A landmark Supreme Court of Appeal (SCA) judgment, which found that the current definition of hate speech is unconstitutional and invalid, is a positive step forward for democracy, former ambassador, journalist and activist Jon Qwelane’s legal team says.
Qwelane, who penned an unpopular opinion about same-sex marriage in the Sunday Sun more than a decade ago, was vindicated on Friday after the SCA found that his comments were hurtful, but did not amount to hate speech under the current definition.
News24 previously reported that in Qwelane’s column, titled Call me names, but gay is not okay, he also 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.
The SCA overturned a high court ruling in 2017 that found Qwelane guilty of hate speech and also dismissed the SA Human Rights Commission complaint against him.
The complaint was lodged in terms of the Promotion of Equality and Prevention of Unfair Discrimination Act (Pepuda) which the SCA found was unconstitutional.
As a result, the SCA also directed Parliament to rewrite the “vague” and “overbroad” law meant to protect against discrimination.
Reacting to the judgment, Qwelane’s attorney, Andrew Boerner, said freedom of expression was one of the cornerstones of a strong and vibrant democracy.
“Without it, or with an unconstitutional limitation of the right, we negate robust conversation and move backwards,” Boerner said.
“Clarity is key to enable people to exercise their rights and to be afforded protection. The amended Section 10 put forward by the SCA is in line with the Constitution and includes sexual orientation.”
“The law lives and breathes and in a young democracy, we are all still learning. We hope that this matter will be a positive step forward for our young democracy.”
Despite the SCA’s ruling, the appeal court still urged Qwelane to seek rapprochement.
“We have to, in our beloved country, find a way in which to relate to each other more graciously,” the SCA judgment read.
The court also said opinions were often laced with vitriol and that while people should be allowed their convictions and be allowed to differ on the basis of conscience, no one is free to infringe on the rights of others.