’.14

[23] The Society’s membership comprises eminent psychologists who have made
valuable contributions in the field of psychology, both nationally and internationally. It has
approximately 2000 members. At the time that he testified, Professor Nel was a practising
clinical psychologist. He had been involved for a considerable period of time in leading
psychological services in the SAPS. It was within the Police Service that Professor Nel’s
activism around human rights and LGBTI related work started unfolding. He is a gay man
himself, and testified also of his own experience of exclusion and the discrimination that
he faced.

[24] Professor Nel was adamant that the plight of the LGBTI community was to be seen
in light of the fact that they constitute sexual and gender minorities and that they are a
vulnerable grouping within our largely hetero-normative society. The LGBTI community is
often considered abnormal and are not only discriminated against, but also victimised. He
compared the position of the LGBTI community with groupings who faced the brunt of
racism and sexism.

13 J A Nel & M Judge ‘Exploring homophobic victimisation in Gauteng, South Africa: Issues, impacts and
responses’ 21 (2008) 1 Acta Criminologica 19-36.
14 L A Polders, J A Nel, P Kruger & H L Wells ‘Factors affecting vulnerability to depression among gay men
and lesbian women in Gauteng, South Africa’ (2008) 38 South African Journal of Psychology 673-687.

[25] In relation to hate crimes, Professor Nel testified about his involvement in dealing
with the phenomenon. He described his work with the Crimes Working Group, which is a
national network of civil society organisations that endeavours to address the vulnerability
of a range of protected groupings, in accordance with the Constitution and within the
applicable legislative framework. Professor Nel also leads a psychotherapy support group
for gay men and has published in that area of work.

[26] Professor Nel testified that feelings of shame, guilt, internalised conflict and self-
suppression within the LGBTI community emanate from being on the margins of society
and being a minority. The context for the LGBTI community is characterised by fears of
exclusion, rejection, being shamed and being deprived of fundamental rights. It is that
psychological trauma to which they are exposed.

[27] In his evidence, Professor Nel described the fear related to gender non-conformity.
He testified that some gender non-conforming people are unable to walk to the shops in
the communities where they live. They are not free to enter public spaces after dark or
make use of public transport. People opposed to the LGBTI community are often led to
violent actions. They regularly want to ‘correct’ what they consider to be aberrant
behaviour. This attitude has an emotional impact and on occasion leads to physical harm
being inflicted. Hate speech, according to Professor Nel, is what leads to such behaviour
and has a severe impact on members of the LGBTI community.

[28] Professor Nel testified extensively about the vast body of international literature
that reflects on the vulnerability to depression of lesbian and gay people. This comes
about because of the sustained taunting and hate-victimisation that lesbians and gays
are subjected to. They are subjected to verbal and physical abuse.

[29] In his testimony, Professor Nel described the pronounced vulnerability of the
LGBTI community in townships and informal settlements. According to him, research
shows that it is where the highest degree of verbal victimisation is experienced. He took
the view that Mr Qwelane’s article sought to exploit that situation. Topically, Professor Nel
compared the vulnerability of the LGBTI community to the vulnerability of foreign nationals

in a xenophobic atmosphere. Research showed a high degree of hate-speech
victimisation in South Africa.

[30] Professor Nel testified about members of the LGBTI community being subjected
to secondary victimisation, for example, when they present complaints at police stations.
A high percentage of the LGBTI community took the view that the criminal justice system
did not serve them which often resulted in a failure to report crimes to the police. In
Professor Nel’s view, the connection between hate speech and hate crime was
undeniable. In this regard, he referred to Nazi Germany and ethnic strife in Rwanda. In
Professor Nel’s view, words matter. An utterance such as ‘we will show you that you are
a woman’ is an example of verbal victimisation which later translated into physical
assaults.

[31] Turning to deal specifically with Mr Qwelane’s article, Professor Nel stated that it
had created shock waves within the LGBTI community and was met with great
indignation. Complaints were speedily laid with the press ombudsman, the HRC and the
Commission for Gender Equality. In his view, the greatest impact of the article was on the
human dignity of members of the community. In relation to the reference to former
Zimbabwean President, Robert Mugabe, Professor Nel emphasised that it should be
borne in mind that President Mugabe had referred to homosexuals as being lower than
pigs and dogs and that this statement had been made a few months before Mr Qwelane’s
article was published. It was degrading and dehumanising.

[32] Significantly, Professor Nel said that the teachings of churches were hurtful,
particularly when they tied in with the hurtful stereotype that same-sex orientation equated
with bestiality. The sinfulness of same-sex relationships was repeatedly referred to. The
threat of undoing of constitutional protection for vulnerable groups was directed at the
LGBTI community, which affected their psyche. The article, even without the cartoon, was
offensive. The statements in the article, so Professor Nel said, have to be seen against
Mr Qwelane’s status as a celebrity with struggle credentials. In his view, what one could
take from the article is that homosexuality is wrong and sinful and that it justifies
victimisation, whether in speech or in action. In Professor Nel’s view, the outrage that the

article caused is in itself an indication of the hurt and harm caused to the LGBTI
community. Mr Qwelane was someone with stature who contrived a call to conscience,
seeking others to follow his convictions. In relation to an apology being demanded,
Professor Nel was emphatic that the value of an apology should never be underestimated.
It led to healing.

[33] What is set out above is the essence of the evidence adduced in the court below
and it is against that evidence that the complaint by the HRC was adjudicated. No
evidence was presented to show a link between the article and any subsequent physical
or verbal attacks on members of the LGBTI community. Moshidi J upheld the complaint
against Mr Qwelane. The court declared that the offending statements against
homosexuals were hurtful, incited harm and propagated hatred; and that they thus
amounted to hate speech, as envisaged in s 10(1) of PEPUDA.

[34] Moshidi J dismissed Mr Qwelane’s application to have the impugned sections of
PEPUDA declared unconstitutional. He rejected the contention on behalf of Mr Qwelane
that the provisions of s 10(1) of PEPUDA were vague. Having regard to the ‘first words’
of s 10(1), it was said that they could be clearly understood as postulating an objective
test. The learned judge held that the proviso to s 12 was not unclear and that, in any
event, no facts were placed before him in order for Mr Qwelane to claim the benefit
thereof. Moshidi J held that the provisions of s 10(1)(a)-(c) had to be read conjunctively
and, if that was done, the section would be consonant with s 16 of the Constitution. He
rejected the overbreadth challenge on behalf of Mr Qwelane. The full range of the orders
made, both in relation to the complaint and the opposition by Mr Qwelane, are as follows:
‘(i) The complaint by the Commission as contained in the referral against the applicant (Mr
Qwelane) succeeds with costs.
(ii) The offending statements (made against the LGBTI community) are declared to be hurtful;
harmful, incite harm and propagate hatred; and amount to hate speech as envisaged in section
10 of the Promotion of Equality and Prevention of Unfair Discrimination Act No 4 of 2000.
(iii) The applicant (Mr Qwelane) is ordered to tender to the LGBTI community (in particular the
homosexuals) an unconditional written apology within thirty (30) days of this order, or within such
other period as the parties may agree pursuant to negotiation and settlement of the contents of
such apology. The apology shall be published in one edition of a national Sunday newspaper of

the same or equal circulation as the Sunday Sun newspaper, in order to receive the same publicity
as the offending statements. Thereafter proof of the publication of such written apology shall be
furnished to this Court immediately.
(iv) The Registrar of this Court is ordered to have the proceedings of this matter transcribed
immediately and forwarded, with a copy of the revised judgment, to the Commissioner of the
South African Police Service for further investigation as envisaged in section 21(4) of the
Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (the Equality Act).
(v) The constitutional challenge of the applicant is dismissed with costs.
(vi) The applicant (Mr Qwelane) is ordered to pay the costs of these proceedings. Such costs shall
include the costs occasioned by the postponement of the matter previously, and the costs of
senior counsel.’
It is against these orders that the present appeal, with the leave of Moshidi J, is directed.

The constitutional challenge
[35] As indicated at the commencement of this judgment, the starting point in
determining this appeal is the constitutionality of the impugned sections of PEPUDA. It is
under those provisions, more particularly s 10(1) read with ss 1 and 12 of PEPUDA, that
the complaint against Mr Qwelane was brought and in relation to which the findings by
Moshidi J, referred to in the preceding paragraphs, were made. Section 10(1) of PEPUDA
has properly been described as the primary vehicle in PEPUDA for regulating hate
speech.15 A decision in relation to the constitutionality of s 10(1) is foundational to the
outcome of this appeal.

[36] Before us it was contended that the provisions of s 10(1) of PEPUDA were
unconstitutional because they unjustifiably limit the constitutionally guaranteed right to
freedom of expression in s 16 of the Constitution, which reads as follows:
‘(1) Everyone has the right to freedom of expression, which includes -
(a) freedom of the press and other media;
(b) freedom to receive or impart information or ideas;
(c) freedom of artistic creativity; and
(d) academic freedom and freedom of scientific research.

15 S Teichner ‘The Hate Speech Provisions of the Promotion of Equality and Prevention of Unfair
Discrimination Act 4 of 2000: The Good, The Bad and The Ugly’ (2003) 19 SAJHR 349 at 353, 372.

