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6 Canberra L. Rev. 257 (1999)
Race Vilification Laws: A Comparative Perspective

handle is hein.journals/canbera6 and id is 263 raw text is: The Canberra Law Review Vol 6 Nos 1&2 1999

The enactment of South Africa's final Constitution in 19961 marked the
culmination of a process of constitutional change which commenced in 1990 with the
white minority government's release of Nelson Mandela and other political prisoners,
and the unbanning of political organisations which had been engaged in the struggle
against apartheid. An interim Constitution,2 drafted at a negotiating forum at which all
political parties were represented, paved the way for the country's first universal
suffrage elections, held in 1994. The resultant Parliament acted in two capacities - as
the nation's legislature and as a Constitutional Convention, charged with the task of
drafting a final Constitution.
Given that during the apartheid era governments had been both undemocratic and
racially discriminatory, all parties accepted that both the interim and final
Constitutions would be founded on the values of freedom and equality, and that these
would be given effect to in an entrenched Bill of Rights. However it was also
recognised that freedom and equality might well conflict. An instance of potential
conflict related to freedom of expression, where a commitment to open political
discussion indicated that the widest possible scope be given to the freedom, while a
commitment to the eradication of racial discrimination indicated that restrictions be
placed on hate speech. This article examines how the South African legal system
balances these competing interests and whether any lessons may be drawn for
Part 2 of the article contains a critical analysis of the two major schools of thought
on the issue of hate speech, represented by the opposing approaches adopted in the
BA(Mod) Dublin, LLB Rhodes, DPhil Waikato, Lecturer, School of Law, University of Canberra.
This research is the product of a visit to the University of Natal, Durban, South Africa, funded by an
Australian Research Council grant. I would like to express my appreciation to the Law School at the
University of Natal for its hospitality, and to the ARC, DEETYA and the Research Office of James
Cook University for the financial support provided for the project. This article is dedicated to the late
Professor Anthony S Mathews, James Scott Wylie Professor of Law at the University of Natal,
Pietermaritzburg, whose unwavering commitment to human rights remains an inspiration to me.
Constitution of the Republic of South Africa Act 108 of 1996.
2 Republic of South Africa Constitution Act 200 of 1993.

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