GAY HATE DAY MUST WAIT

Qwelane challenges Equality Act

GAYS and lesbians will have to wait a little longer before South African ambassador to Uganda Jon Qwelane takes the stand to clarify his views about an anti-gay column he penned four years ago.

Qwelane was taken to task by gay and lesbian lobby groups for his stiff take on homosexuality while still a columnist at a Sunday tabloid.

The Equality Court in Joburg had set down Tuesday and Wednesday as trial dates for his hate speech hearing.

But it has been postponed to August 21 and 23 following an agreement between the two parties, Qwelane’s lawyer Andrew Boerner says.

Qwelane was hauled before the court by the South African Human Rights Commission (SAHRC) following publication of an article in July 2008 under the headline: “Call me names but gay is not okay”.

In the article, Qwelane wrote, among other things, that “some day a bunch of politicians will muster the balls to rewrite the Constitution”.

The article caused an uproar, attracting more than 1 000 complaints made to the Press Council of South Africa. This prompted the newspaper to publish an apology.

The Press Council later ruled that Qwelane’s column did not advocate hatred. He merely stated his views on homosexuality.

It further ruled that Qwelane was not calling for the harming of gays and lesbians.

A ruling by the Press Ombudsman concluded that the publication of the column amounted to “robust language but not hate speech”.

Despite all the uproar caused by the publication of the column, a defiant Qwelane refused to make an apology.

President Jacob Zuma later posted him to Uganda as South Africa’s ambassador.

This posting was in itself a controversial measure as Uganda is known for its uncompromising anti-gay legislation.

Boerner tells Sunday World the postponement was unexpected.

He says the SAHRC deemed it necessary to reply to Qwelane’s opposing affidavit.

The legal representatives

of both parties will attend court on Tuesday to apply for a postponement, Boerner says.

Meanwhile, Qwelane has launched an application in the South Gauteng High Court to stay proceedings in the Equality Court pending the outcome of a challenge of the constitutional validity of sections 1, 10(1) and 11 of the Equality Act, Boerner tells Sunday World .

He says the application was filed on 1 June and the SAHRC was instructed to file opposing affidavits by July 3.

“Should the stay application be successful, we will institute proceedings challenging the constitutional validity of sections 1, 10(1) and 11 of the Equality Act,” says Boerner.

The Equality Court found Qwelane guilty of hate speech on May 31 last year and ordered him to make an unconditional apology to the gay and lesbian community and pay R100 000 in damages.

Qwelane, who was not in court when judgment was handed down, challenged the decision by lodging an application for the rescission of a default judgment.

In his application he says the Equality Court did not have the jurisdiction to make it at a directions hearing.

Equality Court Magistrate Hein Viana ruled in Qwelane’s favour in September last year and said the ruling was given in default before declaring it “void from its inception”.

chelemuk@sundayworld.co.za