Serjeant at the Bar: Brave judgment in Qwelane case seeks to ensure bad facts don't make worse law

(iStock, Gallio Images)
(iStock, Gallio Images)

In short, to ban all speech that could be construed as intending to be hurtful to another person merely because of that person's race, sex, sexual orientation, religion, language, ethnicity, culture or age appears to be a legal bridge too far for the reach of the Constitution's commitment to freedom of expression, writes Serjeant at the Bar

In 2008, Jon Qwelane, a well-known journalist particularly for his fierce and principled stance against apartheid rule wrote a column in the Sunday Sun, the target being the gay community.

While truly obnoxious it is important to reproduce part thereof to understand the nature of the litigation.

Qwelane wrote: "The real problem, as I see it, is the rapid degradation of values and traditions by the so-called liberal influences of nowadays; you regularly see men kissing other men in public, walking holding hands and shamelessly flaunting what are misleadingly termed their 'lifestyle' and 'sexual preferences'.

"There could be a few things I could take issue with Zimbabwean President Robert Mugabe, but his unflinching and unapologetic stance over homosexuals is definitely not among those. Why, only this month - you'd better believe this - a man, in a homosexual relationship with another man, gave birth to a child! At least the so-called husband in that relationship hit the jackpot, making me wonder what it is these people have against the natural order of things.

"And by the way, please tell the Human Rights Commission that I totally refuse to withdraw or apologise for my views... Homosexuals and their backers will call me names, printable and not, for stating as I have always done my serious reservations about their 'lifestyle and sexual preferences', but quite frankly I don't give a damn: wrong is wrong!

"I do pray that some day a bunch of politicians with their heads affixed firmly to their necks will muster the balls to rewrite the constitution of this country, to excise those sections which give licence to men 'marrying' other men, and ditto women. Otherwise, at this rate, how soon before some idiot demands to 'marry' an animal, and argues that this constitution 'allows' it?"

Understandably the venom expressed in this column and its manifest conflict with the Constitution that majestically guarantees equality to all including all who suffer discrimination on the grounds of sexual orientation triggered widespread protest.

It was argued that Mr Qwelane had advocated hatred against a particular group of people, namely, homosexuals, was intended to be hurtful, harmful, incited harm, and promoted hatred.

Critics asserted that the article infringed upon various constitutionally guaranteed human rights and freedoms of homosexuals; and sought to demoralise homosexuals by drawing a comparison between homosexuality and bestiality, and by implication, dehumanising and "criminalising" the gay and lesbian community.

The matter wound its way to the High Court which found that the offending statements against gay people was hurtful, incited harm and propagated hatred; and that they thus amounted to hate speech, as envisaged in section 10(1) of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (PEPUDA) which provides that "subject to the proviso in section 12, no person may publish, propagate, advocate or communicate words based on one or more of the prohibited grounds, against any person, that could reasonably be construed to demonstrate a clear intention to – (a) be hurtful; (b) be harmful or to incite harm; promote or propagate hatred".

The proviso to section 12 reads "provided that bona fide engagement in artistic creativity, academic and scientific inquiry, fair and accurate reporting in the public interest or publication of any information, advertisement or notice in accordance with section 16 of the Constitution, is not precluded by this section".

Mr Qwelane argued before the High Court that the provisions of section 10(1) of PEPUDA were vague.

Having regard to the "first words" of section 10(1), he contended that they could be clearly understood as postulating an objective test.

The High Court rejected this argument and also held that the proviso to section 12 was not unclear and that, in any event, no facts were placed before him in order for Mr Qwelane to claim the benefit thereof.

Understandably the decision was appealed to the Supreme Court of Appeal (SCA).

A key issue on appeal concerned the argument about the constitutionality of section 10 of PEPUDA.

It was argued that the provisions of section 10(1) of PEPUDA were unconstitutional because they unjustifiably limited the constitutionally guaranteed right to freedom of expression in section 16 of the Constitution.

This argument meant that the SCA was compelled to examine the meaning and scope of section 16(2) of the Constitution which reads: "The right in subsection (1) does not extend to - (a) propaganda for war; (b) incitement of imminent violence; or (c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm."

Writing for the court, Judge Mohamed Navsa noted the clear differences in the texts of section 16 (2) of the Constitution and s10 of PEPUDA.

He observed that 16(2)(c) of the Constitution does not exclude from constitutional protection under 16(1) the advocacy of hatred that constitutes incitement to cause harm beyond the four stated grounds of race, ethnicity, gender or religion.

By contrast, section 10(1) of PEPUDA, extends those grounds to include all of the categories set out under prohibited grounds in section 1 of the definition, being race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language, birth and HIV/AIDS status.

Judge Navsa was not impressed by one of Mr Qwelane's arguments: "There is clearly no merit to the contention on behalf of Mr Qwelane, that the extension of protection to include protection against discrimination based on sexual orientation and against hate speech in relation thereto, is constitutionally impermissible."

However the problem for the court lay in the following words contained in section 10 of PEPUDA: "Reasonably be construed to demonstrate a clear intention to be hurtful, harmful or to incite harm, promote or propagate hatred."

The concept of hurtful which does not appear in section 16 of the Constitution is notoriously difficult to define in a manner which is congruent with s16 of the Constitution.

In short, to ban all speech that could be construed as intending to be hurtful to another person merely because of that person's race, sex, sexual orientation, religion, language, ethnicity, culture or age appears to be a legal bridge too far for the reach of the Constitution's commitment to freedom of expression.

Judge Navsa in his carefully researched judgment concluded as follows: "In interpreting the legislation in question, one should be aware that one is dealing with competing constitutional rights and with the Legislature's understandable concern that hate speech should not be allowed to threaten the constitutional project. It is clear, as observed by commentators, that it wanted to regulate hate speech as broadly as possible. Unfortunately, it did not do so with the necessary precision and within constitutional bounds."

This is not an easy case but the core problem lay with the sloppy and careless drafting of the relevant sections of PEPUDA.

One is entitled to ask where was the office of the State law advisors when this dreadfully crafted set of provisions, which were manifestly over-broad, were drafted and passed through Parliament.

It is important to emphasise that the court was careful to ensure that the LBGT community were not left without a potential remedy during the time period which the legislature has to ensure the constitutional rectification of PEPUDA.

To the extent relevant, the order reads thus: Parliament is afforded a period of 18 (eighteen) months from 29 November 2019 to remedy the defect.

During the aforesaid period section 10 of PEPUDA shall read as follows:

"10(1) No person may advocate hatred that is based on race, ethnicity, gender, religion or sexual orientation and that constitutes incitement to cause harm. 10(2) Without prejudice to any remedies of a civil nature under this Act, the court may, in accordance with section 21(2)(n) and where appropriate, refer any case dealing with the advocacy of hatred that is based on race, ethnicity, gender, religion or sexual orientation, and that constitutes incitement to cause harm, as contemplated in subsection (1), to the Director of Public Prosecutions having jurisdiction for the institution of criminal proceedings in terms of the common law or relevant legislation."

Given the venomous nature of the column and its disdain for the dignity of millions of people, this is a brave judgment which seeks to ensure that bad facts don't make worse law.

- Serjeant at the Bar is a senior legal practitioner with a special interest in constitutional law.

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