SCA declares Section 10 of Equality and unfair discrimination act unconstitutional

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The Supreme Court of Appeal (SCA) has declared unconstitutional Section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act (Pepuda).

The provision of the Act prohibits hate speech which could incite harm, promote or propagate hatred.

The appeal regarding the validity of the Act was brought by former South African ambassador to Uganda and veteran journalist Jon Qwelane.

Qwelane was found guilty of hate speech in 2017 following a Sunday newspaper column he had written in 2008 in which he berated gays and lesbians.

The SCA has upheld Qwelane’s appeal that the Pepuda was inconsistent with Section 16 of the Constitution, which guaranteed the right to freedom of expression.

The SCA has also dismissed the complaint by the South African Human Rights Commission against Qwelane. The court found that there were glaring tensions between Freedom of expression and the Regulation of hate speech.

The SCA concluded that, in regulating hate speech, section 10 (1) of the Act travelled far beyond the limitation of advocation of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.

Parliament has been given 18 months to remedy the defect; Section 10 of Pepuda must also be recrafted in order to act as an interim provision until Parliament amends the defect.

However, the order will first have to be confirmed by the Constitutional Court.