- The Constitutional Court found that the late Jon Qwelane's column "Call me names, but gay is not okay" constituted hate speech.
- But Justice Steven Majiedt declared Section 10 (1) (a) of the Equality Act unconstitutional for vagueness and unjustifiably limiting Section 16 of the Constitution.
- Parliament has been given 24 months to remedy it.
The Constitutional Court has upheld that a newspaper column, in which the late Jon Qwelane wrote an opinion piece about same-sex marriage - titled "Call me names, but gay is not okay" - lauding former Zimbabwean president Robert Mugabe's "unflinching and unapologetic stance" on homosexuality, was "abhorrent" and constituted hate speech.
The unanimous judgment, penned by Justice Steven Majiedt, however, declared Section 10 (1) (a) of the Equality Act unconstitutional for vagueness and unjustifiably limiting Section 16 of the Constitution.
He gave Parliament 24 months to remedy it.
Qwelane died in December last year.
The column, published in the Sunday Sun in 2008, 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 SA Human Rights Commission (SAHRC), his column read.
It elicited over 350 complaints to the SAHRC, which referred the hate speech complaint to the Equality Court.
Qwelane, in turn, then instituted a constitutional challenge against Section 10(1) of the Equality Act, which defines and prohibits hate speech.
In the high court proceedings, he argued that this section was too broad, unjustifiably limited the right to free expression, and was impermissibly vague.
The high court dismissed his overbreadth and vagueness argument, finding that Qwelane's column indeed constituted hate speech.
He was ordered to tender a written apology to the LGBTI+ community and pay the costs of proceedings.
Qwelane, however, appealed to the Supreme Court of Appeal (SCA), which, in a unanimous judgment, upheld the finding.
He then approached the Constitutional Court.
Majiedt upheld the previous ruling, but found that the SCA had erred in finding that paragraphs A to C of Section 10 (1) - which deals with the publishing, propagating, advocating or communicating what could be reasonably construed to demonstrate the intention to be hurtful, harmful or incite harm, or promote or propagate hate – must be read disjunctively as this would limit Section 16 of the Constitution related to freedom of expression.
He only agreed that the term "hurtful" was vague and that Section 10 should be read to refer exclusively to speech that is harmful and incites hatred for a period of two years, to allow Parliament to remedy it.
Majiedt found that the column "indubitably constitutes hate speech".
"In doing so, he was undermining the protection of the law, the dignity of the LGBT+ community and the public assurance of their decent treatment in society as human beings of equal worth, deserving of human dignity, and the protection and enjoyment of the full panoply of rights under the Constitution."
In unequivocally aligning himself with Mugabe's "abominable" comments, Qwelane vilified the LGBT+ community as "animals", as less than human beings, Majiedt said in his finding.
"Their sexual preferences and relations were degraded to bestiality. Mr Qwelane's article unabashedly exuded his loathing and revulsion."
The minister of justice was ordered to pay half of Qwelane's costs in the high court, the SCA and the Constitutional Court, while Qwelane was to pay the costs of the SAHRC.