SAHRC welcomes judgment in Qwelane Matter – SAHRC: “Freedom of expression should not be used as a veil for hate speech”
The South African Human Rights Commission (SAHRC or the Commission) welcomes the judgment delivered today by the South Gauteng High Court (Equality Court) in the South African Human Rights Commission & 3 Others v Jon Qwelane matter (case number 44/2009EQ).
This case arose from more than 350 complaints lodged with the SAHRC in 2008 about an article written by Jonathan (Jon) Dabula Qwelane, and published in a newspaper on Sunday, 20th July 2008. The Commission viewed the article as hate speech directed to members of the Lesbian, Gay, Bisexual, Transgender, Intersex and Gender Non-Conforming (LGBTI GNC) community.
In light of the ongoing discrimination and violence directed at the LGBTI GNC community, the Commission was of the view that the article reinforced and perpetuated the prejudice directed at LGBTI GNC persons, and that the contents of the article exceeded the limits of freedom of expression.
This case is of significance as in his defence, Mr Qwelane challenged the constitutionality of the provisions in the Promotion of Equality and Prevention of Unfair Discrimination Act, 4 of 2000 (Equality Act), which speak to hate speech.
The mandate of the Commission is to promote, protect, and monitor the observance of human rights in South Africa, which include the right not to be discriminated against and the right to dignity. Section 9 of the Bill of Rights holds that no one may be unfairly discriminated against on the basis of sexual orientation, gender or sex or sexual orientation (amongst many other grounds). Further, section 10 clearly states that: “Everyone has inherent dignity and the right to have their dignity respected and protected.”
In furtherance of its constitutional mandate to protect the rights of the LGBTIQ GNC - being one of vulnerable groups - the Commission instituted Equality Court proceedings against Mr. Qwelane to secure a judgment that the opinion piece by Mr Qwelane constituted hate speech and harassment in terms of the Equality Act.
In his defence, Mr Qwelane sought to have sections 10(1) and 11 of Equality Act declared unconstitutional, arguing that it exceeded the constitutional limitations on freedom of expression as provided for in section 16 of the Bill of Rights, Chapter 2 of the Constitution.
The Commission argued that the limitations on freedom of expression as expressed in section 16 itself, as well as the relevant sections of the Equality Act, is a reasonable and justifiable limitation under section 36 of the Bill of Rights (the limitation clause).
On this basis, the Commission argued that since unfair discrimination is prohibited in terms of the Bill of Rights, expressions that are hurtful, harmful, and which incite harm or propagate hate against a particular group – in this instance on the basis of a person’s sexual orientation or gender identity – are not protected by the right to freedom of expression.
The Commission welcomes this judgment as a victory for the protection of the equality rights of LGBTI community and GNC persons.
This case highlights the debate around the meaning of freedom of expression and, whilst protecting this essential right within a constitutional democracy, ensures that it is used to foster a society based on equality and human dignity for all.
This judgment ensures that freedom of expression is not used as a veil for hate speech. Furthermore, this judgment builds on the jurisprudence which clarifies the reasonable and justifiable limitations of freedom of expression.
Enquiries:
Gail Smith
SAHRC Spokesperson
Cell: 060 988 3792
E-mail: gsmith@sahrc.org.za
Gushwell Brooks
SAHRC Communications Co-ordinator
Cell: 082 645 8573
E-mail: gbrooks@sahrc.org.za
