Equality Act comes under scrutiny
The Jon Qwelane challenge comes before the high court — following the Penny Sparrow debacle
It has been eight years but former newspaper columnist Jon Qwelane’s controversial battle for freedom of speech couldn’t have come at a better time. Next week the high court i n Johannesburg will hear his bid to have sections of the law governing hate speech and harassment declared unconstitutional.
Qwelane is challenging the Promotion of Equality and Prevention of Unfair Discrimination Act (Pepuda) — and a victory for him would feed right into the hands of the Penny Sparrows of the world.
The case dates back to 2009 when Qwelane was reported to the South African Human Rights Commission (SAHRC) after he penned a homophobic opinion piece published in the Sunday Sun.
In the piece, headlined “Call me names, but gay is NOT okay”, Qwelane stated: “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!”
Qwelane also wrote of his admiration for Zimbabwe President Robert Mugabe’s “unflinching and unapologetic stance over homosexuals”. The Equality Court found him guilty of hate speech in 2011 and ordered him to pay R100 000 to the SAHRC and write an unconditional apology to the lesbian, gay, bisexual, transexual and intersex (LGBTI) community.
But the judgment was later withdrawn on procedural grounds because Qwelane had not been able to attend the hearings. At the time, he was serving as South Africa’s ambassador to Uganda, a country known for its oppressive antihomosexuality laws.
Qwelane, who launched his current legal challenge in 2014, wants to have sections 10 (1) and 11 of the equality Act declared inconsistent with the Constitution in that it infringes on his right to freedom of expression.
Section 10 (1) of the Act reads that “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 be hurtful; be harmful or to incite harm; promote or propagate hatred”.
Section 11 of the Act states that “no person may subject any person to harassment”.
Qwelane’s legal team will argue that these provisions are too broad in their definition, limiting the right to freedom of expression and they should, as such, be ruled “unconstitutional and invalid”.
Attempts to reach Qwelane this week were unsuccessful.
His attorney, Andrew Boerner, in an earlier statement published in News24 said: “As a columnist, Jon Qwelane’s opinion and views were in the public domain and therefore open to public comment and scrutiny. His particular expression of his views may have been unpopular, controversial and even shocking, but it neither advocated hatred nor constituted incitement to cause harm. His expression is therefore protected by our Constitution.”
Asked to comment on this case in light of the growing number of hate speech incidents recently reported in South Africa, constitutional law expert Professor Pierre de Vos said: “If Qwelane is successful — and this is confirmed by the Constitutional Court — it would mean that parts of the hate speech provisions in the Act will become invalid and of no force.”
He added: “This will make it more difficult to secure a finding of hate speech against racists, sexists or homophobes and other bigots at the Equality Court. On the other hand, the Penny Sparrows of the world will be very relieved.”
The minister of justice and constitutional development and the SAHRC are respondents i n the upcoming case, and the Freedom of Expression Institute (FXI) and the Psychological Society of South Africa will be friends of the court.
The FXI, in papers filed at court, argues that the contested sections of the Act “limit various related rights in the Bill of Rights … that is neither reasonable nor justifiable in an open and democratic society based on human dignity, equality and freedom, and that they should be declared unconstitutional”.
Commenting on this, De Vos said: “This is a plausible argument. The Pepuda sections provide a very blunt and vague test to determine whether speech constitutes impermissible hate speech.”
“It could arguably have a chilling effect on discussions about many different topics — white privilege and racism, the apartheid past, patriarchy and homophobia — because many of these discussions could potentially hurt the feelings of those who belong to the privileged group being criticised,” he added.
“So, I would not be surprised if the In the Sunday Sun opinion story, headlined “Call me names, but gay is NOT okay”, and accompanied by a cartoon depicting a man being married to a goat, Qwelane added: “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?” court either interprets the sections more narrowly to prevent this from happening, or declare some aspects of these provisions invalid. But, before the arguments are presented in court, it is not possible to say with certainty that this will be the decision made by the court,” he said.
The Psychological Society is certainly hoping that this will not be the decision taken by the court.
The organisation will argue that “section 10(1) constitutes a reasonable and justifiable limitation upon the right to freedom of expression”. This, its legal representative Kerry Williams said, would be done by presenting evidence on the psychological effects of hate speech.
Williams added: “The evidence which my client intends to lead will show, among other things, the psychological harm and societal marginalisation that is caused by homophobic speech.”
De Vos said: “Some forms of speech have very little value. Such speech does not enhance robust political debate required for democracy to flourish, neither does it enhance the moral agency of individuals.
When such speech has the effect of diminishing the dignity and sense of self-worth of individuals, it would surely be of great benefit to regulate the speech as suggested.”
But De Vos added: “I wonder whether the impugned provisions will not also silence some forms of robust debate, which is required for the flourishing of a democracy.
The question is whether the provisions cannot be redrafted to catch the bad speech without censoring the speech that is essentially required for honest political debate to flourish.”
Referring to the case as “significant for everyone who has been on the receiving end of hurtful speech, including LGBTI people and black people”, Williams said: “This case is more relevant today than it was eight years ago, when it began, as we are seeing damaging and hurtful speech more and more on social media.
“One only needs to consider the Penny Sparrow incident. Her racist reference to black people being monkeys is similar to Qwelane’s homophobic reference to gay people marrying as being akin to marrying an animal,” Williams added.
“It is the right time to finally settle the matter that hurtful speech has massive societal consequences, which can be addressed much more effectively through curtailing the speech rather than giving free range to bigoted views.”
The trial is set down for August 29.