EXPRESSION: THE MOUTH PIECE OF HUMAN RIGHTS- PT 1

"I WRITE WHAT I LIKE" A quote famously associated with the hero, the late Steve Biko. There is a book i am set to read which fell on my lap during the readings for this writing called "I write what i like" which is a book displays to the reader the writings of Mr Steve Biko.

I use this quote as the begining of this piece because its represents perfectly the subject of todays topic. "I write what i like" is the perfect explaination of what freedom of expression means. I read that quote to mean that, as a human being, with emotions and lived experiences and future aspiration, you have to have the freedom to express those aspects of your existence because they are your story. I write what i like is the explaination of your freedom to express your own human experience.

We are here to look at Section 16 of the Constitution of Republic of South Africa which provides for the RIGHT TO FREEDOM OF EXPRESSION. One of those rights which are regarded as the cornerstone of any democratic society. It isnt a true democracy if the people cannot say NO!!!. It isnt a democracy if expression is restricted because the government does not like being called out on their bullshit. The Right to Freedom of Expression is the Mouthpiece of the other Rights espoused in the Bill of Rights.

Herein we will delve into Section 16:Right to Freedom of Expression and its content. Outline the limitation on the freedom to express and the purpose of that Limitation. Touch a little longer on the limitation of on Right to Freedom of Expression wherein any expression is a go unless it advocates for hatred based Race, Gender, Ethnicity, Religion and that constitutes incitement to cause Harm. Its a Piece wherein we will actully Express the Jurisprudence of Hate Speech.

1. SECTION 16: RIGHT TO FREEDOM OF EXPRESSION

Given the Constitution's supreme law status in the republic of South Africa, any legal concept, topic or subject, we have to begin with understanding what the Constitution says. I am using the principle of Subsidiarity as inspiraction of the structure of this piece. To understand what the law is as it pertains to Freedom of Expression and Hate Speech, let understand what the Constitution of the Republic of South Africa stipulates:

Section 16: Freedom of Expression

16(1)- Everyone has the right to freedom of expression, which includes –

(a)freedom of the press and other media;

(b) freedom to receive or impart information or ideas;

(c) freedom of artistic creativity; and academic freedom and freedom of scientific research.

16(2)The right in subsection (1) does not extend to –

(a) propaganda for war;

(b) incitement of imminent violence; or

(c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.

The above is the contents of your Freedom to Express yourself in an open and democractic society based on Human Dignity, Equality and Freedom. Lets Break it down real quick

1.2 THE BREAKDOWN: 16(1) & 16(2)

To understand how to exercise your Rights, its essential to understand what those Rights entail. Therefore, lets breakdown the contents of the Right to Freedom of Expression in order to understand what My and Your Freedom of Expression entails.

Section 16(1) provides that Everyone(Me, You, Everybody and their Mommas) has right to freely express themselves and this expression may fall under these three categories namely:

1. Freedom of press and other media, as a category relates to publication, broadcasting. In that entities have the freedom to publish and broadcast anything they want (of course the material published or broadcasted must fall fall under the material prohibited under section 16(2)- we will get to that). Basically, you can publish, post, record and broadcast anything you feel like provided it does fuck with fabric of a society that is based on HUMAN DIGNITY( self-worth not tied to creed or color- basically human dignity is the right you have to be Respect irrespective of where you are, what you have or dont have and who knows you- YOU ARE WORTHY OF RESPECT AND BEING VALUED) , EQUALITY(one cannot be treated different unless the different treatement is to achieve substantive equality where those previously disadvange or vulnerable must be treated in such a manner that they are given more assistance and attention so they can achieve their potential as compared to those who already have everything they need to achieve their potential eg Funding for school goes to more in need than those who have the needs to go to school).

   FREEDOM(Freedom being the ability to decide on one's own affairs- its doing what is best for you- execising independence in your decision as a "responsible moral agent" trusted to do the right thing for purposes of ensuring the fabric of society is not brought to disrepute)

2. Freedom to receive or impart information of idea, in simple terms relates to one being free to receive any information they choose, impart any information they want and exchange any type of idea with anyone, ofcourse provided its not towards the disturbance of fabric of society

3. Freedom of artistic creativity; and academic freedom and freedom of scientific research, This category is a mouth but it does describe itself perfectly in that you are free to express yourself however you want, you are free to seek and pursue knowledge of all sorts throught academia in any discipline and lastly you free to explore any scientific question that your mind can conjure. I personally view this category as impossible to limit because first its incapable of disturbing the fabric of society, and second its a category which give individuals the freedom to pursue their full potential

That is what you got as it pertains to your exercising your freedom to express. The above are expression and speeches protected by the Constitution of the republic of South Africa. As long as you outward expresion is within these bound, let loose. The problem arises when voice box begins to utter words that breaks cohesion in a manner that lead to destructive chaos being chaos which holds no brighter future at the end of the tunnel. The following constitute as expression which one has no freedom to make. Ofcourse choice is always available, but such Expression are prohibited in an open and democractic society based on the foundational values espoused in the Constitution(Dignity, Equality, Freedom). In reduced terms the following are expression that you are prohibited from making and making such expression will be considered as Fucked up- truly fucked up.

