High court to hear Qwelane challenge

By Drum Digital
08 September 2014

Ambassador to Uganda Jon Qwelane's challenge of the constitutionality of certain provisions of equality legislation will be heard in the High Court in Johannesburg in November.

Ambassador to Uganda Jon Qwelane's challenge of the constitutionality of certain provisions of equality legislation will be heard in the High Court in Johannesburg in November, his lawyer said on Monday.

"Today [Monday] the heads of argument were filed and we will now prepare for the hearing," Andrew Boerner said in a statement.

"We are also seeking a stay of the equality proceedings that are at present pending against our client in the Equality Court. What is sought is only a temporary stay pending the outcome of the constitutional challenge."

He said proceedings were set down for November 13 and 14. The SA Human Rights Commission (SAHRC) and ministers of justice and correctional services were respondents in the matter. SAHRC spokesman Isaac Mangena said the commission was opposing the challenge and had filed the relevant papers.

"We will argue that both matters, that is the substantive equality challenge and the constitutional challenge, be heard together. We are preparing accordingly," he said.

The justice minister's spokesman Mthunzi Mhaga said he would comment later. Qwelane would challenge sections 10 and 11 of the Promotion of Equality and Prevention of Unfair Discrimination Act. Section 10 deals with hate speech and section 11 with harassment.

In April 2011, Qwelane was found guilty by the Johannesburg Equality Court of hate speech, but was not present at the default judgment because of his job abroad. The judgment was withdrawn on September 1, 2011.

Qwelane's counsel argued at the time that the default judgment was not allowed, and that a direction hearing needed to be convened before such a judgment could be handed down. At the hearing on August 28 last year, the court heard that Qwelane would bring the challenge.

While still working as a journalist in 2008, Qwelane wrote a column, published in the Sunday Sun, in which he expressed his opinion about homosexuals. The column was headlined "Call me names, but gay is not okay".

Boerner previously said section 10 of the act was "guilty of over-breadth and vagueness" and posed a constraint to freedom of expression.

He said the Constitution placed the following limitations on freedom of expression: propaganda for war, incitement of imminent violence and advocacy of hatred based on race, ethnicity, gender, or religion and that constitutes incitement to cause harm.

"As a columnist, Jon Qwelane's opinion and views were in the public domain and therefore open to public comment and scrutiny," Boerner said at the time.

"His particular expression of his views may have been unpopular, controversial and even shocking, but it neither advocated hatred nor constituted incitement to cause harm. His expression is therefore protected by our Constitution."

-SAPA

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