PRESS STATEMENT | Constitutional Court confirms that publication by Jon Qwelane constituted hate speech

Date: 30/07/2021

On 30 July 2021, the Constitutional Court handed down its judgment in the matter of Jonathan Dubula Qwelane v South African Human Rights Commission and Another. Central to the Court’s decision was whether the hate speech provision under Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (PEPUDA) was constitutional. This required a balance between freedom of expression, dignity and equality. The Court held that section 10(1)(a) PEPUDA is unconstitutional for vagueness and inconsistent with the freedom of expression under section 16 of the Constitution. The Court further upheld the appeal by the South African Human Rights Commission and concluded that the publication in question authored by Jon Qwelane constituted hate speech.

The Southern Africa Litigation Centre (SALC), represented by Lawyers for Human Rights (LHR), was admitted in the matter as a friend of the Court (amicus curiae). SALC’s submissions set out the international law framework regarding (i) the limits to free speech and the constitutive elements of hate speech; and (ii) the principles in international human rights law regarding the rights and protection of LGBTI persons. Against this backdrop, SALC demonstrated how the publication by Jon Qwelane (Mr Qwelane) constituted hate speech.

Atilla Kisla, Legal Consultant at SALC, pointed out that:

“We welcome the Court’s use of international law standards to determine criteria of hate speech. This decision does not only guide us legally on what the requirements of hate speech are but also emphasises that there no room for dehumanisation of LGBTI persons in a diverse, tolerant and law-abiding society.”

Charné Tracey, the attorney leading the matter for SALC noted that:

“This judgment is important in confirming that although the right to freedom of expression is essential in a constitutional democracy, the limitation thereof is equally important in protecting vulnerable groups and hopefully, the judgment will create an opportunity for the SAHRC to address hate speech more effectively.”


For more information or comment, contact:


Atilla Kisla

Legal Consultant

Civil and Political Rights Programme


Tel.: +27 (0) 63 081 1512


Charné Tracey

Project Attorney

Strategic Litigation Programme


Tel: +27 (0) 11 339 1960

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