(2) The right in subsection (1) does not extend to -
(a) propaganda for war;
(b) incitement of imminent violence; or
(c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes
incitement to cause harm.’
In short, it was submitted that the provisions of PEPUDA in terms of which Mr Qwelane
was charged in the equality court, in limiting freedom of expression, impermissibly
extended far beyond the speech that is excluded from protection by s 16(2) of the
Constitution. It was also contended that the relevant provisions were overbroad and
vague and accordingly did not pass constitutional muster.

[37] Section 16(2) of the Constitution is a provision that explains what is not
encompassed under freedom of expression, or what it does not extend to. It is known,
colloquially, as the ‘hate speech qualification’, although only one of its three components,
namely, s 16(2)(c), deals with hate speech.16 As pointed out by Currie and De Waal, legal
restrictions of speech falling within one of the three listed categories are not limitations of
freedom of expression and will require no justification. The manner in which hate speech
regulation is to be tested for constitutionality is best illustrated by a decision of the
Constitutional Court, a detailed discussion of which follows hereafter. It is a decision that
is directly relevant and generally instructive.

The decision in Islamic Unity Convention
[38] In Islamic Unity Convention v Independent Broadcasting Authority & others17 the
Constitutional Court was called upon to adjudicate whether clause 2(a) of the Code of
Conduct for Broadcasting Services (the Code), contained in Schedule 1 to the
Independent Broadcasting Authority Act 153 of 1993, passed constitutional muster.
Clause 2(a) of the Code provided:
‘Broadcasting licensees shall . . . not broadcast any material which is indecent or obscene or
offensive to public morals or offensive to the religious convictions or feelings of any section of a

16 For a useful discussion, see I Currie & J De Waal The Bill of Rights Handbook 6 ed (2013) at 354-361.
17 Islamic Unity Convention v Independent Broadcasting Authority & others [2002] ZACC 3; 2002 (4) SA
294 (CC).

population or likely to prejudice the safety of the State or the public order or relations between
sections of the population.’

[39] The South African Jewish Board of Deputies had lodged a complaint with the
Independent Broadcasting Authority about a radio programme broadcast by the applicant
in that case. An individual being interviewed by the radio station, amongst other things,
questioned the legitimacy of the State of Israel and Zionism as a political ideology,
asserted that Jewish people had not been gassed in concentration camps during the
Second World War but had, instead, died of infectious diseases, particularly typhus, and
that only a million Jews had died. In response to the complaint, the applicant applied for
an order declaring s 2(a) of the Code unconstitutional and therefore invalid, because of
its inconsistency with the right to freedom of expression in s 16 of the Constitution.

[40] The Constitutional Court considered the applicant’s contention, that clause 2(a)
was unconstitutional, largely on the grounds of vagueness and overbreadth. In the final
analysis the challenge was, however, restricted to that part of the clause which prohibited
material that is ‘likely to prejudice relations between sections of the population’. The
Constitutional Court proceeded to consider whether this was a constitutionally permissible
limitation of the right to freedom of expression.

[41] In addressing that question, the Constitutional Court referred to the importance
and relevance of freedom of expression in a democratic state. The court referred to two
of its prior decisions. First, South African National Defence Union v Minister of Defence
& another18 where, at para 8, the following was stated:
‘[F]reedom of expression is one of a “web of mutually supporting rights” in the Constitution. It is
closely related to freedom of religion, belief and opinion (s 15), the right to dignity (s 10), as well
as the right to freedom of association (s 18), the right to vote and to stand for public office (s 19),
and the right to assembly (s 17) . . . The rights implicitly recognise the importance, both for a
democratic society and for individuals personally, of the ability to form and express opinions,
whether individually or collectively, even where those views are controversial.’
And at para 7, where it pointed out that freedom of expression:

18 South African National Defence Union v Minister of Defence & another 1999 (4) SA 469 (CC).

‘. . . lies at the heart of a democracy. It is valuable for many reasons, including its instrumental
function as a guarantor of democracy, its implicit recognition and protection of the moral agency
of individuals in our society and its facilitation of the search for truth by individuals and society
generally. The Constitution recognises that individuals in our society need to be able to hear, form
and express opinions and views freely on a wide range of matters.’ (Citations omitted.)
Second, it referred to what was said in S v Mamabolo (E TV and others intervening):19
‘Freedom of expression, especially when gauged in conjunction with its accompanying
fundamental freedoms, is of the utmost importance in the kind of open and democratic society
the Constitution has set as our aspirational norm. Having regard to our recent past of thought
control, censorship and enforced conformity to governmental theories, freedom of expression –
the free and open exchange of ideas – is no less important than it is in the United States of
America. It could actually be contended with much force that the public interest in the open
market-place of ideas is all the more important to us in this country because our democracy is not
yet firmly established and must feel its way. Therefore we should be particularly astute to outlaw
any form of thought control, however respectably dressed.’

[42] The Constitutional Court noted that South Africa was not alone in its recognition of
the right to freedom of expression and its importance to a democratic society. It recorded
that the right is protected in almost every international human rights instrument. In this
regard it referred to what the European Court of Human Rights said in Handyside v The
United Kingdom:20
‘[the right to freedom of expression is] applicable not only to “information” or “ideas” that are
favourably received or regarded as inoffensive or as a matter of indifference, but also to those
that offend, shock or disturb . . . . Such are the demands of that pluralism, tolerance and
broadmindedness without which there is no “democratic society”.’

[43] The very next two paragraphs deal with necessary limitations to freedom of
expression:

19 S v Mamabolo (E TV and others intervening) 2001 (3) SA 409 (CC), para 37.
20 Handyside v The United Kingdom (1976) 1 EHRR 737 at 754. See also United States v Schwimmer 279
US 644 (1929) where Holmes J stated:
‘If there is any principle of the Constitution that more imperatively calls for attachment than any other, it is
the principle of free thought – not free thought for those who agree with us but freedom for the thought that
we hate.’

‘The pluralism and broadmindedness that is central to an open and democratic society can,
however, be undermined by speech which seriously threatens democratic pluralism itself. Section
1 of the Constitution declares that South Africa is founded on the values of “human dignity, the
achievement of equality and the advancement of human rights and freedoms”. Thus, open and
democratic societies permit reasonable proscription of activities and expressions that pose a real
and substantial threat to such values and to the constitutional order itself. Many societies also
accept limits on free speech in order to protect the fairness of trials. Speech of an inflammatory
or unduly abusive kind may be restricted so as to guarantee free and fair elections in a tranquil
atmosphere.
There is thus recognition of the potential that expression has to impair the exercise and enjoyment
of other important rights, such as the right to dignity, as well as other state interests, such as the
pursuit of national unity and reconciliation. The right is accordingly not absolute; it is, like other
rights, subject to limitation under s 36(1) of the Constitution. Determining its parameters in any
given case is therefore important, particularly where its exercise might intersect with other
interests. Thus in Mamabolo, the following was said in the context of the hierarchical relationship
between the rights to dignity and freedom of expression:
“With us the right to freedom of expression cannot be said automatically to trump the right to
human dignity. The right to dignity is at least as worthy of protection as the right to freedom of
expression. How these two rights are to be balanced, in principle and in any particular set of
circumstances, is not a question that can or should be addressed here. What is clear though and
must be stated, is that freedom of expression does not enjoy superior status in our law.”’21

[44] The Constitutional Court analysed the two parts of s 16 of the Constitution and
said the following:
‘Subsection (1) is concerned with expression that is protected under the Constitution. It is clear
that any limitation of this category of expression must satisfy the requirements of the limitations
clause to be constitutionally valid. Subsection (2) deals with expression that is specifically
excluded from the protection of the right.
How is s 16(2) to be interpreted? The words “(t)he right in subsection (1) does not extend to . . .”
imply that the categories of expression enumerated in s 16(2) are not to be regarded as
constitutionally protected speech. Section 16(2) therefore defines the boundaries beyond which
the right to freedom of expression does not extend. In that sense, the subsection is definitional.
Implicit in its provisions is an acknowledgement that certain expression does not deserve

21 Paras 29 and 30. (My emphasis; footnotes omitted.)

constitutional protection because, among other things, it has the potential to impinge adversely
on the dignity of others and cause harm. Our Constitution is founded on the principles of dignity,
equal worth and freedom, and these objectives should be given effect to.’22

[45] The following dicta in paras 33 and 34 are particularly important:
‘Section 16(2)(c) is directed at what is commonly referred to as hate speech. What is not protected
by the Constitution is expression or speech that amounts to “advocacy of hatred” that is based on
one or other of the listed grounds, namely, race, ethnicity, gender or religion and which amounts
to “incitement to cause harm”. There is no doubt that the state has a particular interest in
regulating this type of expression because of the harm it may pose to the constitutionally
mandated objective of building the non-racial and non-sexist society based on human dignity and
the achievement of equality. There is accordingly no bar to the enactment of legislation that
prohibits such expression. Any regulation of expression that falls within the categories
enumerated in s 16(2) would not be a limitation of the right in s 16.
Where the State extends the scope of regulation beyond expression envisaged in s 16(2), it
encroaches on the terrain of protected expression and can do so only if such regulation meets
the justification criteria in s 36(1) of the Constitution.’

