ConCourt grapples with hate speech law in the Qwelane case
Former high commissioner to Uganda Jon Qwelane says he agrees with a Supreme Court of Appeal (SCA) judgment passed in November 2019 which declared a section in the equality law to be unconstitutional.
Section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act (Pepuda) states that no person may publish, propagate, advocate or communicate words based on one or more of the prohibition grounds, against any person, that could reasonably be construed to demonstrate a clear intention to hurtful, be harmful or to incite harm and to promote or propagate hatred.
Qwelane had argued that an article he wrote in 2008 titled "Call me names - but gay is not okay" did not constitute hate speech and he could not be liable in terms of section 10 of the Act.
In that article published in the Sunday Sun, Qwelane compared gay and lesbian people to animals and suggested they were responsible for the rapid degeneration of values in society.
The article was met by a public outcry and the South African Human Rights Commission (SAHRC) referred the alleged hate speech complaint against Qwelane to the Equality Court.
Qwelane, however, challenged the constitutionality of section 10 of the act.
The high court in Johannesburg dismissed the constitutional challenge by Qwelane and found the article was hurtful.
In November last year, the SCA upheld Qwelane's appeal. It found that the right to freedom of expression had been limited in a number of important ways by section 10(1) of Pepuda.
The court said although section 16.2 of the constitution found freedom of expression did not extend to advocacy of hatred based on the categories of race, ethnicity gender or religion, Pepuda extended the limitation to include 18 other categories.
"The applicant [Qwelane] supports the finding of the SCA," said his lawyer Mark Oppenheimer.
Oppenheimer, quoting from a separate SCA judgment, said unless hate speech, incitement of imminent violence or propaganda for war as prohibited in section 16(2) of the constitution are involved, no one is entitled to be insulated from opinions and ideas that they do not like, even if those ideas are expressed in ways that place them in fear.
"Indeed in present-day SA, many would be afraid of the political and social possibilities that are advocated for daily in high-stakes debates that characterise a transforming society with a violent racist past," he said.
"This may place many South Africans in a condition of subjective or reasonable fear, but that does not entitle them to expect the state to lock up those whose chosen form expression place them in such a state of fear."
Oppenheimer said the SCA said there was no evidence before the court that Qwelane's article called on anyone to harm anyone in the gay community.
"Therefore there was no incitement to harm in that article," he said.
Tembeka Ngcukaitobi, for the SAHRC, disagreed. He said the accusation that section 10 was barely intelligible was incorrect.
"If you are harmful or inciting harm on a prohibited ground, then you are violating the section. If you are propagating hatred on a prohibited ground, then you are violating the section," he said.
When asked what should happen to Qwelane's case, if the court were to rule against the commission, Ngcukaitobi said it had argued that Qwelane had a case to answer.
He said the evidence presented in the high court showed that although one could not draw a straight line of causality that "Mr Qwelane said this and I was attacked", one could conclude that his utterances fuelled the fires and added to a climate that was already hostile.
He said Qwelane did not come to the trial to present his defence.
"You have evidence by witnesses who are experiencing the deep psychological distress as a consequence of his utterances and you have no countervailing evidence on his part.
"The evidence against Mr Qwelane as to the impact of the article was uncontested."
The matter continues.
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