1. Expression that pertain to Propagating of War. You can speak your truth, spread empowerment in your community, express the importance of fighting for your Rights. The line gets drawm when your communication begins to take a Hitler tone where your material take an energy of inciting people to perpetuate Acts of agression, of facilitating military conflict ad organized state violence. Individual cannot be spreading messaging of starting Wars. Thats why we are looking at US President Donald Trump with red side eyes.

2. Expression that Incites Imminent Violence. Again, we are looking at Mr Trump with side eyes because he is attempting to "Liberate" Iran with Violent bombings and pure acts of Violence. It matters not the intention, Violence has never been the answer, only the tool to bring you right back to square one. Expression that Violence against anyone else is prohibited. Its prohibition is founded of stitch in the fabric of society which provides that we are not Animals, and therefore we cannot behave like animals. Thats why as soon as someones outwards expression are a display of Animalistic behavior, then they get put in a four wall jail cell. You cannot tell people to go and rain violence upon another group of people.

3. Expression that advocates for Hatred against another based on their race, gender, religion or ethnicity and Incites the causing of harm. This last excluded expression is what we call HATE SPEECH. And that perfectly brings us to the next point of expression in this piece.

HATE SPEECH: HATRED & HARM

Hate speech is essentially speech that advocates for Hatred based on Race, Gender, Ethnicity or Religion and such advocacy resulting to the incitement to Cause Harm. As you have noticed, the requirements of Hate Speech is as follows:

1. There must be an advocacy of Hatred towards someone or a people based on that peoples Race, Gender, Religion or Ethnicity.

2. It must not only be about pushing Hatred projects, but it must also Result in the Incitement to Cause. Meaning the speech must be reasonable contrued by a reasonable person to to have been said foru the purposes to harm to an Identity. That Harm can be Physical and it can be Emotional. For example, calling someone a "Spear Chucker"- its an advocacy of hatred because its a derogatory statement made towards another for the purposes of degrading their identity.

3. Law has stipulated that wherein the hatred is towards to other grounds besides the 4 mentioned in the Constitution, then what happens is that it must be proven that the limitation of exclusion such speech is reasonable and justifiable in an open and democractic society based on freedom, human dignity and equality- Islamic Unity Convention v Independent Broadcasting Authority came in clutch with lacuna as to whether what happens if the hatred is towards another based on not these 4 listed grounds. Here the Speech is automatically labelled as Hate speech. One must provide a reasonable and justifiable reason why such speech should be regarded as Hate speech, and therefore limited for the purpose of keeping the social fabric of democractic and open society that is based on freedom, human dignity and equaluty

For us to perfectly have a good grasp of what HATE SPEECH, we will look at through the lense of 3 court judgments. Qwelane, Malema & Kenny Kunene & Malema Kill the Broer Judgment 2022 Equality Court Judgment

1. Qwelane v South African Human Rights Commission and Another [2021] ZACC 22

   The story begins with the late uBab Qwelane—anti-apartheid activist and a journalist of his time. As it happened, uBab Qwelane penned an article that, objectively, could only be construed as being targeted toward homosexuals. He claimed that homosexuality was "fucking with" traditional values, called it a detriment to society, and even compared homosexuals to animals. Finally, he argued that it was a mistake for the LGBTQ community to be covered by the Constitution and protected by the law to live their truth. The tone of the article wasn’t in the spirit of journalism or reporting; it was a think piece from a man expressing pure disdain for people unlike him.

   The article was published in the Sunday Sun, and the whole shit caused absolute pandemonium and uproar. Complaints flew left and right to the media authorities, and piled up to the ceiling at the South African Human Rights Commission against the violative nature of the piece.

With complaints coming in hot, like a summers rain, the South African Human Rights Commission instituted action against uBab Qwelane and media24 for the ariticle. They claimed the article constitutes as Hate Speech in terms section 10(1) of the Promotion of Equality and Prevention of Unfair Discrimination Act (Equality act).