[46] In dealing with the regulation of hate speech by the respondent in Islamic Unity, by
way of clause 2(a) of the Code, the Constitutional Court took into account that the
respondent’s responsibility for the regulation of broadcasting in South Africa was founded
in s 192 of the Constitution.23 However, in fulfilling that function, the broadcasting authority
was bound to respect the provisions of the Bill of Rights. At para 37, the Court said the
following:
‘In the context of broadcasting, freedom of expression will have special relevance. It is in the
public interest that people be free to speak their minds openly and robustly, and, in turn, to receive
information, views and ideas. It is also in the public interest that reasonable limitations be applied,
provided that they are consistent with the Constitution.’

22 Paras 31 and 32.
23 Section 192 of the Constitution provides:
‘National legislation must establish an independent authority to regulate broadcasting in the public interest,
and to ensure fairness and a diversity of views broadly representing South African society.’

[47] As in the present case, clause 2(a) of the Code in Islamic Unity, as stated above,
was attacked on the basis of vagueness and overbreadth. The Constitutional Court held
that the prohibition in that case, self-evidently limited the right to freedom of expression
as provided for in s 16(1) of the Constitution.24 It found that the phrase ‘section of the
population’ in the relevant part of clause 2(a) of the Code was less specific than ‘race,
ethnicity, gender or religion’ as spelt out in s 16(2)(c) and, therefore, travelled beyond the
enumerated categories of unprotected expression. Furthermore, it did not require that
what was prohibited should amount to advocacy of hatred, ‘least of all hatred based on
race, ethnicity, gender or religion’. It also did not require that it should have any ‘potential
to cause harm’.25 The Constitutional Court pointed out that whilst each of the forms of
expression listed in s 16(2) of the Constitution would be ‘likely to prejudice relations
between sections of the population’, as set out in the relevant part of the Code, the
converse was not true. Not every expression of speech that is likely to prejudice relations
between sections of the population would be ‘propaganda for war’, or ‘incitement of
imminent violence’ or ‘advocacy of hatred’ which also constitutes ‘incitement to cause
harm’. The Constitutional Court noted that there might well be instances where the
prohibition there in question coincided with what is excluded from the protection of the
right. The Constitutional Court posed the question to be addressed in that case: ‘whether
the clause, in prohibiting that which is not excluded from the protection of s 16(1), does
so in a manner which is constitutionally impermissible’. To answer that question, it turned
its attention to the justification enquiry in terms of s 36(1) of the Constitution.26

[48] The court noted that no ground for justification of the limitation to the right to
freedom of expression, in terms of s 36(1) of the Constitution, was provided by either the
respondent in that case or the Minister of Communications. On behalf of the board of the
respondent it was submitted that the relevant part of clause 2(a) should be interpreted to

24 Para 35.
25 Para 35.
26 In para 38 of Islamic Unity, the court said the following:
‘Section 36(1) of the Constitution sets out the criteria for the limitation of rights. The limitation must be by
means of a law of general application and determining what is fair and reasonable is an exercise in
proportionality, involving the weighing up of various factors in a balancing exercise to determine whether or
not the limitation is reasonable and justifiable in an open and democratic society founded on human dignity,
equality and freedom.’

mean that only broadcasts which would probably cause material damage to relations
between readily identifiable sections of the population were hit by the proscription.
‘Sections of the population’ should be understood to refer to such sections as were
identifiable on the basis of race, ethnicity, gender and religion. According to the argument,
‘relations’ was used in the context of there being a target victim group on the one hand,
and a defined perpetrator group on the other, whose expression moved other defined
groups, to demonise or stereotype the victim group, and the victim group must, in turn,
have blamed the perpetrator group for this.27

[49] Paras 43 and 44 are instructive. They read as follows:
‘It is obvious that the interpretation contended for would entail a complicated exercise of
interpreting the very wide language of the relevant part of clause 2(a) in the light of the very
concise and specific provisions of s 16(2)(c). Whilst this process might assist in determining
whether particular expression can be regarded as hate speech, I fail to see how its meaning can
coincide with that of the impugned clause on any reasonable interpretation without being unduly
strained. This segment of the clause is accordingly not reasonably capable of being unduly
strained. This segment of the clause is accordingly not reasonably capable of being read to give
the meaning which is favoured by the Board.
The next question to be considered is whether the provision is nevertheless justifiable despite its
inability to be read in the way that the Board suggests. The prohibition against the broadcasting
of any material which is “likely to prejudice relations between sections of the population” is cast in
absolute terms; no material that fits the description may be broadcast. The prohibition is so widely-
phrased and so far-reaching that it would be difficult to know beforehand what is really prohibited
or permitted. No intelligible standard has been provided to assist in the determination of the scope
of the prohibition. It would deny both broadcasters and their audiences the right to hear, form and
freely express and disseminate their opinions and views on a wide range of subjects. The wide
ambit of this prohibition may also impinge on other rights, such as the exercise and enjoyment of
the right to freedom of religion, belief and opinion guaranteed in s 15 of the Constitution.’28

[50] The ultimate finding of the court is at para 51:

27 See para 42 of Islamic Unity Convention v Independent Broadcasting Authority 2002 (4) SA 294 (CC).
28 (My emphasis.)

‘There is no doubt that the inroads on the right to freedom of expression made by the prohibition
on which the complaint is based are far too extensive and outweigh the factors considered by the
Board as ameliorating their impact. As already stated, no grounds of justification have been
advanced by the IBA and the Minister for such a serious infraction of the right guaranteed by
s 16(1) of the Constitution. It has also not been shown that the very real need to protect dignity,
equality and the development of national unity could not be adequately served by the enactment
of a provision which is appropriately tailored and more narrowly focussed. I find therefore that the
relevant portion of clause 2(a) impermissibly limits the right to freedom of expression and is
accordingly unconstitutional.’29
I will, in due course, deal with the remedy crafted by the Constitutional Court in Islamic
Unity.

[51] The effect of this is that all expression is protected save anything that falls within
s 16(2)(c). Moseneke J summarised this in Laugh It Off30 in saying that ‘unless an
expressive act is excluded by s 16(2) it is protected expression’. Legislation may be
passed that limits otherwise protected freedom of expression, but it must then be justified
in terms of s 36 of the Constitution. This does not mean that s 16(2)(c) is irrelevant to the
justification analysis. It provides a baseline against which to measure the extent of any
limitation so that the greater the intrusion into freedom of expression and the further the
departure from that baseline the stricter the scrutiny that is required.31

Section 10(1) of PEPUDA – a closer look
[52] The provisions of s 10(1) of PEPUDA self-evidently restrict the right of freedom of
expression provided for in s 16(1) of the Constitution. This was not in contestation. What
was in dispute is whether they extend beyond the provisions of s 16(2)(c) of the
Constitution and, if so, whether they were justifiable. At the outset, it is necessary to
record that the Minister’s response to Mr Qwelane’s application to have relevant sections

29 (My emphasis.)
30 Laugh It Off Promotions CC v SAB International (Finance) BV t/a Sabmark International (Freedom of
Expression Institute as Amicus Curiae) [2005] ZACC 7; 2006 (1) SA 144 (CC) para 47.
31 Our courts have accepted that the publication of child pornography (De Reuck v Director of Public
Prosecutions [2003] ZACC19; 2004 (1) SA 406 (CC) paras 48-50); commercial speech (City of Cape Town
v Ad Outpost (Pty) Ltd 2000 (2) SA 733 (C) at 748) and nude dancing (Phillips & another v Director of Public
Prosecutions, Witwatersrand Local Division & others [2003] ZACC 1; 2003 (3) SA 345 (CC) are all capable
of protection under s 16(1).

of PEPUDA declared unconstitutional was, at best, sparse, both literally and figuratively.
It encompassed four pages. In respect of content, it was even more limited. The stance
adopted by the Minister was that the facts of any case should be considered to determine
whether or not the expression complained of is protected by s 16 of the Constitution and
that a constitutional issue beyond that would not arise. An inconsistency between s 10(1)
of PEPUDA and s 16 of the Constitution was denied. The Minister was of the view that
the inclusion of ‘sexual orientation’ as one of the prohibited grounds beyond the grounds
set out in s 16(2) of the Constitution was legitimate, serving to extend equality, in line with
s 39 of the Constitution. The Minister postulated that the civil and criminal sanctions
provided for in s 10(2)32 read with s 21(2)(n) of PEPUDA, were founded on the common
law or applicable legislation and that ‘the Equality Act does not create the aforesaid
sanctions’. There was a general unsubstantiated assertion by the Minister, that s 10(1) is
justifiable under s 36 of the Constitution. That, then, in essence, was the sum total of the
purported opposition to the application and the ‘justification’ for the limitation, by way of
s 10(1) of PEPUDA, of the right to freedom of expression.

