Hate speech in South Africa refers to words, statements, or expressions that incite harm, hatred, or discrimination against a person or group based on their race, religion, gender, sexual orientation, ethnicity, or similar characteristics.
It is one of the few types of speech that are not protected by freedom of expression under the South African Constitution.
The law recognises that speech can cause real harm — especially in a country with a painful history of racial and social division.
On this page, you will learn what counts as hate speech in South Africa, which laws prohibit it, how it is punished, and what steps you can take if you are a victim of hate speech.
Understanding Hate Speech under South African Law
Freedom of expression is a fundamental right in South Africa, guaranteed by Section 16 of the Constitution.
However, the same section also excludes hate speech — meaning that free speech does not include the right to promote hatred or violence.
In simple terms:
You can express opinions, even if they are unpopular or offensive — but you cannot encourage harm or hatred against others because of who they are.
The aim of hate speech laws is to protect human dignity, equality, and peace — the core values of South Africa’s constitutional democracy.
Key Legal Frameworks Governing Hate Speech in South Africa
| Law / Act | Purpose |
|---|---|
| Constitution of South Africa, 1996 (Section 16) | Guarantees freedom of expression but excludes hate speech, incitement of violence, and propaganda for war. |
| Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (PEPUDA) | Prohibits hate speech and unfair discrimination; allows victims to seek justice through Equality Courts. |
| Crimen Injuria (Common Law) | Criminal offence for insulting or degrading someone’s dignity through words or behaviour. |
| Cybercrimes Act, 2020 (Act 19 of 2020) | Makes online hate speech, including social media posts, punishable by law. |
| Film and Publications Act, 1996 (as amended) | Regulates harmful online content, including hate-based publications or posts. |
What Counts as Hate Speech
A statement becomes hate speech when it:
- Is clearly directed at a person or group,
- Targets them based on protected characteristics (race, gender, religion, sexual orientation, etc.), and
- Intends to incite harm, hatred, or discrimination.
Examples include:
- Using racial or ethnic slurs in public or online.
- Calling for violence against a particular group.
- Distributing offensive memes or videos promoting hatred.
- Publicly insulting someone’s faith, sexuality, or identity with intent to degrade.
Forms of Hate Speech in South Africa
| Form | Description | Example |
|---|---|---|
| Racial Hate Speech | Words or actions that promote racial hatred or segregation. | Using the “k-word” or comparing racial groups in demeaning ways. |
| Gender-Based Hate Speech | Language that targets women, men, or gender-diverse persons. | Mocking or threatening women for reporting GBV. |
| Religious Hate Speech | Insulting or vilifying someone’s religion or beliefs. | Calling for the exclusion of a certain religious group. |
| Homophobic or Transphobic Speech | Promoting hatred or harm toward LGBTQ+ individuals. | Social media comments encouraging violence against gay people. |
| Xenophobic Hate Speech | Attacking foreign nationals or ethnic minorities. | Saying “all foreigners should go back to their countries.” |
How Hate Speech Differs from Free Speech
| Free Expression | Hate Speech |
|---|---|
| Allows open discussion, even if opinions are offensive or controversial. | Involves deliberate incitement to hatred, discrimination, or harm. |
| Protected under the Constitution. | Specifically excluded from constitutional protection. |
| Promotes public debate. | Destroys human dignity and public peace. |
Example:
Saying “I disagree with your religion” is free speech.
Saying “your religion should be banned, and its followers should die” is hate speech.
Where to Report Hate Speech
Victims or witnesses of hate speech can report it to:
- The Equality Court (available in every Magistrate’s Court).
- The South African Human Rights Commission (SAHRC).
- The South African Police Service (SAPS) (if the speech amounts to a crime).
- The Cybercrimes Unit, for online or social media hate speech.
The SAHRC plays a major role in investigating and mediating hate speech complaints before they escalate to criminal cases.
Penalties for Hate Speech in South Africa
Depending on the severity and context, hate speech can lead to:
- Fines (determined by the Equality Court).
- Public apology orders.
- Mandatory sensitivity or diversity training.
- Criminal prosecution (especially if linked to incitement of violence).
- Imprisonment, in serious cases under the Cybercrimes Act or Crimen Injuria.
Real Example
In 2018, real estate agent Vicki Momberg became the first South African sentenced to imprisonment for hate speech after using a racial slur repeatedly against police officers.
The court found her words deeply offensive and harmful to social cohesion, sentencing her to two years in prison under Crimen Injuria.
This landmark case showed that hate speech, even when spoken in anger, carries serious consequences.
5 Important Points Every South African Should Know about Hate Speech
- Freedom of speech is not unlimited — hate speech is excluded.
- Social media posts can be used as evidence in court.
- Equality Courts are free and accessible to everyone.
- Intent matters — it must be shown that harm or hatred was meant.
- Hate speech damages the social fabric and can lead to real violence.
Implications of Hate Speech in South Africa
Hate speech threatens the very principles of democracy and reconciliation.
It divides communities, promotes violence, and undermines human dignity.
By outlawing hate speech, South Africa reinforces its commitment to:
- Equality before the law,
- Mutual respect, and
- Social harmony across diverse backgrounds.
The law’s purpose is not to silence people — it is to ensure that freedom of speech does not become freedom to harm.
