Qwelane v South African Human Rights Commission and another summary case

Qwelane v South African Human Rights Commission and another summary case Facts of the case On July 20, 2008, Jonathan Qwelane, a South African journalist, published a homophobic article in a South African tabloid, the Sunday Sun. Following the publication of the article the South African Human Rights Commission (the Commission) received 350 complaints about the article on the grounds that it constituted hate speech. The press ombud which had also received a number of complaints about the article found that the article violated the South African Press Code by “publishing denigratory references to people’s sexual orientation” and “implying that homosexuals are a lower breed than heterosexuals”. The ombud ordered the newspaper to publish an apology, but refused the Commission’s leave to appeal its ruling. The Commission then approached the Equality Court, arguing that Qwelane and the publisher of the Sunday Sun had contravened section 10(1) of the Promotion of Equality and Prevention of Unfair Discrimination Act, 1999 (PEPUDA).2 Section 10(1) of PEPUDA states: “Subject to the provision in section 12, no person may publish, propagate, advocate or communicate words based on one of 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”. Legal Questions • Whether section 12 of PEPUDA sufficiently narrowed the limitation on freedom of expression caused by section 10 of the same Act? The Decision of the Court