Qwelane v. South African Human Rights Commission

In 2008, a South African newspaper published an article by Jonathan Dubula Qwelane (defendant) titled “Call me names—but gay is not okay.” The article opined that homosexuality was degrading societal values, expressed hope that politicians would outlaw gay marriage, and compared homosexuals to animals. The South African Human Rights Commission (SAHRC) (plaintiff) instituted proceedings against Qwelane and the newspaper’s owner. The SAHRC claimed that the article constituted hate speech that violated § 10(1) of South Africa’s Equality Act because the article promoted hatred that injured the dignity of members of the lesbian, gay, bisexual, and transgender (LGBT+) community and delegitimized LGBT+ people’s existence. Section 10(1) prohibits the publication or communication of words against any person based on enumerated prohibited grounds (e.g., race and sexual orientation) if the words could reasonably be construed as demonstrating a clear intention to be hurtful, be harmful or incite harm, and promote or propagate hatred. Qwelane asserted that he had the right to freedom of expression and that § 10(1) was unconstitutional. The high court dismissed the constitutional challenge, but the supreme court of appeal reversed and found § 10(1) unconstitutional. The parties cross-appealed to the South Africa Constitutional Court. On appeal, Qwelane asserted that the Equality Act’s inclusion of sexual orientation as a prohibited ground for hate-speech purposes and the inclusion of the term “hurtful” in the definition of hate speech rendered § 10(1) unconstitutionally overbroad.