LATEST 2024 IRM 1501 EXAMINATION PORTFOLIO

Qwelane v South African Human Rights Commission and another summary case Facts of the case On July 20, 2008, Jonathan Qwelane, a South African journalist, published a homophobic article in a South African tabloid, the Sunday Sun.1 Following the publication of the article the South African Human Rights Commission (the Commission) received 350 complaints about the article on the grounds that it constituted hate speech. The press ombud which had also received a number of complaints about the article found that the article violated the South African Press Code by “publishing denigratory references to people’s sexual orientation” and “implying that homosexuals are a lower breed than heterosexuals”. The ombud ordered the newspaper to publish an apology, but refused the Commission’s leave to appeal its ruling. The Commission then approached the Equality Court, arguing that Qwelane and the publisher of the Sunday Sun had contravened section 10(1) of the Promotion of Equality and Prevention of Unfair Discrimination Act, 1999 (PEPUDA).2 Section 10(1) of PEPUDA states: “Subject to the provision in section 12, no person may publish, propagate, advocate or communicate words based on one of more of the prohibited grounds, against any person, that could reasonably be construed to demonstrate a clear intention to (a) be hurtful; (b) be harmful or to incite harm; (c) promote or propagate hatred”. Legal Questions • Whether section 12 of PEPUDA sufficiently narrowed the limitation on freedom of expression caused by section 10 of the same Act? The Decision of the Court 1 Qwelane v South African Human Rights Commission and Another [2021] ZACC 22. 2 the Promotion of Equality and Prevention of Unfair Discrimination Act, 1999. The Court held that section 10 of PEPUDA cannot on any reasonable interpretation be equated with the provisions of s 16(2) of the Constitution. It extends far beyond the limitations on freedom of expression provided for in the Constitution and in many respects is Court held that section 10 of PEPUDA was unconstitutional and ordered the legislature to redraft the provision. However, the Court ordered that until a new provision was enacted, section 10 would read “(1) No person may advocate hatred that is based on race, ethnicity, gender, religion or sexual orientation and that constitutes incitement to cause harm. (2) Without prejudice to any remedies of a civil nature under this Act, the court may, in accordance with section 21(2)(n) and where appropriate, refer any case dealing with the advocacy of hatred that is based on race, ethnicity, gender, religion or sexual orientation, and that constitutes incitement to cause harm, as contemplated in subsection (1), to the Director of Public Prosecutions having jurisdiction for the institution of criminal proceedings in terms of the common law or relevant legislation The Court held that a “purposive and contextual interpretation of s 10 of PEPUDA leads to the compelling conclusion that the legislature sought to provide protection as broadly as possibly” It referred to the book, Introduction to the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 by C. Albertyn, B. Goldblatt and C. Roedere which had described PEPUDA as an “obvious attempt by the legislature to widen the cover of hate speech” and that the Act was “exceptionally difficult to understand”. In particular, the Court agreed with the authors that there is no clear definition of “hurtful” and noted that the general understandings of the word refer to subjective feelings and not to causing or inciting harm. Question 2 Qualitative research,is a research in which researchers make an analysis of what they see, hear and understand. It is aimed at collecting data about a topic that investigates something about human behavior that cannot be measured, such as perception, opinions, experiences, and so forth. In general, qualitative research is characterized by participatory research, where a researcher plays an active role in the collection, analysis and interpretation of data. Examples are as follows; • Diary accounts which are collected as part of diary studies. Participants record diary entries about their activities or experiences and send these back to the researcher over a period of time. These can be in the form of videos, text messages, emails, or accounts written on pen and paper. • Documents which can come in a variety of forms, whether they are public records (handbooks, policy outlines, plans, curriculums), personal documents (calendars, emails, logs), or physical artifacts (handbooks, flyers, posters, agendas) • Case studies are studies or investigations of a particular person, or group of people. • Descriptions are notes that you take to describe the quality or characteristic of something you’re observing. These can be notes you take while doing an observation or an interview. • Transcriptions are when you have audio or video recordings and translate the speech into written text form. Quantitative research deals with collecting data that can be measured and explained in statistical format, for example the number of cases referred to the sexual offenses court, or children diverted. It is more of a structured form of research because everything that forms part of the research method (objectives, design, sample and measuring instruments) is programmed. There are five main types of quantitative research designs and they are: • Descriptive Research Design. • Survey Research. • Correlational Research Design. • Quasi-experimental Research Design. • Experimental Research Design. Question 3 Plagiarism is the act of taking words, ideas and thoughts of others and passing them off a your own. It is dishonest and punishable to represent as your own