Qwelane’s anti-gay case lives after him

● Columnist Jon Qwelane, below, may have died, “but his words — and the wounds they wrought — have not”, the Nelson Mandela Foundation Trust told the Constitutional Court this month.

The foundation was responding in court papers to a call from the highest court to address what Qwelane’s death, in December 2020, meant for the hate speech case against him, in which judgment is still pending.

The court asked whether the orders from the Equality Court declaring that Qwelane’s infamous 2008 Sunday World column amounted to hate speech and ordering him to apologise were now moot.

In the column, Qwelane condemned same-sex marriage, saying

“at this rate, how soon before some idiot demands to ‘marry’ an animal?”

The South African Human Rights Commission took Qwelane to the

Equality Court, which found against him. The Equality Court’s order was set aside in 2019 by the Supreme Court of Appeal after Qwelane successfully challenged the constitutionality of the hate speech clause in the Promotion of Equality and Prevention of Unfair Discrimination Act. The case then went on appeal to the ConCourt, and Qwelane died before judgment.

In submissions, Qwelane’s counsel, Mark Oppenheimer, said the declaration that his words amounted to hate speech “serves no practical purpose and would only have an academic or historical interest, if any”.

But the SAHRC’s counsel, Tembeka Ngcukaitobi SC, said a declaration by the highest court would send a “strong message to all that hateful speech directed at the LGBTQA+ community will not be accepted by this society”.

Another friend of the court, the Psychological Society of SA, said: “LGBTI communities have been waiting for 13 years for some public acknowledgement of their pain.”