Posted by Melanie Nathan, August 28, 2013
The hate speech case against homophobic journalist Jon Qwelane is set to continue to drag on into its sixth year without finality, notes South African site, MambaOnline:
In addition, Qwelane will be challenging the constitutionality of the Equality Act, under which he was convicted, in an effort to avoid facing up to the consequences of his actions. Qwelane was found guilty of hate speech in May 2011 for his notorious 2008 article Call me names, but gay is NOT okay…
While an Equality Court ruled that the article “propagates hatred and harm against homosexuals” and ordered Qwelane to apologise to the gay community and to pay damages of R100,000 towards an LGBT rights group, he has continued to challenge the ruling.
On Wednesday, Qwelane’s legal representative and the SA Human Rights Commission (SAHRC) appeared in the High Court in Johannesburg in order to finalize the procedures for another trial on the matter.
Qwelane’s lawyer, Andrew Boerner, told SAPA that his client will challenge sections of the Promotion of Equality and Prevention of Unfair Discrimination Act that deal with hate speech and harassment.
It is expected that the challenge will argue that these sections of the law infringe on Qwelane’s right to free speech. Boerner confirmed that he will file the challenge with the court on September 27.
SAHRC Spokesperson Isaac Mangena told Mambaonline that the latest development was a positive one.
“We are happy that there is movement in the case, it has been delayed unnecessarily,” he said.
Mangena confirmed that the SAHRC would be filing responding affidavits defending the constitutionality of the law.
When asked about the years of delay in reaching a conclusion in the case, he said that “everyone has a got a right to challenge the law,” but added “we will be able to prove our case in court. We are not worried. We are confident.”
According to Mangena, the new trial is expected to start early next year; almost six years after Qwelane first published his anti-gay diatribe.
In the 2008 article, Qwelane equated homosexuality with bestiality, praised Robert Mugabe’s oppression of gays and lesbians and encouraged the removal of the sexual-orientation protection clause from the Constitution.
Despite his outrageous statements that flagrantly flouted the country’s Constitution he was made South Africa’s high commissioner in Uganda.
There are indications that Qwelane, who has refused to apologise for his article, intends to fight the matter all the way to the Constitutional Court.
It has been noted in past posts that Qwelane should never have been sent as South Africa’s ambassador to Uganda, at a time of heightened anti-gay sentiment in that country, especially because Qwelane represents South Africa, a country with a fully inclusive Constitution, which includes protecting people based on their sexual orientation and gender identity. It has been widely believed that President Jacob Zuma owed Qwelane a favor for coming to his defense during Zuma’s rape trial and that this ambassadorial appointment for the controversial journalist was a mechanism to get Qwelane out of the country while the trial played out for all these years.
It is also important to note, that unlike the U.S.A., in South Africa one can be prosecuted for hate speech, the latter does not fall into the realm of freedom of speech, because of the weight of the harm it causes. And hence you will not find groups like the KKK or Westboro Baptist Church operating openly in a country like South Africa, in the way they do in the U.S.A. It is believed that the harm they can cause outweighs the right to absolute “freedom of speech.” Its a tough argument for those who believe deeply in the value of the First Amendment of the U.S. Constitution.