Qwelane did not incite harm or violence against gay people - lawyer

2017-03-06 20:35


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Johannesburg – There was nothing in the 2008 Sunday Sun column by Jon Qwelane that incited violence or harm against members of the gay and lesbian community.

This is what his lawyer told the Johannesburg High Court on Monday, where the South Africa Human Rights Commission (SAHRC) has brought a hate speech case against Qwelane.

Qwelane's lawyer Musatondwa Musandiwa quizzed the SAHRC's head of legal services Pandelis Gregoriou on why they had withdrawn their case against Media24 based on their apology, but did not withdraw the case against Qwelane.

In 2008, Qwelane wrote a column in the Sunday Sun headlined "Call me names, but gay is not okay".

Gregoriou said they had considered relevant provisions of legislature when they withdrew their case against Media24.

He said after Media24's apology, Qwelane refused to engage with the commission and said "the commission can write any letter they want - I am going to ignore them".

He said Qwelane should have approached the commission and apologised.

"If he did not mean what he said, he shouldn't have included that in the article," Gregoriou said.

But Musandiwa said the column didn't incite "violence or harm".

"It is just a matter of opinion. There is nothing in there that incites violence and harm against members of the lesbian and gay community," he said.

Protest outside court

Qwelane was not in court on Monday. His counsel said he had been hospitalised after he collapsed at shopping mall in Boksburg.

A handful of People Opposing Women Abuse (Powa) members protested outside court during the hearing.

In the column - which was accompanied by a cartoon of a man marrying a goat - Qwelane lauded  Zimbabwean President Robert Mugabe’s "unflinching and unapologetic stance" over homosexuality.

Qwelane wrote: "There could be a few things I could take issue with Zimbabwe president Robert Mugabe, but his unflinching and unapologetic stance over homosexuals is definitely not among those."

In the column Qwelane said that he would "totally refuse to withdraw or apologise" for his views in which he also condemned gay marriage.

Qwelane said in the column that he believed that, when it came to homosexuals’ "lifestyle and sexual preferences... wrong is wrong!"

Musandiwa argued that Qwelane was not responsible for the cartoon of a man marrying a goat or the title which accompanied the column.

"There was no link to the author and the cartoon. He was not part of producing the cartoon, nor was he part of the title of the column," he said.


Gregoriou responded that the title and the cartoon were influenced by the content of the column.

Musandiwa also made reference to the commission's statement on King Zwelithini, in which they said his xenophobic comments were hurtful and harmful, but not hate speech.

He said this was inconsistent, because the commission's argument was that Qwelane's column was hurtful and harmful.

"There was inconsistency in accepting Media24's apology. They didn't say they didn't associate with everything written. They apologised for the actual article. Why proceed with Mr Qwelane if his employer apologised?"

Musandiwa also asked how many complainants had suffered after the column.

Gregoriou said, according to his knowledge, no one had suffered, but "the fact that we can't identify direct link... it doesn't mean there is no harm caused".

"The issue relates to one of our vulnerable groups... the contents of the article and the context in which you read the article is harmful. This is not a robust debate. His article is quite clear about what his views are in terms of the (LGBTI) group."

Challenge to hate speech law

Earlier, the SAHRC's legal counsel, Advocate Tembeka Ngcukaitobi, said the contents of Qwelane’s column were harmful and hurtful towards the gay and lesbian community.

The commission said they had received 350 complaints - which is the highest number it had ever received for one incident.

Qwelane, who subsequently served as an ambassador in Uganda, was originally found guilty of hate speech in April 2011 by the Johannesburg Equality Court, but was not present at the default judgment because of his job abroad. The judgment was withdrawn in September 2011.

In August 2013, the court heard that Qwelane would bring a challenge to the constitutionality of certain provisions of equality legislation.

At the time, Qwelane wanted to 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.

The matter is expected to continue on Tuesday.

Read more on:    sahrc  |  jon qwelane  |  lgbti rights

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