Constitutional Court hears Qwelane hate speech case

22 September 2020

In September 2020, the Constitutional Court heard arguments in the latest chapter of the Qwelane hate speech saga. The matter before the Court – presented virtually due to the covid-19 pandemic – explores the right to freedom of expression, its limits, and whether the Promotion of Equality and Prevention of Unfair Discrimination Act (section 10 of which prohibits hate speech) is unconstitutional in limiting freedom of expression.

Several members of Thulamela appeared, for various parties, including Wim Trengrove SC, Gilbert Marcus SC, Kate Hofmeyr, Carol Steinberg, Danie Smit, Frances Hodben, Hasina Cassim, Lucelle Buchler, and Bonita Meyersfeld.

In 2008 journalist Jon Qwelane wrote a column for the now-defunct Sunday Sun, entitled “Call me names – but gay is not okay”. The column quoted former Zimbabwean president Robert Mugabe, drew parallels between gay people and animals, and called for the reversal of the legalisation of gay marriage in South Africa – and it sparked a record number of complaints to the South African Human Rights Commission (SAHRC) who initiated the prosecution against him on behalf of 350 people.

In 2017, both the equality court and Johannesburg High Court found that Qwelane’s comments constituted hate speech, and ordered the journalist to apologise. He chose to appeal the finding. Then in 2019, the Supreme Court of Appeal upheld his appeal, despite his “strident, provocative bigotry”, and declared sections of the Equality Act vague and broad.

The SAHRC wants the Supreme Court of Appeal ruling to be overturned, while those acting for Qwelane argue that the column included “no incitement to harm” and should therefore be considered protected freedom of expression.

Civil society, legal, and non-governmental organisations who are directly or indirectly involved include the Women’s Legal Centre, the Nelson Mandela Foundation, the Freedom of Expression Institute, the Psychological Society of South Africa, Media Monitoring Africa, South African Holocaust and Genocide Foundation, as well as the South African Litigation Centre who described Qwelane’s column as the “gold standard of hate speech”.

Judgment was reserved.