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Judgment
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A statutory hate‑speech prohibition was found overbroad and vague, unjustifiably limiting freedom of expression.
Constitutional law – freedom of expression – hate speech – constitutionality of statutory hate‑speech provision (s 10 PEPUDA) – overbreadth and vagueness – disjunctive drafting, subjective tests (“hurtful”, “reasonably be construed”) lower constitutional baseline – reading‑down inadequate – suspended declaration and interim, narrowly tailored remedy; referral to Constitutional Court.
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Reported
Whether protest songs, in their full political context, constitute hate speech and whether a judge should be recused.
Recusal – reasonable apprehension of bias – objective test: reasonable, informed person on correct facts; comments must be read in context; high threshold for displacing presumption of judicial impartiality; Issue estoppel/res judicata – prior settlement does not automatically bar fresh litigation where interests of justice, alleged breaches and public importance justify adjudication; Hate speech – s 10(1) Equality Act (post-Qwelane) two-stage inquiry: (1) speech based on prohibited ground; (2) could reasonably be construed to demonstrate clear intention to be harmful/incite harm and promote hatred; Context, speaker identity and political purpose critical; Political protest songs with historical tradition may be protected expression and not hate speech.
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