This case concerns South Africa’s obligation under International Law and as a signatory to the Rome Statute. An application had been sought to compel the government to arrest a head of state of another country, who was present in South Africa for a summit, as an arrest warrant which had been issued against him was pending against him at the International Criminal Court. The question was whether the head of state in question enjoyed immunity from arrest by the host country (South Africa), by virtue of the hosting agreement concluded by South Africa with the African Union and by virtue of a ministerial proclamation in terms of SA statute. The SCA decided that the government acted unlawfully in failing to effect the arrest and that its failure was inconsistent with South Africa’s obligations under the Rome Statute.

Full Judgment here

In this case the SCA grapples with an issue that tends to be more emotional than juridically cerebral when two competing rights entrenched in the Constitution clash. The two rights are freedom of speech, on the one hand, and right to human dignity on the other. The South African Jewish Board of Deputies had complained to the SA Human Rights Commission about certain statements made in public by a high ranking official of a trade union federation in which he criticised the conduct of the Israeli state in Palestine. The Board of Deputies contended that these statements constituted hate speech. The Human Rights Commission agreed. So did the High Court.

But the Supreme Court of Appeal did not agree. The nub of its reasoning is captured in paras [19] & [31] of the judgment. In para [19] it says:

“[T]he Constitution recognises that the right to freedom of expression must be limited in certain circumstances for the protection of other rights, particularly the right to dignity. Thus, s 16(2)(c) of the Constitution qualifies the extent and scope of the right to freedom of expression. Of relevance to this case is that under that sub-section advocacy of hatred is excluded from protection where such hatred (1) is based on race, ethnicity, gender or religion and (2) constitutes incitement to cause harm. A hostile statement is not necessarily hateful in the sense envisaged under s 16(2)(c). Hence the decision of this court in Hotz & others v University of Cape Town[1] that: ‘A court should not be hasty to conclude that because language is angry in tone or conveys hostility it is therefore to be characterised as hate speech, even if it has overtones of race or ethnicity’.”

In para [31] it says:

“The fact that particular expression may be hurtful of people’s feelings, or wounding, distasteful, politically inflammatory or downright offensive, does not exclude it from protection. Public debate is noisy and there are many areas of dispute in our society that can provoke powerful emotions. The bounds of constitutional protection are only overstepped when the speech involves propaganda for war; the incitement of imminent violence; or the advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm. Nothing that Mr Masuku wrote or said transgressed those boundaries, however hurtful or distasteful they may have seemed to members of the Jewish and wider community. Many may deplore them, but that does not deprive them of constitutional protection.”

[1] Hotz & others v University of Cape Town [2016] ZASCA 159; [2016] 4 All SA 723 (SCA); 2017 (2) SA 485 (SCA) para 68.

Full Judgment here