South Africa: Freedom of Speech Is Not an Absolute Right


Although freedom of speech is indisputable, our courts here and abroad are clear: What is permitted is a public debate which does not amount to hate speech.

There is little doubt that the Promotion of Equality and Prevention of Unfair Discrimination Act of 2000 (Pepuda), which was designed to be a comprehensive anti-discrimination law including the prohibition of hate speech, was poorly conceived and drafted with exquisite lack of care.

Arguably, as a consequence thereof, there have been a series of cases alleging hate speech which have been unsuccessful. The coupling of speech uttered with a clear intention to be harmful or to incite harm on one of the prohibited grounds (which include race, gender, sexual orientation, religion, conscience, belief, and culture) has proved very problematic for parties seeking the protection of Pepuda.

Litigation based upon defamation appears to be a more fruitful legal strategy. That much was made clear in the successful defamation case brought by Trevor Manuel against members of the EFF.

Most recently, Dr Roy Jankielsohn, the leader of the DA in the Free State, was equally successful in his case against members of the ANC Youth League in the province. Jankielsohn made some very critical remarks...

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