On Friday, the Court of Appeal declared the contentious definition of hate speech unconstitutional by finding that a claim is only hate speech if it causes harm and incites violence.
With that, legal experts say, the full bench has made short of the hate speech “spiral” in which South Africa has found itself. In recent years, anything from the old South African flag and insult of gay people to the use of the k-word between two black people has been declared hate speech.
The BLF leaders argue that their remarks cannot be hate speech just because they offend.
Prior to Friday’s appeals court ruling, the Promotion of Equality and Prevention of Unfair Discrimination Act (Pepuda) ruled that something “hurtful” to a specific group of people is also hate speech.
The Court of Appeal gave Parliament 18 months to amend Pepuda by significantly narrowing the definition of hate speech. If they fail to do so, the Court of Appeals’ new, narrower definition will automatically apply.
The ruling has yet to be ratified by the Constitutional Court.
In the case, the judges found the former ambassador and journalist Jon Qwelane did not commit hate speech in 2008 when he wrote in a column for the Sunday Sun that it was “not okay” to be gay. If people of the same sex can marry, how long before “certain idiots demand to marry an animal?” He asked.
Qwelane was wronged and the HRC took him to the Equality Court.
Kallie Kriel, CEO of AfriForum, who is currently appealing against the Equality Court’s decision that the unnecessary display of the old South African flag is hate speech, says the ruling is a huge step forward for freedom of speech. “But that doesn’t mean you have to swing the old flag in Soweto or roast your pork chop at a Muslim. It offends and it’s bad manners. You still have to have respect for other people. “
However, people who strongly believe in freedom of speech should be able to say to others: “I differ from you, but I will fight for your freedom of speech.”
Kriel says the ruling could have a big impact on their pending case over the old flag. AfriForum asked the Court of Appeal for permission to appeal. “If you wave the flag and you say let’s make war on blacks, then it’s hate speech. Just waving the flag is not hate speech.
“The ruling means that legislation can no longer be abused to hamper freedom of speech, because then we are in a ridiculous spiral. In such a spiral, anyone can decide what is hate speech and what is not. “
Nelson Mandela Foundation lawyer Rupert Candy, who led the case over the old flag, said the Qwelane order was not in force until the Constitutional Court ratified it.
“Until it is ratified, it has no bearing on any hate speech case, including the case on the old flag. The (appellate court’s) statement will have no retroactive effect. It will therefore not affect previous matters. “
Candy says their law firm will advise the foundation to intervene in the Qwelane case when it comes to the Constitutional Court, “because hate speech laws are needed in South Africa to protect vulnerable groups, such as black lesbians in townships”.
Prof. Anton Kok of the University of Pretoria, a specialist in legislation on equality and human rights, says offenders who have committed serious violations of dignity by, for example, violating the k-word will not have much of a practical effect no.
They will still be punished for crimen injuria or sued in a civil claim.
He says if the Constitutional Court ratifies the appeals court’s order, the court is likely to make an arrangement on all pending hate speech cases.
He says the question then arises whether an injustice was committed against those who were ordered by the Equality Courts under the previous definition to pay damages.