As SA's top court deals with the constitutionality of the country's equality and hate speech law, a top advocate says it is a question that should not be asked in a vacuum.

“It is not an academic question. It is a question that will have an affect whether the LGBQTI community finally, after 12 years, gets an apology from Mr Qwelane for his hate speech,” said advocate Kate Hofmeyr, acting for the Psychological Society of SA (PsySSA).

The society was admitted as a friend of the court in the matter involving former high commissioner to Uganda Jon Qwelane and the South African Human Rights Commission (SAHRC).

In November last year, the Supreme Court of Appeal (SCA) upheld an appeal by Qwelane and declared that section 10(1) of the Promotion of Equality and Prevention of Unfair Discrimination Act (Pepuda) was unconstitutional.

The case has its genesis about 12 years ago when Qwelane wrote an article published in the Sunday Sun titled “Call me names — but gay is not OK”.

In the article, Qwelane compared gay and lesbian people to animals and suggested they were responsible for the rapid degeneration of values in society.

This prompted the commission to refer a hate speech complaint against Qwelane.

While the high court ruled in 2017 that Qwelane's utterances were hurtful and ordered him to apologise, the SCA set aside the high court order in November last year and declared section 10(1) of the act as unconstitutional.

PsySSA has asked the Constitutional Court to overturn the SCA dismissal of the equality complaint, and reinstate the order by the high court requiring an unconditional apology from Qwelane.

“Mr Qwelane did not simply ... write an article that expressed a concern about gay marriage or a desire to change the law. Mr Qwelane, on the contrary, told the readers ... [that] homosexuality was responsible for the degeneration of values in society,” Hofmeyr said.

She said Qwelane dehumanised the LGBTQI community: “He likened homosexuality to bestiality.”

She said Qwelane used the technique of “othering”. “He referred to the group he targeted as 'these people',” she said.

Hofmeyr said Qwelane described their sexuality as a lifestyle choice.

“He wrote his article at time of unprecedented levels of violence against the LGBQTI community. The evidence presented before the high court showed lesbian women in SA were literally having their identities beaten out of them at the time he wrote his article while they were either gang-raped or murdered.”

She said Qwelane's words had a profound affect on the LGBTQI community: “In his own words, he wrote, 'Quite frankly I don't give a damn. Wrong is wrong'.”

Jurisdictions all over the world recognised that speech like that undermined the pursuit of equality and the eradication of discrimination, she said, adding that experts around the world had written about a series of implications of hate speech for the targeted groups.

“There is a strong correlation between the prevalence and tolerance of hate speech in a society and the prevalence of hate crimes in those societies.”

The minister of justice, represented by Kameshni Pillay, also asked for the SCA order to be set aside.

“In the unlikely event that the court finds the section is unconstitutional, the minister asks that the section be remitted to parliament and that the legislature be given 18 months to correct the defects,” she said.

The commission also asked the court to set aside the SCA order.

The hearing continues.

TimesLIVE