Makhosandile Zulu
2 minute read
6 Jan 2020
4:00 pm

Human Rights Commission to fight court decision throwing out hate speech law

Makhosandile Zulu

The SAHRC says the ‘gay is not okay’ columnist should have been found guilty of hate speech after he was let off the hook by an SCA judgment.

Powa supporters in court during the Jon Qwelane trial, 7 March 2017. Photo: ANA

The South African Human Rights Commission (SAHRC) has said that it intends to file papers opposing the Supreme Court of Appeal’s (SCA’s) freedom of expression judgement.

On November 29 last year, the SCA delivered a judgment that found that the current definition of hate speech is unconstitutional.

The SCA made the judgement after columnist, veteran journalist, former radio personality and one-time ambassador to Uganda Jon Qwelane approached the court to appeal an Equality Court ruling against him that found that his 2008 column titled Call me names, but gay is not okay was “hurtful, harmful, incited harm and propagated hate and amounted to hate speech”.

The Equality Court made the ruling after the SAHRC took action against Qwelane.

The SAHRC was the first respondent in the appeal launched by Qwelane while the minister of justice and correctional services was the second respondent.

The SCA ruled that Qwelane’s opinion was hurtful but did not amount to hate speech under the current definition.

The SAHRC, however, says the Constitutional Court must rule on the matter and it is of the strong view that the SCA “has erred” in ruling that section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act (Pepuda) “is too wide”.

The SCA has given parliament 18 months to rewrite the vague and overbroad law.

An SAHRC commissioner told eNCA on Monday morning that what was of concern for the commission was that parliament would take time to come up with and process a Bill in both its houses, creating an unwanted “vacuum in the meantime”.

The CEO of the SAHRC, Advocate Tseliso Thipanyane, said the SCA said the definition of section 10 of the Pepuda was too broad and therefore unconstitutional, and that hate speech needed be defined more narrowly.

Thipanyane said the SAHRC had not taken issue with the latter, that hate speech must be defined narrowly, however, the commission was of the view that courts could define hate speech narrowly and so there was no need for the act to be amended.  The SAHRC was waiting for advice from counsel, he added.

He said the SAHRC had taken issue with the costs order made by the SCA as the commission did not “understand why” such an order was made.

Thipanyane said the SAHRC was of the view that Qwelane’s opinion was “tantamount to hate speech” and so the commission wanted him to be found guilty of hate speech. However, the SAHRC was waiting for further opinion from counsel.

Thipanyane said the SCA judgement on the matter was currently for academic purposes until it was ratified or rejected by the Constitutional Court.

He indicated that the Department of Justice and Constitutional Development could also possibly oppose the SCA judgment.

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