Hate Hurts: Qwelane and the Lingering Obscurity in South Africa’s Hate Speech Law, 13 Constitutional Court Review 67-123 (2023)
After a 13-year wait for a final outcome in the hate speech complaint against Jon Qwelane, the Constitutional Court was expected to deliver a judgment which would, at long last, clarify the obscure meaning of section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000. However, Qwelane v South African Human Rights Commission 2021 (6) SA 579 (CC) did not quite live up to expectations. This article assesses the Court’s reasoning in Qwelane, and explains what it got right and got wrong (with reference to other delictual law, and international and comparative law). Finally, it explores the obscurity (and unconstitutionality) the Court has left to linger in section 10 of the Equality Act.
There and Back Again: The Long Road to Access to Information in M&G Media v President of the Republic of South Africa, 5 Constitutional Court Review 466-490 (2015) [co-authored with Okyerebea Ampofo-Anti]
This comment chronicles the ongoing uphill journey of a single case – landmark litigation on the right of access to information – through three courts, and back again, over six years. We survey the view from the summit – the proceedings before the Constitutional Court – to consider and critically analyse how the Court’s treatment of the matter has defined the landscape of litigation in factual disputes about whether information held by the state has been justifiably hidden from public sight. We identify four flaws in the Court’s approach. These flaws, we argue, are likely to discourage the public from effectively enforcing their right to know.
Homeland: The Development of the Principle of Open Justice to Protect South Africans from Abuse of their Asylum System, 5(2) Journal of Media Law 306-321 (2013) [co-authored with Dario Milo]
The principle of open justice has played an important part in marking South Africa’s historic transition from a repressive regime sustained by secrecy and tyranny to a democratic state founded on the values of ‘accountability, responsiveness and openness’. The status of this principle as a vital constitutional imperative was recently reaffirmed by the Constitutional Court in Mail & Guardian Media Ltd and Others v Chipu NO and Others, where it held that the Refugees Act was unconstitutional to the extent that it precluded members of the public and the media from accessing Refugee Appeal Board proceedings even when they implicate a matter of legitimate public interest.
A Covenant of Compassion: African Humanism and the Rights of Solidarity in the African Charter on Human and Peoples' Rights,
2 AHRLJ 447-464 (2011)
The rights of peoples – to existence, equality, self-determination, sovereignty over natural resources, peace and security, development and a satisfactory environment – were included in the African Charter for historical and philosophical reasons rooted uniquely in the African experience.