The Supreme Court of Appeal (SCA) has overturned a ruling finding veteran journalist, former radio personality and one-time ambassador to Uganda Jon Qwelane guilty of hate speech for a 2008 column titled Call me names, but gay is not okay.
The ruling changes South Africa’s hate speech laws, finding the current definition unconstitutional and ordering parliament to rewrite the laws to make them less “vague” within 18 months.
The ruling found that while Qwelane’s comments were hurtful, this was not enough to constitute hate speech. For a comment to be hate speech, it needs not only to cause harm but also to incite violence.
This will have far-reaching implications, as people have been found guilty of hate speech without having directly incited violence prior to the SCA ruling.
Qwelane wrote that he hoped politicians could have “the balls to rewrite the constitution” regarding the legalisation of same-sex marriages because, “at this rate, how soon before some idiot demands to ‘marry’ an animal, and argues that his constitution ‘allows’ it?”
He was found guilty of hate speech in the Equality Court in May, 2011. He was ordered to apologise and pay the SA Human Rights Commission R100,000.
The commission reportedly received 350 complaints in relation to the article – the highest amount it had ever received at that point.
The ruling had as much to do with the cartoon accompanying the column – of a man marrying a goat – as with the written contents.
He appealed the Equality Court ruling, filing a new case in 2013 challenging the constitutionality of the Equality Act over what he considered too broad and vague a definition of hate speech.
This led in 2017 to the High Court in Johannesburg again finding Qwelane, who was the South African ambassador to Uganda at the time, guilty of hate speech for the column, ordering him to apologise to the LGBTQI+ community and pay costs.
It is this ruling which the SCA ruling has now overturned.
The People Opposing Women Abuse (Powa) argued in 2017 that the column did indeed incite violence.
Powa’s executive director Nonhlanhla Mokwena said equating people to animals was dehumanising.
“In Powa’s view, the comments made in Mr Qwelane’s article exceeds the limits of the right to freedom of expression that is guaranteed in the constitution,” said Mokwena.
She said the Qwelane article was irresponsible and fuelled the existing ill-treatment against homosexual people, especially in the townships.
(Compiled by Daniel Friedman. Background reporting, African News Agency)