The South Gauteng High Court has on Monday said that requesting an independent examination of former Sunday Sun columnist Jon Qwelane’s medical status, in the hate speech case against him, was a violation of his rights.
Tembeka Ngcukaitobi, for the South African Human Rights Commission (SAHRC), argued that the commission had requested Qwelane to be examined by an independent doctor and he refused.
Qwelane was set to appear in court following concerns by the Psychological Society of South Africa and the SAHRC of the contents of a column entitled “Call me names, but gay is not ok”, written by Qwelane and published in the Sunday Sun on July 20, 2008.
Judge J Moshidi said the request for an independent examination was insensitive and violated Qwelane’s rights to privacy. He added that a request for Qwelane to be examined by another doctor was refused because the request was made by a “friend of the court”.
“I’m not dealing with a criminal matter and won’t subject a person to be examined by an independent doctor,” Moshidi said.
The SAHRC said when making a decision, the judge had to apply what was in the interest of the public and justice.
“If he is really sick he shouldn’t oppose being seen by an independent doctor,” Ngcukaitobi said.
Christiaan Bester, for Qwelane brought forward an affidavit in support of their application for a postponement. The affidavit included a report from Qwelane’s medical specialist who listed various medical conditions, including chronic airway disease and diabetes — described by the doctor as “very difficult to control”. The report said that he had been admitted to hospital repeatedly.
In October 2015, Qwelane was diagnosed with mini strokes which required him to be on 24 hour oxygen machines. This was the reason he could not attend proceedings.
“He battles to construct meaningful sentences as well as to walk, it could lead to him falling into a coma or death,” Bester said.
Qwelane’s doctor said he was not in a condition to attend the trial and was not in a good state of health.
Bester told the court that Qwelane was currently at home and was not mobile as he was on 24 hour oxygen-support and was recently in hospital for nine days for cardiac failure and pneumonia.
“It speaks to a fairness issue, it would be unfair for him to be forced to take part in these proceedings in his ill health, if the matter was postponed it wouldn’t make [a] difference,” Bester added.
Kate Hofmeyr, for the Psychological Society of South Africa, argued that there was no evidence that Qwelane would get better anytime soon and the best thing to do would be to deal with the trial swiftly.
“It’s a equality court proceeding that serves an important purpose to the public,” Hofmeyr said.
“If the trial is postponed then he will never be called to account for the hate speech.”
She gave the court various alternative measures that could be taken in order for Qwelane to stand trial, which included the court being moved to his home since he wasn’t able to leave the house or the proceedings being streamed using a laptop.
Hofmeyr gave reference to a case where a video conference was granted in order for a defendant, in ill health, to give his evidence.
The Psychological Society of South Africa submitted that the only way was to see whether Qwelane’s medical condition was indeed worsening, and if it was then the court would have to assume that his evidence would not be heard.
“If it doesn’t happen now it will never happen,” Hofmeyr said.
Bester responded saying that Qwelane’s health condition could not be predicted in the next three to four months.
Moshidi said Qwelane’s ill health had been long term and he was not persuaded that an independent examination would bring him to the trial. The trial was postponed indefinitely.
“It is common cause and Ubuntu and it doesn’t appear at all that the postponement was a delaying tactic,” he said.
The Psychological Society of South Africa and the SAHRC notified the judge that they would possibly make an application for leave to appeal after having time to review his decision.
– African News Agency (ANA)