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      The Constitutionality of the Prohibition of Hate Speech in terms of Section 10(1) of the Equality Act: A Reply to Botha and Govindjee

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          Abstract

          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.

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                Author and article information

                Contributors
                Role: ND
                Role: ND
                Journal
                pelj
                PER: Potchefstroomse Elektroniese Regsblad
                PER
                North-West University (Potchefstroom Campus) (Potchefstroom, North-West Province, South Africa )
                1727-3781
                2019
                : 22
                : 1
                : 1-37
                Affiliations
                orgnameUniversity of the Free State South Africa maraisme@ 123456ufs.ac.za
                Article
                S1727-37812019000100026
                10.17159/1727-3781/2019/v22i0a5718

                This work is licensed under a Creative Commons Attribution-ShareAlike 4.0 International License.

                Page count
                Figures: 0, Tables: 0, Equations: 0, References: 25, Pages: 37
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