Qwelane hate speech case: The Bible is also anti-gay, but it's not banned - advocate

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Jon Qwelane.
Jon Qwelane.
File/Beeld
  • The Constitutional Court has heard arguments in the hate speech case against columnist Jon Qwelane who compared gay marriage to marrying animals. 
  • In 2008, Qwelane wrote a column where he equated LGBTI+ marriages to marriages between animals and people. 
  • After years of legal action, the Constitutional Court has been tasked with determining whether Qwelane's statements amount to hate speech. 

The Constitutional Court on Tuesday heard arguments in the hate speech case against columnist and political analyst Jon Qwelane who compared gay marriage to marrying animals.

The arguments were by and large semantic, at its centre the interpretation of the words "harmful" and "hateful". 

This after the Supreme Court of Appeal (SCA) set aside Section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA), which prohibits the publishing of hurtful statements that cause harm or spread hate, because it was ruled to be vague.

The South African Human Rights Commission then appealed the ruling to the Constitutional Court.

EXPLAINER | Jon Qwelane hate speech case

Acting for Qwelane, advocate Mark Oppenheimer at one point used the Bible as an example of a publication containing anti-gay sentiments, yet its publication was not prohibited. 

Oppenheimer quoted two passages dealing with homosexuality, one stating that those who engage in homosexual behaviour be put to death, and another stating that homosexual people would not be permitted to enter heaven, saying:

"As much as many people may disagree with this, they have the ability to disagree with it. We don't think there should be a prohibition on the publication of the [Bible], even if that speech is hurtful and arguably advocates hatred against [gay people]."

He said Qwelane never asked for any harm or violence to be committed against gay people, but merely expressed his opinion about gay marriage.

No call to action

On the question of incitement, which is critical to the current legal definition of what constitutes hate speech, Oppenheimer said there was no active call to action from Qwelane, apart from the law that allows gay marriage to be changed.  

"In a democracy, people are free to call for changes in the law, such as for the death penalty or against abortion, or to change the property clause in our Constitution." 

He said for South Africans to be seen as equals, "we should be allowed to express our differences". 

Acting Justice Margie Victor asked Oppenheimer: "Even if it causes psychological harm?" 

Oppenheimer stated that psychological harm should be severe, in such a case, not merely "emotional distress".

He again emphasised that Qwelane's column did not incite any harmful action against gay people, but merely called for legislative reform. 

Oppenheimer was being grilled by the panel of eight judges on a number of elements relating to the "vagueness" of harmful or hateful comments. 

He said, if legislation was not comprehensible, someone would not know in advance whether their opinions could be interpreted as hate speech, and therefore prohibited.  

12 years since column

It's been roughly 12 years since columnist and political analyst Qwelane published an opinion piece in the now-defunct Sunday Sun titled "Call me Names but Gay is Not Okay".

In his opinion piece, Qwelane sided with former Zimbabwean President Robert Mugabe's anti-gay stance, calling for a revision of laws which allow same-sex marriages because, "at this rate, how soon before some idiot demands to marry an animal".

Accompanying his opinion piece was a cartoon of a man marrying a goat, with the caption: "When human rights meet animal rights."

The SAHRC took action against him, saying he was advocating hatred against gay people, relying on Section 10 of PEPUDA.

Qwelane launched his own application, attacking the constitutionality of PEPUDA, saying its provisions were vague.

The SAHRC took Qwelane to the Gauteng High Court in Johannesburg on the grounds that the article constituted hate speech as defined by PEPUDA.

Ordered to apologise

In 2017, the Equality Court found that Qwelane's words amounted to hate speech and ordered that he apologise.

However, Qwelane turned to the SCA, where he sought to have Section 10 of PEPUDA declared unconstitutional because it infringed on the right to freedom of speech.

The SCA's Judge Mahomed Navsa ruled that the section's use of the word "hurtful" was particularly vague, adding that all definitions of the word "are concerned with a person's subjective emotions … in response to the actions of a third party. This does not equate with causing harm or incitement to harm".

Almost a dozen organisations, including the Nelson Mandela Foundation, the Southern African Litigation Centre, the Psychological Society of South Africa (PsySSA), and the Freedom of Expression Institute, have asked to be friends of the court in Qwelane’s matter.

Court proceedings continued on Tuesday.

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