Hate speech under the South African Constitution: How should South African Courts interpret ‘incitement to cause harm'
This thesis investigates the meaning of the phrase ‘incitement to cause harm' under section 16(2)(c) of the Constitution. In order to determine the meaning of incitement to cause harm, I utilise section 39(1) of the Constitution which provides that when interpreting the Bill of Rights, “a Court (a)must promote the values that underlie an open and democratic society based on human dignity, equality and freedom, (b)must consider international and (c) may consider foreign law”. First, I examine the role of international law in the interpretation of incitement to cause harm as required by section 39(1)(b) of the Constitution. This exercise involves an examination of international conventions relevant to restrictions on freedom of expression, hate speech, case law and academic commentary. Particular focus will be accorded to whether interpretations of Article20(2) of the International Covenant on Civil and Political Rights can provide a guide or framework to interpreting incitement to cause harm as it closely resembles section 16(2)(c) of the Constitution. Second, as per section 39(1)(c) of the Constitution, I evaluate three foreign jurisdictions, namely Canada, Germany and the United States to assess how useful their interpretations of “incitement” and “harm” are for interpreting incitement to cause harm. Thirdly, I attempt to determine the meaning of ‘incitement to cause harm' in its constitutional setting by adopting a generous, purposive, and contextual interpretation of the right in terms of section 39(1)(a) of the Constitution in conjunction with a comparative analysis of section 10(1) of the Promotion of Equality and Prevention of Unfair Discrimination Act which gives effect to the right. Lastly, I return to South African domestic law to see whether incitement to cause harm can be determined by resorting to its meaning in South African criminal law to regulate the extreme anti-democratic expression enumerated under section 16(2)(c). This chapter will also involve an evaluation of the Prevention and Combating of Hate Crimes and Hate Speech Act and other legislation regulating hate speech. Ultimately, the purpose of this thesis is to determine the meaning of ‘incitement to cause harm' by relying on the tenets of constitutional interpretation as well as international and foreign law.
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