Then the doors of the Legal Arena swung right open, and it began at the .........

THE HIGH COURT found that the article constituted hate speech. The High Court was faced with the following legal question in reaching its conclusion that the article constituted hate speech:

1. Did the article that was published constitute Hate Speech in terms of section 10(1) of the Equality act?

   The High court reasoned that speech within a hate speech legal action must be interpreted objectively based on its factual and social context. The court further provided that to ensure that 10(1) of the Equality act is consistent with the Constitutions Freedom of Expression, S10(1) which reads "no person 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 hurtful, harmful or to incite harm and to promote or propagate hatred", must be read conjunctively (meaning all elements must be met). The all element being the intention must be 1) Hurtful; 2) to be harmful or incite harm & 3) to promote or propagrate hatred. If these three elements are present in someones speech, then in terms of the Equality act, such speech will be regarded as Hate Speech. At the time of the matter being in the High Court, the section10(1) had not been impugned to removed "hurtful", so that is some forshadowing for you. The further in its reasoning advance the interpretation of "Hurt" and "Harm" and stipulated that "Hurtful" is a type of severe psychological impact, while "Harmful" refers to physical harm. On its interpretation of section 10(1), High court found that Mr Qwelane's speech to constituted hate speech.

2. Is Section 10(1) of the Equality act unconstitutional on the basis that it undermines the rule of law due to it being vague and overbroad?

The Court dismissed this argument from Mr Qwelane that the law was overbroad. It reasoned that the section could be read in conformity with section 16(2)(c) of the Constitution. Furthermore, the Court held that even if the section prohibited more speech than the Constitution explicitly excludes from protection, it did not fail the limitations analysis under section 36 of the Constitution. Meaning the limitation which 10(1) has on rights to freedom of expression is reasonable and justifiable in an open and democractic society that based on freedom, human digntiy and justice. Regarding the argument that the unconstitutionality of section 10(1) of the Equality act is based on it being Vague, the court quickly dismissed and provided that section 10's operation is contingent on the significant proviso found in section 12. Because speech protected under section 12 is excluded from the prohibition, the provision was found to be sufficiently clear. For purposes of clarity, section 12 provides for the prohibition of dissemination and publication of information that unfairly discrimination, unless ofcourse such information is for purposes of discussion, engagement of artistic creativity, academic and scientific inquiry, fair and accurate reporting in the public interest or publication of any information. Where section 12 comes in is that section 10(1) of the Equality act provides unless you pushing speech for the purposes outlined in section 12, then any speech that intends to promote hatred of cause harm is prohibited.

The Final Judgment that the court handed out was as follows:

• Dismissal of the Constitutional Challenge: The Court dismissed Mr. Qwelane and Media24's constitutional challenge against section 10(1) of the Equality Act.

• Declaration of Hate Speech: The Court declared that the offending statements made against the LGBT+ community were hurtful, harmful, incited harm, and propagated hatred, and thus amounted to hate speech as envisaged in section 10 of the Equality Act.

• Mandatory Apology: Mr. Qwelane was ordered to tender an unconditional written apology to the LGBT+ community within 30 days, which had to be published in a national Sunday newspaper with the same or equal circulation as the Sunday Sun

• Criminal Investigation: The Court ordered the Registrar to forward a transcribed copy of the proceedings and the judgment to the Commissioner of the South African Police Service for further investigation under section 21(4) of the Equality Act

Personally, i have reservation regarding this judgment, it does feel like the court did legal gymnastics on this one in order to fit the interpretation of section 10(1) to align with the Constitution instead of actually interpreting it to find its truth. As you can imagine, Mr Qwelane being well opinionated person, took the matter to the Supreme Court of Appeal to "Right the wrongs of the High Court".

THE SUPREME COURT OF APPEAL came in and did a Uno reverse. It declared section 10 of the Equality Act unconstitutional. For purposes of not being convoluted with the information, the SCA based it conclusion on the following reasons:

1. First, the Court found that the phrase "reasonably construed to demonstrate a clear intention" introduced a subjective standard of assessment, contrary to the objective standard required by section 16(2)(c) of the Constitution, making it unnecessary to demonstrate actual or potential harm. Essentially saying that 10(1) falls short of the standard of the Constitution because its limitation of ones Freedom of expression is based on an subjective assessment because of the use of the word "intent" in its provision. This is a right, therefore its limitation has to founded on more than intent, it has to be based actual factual and social context, not what we think the other person meant to do with their words

2. Second, the Court held that paragraphs (a), (b), and (c) of section 10(1) had to be read disjunctively, which impermissibly separated the constitutional requirements of advocating hatred and inciting harm. Basically saying that the its not requirements, its either one of the three, meaning, its hate speech if its hurtful or harmful or a promotion of hatred.

