Veteran journalist and South Africa’s former high commissioner to Uganda Jon Qwelane is taking his fight against the SA Human Rights Commission (SAHRC) over his homophobic column to the Constitutional Court.
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” that was found to be hate speech.
Chief Justice Mogoeng Mogoeng has given Qwelane until February 24 to file his written arguments. 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 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 ruling 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 and that constitutes incitement to cause harm.
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.
He argued this was because they unjustifiably limit the constitutionally guaranteed right to freedom of expression in the Constitution.
In his column, he stated that he did not fear the commission.
“And by the way, please tell the Human Rights Commission that I totally refuse to withdraw or apologize for my views,” he wrote.
Qwelane’s submissions said 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. Also, that they were overbroad, vague and did not pass constitutional muster.
The apex court will hear arguments next month.
