The legal battle over journalist and diplomat Jon Qwelane’s homophobic column goes before the Constitutional Court next week, 12 years after it was published.
Qwelane’s column, published in the now defunct Sunday Sun in July 2008 and headed “Call me names, but gay is NOT okay”, has been widely condemned by human rights and non-governmental organisations.
Qwelane, a former high commissioner in Uganda, was found by the South Gauteng High Court to be guilty of hate speech in that he was hurtful, incited harm, propagated hatred and that the column amounted to hate speech in terms of the Promotion of Equality and Prevention of Unfair Discrimination Act.
Qwelane challenged the high court decision at the Supreme Court of Appeal, arguing that the act under which he was charged should state that no person may advocate hatred that is based on race, ethnicity, gender, religion or s.e.xual orientation and that constitutes incitement to cause harm. He claimed that he had freedom of speech as enshrined by the Constitution.
Qwelane argued that sections of the act were unconstitutional because they unjustifiably limited the constitutionally guaranteed right to freedom of expression. He also refuses to withdraw or apologise for his views.
The Supreme Court of Appeal held that Section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act was an unjustifiable limitation of the right to freedom of expression. The South African Human Rights Commission then appealed that ruling up to the apex court.
Almost a dozen organisations, including the Nelson Mandela Foundation, the Southern African Litigation Centre and the Freedom of Expression Institute, have asked to be friends of the court in Qwelane’s matter.
“There is no incitement by the applicant (Qwelane) for others to cause harm to homos.e.xuals. The applicant (Qwelane) expresses his view, but falls short of imploring or instigating others to take action, let alone harmful action, against homosexuals,” his court papers maintain.
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