The Constitutionality of the Prohibition of Hate Speech in terms of Section 10(1) of the Equality Act: A Reply to Botha and Govindjee
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 constitu...
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| Format: | Article |
| Language: | Afrikaans |
| Published: |
North-West University
2019-05-01
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| Series: | Potchefstroom Electronic Law Journal |
| Subjects: | |
| Online Access: | https://journals.assaf.org.za/index.php/per/article/view/5718 |
| _version_ | 1818826318160068608 |
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| author | Marelize Marais Jan Loot Pretorius |
| author_facet | Marelize Marais Jan Loot Pretorius |
| author_sort | Marelize Marais |
| collection | DOAJ |
| description | 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. |
| first_indexed | 2024-12-19T00:25:45Z |
| format | Article |
| id | doaj.art-f573c8c4f83644aea32a5de445b4e0d9 |
| institution | Directory Open Access Journal |
| issn | 1727-3781 |
| language | Afrikaans |
| last_indexed | 2024-12-19T00:25:45Z |
| publishDate | 2019-05-01 |
| publisher | North-West University |
| record_format | Article |
| series | Potchefstroom Electronic Law Journal |
| spelling | doaj.art-f573c8c4f83644aea32a5de445b4e0d92022-12-21T20:45:16ZafrNorth-West UniversityPotchefstroom Electronic Law Journal1727-37812019-05-0122201913710.17159/1727-3781/2019/v22i0a5718The Constitutionality of the Prohibition of Hate Speech in terms of Section 10(1) of the Equality Act: A Reply to Botha and GovindjeeMarelize Marais0Jan Loot Pretorius1University of the Free StateUniversity of the Free StateThis 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.https://journals.assaf.org.za/index.php/per/article/view/5718Hate speechEquality Actunfair discrimination and hate speech regulationhurt and harmincitementfreedom of expressiondignityequalitybona fide engagement in protected expression |
| spellingShingle | Marelize Marais Jan Loot Pretorius The Constitutionality of the Prohibition of Hate Speech in terms of Section 10(1) of the Equality Act: A Reply to Botha and Govindjee Potchefstroom Electronic Law Journal 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 |
| title | The Constitutionality of the Prohibition of Hate Speech in terms of Section 10(1) of the Equality Act: A Reply to Botha and Govindjee |
| title_full | The Constitutionality of the Prohibition of Hate Speech in terms of Section 10(1) of the Equality Act: A Reply to Botha and Govindjee |
| title_fullStr | The Constitutionality of the Prohibition of Hate Speech in terms of Section 10(1) of the Equality Act: A Reply to Botha and Govindjee |
| title_full_unstemmed | The Constitutionality of the Prohibition of Hate Speech in terms of Section 10(1) of the Equality Act: A Reply to Botha and Govindjee |
| title_short | The Constitutionality of the Prohibition of Hate Speech in terms of Section 10(1) of the Equality Act: A Reply to Botha and Govindjee |
| title_sort | constitutionality of the prohibition of hate speech in terms of section 10 1 of the equality act a reply to botha and govindjee |
| topic | 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 |
| url | https://journals.assaf.org.za/index.php/per/article/view/5718 |
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