3. Finally, the Court found the provision to be vague, noting that it is difficult to define what the word "hurtful" means. This portion of the courts reasoning reminded me of the lines delivered by the actor Damson Idris who plays Franklin Saint in the critically acclaimed series called Snowfall. In it Franklin Saint said : "I built this sh*t, me, brick by brick, and I’ll be damned if I let you tear it down just because you don’t like the way another talk." And basically that is what the SCA allueded to, hurtful is too personal, a limitation in my opnion be founded on opinions, given opinions subjective nature. A prohibition on speech on be based on a person not liking another person said. The shit has to break the social fabric of reality.

   Give the unconstitutional finding of section 10(1), which the claim from the SAHRC is based on, Mr Qwelane escapes the allegations.

   This judgment is more law than the High Court judgment. No shade. I just understand this one better because it does not try to fit a narrative for purposes of getting a outcome it wants. It looked at the law, came back outlined the weaknesses and falling short of the law in this regard and ruled according. Although Mr Qwelane said some shit which is Hate speech, but the law in which he was being persecuted was lacking clarity, which means he was being persecuted based on a law that does meet the standard of the supreme law of the country, which is the Constitution.

And that brings us to here, this CONSTITUTIONAL COURT JUDGEMENT wherein the court has to answer the following legal question:

• Whether the phrase "that could reasonably be construed to demonstrate a clear intention" in section 10(1) of the Equality Act postulates a subjective or objective test

  
  

The Court determined that the phrase "reasonably be construed to demonstrate a clear intention" requires an objective standard based on a reasonable person test. The evaluation must look at the effect of the text and its surrounding context, rather than the subjective intention of the author or the subjective perception of the targeted group

• Whether section 10(1)(a)-(c) of the Equality Act must be read disjunctively or conjunctively

  
  

The Court overruled the SCA and held that paragraphs (a)-(c) of section 10(1) must be read conjunctively. A disjunctive reading would mean that merely "hurtful" private communication could constitute hate speech, which would be an overly extensive and impermissible infringement of freedom of expression

• Whether the inclusion of the word "hurtful" makes the impugned provision impermissibly vague and an unjustifiable limitation of freedom of expression under section 16 of the Constitution

  
  

The Court found the term "hurtful" to be irredeemably vague and redundant alongside "harmful", as it is difficult for ordinary citizens to know whether their conduct meets the threshold. Furthermore, because "hurtful" goes beyond the scope of section 16(2) of the Constitution, it constitutes an unjustifiable limitation on freedom of speech under the section 36 analysis and therefore had to be excised from the Equality Act

• Whether the inclusion of "sexual orientation" as a prohibited ground is a justifiable limitation on freedom of expression

  
  

The Court held that adding "sexual orientation" to the prohibited grounds of hate speech extends beyond section 16(2) of the Constitution, but it is a justified and proportional limitation under section 36, as it is essential to protect the rights and dignity of the LGBT+ community

• Whether Mr. Qwelane's statements constituted hate speech in terms of the Equality Act and whether he should be held liable

  
  

Applying the recrafted, constitutionally compliant section 10(1), the Court found that Qwelane's article undeniably constituted vilification and detestation of homosexuals. By likening the LGBT+ community to animals and advocating for the removal of their legal protections, his words objectively demonstrated a clear intention to be harmful, to incite harm, and to propagate hatred. Thus, Qwelane was held liable for hate speech

• The Constitutional Court added a further clarification, which i appreciated alot, when it posited that in the context of civil remedies for hate speech, a proven causal link between the hateful expression and actual physical harm is not required. A reasonable apprehension of societal harm is sufficient. To put it into more clearer context, you know its a room full of people and someone says some wild shit like " i dont like kaffirs". If all you hear in that room is "haaaaaaaaaaaaa!!!!!!!!!!", then best believe that shit is hate speech fosho.

The ConCourt handed down the following judgement: beautiful written judgment if i may add

• Confirmation of Invalidity: The Court confirmed the SCA's declaration of constitutional invalidity of section 10(1) of the Equality Act, but only to the extent that it includes the word "hurtful" in the prohibition against hate speech.

