In his judgment Majiedt said hate speech was the antithesis of the values envisioned by the right to free speech — “whereas the latter advanced democracy, hate speech is destructive of democracy”.
He said the harm in Qwelane’s column was not only to the LGBTQI+ community but also “our constitutional project, which seeks to create an inclusive society based on the values of equality, dignity and acceptance”.
The ConCourt also found that one aspect of the hate speech clause in the Promotion of Equality and Prevention of Unfair Discrimination Act was unconstitutional.
The act said no-one “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; [or] (c) promote or propagate hatred”. There is a list of prohibited grounds, which includes race, gender, sexual orientation and others.
The “hurtful” part is what the highest court found did not pass constitutional muster. The court found that to read the section constitutionally, hurtful would have to be read to mean the same thing as harmful, which then rendered it redundant.
“There is no need to have both,” said Majiedt. The “hurtful” portion was “irredeemably vague and undermines the rule of law”.
The court has given parliament two years to fix the hate speech provision in the Equality Act. In the meantime, the court ordered the act will read to say that no-one “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 be harmful or to incite harm and to promote or propagate hatred”.
If parliament does not fix the clause in time, the court-ordered fix will become permanent.