The court also found that the term hurtful should be excised from the Equality Act in that it did not meet the justification threshold in the Constitution and gave Parliament 24 months to do so
and continued past his death, the Constitutional Court on Friday held that ensuring equality and protection of lesbian, gay, bisexual and transgender people was part of South Africa’s constitutional project and his words had constituted hate speech.
“Mr Qwelane was advocating hatred, as the article plainly constitutes detestation and vilification of homosexuals on the grounds of sexual orientation.”to the constitutional court, saw the bench grapple with the tension between the right to freedom of expression and the right to be protected from hate speech.
In consequence, regulation of expression that falls within section 16 would not be a limitation of the right to free speech. But where the scope is extended further, it encroaches on the terrain of protected expression and the justification criteria in section 36 comes into play. Turning to consider whether the words “hurtful”, “harmful” and “to incite harm” were vague, he found that the term “hurtful’ is indeed vague, but the rest are not.
This can be cured by excising the terms from the Act, but the court suspended its declaration of invalidity for 24 months to give parliament time to remedy the defect. In this time, the court said, section 10 should be read to refer exclusively to speech that is harmful and incites hatred.
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