‘No doubt’ Jon Qwelane column amounted to hate speech: ConCourt
There is “no doubt” a homophobic column by the late Jon Qwelane amounted to hate speech, the Constitutional Court said on Friday.
The highest court declared the 2008 column amounted to hate speech after a 13-year legal battle started in the Equality Court by the SA Human Rights Commission (SAHRC).
“The likelihood of the infliction of harm and the propagation of hatred is beyond doubt. It is difficult to conceive of a more egregious assault on the dignity if LGBTQI+ persons,” justice Stevan Majiedt said on behalf of a unanimous court.
However, the personal apology that had been ordered by the high court could not be enforced as Qwelane had passed away.
The column was published in the Sunday Sun. In it Qwelane condemned same-sex marriage, saying he hoped parliamentarians would stand up and rewrite the constitution otherwise “at this rate, how soon before some idiot demands to ‘marry’ an animal”? He argued that SA’s constitution “allows” it. The article sparked a deluge of complaints to the SAHRC, which then took Qwelane to the Equality Court.
In his judgment Majiedt said hate speech was the antithesis of the values envisioned by the right to free speech — “whereas the latter advanced democracy, hate speech is destructive of democracy”.
He said the harm in Qwelane’s column was not only to the LGBTQI+ community but also “our constitutional project, which seeks to create an inclusive society based on the values of equality, dignity and acceptance”.
The ConCourt also found that one aspect of the hate speech clause in the Promotion of Equality and Prevention of Unfair Discrimination Act was unconstitutional.
The act said 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 (a) be hurtful; (b) be harmful or to incite harm; [or] (c) promote or propagate hatred”. There is a list of prohibited grounds, which includes race, gender, sexual orientation and others.
The “hurtful” part is what the highest court found did not pass constitutional muster. The court found that to read the section constitutionally, hurtful would have to be read to mean the same thing as harmful, which then rendered it redundant.
“There is no need to have both,” said Majiedt. The “hurtful” portion was “irredeemably vague and undermines the rule of law”.
The court has given parliament two years to fix the hate speech provision in the Equality Act. In the meantime, the court ordered the act will read to say that 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 harmful or to incite harm and to promote or propagate hatred”.
If parliament does not fix the clause in time, the court-ordered fix will become permanent.
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