[53] Does s 10(1) of PEPUDA, in limiting freedom of expression, extend beyond the
provisions of s 16(2)(c) of the Constitution? The short answer is yes. The first
manifestation is that s 16(2)(c) of the Constitution does not exclude from constitutional
protection under s 16(1) the advocacy of hatred that constitutes incitement to cause harm
beyond the four stated grounds of race, ethnicity, gender or religion. Section 10(1) of
PEPUDA, on the other hand, purports to extend those bases to include all of the
categories set out under prohibited grounds in s 1 of the definition, which the reader will
be reminded, are as follows:
‘prohibited grounds’ are –
(a) race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation,
age, disability, religion, conscience, belief, culture, language, birth and HIV/AIDS status; or
(b) any other ground where discrimination based on that other ground –

32 Section 10(2) provides:
‘Without prejudice to any remedies of a civil nature under this Act, the court may, in accordance with
s 21(2)(n) and where appropriate, refer any case dealing with the publication, advocacy, propagation or
communication of hate speech as contemplated in subsection (1), to the Director of Public Prosecutions
having jurisdiction for the institution of criminal proceedings in terms of the common law or relevant
legislation.’

(i)
causes or perpetuates systemic disadvantage;
(ii)
undermines human dignity; or
(iii)
adversely affects the equal enjoyment of a person’s rights and freedoms in a serious
manner that is comparable to discrimination on a ground in paragraph (a).’

[54] The first question therefore is whether the extension of ‘prohibited grounds’ to
include sexual orientation is constitutionally permissible. In relation to the extension of
‘prohibited’ grounds beyond those stated in s 16(2), it is necessary to have regard to s 9
of the Constitution, which is the equality provision. Section 9(4) obliged the State to enact
legislation to prevent or prohibit unfair discrimination. Item 23(1) of Schedule 6 of the
Constitution provided a timeline of three years, within which such legislation should be
enacted. The long title of PEPUDA is in line with those commendable ends. It reads as
follows:
‘To give effect to section 9 read with item 23(1) of Schedule 6 to the Constitution of the Republic
of South Africa, 1996, so as to prevent and prohibit unfair discrimination and harassment; to
promote equality and eliminate unfair discrimination; to prevent and prohibit hate speech; and to
provide for matters connected therewith.’

[55] The objects of PEPUDA are set out in s 2 of that legislation as follows:
‘The objects of this Act are –
(a) to enact legislation required by section 9 of the Constitution;
(b) to give effect to the letter and spirit of the Constitution, in particular –
(i) the equal enjoyment of all rights and freedoms by every person;
(ii) the promotion of equality;
(iii) the values of non-racialism and non-sexism contained in section 1 of the Constitution;
(iv) the prevention of unfair discrimination and protection of human dignity as contemplated in
sections 9 and 10 of the Constitution;
(v) the prohibition of advocacy of hatred, based on race, ethnicity, gender or religion, that
constitutes incitement to cause harm as contemplated in section 16(2)(c) of the Constitution and
section 12 of this Act;
(c) to provide for measures to facilitate the eradication of unfair discrimination, hate speech and
harassment, particularly on the grounds of race, gender and disability;
(d) to provide for procedures for the determination of circumstances under which discrimination
is unfair;

(e) to provide for measures to educate the public and raise public awareness on the importance
of promoting equality and overcoming unfair discrimination, hate speech and harassment;
(f) to provide remedies for victims of unfair discrimination, hate speech and harassment and
persons whose right to equality has been infringed;
(g) to set out measures to advance persons disadvantaged by unfair discrimination;
(h) to facilitate further compliance with international law obligations including treaty obligations in
terms of, amongst others, the Convention on the Elimination of All Forms of Racial Discrimination
and the Convention on the Elimination of all Forms of Discrimination against Women.’

[56] Section 3 of PEPUDA, which deals with its interpretation, provides, inter alia, that
any person interpreting this Act may be mindful of international law, particularly the
international agreements referred to in s 2 and customary international law, as well as
comparable foreign law.33 I shall, in due course, when considering whether s 10(1) of
PEPUDA, in its comprehensive form, is a justifiable limitation of the right to freedom of
expression, deal with relevant foreign case law.

[57] International treaties and covenants to which we are signatories provide for
protection against discrimination and also the regulation of hate speech.34 The Universal
Declaration of Human Rights (UDHR)35 recognises the inherent dignity and equality
amongst the human family36 and states that individual liberties such as freedom of
expression may be limited to secure ‘due recognition and respect for the rights and
freedoms of others and of meeting just requirements of morality, public order and general
welfare in a democratic society’.37 The UDHR also provides that all people are entitled to
equal protection against any discrimination and against any incitement to such
discrimination.38

33 See s 3(2)(b) and (c) of PEPUDA. Section 2(h) states that one of the objects of PEPUDA is to facilitate
further compliance with international law obligations including treaty obligations in terms of, amongst others,
the Convention on the Elimination of All Forms of Racial Discrimination and the Convention on the
Elimination of All Forms of Discrimination against Women.
34 For a useful discussion on international regulation of hate speech, see T J Webb ‘Verbal Poison –
Criminalizing Hate Speech: A Comparative Analysis and a Proposal for the American System’(2011) 50
Washburn LJ at 445.
35 Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A(III)
36 Preamble, Art 1.
37 Article 29.
38 Article 7.

[58] Article 19 of the International Covenant on Civil and Political Rights (the ICCPR)39
provides for the right to freedom of expression, but restricts that right when necessary.
Article 20 limits expression if it is hate speech. It provides that ‘[a]ny advocacy of national,
racial or religious hatred that constitutes incitement to discrimination, hostility or violence
shall be prohibited by law’. Article 2(2) of the ICCPR calls upon state parties to adopt
legislation to enforce those provisions. The European Convention for the Protection of
Human Rights and Fundamental Freedoms (ECPHRFF),40 applicable to the European
Union, confirms the dangers of hate speech and requires ratifying states to ensure its
prevention and punishment.

[59] Thus, the State has a legitimate interest in promoting equality and prohibiting hate
speech that impinges on equality. There can be no doubt that the State has an interest in
extending the protection against discrimination, to include protection against
discrimination based on sexual orientation.41 In the present case it is that category with
which we are concerned and it is in relation thereto that extensive evidence was led.
Moreover, the State has an obligation to promote and protect the right to human dignity
of members of the LGBTI community, as provided for in the Constitution,42 which it
purported to do by way of s 10 of PEPUDA, read with associated provisions.

[60] In light of what is set out above and the clear evidence of the discrimination
directed at members of the LGBTI community there is clearly no merit to the contention
on behalf of Mr Qwelane, that the extension of protection to include protection against
discrimination based on sexual orientation and against hate speech in relation thereto, is
constitutionally impermissible. I pause to record that the other prohibited grounds
provided for in s 1 of PEPUDA, beyond those set out in s 16(2) of the Constitution, were
not in issue before us and no evidence was directed to them. The problems, however, in

39 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23
March 1976) 999 UNTS 171.
40 European Convention for the Protection of Human Rights and Fundamental Freedoms (adopted 4
November 1950, entered into force 3 September 1953) ETS 5.
41 In this regard see para 33 of Islamic Unity.
42 Section 10 of the Constitution reads as follows:
‘Everyone has inherent dignity and the right to have their dignity respected and protected.’

relation to the constitutionality of s 10(1) of PEPUDA, with regard to the regulation of hate
speech, read with the associated sections of PEPUDA, go much deeper. In addressing
those, I will continue to bear in mind the duty resting on a court, in terms of s 39 of the
Constitution, when interpreting the Bill of Rights, to promote the values that underlie an
open and democratic society based on human dignity, equality and freedom. A court must
also have regard to international law and may consider foreign law.43

[61] I turn to address the problems alluded to in the preceding paragraph. First,
s 16(2)(c) of the Constitution provides that 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’. Section 10(1) of PEPUDA, on the other hand,
states that no person may publish, propagate, advocate or communicate words based on
one or more of the prohibited grounds ‘against any person, that could reasonably be
construed to demonstrate a clear intention to (a) be hurtful, (b) be harmful or to incite
harm, (c) promote or propagate hatred’. As will be shown, these are two distinct
standards.

[62] The constitutional standard involves an objective test – a primary assessment of
whether the expression complained of comprises advocacy of hatred based on one of the
prohibited grounds and then a further assessment of whether the advocacy of hatred
constitutes incitement to cause harm. This ties in with the international jurisprudential
basis for regulating freedom of expression, namely, the preservation of public order and
the general welfare of society. The ‘advocacy of hatred’ and ‘incitement to cause harm’
are inextricably linked.

[63] In relation to the exercise envisaged by s 10(1) of PEPUDA, one commences by
considering whether a person published, propagated, advocated or communicated words
based on one or more of the prohibited grounds against any person and then looks to see

43 Section 39(2) and (3) of the Constitution read as follows:
‘(2) When interpreting legislation, and when developing the common law or customary law, every court,
tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.
(3) The Bill of Rights does not deny the existence of any other rights or freedoms that are recognised or
conferred by common law, customary law or legislation, to the extent that they are consistent with the Bill.’

whether the words complained of could ‘reasonably be construed to demonstrate a clear
intention to be hurtful, harmful or to incite harm, promote or propagate hatred’ – as
provided for in subsections (a), (b) and (c) of s 10(1) of PEPUDA.

