The South African Human Rights Commission (SAHRC) on Friday hailed the ruling in the High Court in Johannesburg declaring a 2008 anti-gay newspaper column by former SA ambassador to Uganda Jon Qwelane as hate speech as a victory for the protection of the rights of members of the LGBTI community.
The case was brought by the SAHRC after it said it received many complaints against Qwelane’s utterances in the column.
“In light of the ongoing discrimination and violence directed at the LGBTI GNC [lesbian, gay, bisexual, transgender, intersex and gender non-conforming ] community, the Commission was of the view that the article reinforced and perpetuated the prejudice directed at LGBTI GNC persons, and that the contents of the article exceeded the limits of freedom of expression,” the commission said in a statement.
The SAHRC said the case was important as Qwelane had argued that the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) hate speech clause was trumped by the constitutional imperative of freedom of expression.
“On this basis, the Commission argued that since unfair discrimination is prohibited in terms of the Bill of Rights, expressions that are hurtful, harmful, and which incite harm or propagate hate against a particular group – in this instance on the basis of a person’s sexual orientation or gender identity – are not protected by the right to freedom of expression.”
In the judgment, Judge Dimpheletse Seun Moshidi said the newspaper column “did not contain constitutional value at all”, and was not produced in order to encourage debate on homosexuality, “but rather to persuade readers of Qwelane’s own views and position on homophobia and call on others to join him in that”.
The commission said the ruling ensured “freedom of expression is not used as a veil for hate speech”.
The Psychological Society of South Africa (PsySSA), who was admitted as a friend of the court, said the ruling enforced the message that homophobia and hate speech did not have a place in South Africa.
“It sends a loud message that those who hold significant political power are neither above the law, nor can they avoid being called to account for their words and actions,” said Melanie Judge, advisor to PsySSA.