Resumen

VAN COLLER, Helena. Freedom of expression: Blasphemy and the prohibition against religious hate speech. Tydskr. geesteswet. [online]. 2021, vol.61, n.1, pp.87-106. ISSN 2224-7912.  http://dx.doi.org/10.17159/2224-7912/2021/v61n1a7.

Section 16 of the Constitution guarantees the right to freedom of expression. Our courts have highlighted the importance of the right, but also emphasised the fact that it is not without certain limitations. Section 16(2) therefore makes it clear that the right to freedom of expression does not extend to certain expressions. Sections 16(2)(a) and (b) are concerned with "propaganda for war" and "incitement of imminent violence" respectively. Section 16(2)(c) is directed at what is commonly referred to as hate speech, namely expression or speech that amounts to "advocacy of hatred" based on one or other of the listed grounds, namely race, ethnicity, gender or religion and which amounts to "incitement to cause harm". The right to freedom of expression also goes hand in hand with the right to freedom of religion, which includes the right to be able to express one's beliefs and convictions. Hence, every person and religious institution should be granted the right to freedom of expression in respect of religion. Of particular importance in relation to freedom of expression and the prohibition on hate speech is the right to religious dignity, which includes to not being victimised, ridiculed or slandered on the grounds of one's faith, religion, convictions or religious activities. No person may advocate hatred that is based on religion, and that constitutes incitement to violence or to cause physical harm. Within the context of the right to freedom of expression, this paper will first discuss the offence of blasphemy in South Africa, followed by a discussion of the prohibition against hate speech. The repealed censorship laws prohibited blasphemy in South Africa, although the latter remains a common-law offence. According to the South African common law, blasphemy used to be a criminal offence and consisted of the "unlawful and intentional publication of words or conduct whereby God is slandered". It has been pointed out that the law of blasphemy is anomalous in that it only protects the religious feelings of Christians, and not those of members of other religions. Other religious groups may suffer similar feelings of outrage caused by an attack on the Supreme Being that they worship. Currently the common-law crime of blasphemy still forms part of South African law and it has not formally been abolished by any legislator nor declared to be unconstitutional. Criminal law expert Burchell advocates the abolition of the crime and that cases of blasphemy should be regarded as cases of incitement to religious hatred, which would apply to all religions equally. In light of the right to freedom of religion, an equitable solution might be to extend the definition of blasphemy to include protection for all religions, not exclusively Christianity. Apart from section 16(2) of the Constitution that prohibits hate speech, section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) 4 of 2000 also prohibits hate speech. It specifically states that no person may publish, propagate, advocate or communicate words based on one or more of the prohibited grounds (including religion), with the intention to be hurtful; be harmful or to incite harm, or promote or propagate hatred. The Supreme Court of Appeal recently found this section to be unconstitutional for extending the grounds for hate speech beyond what is required in terms of the Constitution. A revised Prevention and Combating of Hate Crimes and Hate Speech Bill (the Bill) has recently been tabled before Parliament as an improved version of its 2016 predecessor. The Bill is better aligned to the Constitution in relation to its prohibition of certain forms of speech, namely speech that is harmful or incites harm, and promotes or propagates hatred. The Bill criminalises hate speech but creates certain defences and includes a religious exemption clause. The new section 3(2)(d) states that the offence of hate speech does not apply in respect of anything done in good faith in the course while engaging in "the bona fide interpretation and proselytising or espousing of any religious tenet, belief, teaching, doctrine or writings". This is, however, subject to the requirement that such interpretation and proselytisation do not advocate hatred that constitutes incitement to cause harm. Recently a pastor was taken to court by the SAHRC following complaints about derogatory and offensive comments he had made against gay and lesbian people. The Western Cape Equality Court found that Bougaardt's comments were not protected by the right to freedom of religion, and found him to be in contempt of court for making hateful comments against gay men and lesbians. This judgment has highlighted the fact that although the draft Hate Crimes Bill provides for a religious exemption clause, religious beliefs and religious hatred cannot be a defence against liability for hate speech. Blasphemy must also be interpreted within the limits of hate speech and where God is denigrated in such a manner as to constitute hate speech. This means that no one should be allowed to make any statements that advocate hatred or incite violence, regardless of whether you are a pastor, priest, imam or individual believer, or whether the statements are made in public or from the pulpit.

Palabras clave : Freedom of expression; freedom of religion; blasphemy; hate speech; incitement of violence; advocacy of hatred; religion; ridicule; slander.

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