The Supreme Court of Appeal last week declared unconstitutional the hate speech provision contained in the Promotion of Equality and Prevention of Unfair Discrimination Act. The court held that the provision was 'overbroad' and unjustifiably limited the right to freedom of expression. However, in terms of the judgment, some forms of hate speech would remain prohibited in terms of the act.
Few legal provisions have given our courts more trouble to interpret and apply than section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA). Different courts have given wildly different interpretations of this hate speech provision.
No wonder then that the SCA complained last week in Qwelane v SAHRC & others that section 10(1) of PEPUDA was "barely intelligible" and quoted academic writers who had previously complained that both section 10 and other provisions of PEPUDA "are exceptionally difficult to understand".
At present, there is no definitive interpretation of the section from our highest court. While the Constitutional Court recently heard oral arguments in a case dealing with the interpretation of section 10, it has not yet delivered judgment in that case. Interestingly, the Constitutional Court is now faced with an unusual situation: it will...