Johannesburg – The promotion of hate speech was evident in South Africa's former ambassador to Uganda Jon Qwelane's 2008 column, the High Court in Johannesburg heard on Tuesday.
Advocate Tembeka Ngcukaitobi, for the South African Human Rights Commission (SAHRC), argued that the column had referred to the sexual orientation of gay and lesbian people as a "lifestyle".
"The commission is of the view that this constitutes hate speech because a person's sexual orientation is an inherent part of their being as a person.
"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."
In July 2008 the Sunday Sun published a column by Qwelane titled "Call me names, but gay is not okay". He lauded Zimbabwean President Robert Mugabe's "unflinching and unapologetic stance" on homosexuality.
It was accompanied by a cartoon of a man marrying a goat.
Qwelane wrote that he wondered what "these people have against the natural order of things".
He refused to withdraw or apologise for his views and would not explain his opinions to the SAHRC, he wrote.
Supporting Robert Mugabe
"We are not only dealing with a delinquent, but someone who has no respect for the Constitution," Ngcukaitobi said.
The SAHRC said it received 350 complaints about Qwelane's column - the highest number it has ever received for one incident.
In his heads of arguments, Ngcukaitobi said in making its determination whether the article amounted to hate speech or not, the commission interpreted the article and considered how a reasonable reader would construe the article.
"In the commission's view, [Zimbabwe President] Robert Mugabe has been reported as saying that gays and lesbians don't deserve constitutional protection and do not deserve human rights.
"Robert Mugabe is also reported as saying that gays and lesbians should be imprisoned. On that basis, when the article is read it is understood that Qwelane supports the utterances of Robert Mugabe," he said.
However Qwelane's lawyer Musatondwa Musandiwa said there was no evidence that the article would have fuelled the fire or led to any attacks on members of the LGBTI community.
Musandiwa said Qwelane couldn't have known what the effects of his article would have been.
"There is no link to show the level of harm," he said.
Earlier judgment withdrawn
He said the commission should have accepted the apology that was made by Qwelane's employer at the time, Media24, on his behalf.
"They should have also withdrawn against Mr Qwelane."
He said when Media24 apologised for the column the company used the word "we" which meant they took full responsibility for Qwelane.
"There is no evidence that shows that Media24 distances itself from the debate."
Qwelane was not in court on Tuesday. The matter was previously postponed because Qwelane was not well.
In April 2011 the Johannesburg Equality Court found him guilty of hate speech. He was ordered to apologise and fined R100 000.
He was not present at the default judgment because of his job abroad. The judgment was withdrawn on September 1, 2011.
The SAHRC subsequently initiated proceedings against him again. The matter continues on Wednesday.