The SA Human Rights Commission and the Psychological Society of South Africa have applauded the South Gauteng High Court’s hate speech judgement against Jon Qwelane.
This case arose from more than 350 complaints lodged with the SAHRC in 2008 about the infamous homophobic article written by Qwelane, and published in the Sunday Sun.
On Friday, the court found that Qwelane’s utterances in the article amount to hate speech in terms of Section 10 of the Equality Act.
In his judgment, Justice Moshidi stated that, “The offending statements are hurtful and harmful and have the potential of inciting harm towards the LGBTI community, and plainly propagate hatred towards them”.
Juan Nel, Past President of the Psychological Society of South Africa (PsySSA), which presented evidence in the case, commented that, “this finding sends a clear message to LGBTI people, and to society at large, that homophobic hate speech has no place in our constitutional dispensation”.
The court also found that Qwelane’s defence, which challenged the constitutionality of the act, failed and was therefore dismissed.
According to Kerry Williams, PsySSA’s attorney and partner at Webber Wentzel, “Qwelane’s failed attempt to challenge the Equality Act’s hate speech provisions means that they remain in place as a powerful instrument through which those who express hurtful and harmful bigotry – in all its forms – can be brought to account.”
The court ordered that Qwelane unconditionally apologise to the LGBTI community, which is to be negotiated and settled with the parties, and that the apology be published in a national Sunday newspaper with the same or equal circulation as the Sunday Sun. Qwelane was also ordered to pay the costs of the other parties in the proceedings.
The evidence in the matter, and the judgment, are to be forwarded to the Commissioner of the South African Police Service for further investigation.
Freedom of speech cannot be used for hate
“This public denouncement of hate speech is a victory. It sends a loud message that those who hold significant political power are neither above the law, nor can they avoid being called to account for their words and actions”, said activist Melanie Judge, adviser to PsySSA.
The SA Human Rights Commission (SAHRC), which brought the case against Qwelane, argued in the trial “that expressions that are hurtful, harmful, and which incite harm or propagate hate against a particular group – in this instance on the basis of a person’s sexual orientation or gender identity – are not protected by the right to freedom of expression”.
In a statement, the commission welcomed the judgment “as a victory for the protection of the equality rights of the LGBTI community and gender non-conforming persons”.
It said the case “highlights the debate around the meaning of freedom of expression and, whilst protecting this essential right within a constitutional democracy, ensures that it is used to foster a society based on equality and human dignity for all.”
The SAHRC added: “This judgment ensures that freedom of expression is not used as a veil for hate speech. Furthermore, this judgment builds on the jurisprudence which clarifies the reasonable and justifiable limitations of freedom of expression.”
Lerato Phalakatshela, Hate Crime Manager at OUT, and spokesperson for the Love Not Hate campaign, said that, “This is an important decision by the courts.”
He noted that last year’s Love Not Hate report on hate crimes against LGBT people in South Africa found that verbal abuse was the most common form of discrimination faced by this community. Of those surveyed, 39 percent reported being subjected to verbal insults, while 20 percent were threatened with physical violence.
“Although freedoms of speech and expressions are important cornerstones of our democracy, vilifying and debasing LGBTI people, an already vulnerable group, as less than fully human is a step too far,” said Phalakatshela. “We hope Qwelane accepts this judgement and does the honourable thing by unconditionally apologising for his dangerous and dehumanising words.”
In his 2008 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 today’s ruling.