Exam (elaborations)
IRM1501 PORTFOLIO MEMO
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- University Of South Africa (Unisa)
IRM1501 PORTFOLIO MEMO
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IRM1501PORTFOLIO MEMO
OCT 2022
, 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 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. 4 Before the
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.
4 Qwelane v South African Human Rights Commission and Another [2021] ZACC 22 at para 12.
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