Date: 21/09/2020

On 22 September 2020, the Constitutional Court will hear the case of Jonathan Dubula Qwelane v South African Human Rights Commission and Another (case no: 13/20) that brings into focus the tensions between hate speech and the freedom of expression, in relation to the constitutionality of the hate speech provisions of the Promotion of Equality and prevention of Unfair Discrimination Act 4 of 2000 (“PEDUPA”). The Constitutional Court will decide whether section 10 of the PEPUDA is unconstitutional and inconsistent with section 16 of the Constitution. Section 10 of PEPUDA defines what expression amounts to hate speech and therefore constitutes a limitation to freedom of expression. SALC has been admitted as an amicus curiae in this matter and provides the Constitutional Court with an analysis of international law looking specifically at hate speech and how it harms the rights and compromises the safety of the LGBTI community.

The case has come about as a result of a 2008 homophobic publication by Jon Qwelane, then a journalist with the Sunday Sun tabloid newspaper, bearing  the title “Call me names, but gay is NOT okay…” which had the intention to harm, dehumanise and strip the gay community of their dignity. In 2017, the Equality Court in Johannesburg held that Qwelane’s article constituted hate speech under section 10 of PEPUDA. In 2019, the Supreme Court of Appeal set the Equality Court judgment aside and concluded that section 10 of PEPUDA was overly vague and therefore unconstitutional and invalid. The matter is now before the Constitutional Court for confirmation.


Lawyers for Human Rights, representing the Southern Africa Litigation Centre (“SALC”), seek to intervene as amicus in the matter as it approaches the Constitutional Court. The purpose of the intervention is to provide the Court with the international law framework regarding the limits to free speech and the constitutive elements of hate speech and the relevant principles in international human rights law regarding the rights of LGBTQIA+ people, sexual orientation and gender identity. Furthermore, SALC seeks to demonstrate that there is determinable threshold in international law at which expression becomes hate speech and that with the application of international law principles to Mr. Qwelane’s publication, the publication constituted hate speech. SALC’s submission seeks to show that ‘gender’ is not binary. This is because international law defines gender as a socially constructed concept that is different from one’s biological sex. Gender produces vulnerabilities linked to the way societies organise male and female roles and how they exclude those who they deem transgress such roles. Gender discrimination therefore is not only about the oppression of women, but it also entails discrimination and violence based on real or perceived gender, sexual orientation, gender identity and gender expression.


The hearing will be broadcasted on the YouTube Channel of the Constitutional Court. SALC (@LHR_SA) will post a link to the livestream on YouTube via Twitter on the morning of the hearing. SALC is represented by Lawyers for Human Rights and Advocate Bonita Meyersfeld.



Media contact:                              Wayne Ncube

Telephone: +27 (0) 11 3391960

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