The Supreme Court of Appeal (SCA) has found the current definition of hate speech to be unconstitutional after it ruled that former diplomat Jon Qwelane’s opinion on same-sex marriage was hurtful, but did not amount to hate speech under the current definition.

The SCA on Friday overturned a high court ruling that found Qwelane guilty of hate speech, and further ordered Parliament to rewrite the “vague” and “overbroad” law meant to protect against discrimination, according to multiple Sunday media reports.

The Sunday Times reported that the ruling meant that an opinion like Qwelane’s may be hurtful without being hate speech, and thus he is protected by his right to express a view.

According to City Press, a comment can only be hate speech if it causes harm as well as incites violence, the court ruled. This could have far-reaching consequences on cases that were ruled on prior to Friday, where a court found an individual guilty of hate speech, but they had not directly incited violence.

As a result of the SCA ruling, Members of Parliament have 18 months to rework the provisions of the Promotion of Equality and Prevention of Unfair Discrimination Act (Pepuda), Rapport reported.

The order will have to be confirmed by the Constitutional Court before the act can be amended, CapeTalk reported.

Qwelane through his attorney told the Sunday Times that this ruling was “the greatest things to happen to free speech in this country’s history, equally the freedom of the press”.

Qwelane said the ruling was important for press freedom, and said he never called for the harming of anyone and never would.

The former ambassador to Uganda was found guilty of hate speech, in the South Gauteng High Court in 2017.

This comes after his column, titled Call me names, but gay is not okay, where Qwelane expressed his opinion on same-sex relationships. It was published in the Sunday Sun on July 20, 2008.

News24 previously reported that the column included a cartoon of a man marrying a goat.

In addition, Qwelane lauded former Zimbabwean President Robert Mugabe’s “unflinching and unapologetic stance” on homosexuality.

“There could be a few things I could take issue with Zimbabwe President Robert Mugabe, but his unflinching and unapologetic stance over homosexuals is definitely not among those,” the column read.

READ: Qwelane column led to most complaints to SAHRC ever, court hears

The South African Human Rights Commission previously told the court that the chapter 9 institution received 350 complaints over the column – this being the highest number it had ever received at the time.

Qwelane was subsequently found guilty of hate speech in the Johannesburg Equality court in April 2011 and ordered to apologise as well as pay a fine of R100 000.

This judgment was subsequently withdrawn in September 2011 as Qwelane could not be present in court due to holding a job abroad.

This was followed by the SAHRC initiating proceedings against the former diplomat in the High Court.

– Compiled by Canny Maphanga

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