Abstract
In this contribution, I argue that every person's duty to respect others is central to section 10(1) of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 ("the Equality Act"), otherwise known as the "hate speech" prohibition. This duty should therefore also be a central consideration in its interpretation. Related duties are those of the state to enact legislation, and of courts to interpret and apply the law to promote the spirit, purport and objects of the Bill of Rights. Our courts have in many instances considered the duty to respect others, as well as the state's and the courts' related duties, in the interpretation of socioeconomic rights and the development of the common law. In doing so, they have consistently employed the reasonableness standard. Therefore, references to relevant case law in various legal contexts provide the framework within which I examine legal duties in the context of unfair discrimination and, in particular, hate speech in terms of section 10(1) of the Equality Act. I examine the constitutional obligations of the state, the courts and private persons to promote respect for the dignity of others. I reiterate the state's specific obligation in terms of section 9(4) of the Constitution of the Republic of South Africa, 1996, to enact legislation to prevent or prohibit unfair discrimination on the grounds listed in section 9(3). Finally, I relate these duties to the section 10(1) prohibition in the Equality Act. I apply the reasonableness standard to conclude that the prohibition gives due effect to the duties of the state and every person, and that the courts are duty-bound to interpret it accordingly. This conclusion refutes the Supreme Court of Appeal's ruling in Qwelane v South African Human Rights Commission ("Qwelane")[1] that the section 10(1) prohibition was vague, overbroad and, therefore, unjustifiably infringing the right to freedom of expression.
 
 [1] 2020 3 BCLR 334 (SCA).
Highlights
In November 2019 the Supreme Court of Appeal in Qwelane v South African Human Rights Commission ruled that section 10(1) of the Promotion of Equality and Prevention of Unfair Discrimination Act (Equality Act) 4 of 2000, otherwise known as the "hate speech" prohibition, was unconstitutional. The court said it was vague, overbroad and unjustifiably infringing the right to freedom of expression. This contribution argues that every person's duty to respect others is central to the hate speech prohibition, and should be a central consideration in its interpretation
References to relevant case law in various legal contexts provide the framework within which legal duties are examined in the context of unfair discrimination and, in particular, hate speech in terms of section 10(1) of the Equality Act
Refuting the Supreme Court of Appeal's ruling in Qwelane, the reasonableness standard is applied to conclude that the prohibition gives due effect to the duties of the state and every person, and that the courts are duty-bound to interpret it
Summary
This contribution argues that, to the extent that section 10(1) of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (the Equality Act) gives due effect to and functions within the boundaries of the constitutional duty not to discriminate unfairly related to group characteristics or, positively phrased, the duty to treat others with equal respect related to their group characteristics, it is unquestionably constitutionally compliant. It is contended that in Qwelane v South African Human Rights Commission (Qwelane)[31] the Supreme Court of Appeal in the interpretation of section 10(1) of the Equality Act neglected its duty to promote every person's constitutional responsibility to respect others – something that will be expanded on below. In giving effect to the spirit, purport and objects of the Bill of Rights as required by section 39(2) of the Constitution and in honouring the transformative mandate of the Constitution, the public policy analysis considers values of fairness, reasonableness, justice and ubuntu These values underlie and inform the substantive law of contract. This is generally achieved by applying the reasonableness standard to determine the wrongfulness of conduct alleged to have disadvantaged another
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