[64] It is necessary to record that, in oral argument before us, the HRC, the Minister
and the Society all conceded that ss 10(1)(a), (b) and (c) of PEPUDA must be read
disjunctively. Commentators have interpreted the provisions in that manner.44 The
concessions and the commentary are warranted. Section 10(1) is structured in that way.
Each of the three subsections appear after the long dash, following on the introductory
words and each of the first two subsections ends with a semicolon. The subsections are
not connected with the word ‘and’, which one would have expected, if it was intended for
the sections to be construed conjunctively. The reason for providing alternatives within
subsections (b) and (c) by use of the word ‘or’ is not readily apparent. The alternatives
could just as easily have been added as further subsections (d) and (e). This is another
factor that supports the disjunctive reading of the subsections. The formulation of the
subsections as alternatives decouples the constitutional requirements of advocating
hatred and incitement to cause harm, so that one or neither of these may lead to a finding
of hate speech. That is also an extensive infringement of the right.45
[65] The words ‘publish, propagate, advocate or communicate’, in the lead-in part of
s 10 of PEPUDA, are all also disjunctively placed. Any one of those forms of expression
that can reasonably be construed to demonstrate a clear intention, to have any of the
results in subsections (a), (b) and (c), can lead to liability. In terms of s 10(1)(a), mere
‘communication’ of words based on prohibited grounds, which could reasonably be
construed to demonstrate a clear intention to be ‘hurtful’ is sufficient for liability to attach
and for sanction to follow. It is not necessary for the potential of harm or actual harm to
be shown. Moreover, advocacy of hatred is not a necessary requirement for liability to

44 See Teichner at 354-355. See also C Albertyn, B Goldblat and C Roedere Introduction to the Promotion
of Equality and Prevention of Unfair Discrimination Act 4 of 2000 ed (2001) at 94. See also Pierre de Vos
‘Why the hate speech provisions might be unconstitutional’ (2010) Constitutionally Speaking,
<https://constitutionallyspeaking.co.za/why-the-hate-speech-provisions-may-be-unconstitutional/>
(accessed 25-09-2019).
45 The finding in South African Human Rights Commission v Khumalo [2018] ZAGPJHC 528; 2019 (1) SA
289 (GJ), that the subsections are to be read conjunctively, at para 82, is therefore wrong.

attach.46 Counsel on behalf of the Minister conceded that in terms of s 10 of PEPUDA
any one of the forms of expression that might not necessarily constitute advocacy of
hatred nor incitement to harm are prohibited. This is another respect in which the section
limits the right in s 16(1).

[66] In relation to the words being ‘reasonably construed’ to demonstrate a clear
intention to have any of the results set out in ss 10(1)(a)-(c), Albertyn et al postulate that
the test is not strictly one of actual intention. They say the following at 93:
‘It does not require that a reasonable person would interpret the conduct in such a way, only that
it is possible that he might construe it in this way.’47
I agree with that view. The result is to depart significantly from the objective constitutional
test and replace it with the subjective opinion of a reasonable person hearing the words.
This is an extensive infringement on the right of freedom of expression.

[67] A purposive and contextual approach to the interpretation of s 10 of PEPUDA
leads to the compelling conclusion that the legislature sought to provide protection as
broadly as possible, by imposing liability for expressions in any of the forms set out in the
lead-in part of s 10(1) that can reasonably be construed to have any one of the results
set out in subsections (a), (b) and (c). C Albertyn, B Goldblat and C Roedere Introduction
to the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 ed
(2001), describe PEPUDA as an ‘obvious attempt by the legislature to widen the cover of
hate speech’. I pause to observe that the provisions of s 10(1) are more restricted in one
limited sense, namely, that it prohibits the publishing, propagation, advocacy or
communication of ‘words’, which is a narrower limitation than the constitutional limitation
on ‘expression’ which extends beyond words. One might rightly ask why that distinction
is drawn.

[68] The difficulty in dealing with the standard set in s 10(1) of PEPUDA in relation to
the constitutional standard provided by s 16(2)(c) is that the former is barely intelligible.
Albertyn et al cannot be faulted for stating that s 10 of PEPUDA as well as other sections

46 See Albertyn et al, fn 44 above, at 92 and 95-96.
47 (Emphasis in original.)

of that legislation, ‘are exceptionally difficult to understand’.48 The authors go on to state
that it is doubtful that the average person ‘will be able to use the Act to guide his or her
conduct clearly’. They contend, in my view correctly, that in addition to the vagueness
that attends the sections generally, there are certain provisions that are particularly
vague. In this regard, the authors point to the difficulty of determining what ‘hurtful’ in
s 10(1)(a) of PEPUDA was meant to capture. I cannot agree more. ‘Hurtful’ is defined in
the Concise Oxford English Dictionary49 as ‘causing distress; upsetting’. It involves and
attack on a person’s feelings or emotions as in ‘that was a very hurtful remark’. The
Shorter Oxford English Dictionary50 makes it clear that injury to feelings is the primary
consequence of words that are hurtful. It give ‘causing hurt; harmful; detrimental;
wounding to feelings’ as its definition. The Cambridge Dictionary defines it as ‘causing
emotional pain. The Merriam-Webster Dictionary gives the definition as ‘causing injury,
detriment or suffering’. The Collins English Dictionary explains that ‘if someone’s
comments or actions are hurtful, you mean that they are unkind or upsetting’. The
common feature of all these definitions is that they are concerned with a person’s
subjective emotions and feelings in response to the actions of a third party. This does not
equate with causing harm or incitement to harm.

[69] The reader will recall that Professor Nel considered repeated pronouncements by
churches, that homosexuality is a sin, as hurtful. One could say that pronouncements by
agnostics and atheists, that the clergy and people of faith believe in fairy tales and could
rightly be condemned for being irrational and that they have no place in an evolved
society, would be equally hurtful to those targeted. Of course, it does not mean that
pronouncements by any of the constituencies referred to above, might not, depending on
their nature and what is being advocated, in addition to statements of belief or conviction,
enter upon territory that might bring them within the limitation contemplated by s 16(2)(c)
of the Constitution or, indeed, that it might not attract criminal sanction depending on what
is being advocated or expressed. However, besides the question of how control could be
exercised jurisprudentially in respect of hurtful words, daily human interaction produces

48 Albertyn et al, fn 44 above, at 96.
49 A Stevenson & M Waite Concise Oxford English Dictionary 12ed (2011).
50 Shorter Oxford English Dictionary on Historical Principles 6 ed A-M (2007).

a multitude of instances where hurtful words are uttered51 and thus, to prohibit words that
have that effect, is going too far. So, too, a host of jokes might be hurtful to those who
bear the brunt of them. Are we to entertain complaints that extend to jokes that are not
within the limitations of s 16(2)(c) of the Constitution? In the Canadian case of Lund v
Boisson, 2012 ABCA 300, the following was said:
‘Language which is offensive and hurtful to others does not necessarily qualify as hateful or
contemptuous speech.’52
Professor Pierre de Vos, in dealing with hurtfulness as a concept and in contending that
everyday conversation in South Africa would, in terms of s 10(1)(a) be prohibited, says
the following:
‘This is so absurdly broad that it is difficult to see how . . . the hate speech provision is nevertheless
justifiable in terms of the limitation clause.’53
He goes on to state:
‘The current provision is also bad on policy grounds. In a vibrant democracy which respects
difference and diversity – also diversity of opinion – it would be dangerous to ban all speech that
could be construed as intending to be hurtful to another person merely because of that person’s
race, sex, sexual orientation, religion, language, ethnicity, culture or age. Some of us remember
all too well how the apartheid government tried to censor our thoughts and our speech. Do we
really want to go back to a situation where we are so scared to express our deeply and sincerely
held and honest opinions that we shut up because we fear we might be found guilty of hate
speech?’

[70] I accept unreservedly that harm envisaged in s 16 of the Constitution and
contemplated in the provisions of s 10(1) of PEPUDA, need not necessarily be physical
harm, but can be related to psychological impact. However, the impact has to be more
than just hurtful in the dictionary sense. What is clear is that s 10, as best as can possibly
be discerned, travels far beyond the limitation envisaged by s 16(2)(c) of the Constitution.
One must be careful not to stifle the views of those who speak out of genuine conviction
and who do not fall within the limitation set by s 16(2)(c) and where there is no justification

51 In this regard see Albertyn et al, fn 44 above, at 96.
52 Para 60.
53 See De Vos, fn 44 above.

for such limitation in an open and democratic society based on human rights, dignity,
equality and freedom.

[71] In an attempt to overcome the difficulties described above, it was submitted on the
Minister’s behalf that the complaint lodged in the equality court was lodged, both in terms
of ss 10 and 11 of PEPUDA as well as in terms of s 16 of the Constitution. That
submission is fallacious. First, the founding affidavit by the HRC is adamant that the
application was brought in terms of s 20(1)(f) of PEPUDA, which reads as follows:
‘(1) Proceedings under this Act may be instituted by –
. . .
(f) the South African Human Rights Commission, or the Commission for Gender Equality.’
Proceedings in the equality court are instituted in terms of s 20 of PEPUDA and are
conducted within that legislative framework. Orders are issued in terms of s 21. It is thus
to the provisions of PEPUDA, primarily s 10(1), read with associated sections, that one
must turn one’s attention.

