Con Court: Jon Qwelane guilty but hate speech definition amended

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7/30/21

In a long-fought victory for SA’s LGBT+ community, the Constitutional Court has upheld the Jon Qwelane hate speech conviction but ordered that the Equality Act be amended. On Friday, the court found in a unanimous judgement that Qwelane’s 2008 article, Call me names, but gay is NOT okay, was indeed hate speech. In the now-infamous piece, the late journalist suggested that homosexuality is similar to bestiality, said he supported Robert Mugabe’s homophobia and urged politicians to remove the sexual orientation equality clause from the Constitution. The article outraged the LGBT+ community and, after receiving more than 350 complaints, the SA Human Rights Commission (SAHRC) instituted proceedings against Qwelane. The decision brings to an end a matter that has been dragged through courts for more than a decade. Qwelane – who died in December last year – refused to apologise and remained unapologetic about his views till the bitter end. He was first found guilty of hate speech by the Johannesburg Equality Court in April 2011. That was withdrawn on technical grounds later that year. He was again found guilty by the South Gauteng High Court in 2017. Qwelane and his legal team then challenged the constitutionality of the Promotion of Equality and Prevention of Unfair Discrimination Act (Equality Act) under which he was convicted. In 2019, the Supreme Court of Appeal overturned Qwelane’s conviction and found that the section of the Equality Act dealing with hate speech was unconstitutional. In Friday’s ruling, Justice Steven Majiedt said that the Constitutional Court had found Qwelane’s statements “to be harmful, and to incite harm and propagate hatred; and amount to hate speech as envisaged in section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act No 4 of 2000.” Majiedt wrote that, “Mr Qwelane was advocating hatred, as the article plainly constitutes detestation and vilification of homosexuals on the grounds of sexual orientation. He was publicly advocating for law reform in favour of the removal of legal protection for same sex marriages. In doing so, he was undermining the protection of the law, the dignity of the LGBT+ community and the public assurance of their decent treatment in society as human beings of equal worth…” However, the court also declared that section 10(1) of the Equality Act is “irredeemably vague” and unconstitutional to the extent that it includes the word “hurtful” in the prohibition against hate speech. It, therefore, removed the word from the act and gave parliament 24 months “to remedy the constitutional defect”.

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