Those wondering why Jon Qwelane has not yet tendered his apology to the LGBTI community may be angered to learn that he is appealing the hate speech judgement against him.
Mambaonline has confirmed that Qwelane has applied for leave to appeal the August 18 judgement by the South Gauteng High Court, which found him guilty of hate speech, in a case that has already dragged on for almost a decade.
The court ordered that Qwelane unconditionally apologise to the LGBTI community within 30 days. He was further ordered to pay the costs of the other parties in the proceedings.
While there was celebration of the victory by LGBTI groups and the community at the time, it now appears that the matter may be far from over.
On September 7, Qwelane’s legal representative asked Judge Moshidi leave to appeal “to the Supreme Court of Appeal, alternatively a full bench of the Gauteng Local Division of the High Court against the whole of the judgment…”
According to court documents, Qwelane believes that the judge erred in almost all his findings, including that Qwelane’s statements “plainly and unequivocally incite hatred or incited violence to homosexual individuals”. The application also claims that for speech to be declared hate speech there must be “proof of actual harm resulting from the offending statement”.
The application further argues that section 10 of the Equality Act that deals with hate speech is too vague and broad and impinges on freedom of speech.
“He really needs to go back and do some introspection…”
The SA Human Rights Commission (SAHRC), which has pursued the case against Qwelane in court, confirmed it had been served with the application for leave to appeal. A date now needs to be set for the application to be heard and be granted or denied by Judge Moshidi.
SAHRC Spokesperson Gail Smith said that the commission is “currently considering the application with the view to determining whether to oppose the application for leave to appeal and if so, the basis for doing so.”
Smith acknowledged that while the intention of the Equality Court process is to specifically “bring about a speedy resolution of complaints” this “has not been the case in the current matter”.
Lerato Phalakatshela, Hate Crime Manager at OUT, and spokesperson for the Love Not Hate campaign, said he was deeply disappointed that Qwelane has again refused to accept the judgement against him.
“He is just being ridiculously difficult,” commented Phalakatshela. “He is showing his true self, that he is really an intolerant person.”
“Yes, there is freedom of speech but there are limitations to it and you have to be responsible as to how you use your rights. He really needs to go back and do some introspection,” added Phalakatshela.
In his 2008 Call me names, but gay is not okay article, Qwelane suggested that homosexuality was similar to bestiality, said he supported Robert Mugabe’s homophobia (which includes calling gays and lesbians “worse than pigs and dogs”), and urged politicians to remove the sexual orientation equality clause from the Constitution.
A cartoon alongside the article depicted a man marrying a goat in church, further enforcing the idea that same-sex relationships are akin to bestiality.
In 2011, an Equality Court ruled that the article “propagates hatred and harm against homosexuals” and ordered Qwelane to apologise to the gay community and to pay damages of R100,000 towards an LGBTI rights group.
He, however, had the ruling rescinded on a technicality. The SAHRC re-filed the charges, leading to the August judgement, which is now being appealed.