Jon Qwelane will not face any consequences for his homophobic statements after the Supreme Court of Appeal overturned his previous hate speech conviction and found that a section of the Equality Act is unconstitutional.
The decision means that the decade-long struggle to hold Qwelane accountable may well come to naught.
In his now-infamous 2008 article, the disgraced former journalist suggested that homosexuality was similar to bestiality, said he supported Robert Mugabe’s homophobia and urged politicians to remove the sexual orientation equality clause from the Constitution.
After a flood of complaints, Qwelane was taken to the Equality Court by the SA Human Rights Commission (SAHRC) which led to a marathon legal battle.
In a shocking decision issued on Friday, Judge Mahomed Navsa agreed with Qwelane’s legal argument that Section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA / The Equality Act), under which he was convicted in 2011 and in 2017, is unconstitutional. Section 10 of PEPUDA specifically relates to the Prohibition of Hate Speech.
In his 46-page ruling, Judge Navsa admitted that Qwelane’s article “gave vent to his bigotry” and that he “was strident, provocative and unapologetic about it.” However, he said, this was not enough to impose a hate speech sentence.
“We can all agree that it is important to protect the dignity of all our citizens. Equally, we must agree, given our history, that freedom of expression must also be prized,” he wrote.
Section 10 of the PEPUDA as it is, Judge Navsa said, is too broad, vague and infringes on the right to freedom of expression.
“I accept unreservedly that harm envisaged in [section] 16 of the Constitution and contemplated in the provisions of s 10(1) of PEPUDA, need not necessarily be physical harm, but can be related to psychological impact,” said Navsa. “However, the impact has to be more than just hurtful in the dictionary sense.”
The judge ruled that Section 10 of PEPUDA is “inconsistent with the provisions of s 16 of the Constitution and is therefore unconstitutional and invalid.” Navsa gave Parliament 18 months to change the law. In the meantime, a reworded version of Section 10 is to be put in place which has had references to causing “hurt” and “promoting hatred” removed.
He further dismissed the complaint by the SAHRC against Qwelane because it was based on the previous, invalid version of Section 10.
Professor Juan Nel, former President of the Psychological Society of South Africa (PsySSA), who testified in the case about the impact of hate speech on the LGBTQ community, told MambaOnline that “we are profoundly disappointed by the outcome, in particular as we consider that the judgement dismisses the original Human Rights Commission complaint.”
He continued: “As a result, Jon Qwelane faces no legal consequences for his speech and the LGBTQ community has enjoyed no recourse or justice in respect of his deeply homophobic statements.”
He pointed out, however, that the matter is not yet concluded as the ruling has been referred to the Constitutional Court for confirmation.
“The constitutional commitment to equality is a cornerstone of our democracy and the Equality Act is Parliament’s recognition that discrimination is perpetrated in many forms when speech harms minorities vulnerable to such discrimination,” said Nel. “They should have a remedy so that we can build understanding and forge a more tolerant and compassionate society.”
In his ruling, Navsa noted that Qwelane’s legal team had presented him as someone who had fought against the divisions of the past in the struggle against apartheid. He urged Qwelane “to consider that it is worth preserving that legacy by seeking rapprochement, even now. We have to, in our beloved country, find a way in which to relate to each other more graciously.”