An update on the TCA Hate Speech Case
- As previously reported, the conclusion of the TCA hate speech case – the presentation of written and oral legal argument – has regrettably been delayed by the failures of the court-appointed transcribers to produce accurate transcripts of the hearing. Due to these continuing failures, the legal representatives of TCA, Nam-Ford Inc, has had to seek an independent service to assist with the correction of the inaccurate transcripts.
- The required corrections are extensive, the independent transcribers are still attending to same and Nam-Ford has been advised that the bulk of the corrected transcripts will be furnished to them by mid-December 2020.
- The transcripts play an important role in the preparation of the heads of argument of the parties and for the determination of the case by the Judge. It is therefore of critical importance that they are accurate.
- There has also been another development which will affect the timing of the conclusion of the TCA hate speech case. At the end of 2019, the Supreme Court of Appeal, in the matter of Qwelane v South African Human Rights Commission, declared the hate speech law (section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000) unconstitutional and invalid, for being too restrictive of freedom of speech, as it prohibits speech that does not include incitement to cause harm, among other things. The Court replaced the hate speech law with a narrower prohibition, making it harder to find people guilty of hate speech. This has potentially significant implications for how the TCA’s hate speech case has to be argued.
还有另个事件发展将在这时间点上影响TCA仇恨言论案的结案。 此案就是在2019年底由最高上诉法院在Qwelane对诉南非人权委员会一案的宣布，就仇恨言论法（2000年《促进平等和防止不公平歧视法》第10条）是违宪且无效的。 原因是它过于限制言论的自由，因为它所禁止的言论不包括煽动伤害他人的言论。法院以较窄的禁令取代了仇恨言论法使得更难判于仇恨言论案的。这对于必须如何辩论TCA的仇恨言论案具有潜在重大的影响。
- But the Supreme Court of Appeal’s ruling does not have any effect unless it is confirmed by the Constitutional Court, the highest court in the country, which heard the matter in September 2020. It is hoped that the Constitutional Court will reverse the Supreme Court of Appeal’s decision and retain a wide prohibition on hate speech. However, even if the Supreme Court of Appeal’s narrower prohibition is confirmed, TCA’s legal representatives are confident that the respondents in TCA’s case should still be found to have committed hate speech.
- On 11 November 2020, by agreement between the parties, the Judge in TCA’s hate speech case issued a directive setting the following timelines: TCA to file its written legal argument no later than 28 (twenty eight) calendar days after the date on which the Constitutional Court judgment in the Qwelane matter is handed down. The respondents are to file their heads of argument no later than 28 (twenty eight) calendar days thereafter. TCA is to file a reply (if any) no later than 14 (fourteen) calendar days thereafter.
- Following the delivery of the written argument the parties will then agree, subject to confirmation by the Judge, on a date for hearing in order to present their final legal arguments.
- Due to Covid-19 the parties will have to agree whether the final hearing will be completed in open court or remotely.
- On the date of the hearing, the court will probably reserve Judgment, as the court will require time to review what was argued by the parties. Following the reservation of Judgment, given the pandemic, the court could take months to give Judgment (the outcome of TCA’s hate speech case).
在开庭日，因为法院将需要时间来审查当事各方的论点的况下，可能会对判决有所保留。在保留判决后，更考虑到冠状病毒大流行的问题下，法院可能会需要几个月的时间才能做出，就TCA仇恨言论案 ( 结果）的判决。