More than 13 years after it was first published, the Constitutional Court has declared Jon Qwelane’s “Call me names but
gay is not okay” column to be hate speech – labelling it “abhorrent”.
“It is difficult to conceive of a more egregious assault on the dignity of LGBT+ persons,” Justice Steven Majiedt said in the apex court’s unanimous ruling on the matter, handed down yesterday.
Published in The Sunday Sun in 2008, the column saw the recently deceased Qwelane – a veteran journalist and one time South African ambassador to Uganda – liken gay people to animals. In it, he suggested they were to blame for decaying societal morals.
“Their dignity as human beings deserving of equal treatment, was catastrophically denigrated by a respected journalist in a widely read article,” Majiedt said yesterday.
“The harm to not only the already vulnerable targeted LGBT+ community, but also to our constitutional project, which seeks to create an inclusive society based on the values of equality, dignity and acceptance, is indubitable.”
Qwelane’s column landed him with a hate speech complaint from the SA Human Rights Commission (SAHRC), which he responded to with a constitutional challenge to the Promotion of Equality and Prevention of Unfair Discrimination Act (Pepuda).
Both matters were dealt with together, with the High Court in Johannesburg initially finding the column amounted to hate speech and dismissing the Pepuda challenge.
In November 2019, the Supreme Court of Appeal (SCA) overruled the high court on both counts – upholding the Pepuda challenge and dismissing the hate speech complaint.
The constitutional challenge was then sent to the apex court for confirmation, which simultaneously heard an appeal against the dismissal of the hate speech complaint from the SAHRC.
The Constitutional Court yesterday agreed with the SCA that section 10 of Pepuda – which bans language which “could reasonably be construed to demonstrate a clear intention to be hurtful; be harmful or to incite harm; promote or propagate hatred” – was overly vague.
“If speech that is merely hurtful is considered hate speech, this sets the bar rather low. It is an extensive limitation,” Majiedt said.
But while the court found the inclusion of the word “hurtful” was unconstitutional, it also found Qwelane’s column still amounted to hate speech. Majiedt described it as “unadulterated vilification and debasement of the LGBT+ community” and its reach and impact as “undeniably extensive and devastating”.
Access Chapter 2, a human rights organisation working with the LGBTQI community, welcomed yesterday’s ruling.
“For me, the Constitutional Court has affirmed why it’s important to protect the rights of everybody and, in particular, those who are marginalised and who are continuously stigmatised in society,” founding director Steve Letsike said, adding it affirmed the existence and rights of members of the LGBTQI community.
Media Monitoring Africa – which was admitted as amicus curiae in the case and supported the challenge to Pepuda – also welcomed the outcome.
“What is important is that it has brought us some clarity as to what now constitutes hate speech,” director William Bird said.
The court issued a costs order against Qwelane requiring him to cover the SAHRC’s costs in the case and Bird said this also sent “a strong signal”.