[72] Second, the founding affidavit by the HRC makes it clear that the complaint was
based squarely on the prohibition of hate speech in terms of s 10 of PEPUDA. In this
regard, the relevant part of para 21 of the affidavit is pertinent. It reads as follows:
‘[T]he contents of the article and cartoon amount to hate speech as contemplated in section 10 of
PEPUDA, read with section 9(4) of the Constitution, which provides as follows:
21.1.1 Section 10 of PEPUDA
“(1) Subject to the proviso in section 12, no person may publish, propagate, advocate or
communicate words based on one or more of the prohibition grounds, against any person,
that could reasonably be construed to demonstrate a clear intention to –
(a) be hurtful;
(b) be harmful or to incite harm;
(c) promote or propagate hatred.”
21.1.2 Section 9(4) of the Constitution
“No person may unfairly discriminate directly or indirectly against anyone on one or more
grounds in terms of subsection (3). National legislation must be enacted to prevent or
prohibit unfair discrimination.”’

[73] Third, the HRC made no reference to s 11 of PEPUDA in its founding affidavit.
Section 11 of PEPUDA provides:
‘No person may subject any person to harassment.’
The proceedings in the equality court were conducted on the basis of an enquiry in
relation to s 10 of PEPUDA, read with the necessarily associated provisions. Section 11
is dealt with summarily in the judgment of Moshidi J and the issue of harassment was
referred to the SAPS for possible prosecution in terms of the Harassment Act 17 of 2011.
There was no finding by the equality court that Mr Qwelane was guilty of harassment. Mr
Qwelane’s attack on s 11 in his application to have it declared unconstitutional must be
seen in light of the afore-going. It is thus understandable that, before us, no attention in
oral argument was paid to the provisions of s 11 by any of the parties or the amici.

[74] Fourth, in relation to the Minister’s reliance on s 16, it must be pointed out that
there is no such thing in the equality court as a complaint or enquiry in terms of s 16 of
the Constitution. In the present case s 16 was raised because of the challenge to the
constitutionality of the provisions of s 10(1) read with s 1 of PEPUDA. In any event, the
submission on behalf of the Minister offends against the principle of subsidiarity. The
Constitutional Court has repeatedly held that where legislation has been enacted to give
effect to a right, litigants should rely on that legislation in order to give effect to the right
or, alternatively, challenge the legislation as being inconsistent with the Constitution.54 In
the present case, the HRC and the LGBTI community sought relief in terms of the
provisions of PEPUDA. It is under that legislation that the proceedings in the equality
court were instituted and it is in terms of provisions of PEPUDA that Moshidi J made
certain findings. The challenge to PEPUDA by Mr Qwelane was that it was
unconstitutional in that it was inconsistent with the provisions of s 16 of the Constitution.
That is the principal issue in this appeal. It is now necessary to consider whether the
proviso in s 12 of PEPUDA narrows the ambit of s 10(1) of PEPUDA so as to render it
constitutionally permissible.

54 See Mazibuko & others v City of Johannesburg & others [2009] ZACC 28; 2010 (4) SA 1 (CC). See
also the discussion in C Hoexter Administrative Law in South Africa 2 ed (2012) at 132-133 and the
authorities there cited.

The proviso in s 12 of PEPUDA
[75] It has been suggested that the proviso in s 12 of PEPUDA might assist in narrowing
the limitation on freedom of expression by s 10 of PEPUDA.55 Section 10 is said to be
subject to ‘the proviso’ in s 12. For convenience, I once again set out the proviso:
‘Provided that bona fide engagement in artistic creativity, academic and scientific inquiry, fair and
accurate reporting in the public interest or publication of any information, advertisement or notice
in accordance with section 16 of the Constitution, is not precluded by this section.’
The proviso, by its nature and content is clearly an exclusionary enactment. It excludes
from the limitation of freedom of expression the engagement in or promotion of any of the
stipulated activities.56

[76] It will be recalled that Moshidi J held that it was plain that Mr Qwelane did not
publish the offending article in order to engage in or promote any of the activities
envisaged in the proviso to s 12 of PEPUDA. It is fair to say that this conclusion cannot
be faulted. Mr Qwelane gave vent to his bigotry, was strident, provocative and
unapologetic about it. The article had nothing to do with the proviso. That having been
said, it must be noted that Albertyn et al are also correct in stating that s 12 is difficult to
interpret. That is especially so with the concluding part of the proviso, namely, publication
of any information, advertisement or notice in accordance with s 16 of the Constitution. It
is difficult to discern what that means. For present purposes it is not necessary to explore
this aspect any further.

[77] It is clear from the preceding paragraphs that s 10(1) of PEPUDA cannot on any
reasonable interpretation be equated with the provisions of s 16(2) of the Constitution. It
extends far beyond the limitations on freedom of expression provided for in the
Constitution and in many respects is unclear.

Justification

55 See Albertyn et al, fn 44 above, at 93-94.
56 In Albertyn et al the following is stated at 93:
‘Thus, the proviso limits the scope of the definition of “hate speech” under the Act and allows certain
expression, that would otherwise be prohibited by s 10, to be protected.’

[78] As shown above, the affidavit opposing the application by Mr Qwelane, to have the
impugned provisions declared unconstitutional, provided virtually no justification by the
Minister for the present form of s 10(1) of PEPUDA and the associated provisions. It was
submitted on behalf of the Minister that what has to be borne in mind, in considering
whether there was indeed justification in terms of s 36 of the Constitution, are the repeated
violations of the rights of members of the LGBTI community and the repeated efforts to
marginalise and dehumanise the community. The provisions of s 10(1) of PEPUDA are
opaque and as best as can be discerned, travel far beyond the reach of the prohibition in
s 16 of the Constitution and cannot be construed in the manner favoured by the HRC and
the Society, namely, that it does approximate the provisions of s 16 or that it is narrowed
by application of the proviso in s 12. I intend to consider whether, on an examination of
comparable constitutional regimes, limitations that are akin to or come close to the
provisions of s 10 of PEPUDA can be found elsewhere.

[79] T J Webb ‘Verbal Poison – Criminalizing Hate Speech: A Comparative Analysis
and a Proposal for the American System’,57 as stated earlier, is a useful guide to
international instruments dealing with hate speech and to comparable foreign law. At the
outset, the author recognises that the regulation of hate speech poses a complex
constitutional problem because it conflicts with freedom of expression. The author wrote
principally in relation to the United States of America (the USA), and noted that the
emphasis that the country places on free speech is unique. The first amendment provides
that congress shall make no law abridging the freedom of speech, or of the press, and
recognises that free speech is the cornerstone of American society. That,
notwithstanding, the constitutional protection of free speech in the USA does not
encompass all forms of expression. Certain categories of speech may be regulated.
Categories that are exempt from limitations on the government’s power to regulate
speech, include fighting words, advocacy of crime, defamation, obscenity, matters of
national security and commercial speech. In Beauharnais v Illinois 343 U.S. 250 (1952),
the U.S. Supreme Court upheld a man’s conviction for violating an Illinois statute,
forbidding the publication of material that would expose ‘any race, color, creed or religion

57 T J Webb ‘Verbal Poison – Criminalizing Hate Speech: A Comparative Analysis and a Proposal for the
American System’ (2011) 50 Washburn LJ 445-482.

to contempt, derision, or obloquy or which is productive of breach of the peace or riots’.
Additionally, such presentation must be ‘made in public places and by means calculated
to have a powerful emotional impact on those to whom it was presented’.

[80] In Virginia v Black 538 U.S. 343, the court heard a consolidated case of two
individuals convicted under a Virginia statute making it ‘unlawful for any person . . . with
the intent of intimidating any person or group of persons, to burn or cause to be burned,
a cross on the property of another, a highway or other public place’. The court held that
the government may possibly regulate such actions, because of the harm resulting from
intimidation. The court’s decision emphasized the importance of establishing a mens rea
connection. Specifically, it must be proven that the actor had the actual intent to intimidate.

[81] The cases referred to in the preceding two paragraphs involve regulation of hate
speech by way of establishing a criminal offence and providing a sanction. Establishing
mens rea must be seen in that context and it is far removed from the reasonably construed
intention of s 10 of PEPUDA. By opting for regulation of hate speech by way of PEPUDA,
our legislature has up to now not followed the United States example of regulation of hate
expression by way of specific criminal offences with concomitant sanction. This might well
be because incitement to cause physical or significant psychological harm could be met
in South Africa by existing criminal law such as the Intimidation Act 72 of 1982.58 There
is currently for consideration before Parliament the Prevention and Combating of Hate
Crimes and Hate Speech Bill, which no doubt Parliament will take time to ensure is
tailored to be within constitutionally permissible parameters. The enactment of PEPUDA
appears to have been motivated more by the drive to promote equality than to prevent
hate speech. The hate speech provision appears to be tagged onto PEPUDA, which is
concerned principally with promoting equality and preventing discrimination with the
emphasis on remedial action.

