After a long delay, the South African Human Rights Commission’s case against controversial journalist and former ambassador to Uganda Jon Qwelane was heard in the South African High Court.
Qwelane’s case, now into it’s ninth year, seeks to find the limits of freedom of expression after the journalist wrote a column in the Sunday Sun in 2008 titled “Call me names, but gay is NOT okay”.
Qwelane claimed that accepting gay marriage was no different from accepting human relations with animals. It professed respect for Zimbabwean dictator Robert Mugabe’s “unflinching and unapologetic stance” on homosexuality (homesexuality is a crime in Zimbabwe, and Mugabe’s police forces routinely beat and arrest gay people). The column was accompanied by a cartoon of a man marrying a goat.
Qwelane’s column blamed gay people for a “rapid degeneration of values in our society plus other ills,” according to Justice Edwin Cameron of the Constitutional Court.
After an Equality Court ruling ordered Qwelane to apologize to the LGBT+ community and pay R100,000 (about $10,000) to the Human Rights Commission, Qwelane applied to the High Court to have the judgment rescinded. The trial was put off due to Qwelane’s ill health, and the delay was upheld by Justice Cameron at the Constitutional Court.
The case was finally heard in Johnannesburg earlier this month.
The Human Rights Commission brought the claim under s 10 of the Equality Act, which states that “no person 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; c) promote or propagate hatred”. The Commissiom contends that this is a reasonable limitation on free speech to protect vulnerable groups from speech that the Commission says promotes violence against them.
Qwelane argues that s 10, and another section prohibiting harassment, are unconstitutional infringements on freedom of expression. He argues prohibiting “hurtful” speech is overbroad in that it prohibits opinions simply because they are offensive.
“The end result is that our constitutional democracy will be saddled with journalistic views that are unashamedly politically correct and so mundane that they are incapable of producing critical debate and stimulating the kinds of self-inspection so vital to the democratic process,” Qwelane’s lawyer, Musatondwa Musandiwa, told the High Court.
Tembeka Ngcukaitobi, the Commission’s lawyer, told the High Court the column attacked a fundamental part of a person’s identity, and thus is discriminatory under the Act.
“Saying that the person’s sexual orientation is a lifestyle is insulting the fabric of a person’s being, and in essence discriminating by saying that it is not right to be who you are,” he said.
This blog post was written by a CCLA-PBSC RightsWatch student. Views expressed do not necessarily reflect the view of the CCLA or PBSC.