Bernadette Wicks
Senior court reporter
2 minute read
6 Apr 2020
6:18 am

‘Gay is not okay’ column and hate speech ruling now heading to ConCourt

Bernadette Wicks

The hate speech judgment late last year upended years of rulings about what is, and isn't, hate speech in SA.

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

Veteran journalist and one-time South African ambassador to Uganda Jon Qwelane will be back in court next month to fight for his 2008 column – “Call me names but gay is not okay” – to remain protected expression.

A November order was issued by the Supreme Court of Appeal declaring part of the Hate Speech Act unconstitutional and invalid, and it is now due before the Constitutional Court for confirmation.

Qwelane’s lawyers will argue that “the freedom of expression affords everyone the right to express their opinions”.

“This right protects not only those opinions that are broadly acceptable to society, but also those that many might find contentious, eccentric or that offend, shock or disturb large portions of society,” they said in their recently filed heads of arguments.

In the Act’s current form, this right is only limited by propaganda for war or an incitement to imminent violence – and lawyers said Qwelane’s column was neither.

“While the article is strongly worded, evinces a strident position on homosexuality and is [or ought arguably to be] offensive to a broad range of society, it nonetheless does not advocate hatred against homosexuals. Likewise, there is no incitement for others to cause harm to homosexuals,” they said.

“[Qwelane] expresses his view, but falls short of imploring or instigating others to take action, let alone harmful action, against homosexuals. As a result, as objectionable as it may be to many people, [Qwelane’s] views fall within the protection of the constitution”.

In 2008, The Sunday Sun published Qwelane’s column, prompting a reported 350 complaints to the South African Human Rights Commission (SAHRC).

It responded by bringing a case against both Qwelane and Media24 in the Equality Court. Qwelane and Media24 then retaliated with a constitutional challenge to the section of the Hate Speech Act under which they were being charged.

Media24 subsequently withdrew and the commission withdrew its complaint against the company. Judge Seun Moshidi, sitting in the High Court in Johannesburg, presided over the complaint against Qwelane, as well as the constitutional challenge, which Qwelane proceeded with on his own.

The judge ruled the contents of Qwelane’s column did amount to hate speech and dismissed the constitutional challenge.

In November last year, the Appellate Court overturned these findings.

Judge Mahomed Navsa declared section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act “unconstitutional and invalid” and the complaint against Qwelane was dismissed.

“It is clear … that [the legislature] wanted to regulate hate speech as broadly as possible. Unfortunately, it did not do so with the necessary precision and within constitutional bounds,” he found.

Parliament was given 18 months to remedy the defect.

In the meantime, the complaint against Qwelane was dismissed and the appeal judgment referred to the Constitutional Court.

The SAHRC indicated it would be appealing the SCA’s ruling.


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