[82] Webb points to Canada as a country that offers ‘the most balanced and developed
examples of hate speech regulation’. Like most, if not all democratic systems, Canada

58 See ss 1 and 2 thereof.

accepts that freedom of expression is a critical feature of democracy, but takes the
approach that freedom of expression is not absolute. Hate speech is criminalised and
regulated within the criminal justice system. In Canada, unlike the USA, where the right
to freedom of expression has a unique position, greater emphasis is placed on the right
to equality and the value of diversity and multiculturalism. Hate speech is thus more
rigorously regulated in Canada. In this regard see R v Keegstra [1990] 3 R.C.S at 697.
However, the following is also stated at 771:
‘The criminal nature of the impugned provision, involving the associated risks of prejudice through
prosecution, conviction and the imposition of up to two years’ imprisonment, indicates that the
means embodied in hate propaganda legislation should be carefully tailored so as to minimize
impairment of the freedom of expression. It therefore must be shown that s. 319(2) is a measured
and appropriate response to the phenomenon of hate propaganda, and that it does not overly
circumscribe the s. 2(b) guarantee.’ (My emphasis.)
The tailoring envisaged in the dictum is in line with what is set out in para 51 of Islamic
Unity and referred to in para 50 above. It is also worth mentioning that we do not have a
hierarchy of rights with one trumping another.59 When rights come into conflict, the
constitutional standard is one of proportionality as envisaged in s 36 of the Constitution.

[83] Webb also deals with the regulation of hate speech in Germany. German law
rejects free speech protection when there is an attack on human dignity. Its hate law
provisions protect against insult, defamation and other forms of verbal assault. It must of
course be remembered that regulation in Germany must be seen in the context of
atrocities orchestrated historically under the Nazi regime. Section 130(1) of the German
criminal code makes it unlawful to ‘in a manner capable of disturbing the peace . . . incite
hatred against segments of the population or call for violent or arbitrary measures against
them; or . . . assault the human dignity of others by insulting, maliciously maligning or
defaming segments of the population . . . .’ Other provisions prohibit disseminating,
displaying, supplying, producing, or facilitating the use of written materials that incite
hatred. There, too, there is regulation by way of criminal prosecution and sanction.

59 In this regards, see, amongst others, Laugh It Off Promotions CC v SAB International (Finance) BV t/a
Sabmark International (Freedom of Expression Institute as amicus curiae) [2005] ZACC 7; 2006 (1) SA 144
(CC) para 47.

[84] In relation to South Africa, Webb remarks that we followed the international
movement to regulate speech by adopting s 16(2) of the Constitution. In this regard, he
asserts that our historical racial divisions must have played a prominent role in adopting
hate speech regulation. He correctly notes that human dignity is emphasised in our
constitution. In relation to the limitation clause, he had regard to the provisions of
PEPUDA and, more particularly, s 10(1). He accepts that it sets ‘a low threshold for
violation’ and that speech need only be reasonably construed as being intended to have
certain consequences. I have already dealt at length with that threshold. Although it is
unclear, he appears to suggest that a constitutional amendment entrenching the lower
threshold might be an option to be considered.60

[85] None of the democracies referred to by Webb have regulation in a form that is akin
to or that even comes close to s 10(1) of PEPUDA. 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 s 10(1) even
assuming that it is intelligible. We can all agree that it is important to protect the dignity of
all our citizens. Equally, we must agree, given our history, that freedom of expression
must also be prized. That does not mean that hate speech beyond the provisions of s 16
cannot be proscribed. It must, however, be tailored so as to comply with constitutional
prescripts and it must survive a justification analysis.

[86] The interpretation of legislation in conformity with the Constitution, often called
‘reading-down’, is to avoid inconsistency between the law and the Constitution. It is
important to bear in mind that this exercise is limited to what the text is reasonably capable
of meaning. It is to be distinguished from the ‘reading-in’ of missing words from a statutory
provision. In this regard, see the decision of the Constitutional Court in Moyo & another v
Minister of Police & others; Sonti & another v Minister of Police & others.61 At para 57,
the court said the following:

60 Webb, fn 57 above, 463-464.
61 Moyo & another v Minister of Police & others; Sonti & another v Minister of Police & others [2019]
ZACC 40 para 56.

‘When attempting to interpret legislation by “reading-down” a section in order to bring it into
conformity with the Constitution, care should be taken to stay within the boundaries of a
reasonable and plausible construction that does not rewrite the text. To overstep this mark would
be tantamount to the actual “reading-in” of words into the statute. To do so would be a clear
breach of the separation of powers. So much was said in Abahlali,62 where an approach that
sought to add at least six qualifications to the text was held to be “an intrusive interpretation” that
“offends requirements of the rule of law and the separation of powers”.

[87] In the present case, in interpreting the legislation in question, one should be aware
that one is dealing with competing constitutional rights and with the Legislature’s
understandable concern that hate speech should not be allowed to threaten the
constitutional project. It is clear, as observed by commentators, that it wanted to regulate
hate speech as broadly as possible. Unfortunately, it did not do so with the necessary
precision and within constitutional bounds. Bearing in mind the Legislature’s purpose, one
should not, however, lose sight of other significant factors, which I allude to hereafter. The
powers of an Equality Court adjudicating a complaint as provided for in s 21 of PEPUDA
are extensive. If a complaint is held to be justified, the court may, after an enquiry, inter
alia, make an order for payment of damages. Furthermore, it may grant interdictory and/or
mandatory relief. An Equality Court may order an audit of policies of practices implicated
by an enquiry. Significantly, an Equality Court may, in terms of s 21(4) of PEPUDA, direct
the clerk of the court to refer the matter before it to the Director of Public Prosecutions for
the possible institution of criminal proceedings in terms of the common law or relevant
legislation.

[88] To sum up, mindful of the provisions of s 39 of the Constitution, the provisions of
s 10 of PEPUDA cannot be saved by an interpretive exercise. The problems set out above
in relation thereto are too extensive and s 10(1) of PEPUDA cannot be interpreted so as
to render it consistent with, rather than inimical, to the Constitution. What was said in
Case v Minister of Safety and Security; Curtis v Minister of Safety and Security63 in

62 Abahlali baseMjondolo Movement SA & another v Premier of the Province of Kwazulu-Natal & others
[2009] ZACC 31; 2010 (2) BCLR 99 (CC).
63 1996 (1) SACR 587 (CC).

relation to the overbroad statutory definition there in question, might well be said of the
proscription in s 10(1) of PEPUDA. The following appears at para 77:
‘The overbreadth of the definition with which we are here concerned can scarcely be described
as marginal. It is not as if we are confronted merely with a peripheral excess in scope, surrounding
an identifiable proscriptive core that targets constitutionally unprotected material. Rather, the
virtually unlimited range of unconstitutional potential application of the Act overwhelms whatever
permissible proscription might be identified.’
One does not know beforehand what conduct is prohibited and citizens cannot be
expected to know what is required of them. As noted in Investigating Directorate: Serious
Economic Offences & others v Hyundai Motor Distributors (Pty) Ltd & others: In Re
Hyundai Motor Distributors (Pty) Ltd & others v Smit NO & others:64
‘[T]he Legislature is under a duty to pass legislation that is reasonably clear and precise, enabling
citizens and officials to understand what is expected of them.’65
For all the reasons set out above, s 10(1) of PEPUDA, in its present form is
unconstitutional.

Remedy
[89] In light of the conclusion reached in the preceding paragraph, s 172(1) of the
Constitution looms large. That section of the Constitution reads as follows:
‘(1) When deciding a constitutional matter within its power, a court -
(a) must declare that any law or conduct that is inconsistent with the Constitution is invalid to the
extent of its inconsistency; and
(b) may make any order that is just and equitable, including -

(i) an order limiting the retrospective effect of the declaration of invalidity; and
(ii) an order suspending the declaration of invalidity for any period and on any conditions,
to allow the competent authority to correct the defect.’

[90] In Islamic Unity, the Constitutional Court taught that various considerations come
into play in deciding on an appropriate order. It said the following at para 54:
‘On the one hand, there is recognition of the importance of regulation in the public interest. The
implications of striking down the impugned provision for government and for the public interest

64 2001 (1) SA 545 (CC) para 24. (Citations omitted.)
65 See also Dawood & another v Minister of Home Affairs & others; Shalabi & another v Minister of Home
Affairs; Thomas & another v Minister of Home Affairs & others 2000 (3) SA 936 (CC) paras 47-48.

must be assessed, as well as the time it will take for Parliament to come up with new legislation.
On the other hand, there is the need for this Court to fulfil a judicial and not a legislative role, while
at the same time ensuring that as far as possible the relief protects freedom of expression as
enshrined in the Constitution.’

