IRM1501 PORTFOLIO MEMO - OCT/NOV 2022 - SEMESTER 2 - UNISA (FOOTNOTES AND BIBLIOGRAPHY) QUESTION 1: Read the case of Qwelane v South African Human Rights Commission and Another [2021] ZACC 22, which is attached to this paper and thereafter answer the question below. Provide a summary of the case in...
INTRODUCTION TO RESEARCH FOR LAW
AND CRIMINAL JUSTICE
EXAM PORTFOLIO MEMO - 2022 - S2
Unique number: 814609 DUE: 15 OCTOBER 2022
Includes Footnotes & Bibliography
UNISA EXAM 2022 – SECOND SEMESTER
Question 1
IRM1501: EXAM PAPER OCT/NOV 2022
Read the case of Qwelane v South African Human Rights Commission and Another [2021] ZACC 22,
which
is attached to this paper and thereafter answer the question below.
Provide a summary of the case in the prescribed manner (facts of the case, legal question, ratio decidendi
or rea sons for the decision and the findings of the case).
DO NOT copy directly from the case and remember to provide references for all statements.
Marks will be allocated for language use and correct referencing. Plagiarism will be penalised.
(10)
Question 2
Make a distinction between qualitative and quantitative research methodology and use examples where
necessary.
IRM1501: EXAM PAPER OCT/NOV 2022
Read the case of Qwelane v South African Human Rights Commission and Another
[2021] ZACC 22, which is attached to this paper and thereafter answer the question
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,below. Provide a summary of the case in the prescribed manner (facts of the case, legal
question, ratio decidendi or reasons for the decision and the findings of the case).
DO NOT copy directly from the case and remember to provide references for all
statements. Marks will be allocated for language use and correct referencing. Plagiarism
will be penalised.
(10)
FACTS
The case dealt with an article penned by the applicant, Mr Qwelane, and published in the Sunday
Sun newspaper on 20 July 2008. The article was titled “Call me names – but gay is not okay”, and
included a cartoon comparing homosexuals to animals.1
As a result of the article, the first respondent, the South African Human Rights Commission
(SAHRC), received 350 complaints, with a further 1 000 complaints having been lodged with the
Press Ombud. After considering these complaints, the Press Ombud found the Sunday Sun in
breach of the South African Press Code on three counts, and ordered it to publish an
appropriate apology, which the Sunday Sun did.2
Thereafter, the SAHRC instituted proceedings in the Equality Court in terms of the Promotion of
Equality and Prevention of Unfair Discrimination Act 4 of 2000 (Equality Act), arguing that the
article constituted hate speech in terms of section 10(1) thereof.3
In response, Mr Qwelane and Media24 challenged the constitutionality of section 10(1) of the
Equality Act on the basis that the impugned provisions undermine the constitutionality of the
sections and the rule of law on account of overbreadth and vagueness.3 Before the proceedings
1 Qwelane v South African Human Rights Commission and Another [2021] ZACC 22 at para 2.
2 Qwelane v South African Human Rights Commission and Another [2021] ZACC 22 at para 6.
3
Qwelane v South African Human Rights Commission and Another [2021] ZACC 22 at para 8.
3 Qwelane v South African Human Rights Commission and Another [2021] ZACC 22 at para 12.
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in respect of the constitutionality challenge commenced, the SAHRC reached a settlement with
Media24, but the proceedings against Mr Qwelane in the Equality Court continued.
LEGAL QUESTION
Is Section 10(1) of the Equality Act inconsistent with section 1(c) and section 16 of the
Constitution and thus unconstitutional and invalid to the extent that it includes the word “hurtful”
in the prohibition against hate speech? 4
RATIO DECIDENDI
The Constitutional Court noted that: “Hate speech is the antithesis of the values envisioned by
the right to free speech – whereas the latter advances democracy, hate speech is destructive of
democracy”. It emphasised further that the expression of unpopular or even offensive beliefs
does not constitute hate speech, because a healthy democracy requires a degree of tolerance
towards expression or speech that shocks or offends. According to the Constitutional Court,
expression will constitute hate speech when it seeks to violate the rights of another person or
group of persons based on group identity.6
With regard to the term “hurtful” in section 10(1) of the Equality Act, the Constitutional Court
explained that if speech that is merely hurtful is considered hate speech, this would set the bar
rather low. The Constitutional Court therefore held that the relationship between the limitation
and the purpose was not proportionate, and that section 10(1) of the Equality Act led to an
unjustifiable limitation of the Constitution. Accordingly, it held that the word “hurtful” should be
excised from the provision.5
4 Qwelane v South African Human Rights Commission and Another [2021] ZACC 22 at
para 79. 6 Qwelane v South African Human Rights Commission and Another [2021] ZACC
22 at para 79.
5 Qwelane v South African Human Rights Commission and Another [2021] ZACC 22 at para 26.
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