The Women’s Legal Centre
South Africa is a deeply unequal society in many ways and womxn bear the brunt in respect of much of the inequality and discrimination. They often experience intersecting forms of discrimination because of their gender, and so discrimination is compounded because it may intersect with race, sexual orientation, gender identity either real or perceived.
Discriminatory acts take different forms and, whereas society places larger importance on physical violence as a form of discrimination, that does not mean that womxn do not experience discriminatory speech as hateful, harmful and equally violent.
On a daily basis South African womxn face misogynistic, sexist or gendered language, be it at school, at home, in the community, at the workplace, in public places or online. This language, even if it does not directly incite violence or advocate physical harm, is a form of violence against womxn which creates and reinforces the structures and systems that legitimise violence against womxn.
The Women’s Legal Centre (WLC) has intervened as an amicus curiae (friend of the court) in the Constitutional Court matter of Qwelane/South African Human Rights Commission which will be heard by the Court on Tuesday, 22 September 2020. The matter deals with the constitutionality of section 10 of the Promotion of Equality and Prevention of Discrimination Act (PEPUDA or the Equality Act) which regulates hate speech, and balancing the Section 16 constitutional right of freedom of expression.
The WLC brings a feminist lens to the case, focussing on misogynistic language as a form of violence against womxn, how it enables and perpetuates violence against womxn, and how limiting this type of language under PEPUDA is constitutionally justifiably permissible.
PEPUDA speaks to the value systems enshrined in our Constitution and the rights that accompany them. The objectives of PEPUDA are to create an equal society in which womxn enjoy their constitutional rights and freedoms at all levels. It seeks to uphold substantive equality, as well as rooting out the inequalities and unfair discrimination that remains in our society.
The WLC believes that the regulation of hateful speech directed at womxn and other vulnerable groups as laid out in PEPUDA strikes an appropriate balance between the right to freedom of expression and the right to equality, dignity, safety and security.
As it is the State’s constitutional duty to address systemic inequality against womxn and protect womxn from violence in all forms, this must include the regulation of hurtful, harmful, hateful and often violent misogynistic speech.
While the Constitutional Court has acknowledged its duty to develop and implement a legal framework that can address violence against womxn, the WLC has argued that the Court should within this framework acknowledge how misogynistic hate speech is a form of violence against womxn and in fact contributes to gender discrimination in our society.
Both the Maputo Protocol and the United Nations Declaration on the Elimination of Violence Against Women recognise that misogynistic speech forms part of violence against womxn and that this language reinforces patriarchal control over womxn through threats, humiliation and degradation, as well as creating fear and insecurity in womxn. To womxn, these words are harmful and silencing, reinforce control, and halt their participation in civic and personal spaces.
In addition to being a form of violence against womxn, misogynistic hate speech also builds up and normalises the structures that sustain inequality and legitimise violence against womxn. Similarly, while certain words may seem neutral, they often can create and reinforce patriarchal institutions, practices and attitudes which allows male domination, and when left unchallenged, becomes a source of violence against womxn.
Both the courts and government have acknowledged that preventing violence against womxn is an essential element of addressing the high levels of this type of violence in South Africa, and in order to achieve this, the attitudes and stereotypical beliefs about womxn must be actively addressed.
The Limitation Is Necessary and Proportionate
The protection of womxn against violence in all its forms, and the pursuit of substantive equality for womxn in South Africa is literally a matter of life or death.
The courts have made their position regarding the impact of violence against womxn clear, with numerous acknowledgements that such violence offends against the values and rights enshrined in the Constitution. The late Chief Justice Langa acknowledged that misogynistic hate speech threatens the constitutional project and democratic pluralism.
When the Constitutional Court considered the constitutionality of the Domestic Violence Act, it found that the provisions in the Act represented the law extending into a lawless area which was sustained by patriarchy and domestic privacy. Building on this understanding, the WLC argues that PEPUDA needs to address similarly unchartered territories where the underlying patriarchy has allowed language that undermines key democratic values to remain unchallenged.
It is the State’s obligation to protect everyone from public or private violence, with both parliament and government recognising that freedom of expression must, in some circumstances, give way to other rights in the criminal context.
In various pieces of legislation the State recognises that violence and harm can be caused by words, with speech amounting to violence or an infringement to the right to dignity, safety and security and equality. PEPUDA is, therefore, an appropriate state intervention to protect, promote and fulfil womxn’s rights to equality, dignity and safety and security.
PEPUDA covers the forms of speech most frequently directed at womxn, which includes normalised daily speech that does not necessarily expressly advocate hatred, but which forms part of the fabric of patriarchal, sexist society which is violent towards womxn.
* The Women’s Legal Centre is an African feminist legal centre that advances womxn’s rights and equality through strategic litigation, advocacy, education, training and partnerships.
** The views expressed here are not necessarily those of IOL.