Report No. 267

South Africa

4.39 Section 16 of the South African Constitution guarantees freedom of expression. However, this freedom is subject to limitations under section 16(2), namely,

'(a) propaganda for war;

(b) incitement of imminent violence; or

(c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm'. The South African Constitution expressly recognizes hate speech as an exception.

4.40 In a recent case, the Equality Court in South Africa in Nomasomi Gloria Kente v. Andre van Deventer96 awarded damages to a domestic worker for being subjected to hate speech. Section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 prohibits a person from publishing, propagating, advocating or communicating words based on one or more prohibited grounds, against any person that could be construed demonstration of a clear intention to be hurtful, harmful or incite harm, promote or propagate hatred.