[91] In that case the Constitutional Court considered various forms of relief, including
severance, notional severance and the striking down of the relevant portion of clause 2(a)
of the Code, with nothing in its place. It also had regard to the suggestion of a declaration
of invalidity for a specific period to enable Parliament to enact appropriate legislation. The
court was concerned that if the clause was struck down in its entirety, with nothing to
replace it, a dangerous gap would result and held that it was not in the public interest to
do so. In that case it urged the government to attend to the matter with some urgency, in
order for it to fulfil its constitutional mandate. At para 57 of Islamic Unity, Langa DCJ said
the following:
‘I consider that an order which is just and equitable would be a notional severance formulated so
as to ensure that the relevant part of clause 2(a) is rendered ineffective in its application to
protected expression, but that a prohibition is left in place to prevent the broadcasting of
unprotected expression as referred to in s 16(2) of the Constitution. Such an approach would
meet the concerns of the applicant, address the legitimate concerns raised by the Board about
protecting people’s dignity and the values of equality and national unity, while at the same time
ensuring that the requirements of the Constitution are met. It will be open to the Legislature to
decide to keep regulation at this minimal level or to regulate further subject to the provisions of
s 36(1).’
What follows is the relevant part of the order in that case:

‘3. The decision of the Witwatersrand High Court declining to consider the issue of the
constitutionality of clause 2(a) of the Code of Conduct for Broadcasting Services as contained in
Schedule 1 to the Independent Broadcasting Authority Act 153 of 1993 is hereby set aside.
4. Clause 2(a) of the said Code of Conduct for Broadcasting Services is declared to be
inconsistent with s 16 of the Constitution and invalid to the extent that it prohibits the broadcasting
of material that is “likely to prejudice relations between sections of the population”; provided that
this order does not apply to (i) propaganda for war; (ii) incitement of imminent violence; or (iii)
advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes
incitement to cause harm.’

[92] In engaging in severance and/or reading-in the court must be astute to ensure that
the result is sufficiently precise so as to ‘impair the legislative purpose as little as possible
while removing the constitutional complaint’.66 In the present case it appears to me to be
desirable to keep in place a form of redress through the informal, less costly, process of
proceedings in the equality court for vulnerable groups,67 whilst staying within the
constraints of the Constitution. This will involve not only severance in relation to provisions
of s 10(1) of PEPUDA, but also a reading-in of provisions in line with s 16(2)(c) of the
Constitution. So, too, the consequent s 10(2) of PEPUDA requires concomitant
retailoring. One can hardly argue that the legislature was not intent on ensuring at least
the minimum protection by way of limitation of free expression in the terms set out in
s 16(2)(c) and that would be in keeping with the framework of PEPUDA the object of
which is to promote equality and regulate hate speech.

[93] As stated earlier, it is clear that the legislature intended widening the protection
against hate speech, even though it did so in constitutionally impermissible terms. It
should be afforded an opportunity to broaden the protection in terms consonant with the
Constitution. It appears to me to be necessary to provide for an interim measure pending
the finalisation of the legislative process, which already appears by way of the Bill referred
to above to have commenced, or by way of an amendment to s 10(1) of PEPUDA.68

[94] I am not unmindful of the threat to life, limb and psyche that members of the LGBTI
community face. I will take care in crafting a remedy to ensure that they are not left without

66 See D W Freedman, R M Robinson and E S Pugsley ‘Constitutional Law: Bill of Rights’ Lawsa 2 ed
(2012) 5(4), para 56 and the cases there cited, including National Coalition for Gay and Lesbian Equality &
another v Minister of Justice & others 1999 (1) SA 6 (CC) para 56; S v Manamela & another (Director-
General of Justice Intervening) 2000 (3) SA 1 (CC) para 56; Dawood & another v Minister of Home Affairs
& others; Shalabi & another v Minister of Home Affairs & others; Thomas & another v Minister of Home
Affairs & others 2000 (3) SA 936 (CC) para 62; S v Niemand 2002 (1) SA 21 (CC) para 32; Zondi v MEC
for Traditional and Local Government Affairs & others [2004] ZACC 19; 2005 (3) SA 589 (CC), South African
Liquor Traders’ Association & others v Chairperson, Gauteng Liquor Board & others [2006] ZACC 7; 2009
(1) SA 565 (CC) paras 29-34; and Gory v Kolver NO & others (Starke and others Intervening) [2006] ZACC
20; 2007 (4) SA 97 (CC).
67 See Manong & Associates (Pty) Ltd v Department of Roads and Transport, Eastern Cape, & others (No
2) [2009] ZASCA 50; 2009 (6) 589 (SCA) paras 52-53
68 See the order crafted by the Constitutional Court in Minister of Justice & others v Prince & others [2019]
ZACC 30; 2018 (6) SA 393 (CC) para 128.

recourse. It must be emphasised that in crafting a remedy that will protect vulnerable
groupings against the dreadful consequences of hate speech, care must be taken to
ensure that it is tailored to meet constitutional prescripts.

[95] The effect of crafting an interim order pending the legislative process must mean
that the finding of the equality court falls to be set aside and that the HRC and the LGBTI
community have to make further choices in relation to dealing with the decade long
complaint against Mr Qwelane. The exercise of reading-in so as to provide an interim
measure cannot, in terms of the fundamentals of the rule of law, have retrospective effect.
A statutory proscription is in place.69 It was not in that form when the article was published
or the complaint adjudicated. In the Criminal Law sphere the rule against retrospectivity
is given effect to by the maxim, nullum crimen sine lege, which is an expression of the
principle of legality, an incident of the rule of law. It also implicates the rule against
retrospectivity.70 We were informed by counsel on Mr Qwelane’s behalf that he was ailing.
He had iconic status and fought hard against the divisions of the past. He might well want
to consider that it is worth preserving that legacy by seeking rapprochement, even now. I
urge him to do so. We have to, in our beloved country, find a way in which to relate to
each other more graciously. Even the most fleeting exposure to news items reveals how
particularly in public discourse we disagree in the most disagreeable manner. Differences
of opinion are often laced with vitriol. We should be allowed to be firm in our convictions
and to differ on the basis of conscience. What we are not free to do is to infringe the rights
of others and we certainly are not free to inflict physical or psychological harm on others.

[96] The following order is made:
1 The appeal is upheld with costs.
2 The order of Moshidi J is set aside and substituted as follows:

69 See Phaahla v Minister of Justice and Correctional Services & another [2019] ZACC 18; 2019 (2) SACR
88 (CC) para 85 and Savoi & others v National Director of Public Prosecutions & another [2014] ZACC 5;
2014 (5) SA 317 (CC) paras 74-76. See also an interesting discussion on the formal and substantive
aspects of the rule of law in Lord Bingham ‘The Rule of Law’ (2007) 66 Cambridge LJ 67-85.
70 See J M Burchell (ed) South African Criminal Law and Procedure (1997) at 28-30.

‘(a.) Section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act
4 of 2000 (PEPUDA) is declared to be inconsistent with the provisions of s 16 of the
Constitution and is therefore unconstitutional and invalid.
(b.) The complaint by the South African Human Rights Commission against Mr Qwelane
in terms of s 10 of PEPUDA is dismissed.
(c.) Parliament is afforded a period of 18 (eighteen) months from 29 November 2019 to
remedy the defect.
(d.) During the aforesaid period s 10 of PEPUDA shall read as follows:
“10(1) No person may advocate hatred that is based on race, ethnicity, gender, religion
or sexual orientation and that constitutes incitement to cause harm.
10(2) Without prejudice to any remedies of a civil nature under this Act, the court may,
in accordance with section 21(2)(n) and where appropriate, refer any case dealing
with the advocacy of hatred that is based on race, ethnicity, gender, religion or
sexual orientation, and that constitutes incitement to cause harm, as contemplated
in subsection (1), to the Director of Public Prosecutions having jurisdiction for the
institution of criminal proceedings in terms of the common law or relevant
legislation.”
(e.) Section 10, in the form set out in para (d.), will fall away upon the coming into
operation of a legislative amendment to s 10, or its repeal by a statute dealing with the
regulation of hate speech. Should Parliament fail to effect such changes by the end of the
period referred to in (c.) above, s 10 in the form set out in (d.) will become final.
(f.) This order is referred to the Constitutional Court in terms of s 172(2)(a) of the
Constitution for confirmation of the order of constitutional invalidity.’

_________________
M S Navsa
Judge of Appeal

APPEARANCES
For Appellant:

M Oppenheimer

Instructed by:

Jurgens Bekker Attorneys, Bedfordview

Rossouws Attorneys, Bloemfontein

For First Respondent:

T Ngcukaitobi (with him O Mokgotho and T Ramogale)

Instructed by:

Bowman Gilfillan Attorneys, Sandton

Honey Attorneys, Bloemfontein

For Second Respondent:
K D Mhango (with her D Gondo)

Instructed by:

The State Attorney, Johannesburg

The State Attorney, Bloemfontein

For First Amicus:

S L Shangisa (with him M M Ka-Siboto)

Instructed by:

Freedom of Expression Institute, Richmond

SMO Seobe Attorneys, Bloemfontein

For Second Amicus:
K Hofmeyr (with her C Steinberg, D Smit and H
Cassim)

Instructed by:

Webber Wentzel Attorneys, Sandton

Webbers Attorneys, Bloemfontein