Hate speech under the South African Constitution: How should South African Courts interpret ‘incitement to cause harm'
Bibliographic record
Abstract
This thesis investigates the meaning of the phrase ‘incitement to cause harm' under section 16(2)(c) of the Constitution. In order to determine the meaning of incitement to cause harm, I utilise section 39(1) of the Constitution which provides that when interpreting the Bill of Rights, “a Court (a)must promote the values that underlie an open and democratic society based on human dignity, equality and freedom, (b)must consider international and (c) may consider foreign law”. First, I examine the role of international law in the interpretation of incitement to cause harm as required by section 39(1)(b) of the Constitution. This exercise involves an examination of international conventions relevant to restrictions on freedom of expression, hate speech, case law and academic commentary. Particular focus will be accorded to whether interpretations of Article20(2) of the International Covenant on Civil and Political Rights can provide a guide or framework to interpreting incitement to cause harm as it closely resembles section 16(2)(c) of the Constitution. Second, as per section 39(1)(c) of the Constitution, I evaluate three foreign jurisdictions, namely Canada, Germany and the United States to assess how useful their interpretations of “incitement” and “harm” are for interpreting incitement to cause harm. Thirdly, I attempt to determine the meaning of ‘incitement to cause harm' in its constitutional setting by adopting a generous, purposive, and contextual interpretation of the right in terms of section 39(1)(a) of the Constitution in conjunction with a comparative analysis of section 10(1) of the Promotion of Equality and Prevention of Unfair Discrimination Act which gives effect to the right. Lastly, I return to South African domestic law to see whether incitement to cause harm can be determined by resorting to its meaning in South African criminal law to regulate the extreme anti-democratic expression enumerated under section 16(2)(c). This chapter will also involve an evaluation of the Prevention and Combating of Hate Crimes and Hate Speech Act and other legislation regulating hate speech. Ultimately, the purpose of this thesis is to determine the meaning of ‘incitement to cause harm' by relying on the tenets of constitutional interpretation as well as international and foreign law.
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How this classification was reachedexpand
Full frame machine prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. The Gemma side is a direct model label for every work in the frame, read from the title-only record. The Codex side is a classifier learned from the 10,348 direct Codex labels and calibrated to design-weighted sample rates; fields without enough sample support carry no Codex call. Candidate is the union of the two sides; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels.
Distilled classifier scores by category (both heads)
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.017 | 0.031 |
| Meta-epidemiology (narrow) | 0.000 | 0.000 |
| Meta-epidemiology (broad) | 0.001 | 0.000 |
| Bibliometrics | 0.002 | 0.002 |
| Science and technology studies | 0.009 | 0.026 |
| Scholarly communication | 0.014 | 0.013 |
| Open science | 0.001 | 0.005 |
| Research integrity | 0.007 | 0.009 |
| Insufficient payload (model declined to judge) | 0.003 | 0.001 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one source (direct Gemma or distilled Codex), not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".