IRM1501
Introduction to research for law and criminal justice
OCT/NOV 2022 EXAMINATION
Written by:
WhatsApp: +27 63 991 0128
, QUESTION 1
Qwelane v South African Human Rights Commission and Another [2021] ZACC 22
In a case involving section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of
2000, the Constitutional Court issued its ruling on July 30, 2021, at 10:00 a.m. The Supreme Court of
Appeal had heard the case after receiving an appeal from the High Court of South Africa, Gauteng Local
Division, in Johannesburg. The Sunday Sun newspaper published an article by well-known columnist Mr.
Qwelane in 2008 headlined "Call me names, but gay is not right." In the article, the applicant compared
homosexual and lesbian individuals to animals and suggested that they were to blame for society's quick
decline in moral standards. Public outrage over this article resulted in over 350 complaints being sent to
the South African Human Rights Commission. The Equality Court received the hate speech complaint from
the SAHRC. Mr. Qwelane responded by filing a constitutional challenge against Equality Act section 10(1),
which defines and outlaws hate speech. The cases were combined for hearing before a single judge who
was also the High Court and the Equality Court.
The applicant contended before the High Court that section 10(1) of the Equality Act, coupled with sections
1, 11, and 12, is overbroad and unjustifiably restricts the right to free expression. Additionally, he claimed
that clause 10(1), particularly when read in conjunction with section 12 of the Equality Act, is unacceptably
unclear. The applicant's overbreadth objection was rejected by the High Court. It argued that because
Section 10(1) of the Equality Act could be interpreted in accordance with Section 16(2)(c) of the
Constitution and passed the limitations test under Section 36 of the Constitution, it was not overbroad.
The caveat in section 12 justifies section 10, thus the High Court also rejected the vagueness argument (1).
The sentiments made by Mr. Qwelane ultimately qualified as hate speech under section 10(1) of the
Equality Act. The petitioner was required by the High Court to pay the costs of the case as well as submit a
written apology to the LGBTI+ community.
In dealing with the first issue, the Court held that section 10(1) entails an objective reasonable person test,
thereby upholding the decision of the Equality Court in that respect. Secondly, the Court found that the
Supreme Court of Appeal erred in finding that paragraphs (a)-(c) of section 10(1) must be read
disjunctively, as this would unjustifiably limit section 16 of the Constitution. Thirdly, the Court considered
whether the terms “hurtful”, “harmful” and “to incite harm” are vague, as they appear in section 10 of the
Equality Act. It held that the term “hurtful’ is indeed vague, while the others are not. The Court also found
that the inclusion of both the term “hurtful” in section 10(1) of the Equality Act, and the prohibited ground
of “sexual orientation” in section 1, constitute limitations of section 16(1) of the Constitution. Applying the
test in section 36 of the Constitution, the Court held that the limitation occasioned by “hurtful” cannot be
justified, and is therefore unconstitutional. However, the inclusion of “sexual orientation” as a prohibited
ground was found to be proportional to its purpose. It is a justifiable limitation of section 16(1). The Court
reasoned that it would not be possible to protect the rights of the LGBT+ community without prohibiting
hate speech based on sexual orientation.
Therefore, section 10(1) of the Equality Act was found to be unconstitutional to the extent of the inclusion
of the term “hurtful”. The Court reasoned that the unconstitutionality could be cured through the excision
of that term, but that the declaration of constitutional invalidity should be suspended for 24 months to
afford Parliament an opportunity to remedy the constitutional defect. The Court ordered that in the
interim, section 10 should be read to refer exclusively to speech that is harmful and incites hatred. With
respect to Mr Qwelane, his abhorrent article was found to constitute hate speech
in terms of the elements of section 10(1) which remained constitutional, as it had clearly been harmful and
incited hatred. The Court reasoned that Mr Qwelane was advocating hatred, as the article plainly
constitutes detestation and vilification of homosexuals on the grounds of sexual orientation. The Court
Introduction to research for law and criminal justice
OCT/NOV 2022 EXAMINATION
Written by:
WhatsApp: +27 63 991 0128
, QUESTION 1
Qwelane v South African Human Rights Commission and Another [2021] ZACC 22
In a case involving section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of
2000, the Constitutional Court issued its ruling on July 30, 2021, at 10:00 a.m. The Supreme Court of
Appeal had heard the case after receiving an appeal from the High Court of South Africa, Gauteng Local
Division, in Johannesburg. The Sunday Sun newspaper published an article by well-known columnist Mr.
