The Constitutionality of the Prohibition of Hate Speech in Terms of Section 10(1) of the Equality Act: A Reply to Botha and Govindjee

37 Pages Posted: 30 May 2019

See all articles by Maria Marais

Maria Marais

University of the Free State - Faculty of Law

JL Pretorius

University of the Free State

Date Written: May 24, 2019

Abstract

This is a reply to a critique by Botha and Govindjee (2017 PELJ 1-32) of our interpretation of the hate speech provisions of the Equality Act (Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000) in Marais and Pretorius (2015 PELJ 901-942), in which we considered the constitutionality of section 10(1) of the Act, amongst other things. We address Botha and Govindjees' rejection of our view that hate speech is a form of unfair discrimination and that the most appropriate constitutional framework within which section 10(1) should be interpreted and assessed is sections 9 and 10 of the Constitution. We consider Botha and Govindjees' rejection of this point of departure, their opposing different interpretation of the role of the proviso in section 12 of the Act and, generally, their reasons for concluding that section 10(1) is unconstitutional. We maintain that Botha and Govindjee's proposals for reform unduly restrict the hate speech prohibition to cover exclusively expression that warrants criminalisation. In doing so, they fail to fully acknowledge the transformative obligation in terms of international law, the Constitution and the Equality Act, to prohibit and prevent unfair discrimination.

Keywords: hate speech, Equality Act, unfair discrimination and hate speech regulation, hurt and harm, incitement, freedom of expression, dignity, equality, bona fide engagement in protected expression

Suggested Citation

Marais, Maria and Pretorius, Jan, The Constitutionality of the Prohibition of Hate Speech in Terms of Section 10(1) of the Equality Act: A Reply to Botha and Govindjee (May 24, 2019). Potchefstroom Electronic Law Journal, Vol. 22, 2019, Available at SSRN: https://ssrn.com/abstract=3395717

Maria Marais (Contact Author)

University of the Free State - Faculty of Law ( email )

205 Nelson Mandela Drive
Park West
Bloemfontein, Free State 9300
South Africa

Jan Pretorius

University of the Free State ( email )

205 Nelson Mandela Drive
Park West
Bloemfontein, Free State 9300
South Africa

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
14
Abstract Views
144
PlumX Metrics