The court found that section 10(1) of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 was unconstitutional insofar as it included the vague term "hurtful" as part of the definition of prohibited hate speech.

On 20 July 2008, the Sunday Sun newspaper published an article by columnist Jon Qwelane entitled "Call me names – but gay is NOT okay…".

In August 2017,[3] Moshidi found against Qwelane, dismissing his constitutional challenge and declaring his statements as hate speech as envisaged in section 10(1) of the Equality Act.

In a unanimous judgment written by Judge Mahomed Navsa, the Supreme Court found merit in Qwelane's argument that section 10(1) was vague and unconstitutional on the grounds of overbreadth, as it licensed violations of the right to freedom of expression.

It found that Qwelane's statements demonstrated an intention to harm the LGBTI community and advocate hatred against them on the basis of their sexual orientation.

Legal commentators welcomed the Constitutional Court's clarification of the application of the Equality Act in defining prohibited hate speech.