IRM1501 EXAMINATION

IRM1501 EXAMINATION PORTFOLIO 2 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.1 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 1 Qwelane v South African Human Rights Commission and Another [2021] ZACC 22. 2 the Promotion of Equality and Prevention of Unfair Discrimination Act, 1999. The Court held that section 10 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 Court held that section 10 of PEPUDA was unconstitutional and ordered the legislature to redraft the provision. However, the Court ordered that until a new provision was enacted, section 10 would read “(1) No person may advocate hatred that is based on race, ethnicity, gender, religion or sexual orientation and that constitutes incitement to cause harm. (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, g