Between expression and equality: Constitutional challenges in adjudicating racially charged political speech in South Africa

This article critically examines the constitutional tension between the right to freedom of expression and the rights to equality and dignity in adjudicating racially charged political speech in South Africa. It focuses on the controversial chant "Kill the Boer" and interrogates how courts navigate the competing imperatives of protecting political expression while upholding non-racialism, equality, and human dignity. Through doctrinal and comparative analysis, including cases from Kenya and Rwanda, the article identifies inconsistencies in South African jurisprudence, particularly regarding symbolic speech and its real-world impact on minority communities. It highlights the judiciary's tendency to underplay psychological and symbolic harm, which undermines public trust and the transformative vision of the Constitution. The article further addresses the study's limitations, such as the limited engagement with primary data and potential judicial biases. It proposes reforms that prioritise restorative constitutionalism and a more context-sensitive approach to adjudicating hate speech, considering the feasibility of such measures within South Africa’s resource-constrained legal framework. The study contributes to broader debates on how transitional democracies can address historical injustice without enabling new forms of exclusion or harm.