This article responds to some of the issues raised by Marais and Pretorius in their 2015 article titled "A Contextual Analysis of the Hate Speech Provisions of the Equality Act" published in 2015(18)4 PER 901. In particular, the authors in the present response deal with a) the relationship between the prohibition of unfair discrimination and the regulation of hate speech; b) Marais and Pretorius' interpretation of aspects of the section 10(1) hate speech test; c) the role and interpretation of the proviso in section 12; and d) the constitutionality of section 10(1), as read with the proviso. For each of these issues, the authors first summarise Marais and Pretorius' contentions and then reply thereto. The authors also propose amendments to the threshold test for hate speech in terms of section 10(1) and suggest the enactment of new hate speech-specific defences.  

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In South African Human Rights Commission v Qwelane (hereinafter “Qwelane”) the constitutionality of the threshold test for the hate speech prohibition in section 10(1) of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (hereinafter the “Equality Act”) was challenged. Although the court had no difficulty in finding that the publication in question fell squarely within the parameters of hate speech, the judgment is both incoherent and flawed. The court’s conjunctive interpretation of the section 10(1) requirements for hate speech also differs from the disjunctive interpretation given to the same provision in Herselman v Geleba (ECD (unreported) 2011-09-01 Case No 231/09 hereinafter “Herselman”) by the Eastern Cape High Court. The consequence is a “fragmented jurisprudence” which impacts on legal certainty, and which is especially dangerous when the legislation in question is critical to the achievement of the constitutional mandate (Daniels v Campbell NO 2004 (5) SA 331 (CC) par 104 hereinafter “Daniels”).This note demonstrates that the Qwelane court misapplied a number of key principles. These include: the court’s mandate in terms of section 39(2) of the Constitution of the Republic of South Africa, 1996 (hereinafter the “Constitution”); the need to strike an appropriate balance between competing rights in the constitutional framework; the importance of definitional certainty for a hate speech threshold test; the meaning to be ascribed to the terms “hate”, “hurt” and “harm” in the context of hate speech legislation; and the role of international law when interpreting legislation intended to give effect to international obligations.The consequence of these errors for hate speech regulation in South Africa is profound.

The last two years have been challenging for the South African Parliament (comprising the National Assembly and the National Council of Provinces). Some of the issues experienced include: wide-ranging disruptions during the President’s 2015 State of the Nation Address; the forceful removal of Members of Parliament (members) from the parliamentary Chamber by the police; cell-phone signal jamming in the Chamber; a failure by the Assembly to fulfil its constitutional obligations in terms of sections 55(2) and 181(3) of the Constitution of the Republic of South Africa, 1996 by not holding the President accountable to the Public Protector’s findings in the Nkandla saga ; members ignoring the rulings of the Speaker and the Chairperson of the NCOP; a challenge to the legitimacy of Parliament’s broadcasting policy and rules (Primedia) and the use of various forms of “unparliamentary” language by members in Parliament (Chairperson of NCOP). Whilst confrontation and robust debate in Parliament are not uncommon and to be expected, incidents such as these are becoming more frequent and have required the repeated intervention of the Courts.The Constitutional Court judgment in Democratic Alliance v Speaker of the National Assembly raises important questions concerning the nature and scope of the parliamentary privilege in section 58(1)(b) of the Constitution. It also demonstrates the difficulty of maintaining a balance between the importance of upholding the guarantee of freedom of speech in Parliament, on the one hand, and the need to ensure internal order and discipline during parliamentary sittings, on the other. There have been a number of recent judgments concerning the internal functioning of Parliament. These judgments illustrate that the South African Constitution is a work in progress and that our constitutional jurisprudence is maturing. As recently observed by retired Constitutional Court Justice, Sandile Ngcobo, “This is not a bad thing … Our Constitution is still a young one and through constitutional adjudication it will generate constitutional rules and principles that will form the core of our constitutional law”. The purpose of this note is to explore the constitutional principles underlying parliamentary privilege, with specific reference to the decision in Democratic Alliance.

This article uses speech theory to assess the harm constituted by the speech acts in two Constitutional Court cases, namely Rustenburg Platinum Mine v SAEWA obo Bester and Others and Duncanmec (Pty) Ltd v Gaylard NO and Others. I argue that racist speech should be treated as a subordinating and oppressive speech act, with illocutionary force, where the speaker enacts harm through the words used. In the context of the factual matrix in Rustenburg Platinum Mine and with reference to the racial descriptor, 'swartman', I show that such speech can perpetuate structural inequality, and has the capacity to perpetuate unjust social hierarchies. In comparison, the struggle song at issue in Duncanmec (Pty) Ltd Gaylard NO and Others, when assessed in context and with reference to the hierarchy of the actors involved, did not have the ability to enact subordination. The analysis demonstrates that an appreciation of the illocutionary force of racist speech and its capacity to enact identity-oppression enhances the balancing of the benefits of the promotion of free speech against the need to regulate and censor harmful speech.