In Masuku v South African Human Rights Commission 2019 2 SA 194 (SCA), the Supreme Court of Appeal (SCA) heard an appeal against a judgment of the Equality Court (EC). The EC had held that the appellant's statements constituted hate speech in terms of section 10(1) of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (PEPUDA). The SCA overturned the judgment of the EC. It noted that there were questions about the constitutionality of section 10(1) of PEPUDA. For that reason, it tested the appellant's statements not against section 10(1) of PEPUDA, but directly against section 16(2) of the Constitution.

Was the SCA correct in applying section 16(2) of the Constitution directly to the case, rather than applying section 10(1) of PEPUDA? Answer this question in view of the principle of subsidiarity. In your answer, you must explain what subsidiarity means and why it is an important principle under the Constitution. You must also briefly discuss relevant case law to the extent that it sheds light on the meaning of subsidiarity.