How to make sense of the civil prohibition of hate speech in terms of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000

Abstract

In this article the authors offer a workable interpretation of section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000. Many constitutional law and freedom of expression scholars have argued that section 10 is at least in part unconstitutional. The authors of this article analyse these scholars’ views and chart a path towards saving section 10 from unconstitutionality. Section 10 is analysed by interrogating each of the requirements for hate speech as set out in the section: ‘no person’; ‘publish, propagate, advocate or communicate words’; ‘based on one or more of the prohibited grounds’; ‘that could reasonably be construed to demonstrate a clear intention’; ‘to be hurtful; be harmful or to incite harm; promote or propagate hatred’ and the defences listed in section 12. The article concludes with a proposal for legislative amendments to section 10 to remove any doubt about its constitutionality.