Over the past two months freedom of expression has won in our courts - a sign that democracy is thriving, many would say.

In October, the Constitutional Court declared that parts of the Intimidation Act were unconstitutional.

Though the court acknowledged that section 1(1)(b) of the Act was premised on section 12 of the constitution in that it operated "to criminalise conduct and expressive acts which violate the rights to dignity, personal freedom and security", the court held that "the rights to dignity and security must, however, be balanced with the competing right to freedom of expression".

To cut a long story short, freedom of expression won at the end of the day because the ConCourt feared that this section may end up criminalising "protected free speech and probably also peaceful forms of protest".

I was, however, stunned by a recent Supreme Court of Appeal (SCA) judgment which held that vile homophobic remarks did not amount to hate speech, but were merely
hurtful.

The hate speech matter stems from a 2009 column penned by Jon Qwelane, who said that "gay is not okay". Following a backlash, he had used his right to freedom of expression as a veil for hate speech.

Last week, the SCA set aside a ruling by the high court, which found him guilty of hate speech.

Qwelane clearly has no clue what his vile utterance may have had on the lesbian, gay, bisexual, transgender, queer or questioning and intersex (LGBTQI) community, a vulnerable group which is still fighting for fundamental rights.

I am disappointed that the SCA ruled in favour of Qwelane despite that he compared gay people's conduct to bestiality. I had to pick my jaw from the floor because I thought it was remarkable that such vile homophobic comments would not amount to hate speech considering the violence the LGBTQI community face on a daily basis.

The court ruled that "comment can only be hate speech if it causes harm as well as incites violence". I, however, don't believe that it's that black and white. Remember,
Qwelane's comments were not political ramblings or mere sloganeering. Violence is also subjective and not always physical.

The LGBTQI community faces violence stemming from intolerance that is aimed at making their lives hell. An intolerance of gay and lesbian people has caused the death of many of those belonging to this particular community or group.

I do not accept the words uttered or written by Qwelane that perpetuate this intolerance are merely hurtful - such utterances are harmful to this vulnerable group.

Qwelane perpetuates hatred for gays and lesbians, which has caused the killing of such persons. One cannot separate the hate and harm, and the violent consequences.

Any sociologist would tell you that Qwelane did not have to state that gay people should be attacked because his utterances alone dehumanised gay people when he compared their conduct to bestiality.

I understand Qwelane's comments as nothing but hurtful and harmful. I cannot separate these utterances from efforts to incite harm, whether direct or indirect.

I agree that the Act ought to be amended to become more clear. But if the court's ruling seemed odd, it was because we also know that unfair discrimination has been
prohibited and protection under the right to freedom of expression can be reasonably limited by section 36 of the constitution.