Qwelane v South African Human Rights Commission: Hate Speech Ruling

Anti-immigrant protests in South Africa, often fueled by socio-economic tensions, necessitate a clear understanding of the legal boundaries governing public demonstrations. While the Constitution guarantees the right to protest, this right is not absolute and is subject to significant limitations, particularly concerning incitement to violence, hate speech, and public order. Protesters and organisers face legal repercussions under the Regulation of Gatherings Act 205 of 1993, the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (PEPUDA), and common law principles of incitement. Recent judicial pronouncements, notably in *Qwelane v South African Human Rights Commission*, have refined the definition of hate speech, underscoring the imperative for all participants to conduct themselves within the confines of the law to avoid criminal and civil liability.

South Africa frequently experiences public demonstrations, some of which are driven by anti-immigrant sentiments. The recent briefing by parliamentary committees ahead of a reported 30 June “deadline” for such protests highlights the ongoing tension and the critical need for participants to understand their legal rights and obligations. While the right to protest is a cornerstone of South Africa's constitutional democracy, it is not unfettered and must be exercised responsibly, without infringing upon the rights and safety of others.

This article aims to provide legal professionals with a comprehensive overview of the legal framework governing anti-immigrant protests in South Africa. It will delve into the constitutional right to protest, the statutory requirements for public gatherings, and the critical prohibitions against hate speech and incitement to violence. The analysis will draw on key legislation and recent jurisprudence to illuminate the legal risks associated with unlawful protest action, particularly those targeting non-citizens.

The right to protest in South Africa is enshrined in Section 17 of the Constitution of the Republic of South Africa, 1996, which states that "Everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions." This fundamental right extends to all individuals within South Africa's borders, including non-citizens. However, like all rights in the Bill of Rights, it is not absolute and is subject to the general limitation clause in Section 36 of the Constitution, requiring that any limitation be reasonable and justifiable in an open and democratic society.

Further regulation of public gatherings is provided by the Regulation of Gatherings Act 205 of 1993. This Act mandates that conveners of gatherings involving more than 15 people must give notice to the responsible officer at least seven days before the event, or at the earliest reasonable opportunity. Failure to provide adequate notice for a planned gathering constitutes an offence. The Act also explicitly prohibits the carrying of dangerous weapons at such gatherings. Beyond the procedural aspects, the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (PEPUDA) serves as a crucial legislative instrument in combating discrimination and hate speech, which are often prevalent in anti-immigrant discourse.

The exercise of the right to protest, while constitutionally protected, finds its limits when it infringes upon other fundamental rights or public order. A critical boundary is crossed when protests devolve into incitement to violence or hate speech. Section 16(2) of the Constitution explicitly states that freedom of expression does not extend to "propaganda for war; incitement of imminent violence; or advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm." This constitutional limitation is further elaborated in PEPUDA, which aims to prevent and prohibit hate speech.

The Constitutional Court's landmark decision in *Qwelane v South African Human Rights Commission and Another* [2021] ZACC 22 (also reported as 2022 (2) BCLR 129 (CC)) significantly clarified the interpretation of hate speech under Section 10(1) of PEPUDA. The Court found the inclusion of the word "hurtful" in the definition of hate speech to be unconstitutional, as it was overly broad and vague. However, the Court affirmed that speech constitutes hate speech if it is based on one or more prohibited grounds (such as race, ethnic or social origin, or sexual orientation) and could reasonably be construed to demonstrate a clear intention to be harmful or to incite harm, or to promote or propagate hatred. This judgment provides a clearer standard for assessing whether anti-immigrant rhetoric crosses the line into unlawful hate speech.

Furthermore, incitement to public violence is a common law criminal offence, codified in Section 17 of the Riotous Assemblies Act 17 of 1956. This provision stipulates that a person is deemed to have committed incitement if their conduct would reasonably result in others committing public violence. Crucially, the success of the incitement is not a prerequisite for criminal liability. Organisers of protests also bear specific responsibilities under the Regulation of Gatherings Act, including ensuring that participants are informed of any conditions imposed on the gathering and taking reasonable steps to prevent the carrying of dangerous weapons. Failure to adhere to these duties can lead to criminal charges, including imprisonment.

The rights of non-citizens in South Africa are robustly protected by the Constitution, which applies to "everyone" within the country's borders. This means that non-nationals are entitled to most fundamental human rights, with only a few exceptions explicitly reserved for citizens, such as voting or holding certain public offices. Therefore, any protest action that targets non-citizens with discrimination, harassment, or violence directly contravenes constitutional principles and statutory prohibitions, exposing perpetrators to legal action under PEPUDA, as well as criminal charges for assault, damage to property, or public violence.

The message from parliamentary committees for anti-immigrant protesters to "stay within the law" is a critical reminder of the legal boundaries that govern public demonstrations in South Africa. While the right to protest is a vital component of a democratic society, it is not absolute and must be exercised peacefully and without infringing upon the rights and dignity of others. Practitioners must advise clients involved in organising or participating in protests to strictly adhere to the procedural requirements of the Regulation of Gatherings Act 205 of 1993, including giving proper notice and ensuring the absence of dangerous weapons.

Crucially, legal professionals should educate clients on the stringent prohibitions against hate speech and incitement to violence, as clarified by the Constitutional Court in *Qwelane v South African Human Rights Commission*. Any expression that demonstrates a clear intention to be harmful, incite harm, or propagate hatred based on prohibited grounds against non-citizens will attract severe legal consequences under PEPUDA and common law. The South African legal framework is designed to protect all individuals, including non-nationals, and those who engage in xenophobic actions risk criminal prosecution and civil liability. Practitioners should monitor further developments in the enforcement of these laws, particularly concerning the prosecution of individuals and organisations responsible for unlawful anti-immigrant activities.