  
  

• Suspension and Interim Reading-in: The declaration of invalidity was suspended for 24 months to allow Parliament to remedy the constitutional defect. In the interim, section 10(1) was read to prohibit words that "could reasonably be construed to demonstrate a clear intention to be harmful or to incite harm and to promote or propagate hatred".

• Hate Speech Finding: The appeal by the SAHRC was upheld. Qwelane's offending statements against the LGBT+ community were declared to be harmful, to incite harm and propagate hatred, and to amount to hate speech in terms of the Equality Act.

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• Costs: The Minister of Justice was ordered to pay half of Qwelane’s costs relating to the constitutionality challenge across all courts, while Qwelane was ordered to pay the SAHRC’s costs in the High Court, the Supreme Court of Appeal, and the Constitutional Court.

CONCLUSION: THE IMPACT OF THIS JUDGMENT ON THE LIVED REALITIES OF SOCIETY

This is one of those judment, which i have enjoyed writing on and providing a deep dive on because it grass roots. It based on actual human lives with its purposes there to ensure a cohesive society that is actually moving with the spirite and purport of human dignity, freedom and respect. The judgment has profoundly influenced the lived realities of South African society by actively protecting vulnerable groups from systemic dehumanization while carefully clarifying the legal boundaries of free expression

The following is the judgments impacts on our lived reality:

1. Validating and Protecting the Lived Realities of the LGBT+ Community The judgment deeply acknowledged the severe, real-world impact of homophobic speech, noting that such expression causes deep psychological trauma, internalised inferiority, depression, and suicidal ideation, which prevents victims from becoming fully functioning members of society. By unequivocally condemning Mr. Qwelane’s comparison of homosexuals to animals, the Court recognized that hate speech contributes to an environment that delegitimizes the very existence of the LGBT+ community. The declaratory order issued by the Court was specifically designed to vindicate the constitutional rights of victims, provide a strong message of deterrence, and halt the normalization of violence and discrimination against them.

2. Setting Boundaries for Political and Social Discourse The Qwelane judgment established "modest outer limits for social and political interaction" to prevent unregulated words from skewing participation against vulnerable individuals or groups. This framework has been heavily relied upon in subsequent political disputes to prevent society from degenerating into mutual dehumanization. For example, in Kunene v Malema, the High Court relied directly on Qwelane to rule that calling a political opponent a "cockroach" constitutes hate speech. The court noted that Qwelane serves to outlaw expression that degrades the social arena, makes society more tolerant of hate, and lays the groundwork for widespread violence.

3. Safeguarding Social Cohesion and the Nation-Building Project The Constitutional Court clarified that hate speech causes "societal harm" that severely damages social cohesion

. The judgment affirmed that the Equality Act aims not just to remedy harm after it happens, but has a preventative purpose to ensure that such societal harm does not occur in the first place. It stops expression that denies individuals the right to be heard simply because of their social status or characteristics.

4. Establishing an Objective Standard for Evaluating Speech By ruling that hate speech must be evaluated using an objective, reasonable person test, the Qwelane judgment drastically altered how speech is legally assessed in everyday reality. Courts must now look at the effect of the text and its factual and social context, rather than the subjective intent of the speaker or the subjective hurt of the target group. This standard has provided clarity in highly charged societal disputes. For instance, in AfriForum v EFF, the Equality Court applied the Qwelane test to rule that the singing of the "Kill the Boer" struggle song did not constitute hate speech, as a reasonable listener evaluating the historical and political context would understand it as protected political speech rather than an incitement to harm.

5. Protecting Robust Debate by Excising the "Hurtful" Standard While protecting society from hate speech, the Qwelane judgment also protected the lived reality of free expression. By declaring the word "hurtful" in Section 10(1) of the Equality Act unconstitutional, the Court ensured that ordinary citizens are not subjected to a "chilling effect" where they fear legal repercussions for expressing unpopular or shocking views. The Court clarified that true hate speech requires "extreme detestation and vilification which risks provoking discriminatory activities". Speech that merely hurts feelings, offends, or disturbs is protected under freedom of expression, ensuring that South Africa remains a pluralistic and open-minded democracy

Disclaimer: The views and analyses expressed on this blog are for informational and educational purposes only. This site serves as a self-guiding diary intended to facilitate my personal understanding of specific subjects and does not serve as an authoritative reference. Information is provided "as is" without any guarantees of completeness or accuracy. Please consult a local, professionally trained individual in the subject matter or you can conduct your own research for any formal inquiries or professional advice. PSA, dont corner an attorney at a Maza or a Braai on a weekend and consult there. Preferably arrange an appointment with the office