Questions around journalist’s ‘gay’ column

Questions have been raised in the Constitutional Court around whether or not journalist Jonathan Qwelane’s “Call me names but gay is not okay” column could still be deemed hate speech – even with the legislation he was originally found in breach of being declared invalid.

Last November, the Supreme Court of Appeal (SCA) upheld a challenge Qwelane launched to the Promotion of Equality and Prevention of Unfair Discrimination Act (Pepuda), after the South African Human Rights Commission (SAHRC) levelled charges of hate speech against him.

The SCA found the act was “overbroad” and “vague” and gave Parliament 18 months to remedy the defects. It also dismissed SAHRC’s case against Qwelane.

When the SCA’s judgment came before the Constitutional Court for a hearing on whether or not it should be confirmed yesterday, Justice Leona Theron asked advocate Mark Oppenheimer – for Qwelane – if his client would not be liable regardless under the SCA’s reworked version of Pepuda.

“The SCA took the view its interim provision wasn’t in place at the time and therefore if Qwelane was correct – and the Act as it stood was unconstitutional – it would be improper to hold him liable,”

Oppenheimer replied. But Justice Stevan Majiedt said the column had added “fuel to the fire” of what was already a “conflagration” and that there was “extensive evidence” led about the abuse suffered by the LGBTQI+ community. Judgment was reserved.

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