Legal Framework Summary
| Institution | Role |
|---|---|
| Equality Courts | Hear and resolve hate speech and discrimination cases. |
| South African Human Rights Commission (SAHRC) | Investigates and mediates hate speech complaints. |
| South African Police Service (SAPS) | Enforces criminal provisions where hate speech incites violence. |
| National Prosecuting Authority (NPA) | Prosecutes severe hate speech cases. |
| Legal Aid South Africa | Provides legal support for victims facing hate-based discrimination. |
FAQs About What Is Hate Speech in South Africa
Hate speech remains one of the most debated issues in South Africa because it sits at the intersection of freedom of expression and human dignity.
These FAQs explain what hate speech means in South African law, what laws apply, what counts as hate speech, and the penalties for those found guilty.
What is hate speech in South Africa?
Hate speech in South Africa refers to words, actions, or communication that incite harm, hatred, or discrimination against a person or group based on characteristics such as race, gender, religion, sexual orientation, or nationality.
It is not just offensive language — it must go further by promoting harm or hostility towards others.
What law defines hate speech in South Africa?
Hate speech is primarily defined and regulated under:
- Section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (Act 4 of 2000) — commonly known as the Equality Act.
- Section 16(2)(c) of the Constitution of the Republic of South Africa, 1996, which limits freedom of expression by excluding protection for “advocacy of hatred that is based on race, ethnicity, gender, or religion, and that constitutes incitement to cause harm.”
These two laws form the foundation of how South African courts interpret and act against hate speech.
What must be proven for speech to be considered hate speech?
For something to legally qualify as hate speech, it must:
- Be a form of communication — such as spoken words, writing, music, gestures, or online posts.
- Target a group or person based on one or more listed characteristics (e.g. race, gender, sexual orientation, religion, disability).
- Advocate hatred towards that group or person.
- Incite harm, whether emotional, psychological, or physical.
If the communication lacks the element of harm or incitement, it may not meet the legal definition of hate speech.
Is hate speech the same as offensive or insulting language?
No. Not all offensive, rude, or hurtful language counts as hate speech.
The South African Constitution protects freedom of expression, meaning people can express strong or unpopular opinions.
However, once speech crosses the line into promoting hatred or violence, it becomes unlawful hate speech under the Equality Act.
What are examples of hate speech in South Africa?
Real examples include:
- Using racial slurs that promote hatred or violence.
- Publicly calling for harm against a particular group (e.g. “kill” or “attack” statements).
- Spreading propaganda that dehumanises others because of their race or religion.
- Online posts that incite violence or discrimination.
Courts assess the context, intent, and impact of the words used before declaring them hate speech.
What are some landmark hate speech cases in South Africa?
Notable cases include:
- Qwelane v South African Human Rights Commission (2021) — the Constitutional Court confirmed that hate speech must both advocate hatred and incite harm, protecting free expression while punishing harmful speech.
- Julius Malema v AfriForum (2022) — the Equality Court ruled that chanting “Kill the Boer” constituted hate speech because it incited harm and hatred.
These judgments guide how courts apply the Constitution and the Equality Act in balancing rights and responsibilities.
Can hate speech happen online or on social media?
Yes. Hate speech laws apply to social media posts, WhatsApp messages, emails, and online videos.
South Africa’s courts treat digital platforms as public spaces.
People have been charged for racist or threatening posts under both the Equality Act and the Cybercrimes Act, 2020 (Act 19 of 2020).
What penalties can result from hate speech?
Penalties can include:
- Fines or compensation orders under the Equality Court.
- Public apologies or community service.
- Criminal charges in serious cases under the Criminal Procedure Act or Cybercrimes Act.
- Imprisonment if the hate speech involves incitement to violence or criminal harm.
Penalties depend on the severity, intent, and impact of the speech.
What is the role of the Equality Court in hate speech cases?
The Equality Court, located at most Magistrates’ Courts, handles hate speech complaints.
Anyone who experiences or witnesses hate speech can file a complaint there without a lawyer.
The court can issue orders to stop the behaviour, award damages, or require a public apology.
Can freedom of speech be used as a defence for hate speech?
No. The right to freedom of expression under Section 16 of the Constitution does not protect speech that incites harm or hatred.
Courts recognise free speech as vital in democracy, but it cannot be used to justify racial slurs, threats, or incitement to violence.
Who can report hate speech in South Africa?
Anyone can report hate speech to:
- The Equality Court at any Magistrate’s Court.
- The South African Human Rights Commission (SAHRC).
- The South African Police Service (SAPS) if the speech involves criminal acts or threats.
Complaints can also be filed online through the SAHRC website.
What is the difference between hate speech and hate crime?
- Hate speech involves harmful or discriminatory words or expressions.
- Hate crimes involve physical acts such as assault or vandalism, motivated by prejudice.
Both are treated seriously and may be prosecuted separately or together depending on the facts.
Why is addressing hate speech important in South Africa?
South Africa’s history of apartheid and racial division makes hate speech especially harmful.
It undermines equality, dignity, and social harmony — all protected under the Constitution.
By enforcing hate speech laws, South Africa aims to promote respect, protect human rights, and prevent violence rooted in prejudice.
Conclusion: Understanding Hate Speech in South Africa
Hate speech in South Africa is not about silencing disagreement — it is about stopping language that fuels hatred and violence.
The law exists to protect every person’s dignity and to preserve peace in a society built on diversity and equality.
Before posting, speaking, or sharing, every South African should ask:
“Would my words build understanding or destroy it?”
Because in a country where words once divided a nation, responsible speech now helps to heal it.
