As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
the constitutional definition of hate speech is very tight and that the context of the publication and the words used must be extreme and actively incite harm to be considered hate speech.
Of course, the definition of hate speech in the Promotion of Equality and Prevention of Unfair discrimination Act is much broader than in section 16(2). Nevertheless, the constitutional definition of hate speech is not nearly as broad as most people think.
Many people confuse hate speech with hurtful speech. It is not hate speech to be called racial names or to be called a “moffie“. What is required is something more, one needs utterances that “constitute incitement to cause harm” based on race, ethnicity, gender or religion. The harm that is to be incited does not have to constitute physical harm but it must at least constitute serious emotional harm.
And there must be “incitement”.
If one therefore merely says something hurtful to someone else, it will not constitute hate speech as defined in the Constitution. One has to say something that constitutes incitement to cause at least serious emotional harm to a person or a group.