Qwelane, SAHRC showdown
THE battle over veteran journalist and former diplomat Jon Qwelane’s homophobic column published more than a decade ago is heading to the Constitutional Court.
Qwelane, formerly South Africa’s high commissioner in Uganda, will square off with the SA Human Rights Commission (SAHRC) in the apex court next month.
Qwelane has been waging a decade-long legal battle with the commission over a column he wrote for the Sunday Sun in 2008 headlined “Call me names – but gay is NOT okay”. It was found to be hate speech.
Chief Justice Mogoeng Mogoeng has given Qwelane until February 24 to file his written arguments and the commission and Justice and Correctional Services Minister Ronald Lamola, who is also cited as a respondent after the former 702 presenter launched his constitutional challenge to the Promotion of Equality and Prevention of Unfair Discrimination Act, have until a week later to respond.
In November, the Supreme Court of Appeal (SCA) altered an earlier South Gauteng High Court ruling that found Qwelane guilty of hate speech.
The SCA dismissed the SAHRC’s complaint and declared section 10 of the act inconsistent with the provisions of the Constitution and therefore unconstitutional and invalid.
The SCA’s order was referred to the Constitutional Court for confirmation of the order of constitutional invalidity.
The country’s second-highest court gave Parliament 18 months to remedy the defect in the act. It ordered that section 10 of the act, under which Qwelane was charged, must state that no person may advocate hatred that is based on race, ethnicity, gender, religion or sexual orientation.
”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 Prosecution…” states the new law.
Once Parliament has effected the required legislative amendment to section 10, the SCA’s new section will fall away.
The court also ruled that should Parliament fail to effect such changes by the end of the 18-month period, its section 10 will become final.
Qwelane approached the high court to have sections of the act declared unconstitutional because they unjustifiably limit the constitutionally guaranteed right to freedom of expression in the Constitution, and in his column he stated that he did not fear the commission.
According to his submissions, the provisions of the act in terms of which he was charged in the Equality Court, in limiting freedom of expression, impermissibly extended far beyond the speech that is excluded from protection by the Constitution, and that they were overbroad, vague and did not pass constitutional muster.