Qwelane in 2008 headlined "Call me names, but gay is not right." In the article, the applicant compared
homosexual and lesbian individuals to animals and suggested that they were to blame for society's quick
decline in moral standards. Public outrage over this article resulted in over 350 complaints being sent to
the South African Human Rights Commission. The Equality Court received the hate speech complaint from
the SAHRC. Mr. Qwelane responded by filing a constitutional challenge against Equality Act section 10(1),
which defines and outlaws hate speech. The cases were combined for hearing before a single judge who
was also the High Court and the Equality Court.
The applicant contended before the High Court that section 10(1) of the Equality Act, coupled with sections
1, 11, and 12, is overbroad and unjustifiably restricts the right to free expression. Additionally, he claimed
that clause 10(1), particularly when read in conjunction with section 12 of the Equality Act, is unacceptably
unclear. The applicant's overbreadth objection was rejected by the High Court. It argued that because
Section 10(1) of the Equality Act could be interpreted in accordance with Section 16(2)(c) of the
Constitution and passed the limitations test under Section 36 of the Constitution, it was not overbroad.
The caveat in section 12 justifies section 10, thus the High Court also rejected the vagueness argument (1).
The sentiments made by Mr. Qwelane ultimately qualified as hate speech under section 10(1) of the
Equality Act. The petitioner was required by the High Court to pay the costs of the case as well as submit a
written apology to the LGBTI+ community.
In dealing with the first issue, the Court held that section 10(1) entails an objective reasonable person test,
thereby upholding the decision of the Equality Court in that respect. Secondly, the Court found that the
Supreme Court of Appeal erred in finding that paragraphs (a)-(c) of section 10(1) must be read
disjunctively, as this would unjustifiably limit section 16 of the Constitution. Thirdly, the Court considered
whether the terms “hurtful”, “harmful” and “to incite harm” are vague, as they appear in section 10 of the
Equality Act. It held that the term “hurtful’ is indeed vague, while the others are not. The Court also found
that the inclusion of both the term “hurtful” in section 10(1) of the Equality Act, and the prohibited ground
of “sexual orientation” in section 1, constitute limitations of section 16(1) of the Constitution. Applying the
test in section 36 of the Constitution, the Court held that the limitation occasioned by “hurtful” cannot be
justified, and is therefore unconstitutional. However, the inclusion of “sexual orientation” as a prohibited
ground was found to be proportional to its purpose. It is a justifiable limitation of section 16(1). The Court
reasoned that it would not be possible to protect the rights of the LGBT+ community without prohibiting
hate speech based on sexual orientation.
Therefore, section 10(1) of the Equality Act was found to be unconstitutional to the extent of the inclusion
of the term “hurtful”. The Court reasoned that the unconstitutionality could be cured through the excision
of that term, but that the declaration of constitutional invalidity should be suspended for 24 months to
afford Parliament an opportunity to remedy the constitutional defect. The Court ordered that in the
interim, section 10 should be read to refer exclusively to speech that is harmful and incites hatred. With
respect to Mr Qwelane, his abhorrent article was found to constitute hate speech
in terms of the elements of section 10(1) which remained constitutional, as it had clearly been harmful and
incited hatred. The Court reasoned that Mr Qwelane was advocating hatred, as the article plainly
constitutes detestation and vilification of homosexuals on the grounds of sexual orientation. The Court
