Controversial former diplomat and “gay is not OK” columnist Jon Qwelane has scored a surprise victory in the Supreme Court of Appeal, in a ruling seen as a setback for SA’s efforts to stamp out racism and hate speech.
The ruling has brought bad news to Idols Judge Somizi Mhlongo and the entire South African gay community.
The appellate court this week dismissed a finding that he was guilty of hate speech and ordered parliament to rewrite the “vague” and “overbroad” law meant to protect against discrimination.
In essence, the court ruled that while the intentions of the law are noble, it oversteps the mark in curbing free speech.
The court held that an opinion like Qwelane’s may be hurtful without being hate speech, and thus he is protected by his right to express a view as long as it doesn’t promote hatred or incite violence.
Qwelane yesterday described the ruling as “the greatest thing to happen to free speech in the country’s history”, but gender activists were bitterly disappointed.
Qwelane, a former high commissioner to Uganda, was criticised after he wrote a newspaper column in 2008 praising former Zimbabwean president Robert Mugabe’s views on gays. In it, he urged politicians to rewrite the constitution to outlaw same-sex marriages, suggesting that acceptance of gay marriage will ultimately lead to demands to “marry an animal”.
MPs now have 18 months to rework parts of the Promotion of Equality and Prevention of Unfair Discrimination Act (Pepuda) — under which Penny Sparrow, Vicki Momberg and Adam Catzavelos were hit with fines — and one a jail term — for hate speech.
“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,” the court found.
The ailing ex-diplomat now walks away scot-free. The hate speech provisions of the act were declared invalid in the midst of 16 Days of Activism Against Gender Violence in a ruling seen as a blow to the LGBTQI+ community, which had called for Qwelane to be punished.
While the provisions of hate speech laws are reconsidered, the court rejigged sections of the law to ensure vulnerable groups are protected in the interim. A key pillar of the court’s ruling is that the test for hate speech needs to be objective, and that incitement to cause harm needs to be proved.
The ruling cannot be retrospectively applied, so those who have already fallen foul of hate speech laws are without recourse. The ruling has also been referred to the Constitutional Court for confirmation.
Speaking through his attorney, Qwelane hailed the ruling.
“I reckon this verdict is the greatest thing to happen to free speech in the country’s history, equally the freedom of the press.
“I believe as journalists we must push the envelope, because it is by testing the limits that we shall ensure that our craft and legal protections are fully guaranteed. I believe that everyone deserves protection under our laws. I never called for the harming of anyone and never will.”
The South African Human Rights Commission (HRC) brought hate speech charges against Qwelane after receiving more than 350 complaints. After years of litigation, the South Gauteng High Court in 2017 ordered that he apologise to the LGBTQI+ community and pay a R100,000 fine.
His constitutional challenge of the law — in which he held that his right to freedom of expression had been infringed — was dismissed by the high court.
But the appellate court, in delivering judgment on Friday, found in his favour with a ruling that the hate speech provisions were badly worded, overly broad and used a subjective test, thus clashing with the right to freedom of expression, which is enshrined in the constitution.
The relevant section of the act states: “No one may publish, propagate, advocate or communicate words based on one or more of the prohibited grounds, against any person, that could reasonably be construed to demonstrate a clear intention to be hurtful; be harmful or to incite harm; promote or propagate hatred.”
Qwelane maintained that he was just giving vent to his opinion.
His attorney, Andrew Boerner of Jurgens Bekker Attorneys, said the clarification of the Equality Act was in the interests of justice.
“His particular expression of his views may have been unpopular, controversial and even shocking, but it neither advocated hatred nor constituted incitement to cause harm,” he said.
The court cited constitutional scholar Pierre de Vos, who has criticised SA’s hate speech legislation as “absurdly broad”.
“The current provision is also bad on policy grounds. In a vibrant democracy which respects difference and diversity — also diversity of opinion — it would be dangerous to ban all speech that could be construed as intending to be hurtful to another person merely because of that person’s race, sex, sexual orientation, religion, ethnicity, culture or age,” the judgment quoted De Vos as saying. “Do we want to be in a situation where we are so scared to express our deeply and honestly held opinions that we shut up because we fear we might be found guilty of hate speech?”
SAHRC chair Bongani Majola said the commission had for some time been calling for a clarification of the law relating to hate speech.
“This is because the current uncertainty in the law has been amplified by the high courts. The declaration that Section 10 of the Equality Act is unconstitutional and invalid is a move that, we hope, will result once this hate matter has been pronounced upon by the Constitutional Court.”
The Freedom of Expression Institute’s Samkelo Mokhine welcomed the judgment.
“Because of the history of our country, there will be views which are unpalatable. We welcome the move to get the legislation in line with the constitution. The constitution allows for the limiting of freedom of expression if there is a call for violence, and legislators have to now bring it in line with that principle,” he said.
Gay rights activist Luiz de Barros said the disappointment of the LGBTQI+ community cannot be overstated. “This created so much outrage, sadness and anger in our community and really struck a nerve. There will be massive disappointment that there is no consequence for Jon Qwelane.
“This legislation was a cornerstone of ensuring the dignity of members if the LGBTQI+ community and to have it undermined is troublesome.”
Juan Nel of the Psychological Society of SA said: “The Equality Act is testament to the fact that discrimination is perpetrated in many forms. When speech harms vulnerable minorities they should have a remedy so we can build understanding that forges a more tolerant society.”
Credit: Sunday Times