AfriForum uses ‘Gay is not ok’ case to argue apartheid flag isn’t hate speech

Afriforum CEO Kallie Kriel during a press briefing at Afriforum's head office in Lyttleton, 19 December 2018, Pretoria. Picture: Jacques Nelles

The Supreme Court of Appeal altered the definition of hate speech when it found that it must include incitement to violence, a development which should work in the lobby group’s favour.

AfriForum’s bid to reverse an Equality Court ruling which declared that “gratuitous display” of the apartheid flag constitutes hate speech should benefit from a Supreme Court of Appeal (SCA) ruling in favour of columnist Jon Qwelane, who was found guilty of hate speech for a column titled ‘Call me names, but gay is not okay’.

AfriForum’s lawyer Willie Spies has revealed that his team plans to make the Qwelane appeal ruling a key part of their argument, TimesLive reports. This is because the ruling found that for words or symbols to constitute hate speech, they need not only to cause harm but also to incite violence.

This will have far-reaching implications, as people have been found guilty of hate speech without having directly incited violence prior to the SCA ruling.

The Equality Court ruled in August last year that badly intentioned public displays of the apartheid flag should be limited, since “gratuitous display” constitutes not only hate speech but also harassment, and could be interpreted as an expression of white superiority, divisiveness, and severe racial prejudice.

READ MORE: ‘Gay is not okay’ columnist no longer guilty in ruling which changes SA hate speech laws

The Nelson Mandela Foundation (NMF) brought the case, which was opposed by AfriForum, after the flag was allegedly displayed at Black Monday protests against farm murders in 2017.

The foundation’s lawyer, Rupert Candy, says his team will argue that Qwelane’s case and the apartheid flag case bear no relation to each other.

“The NMF and other organisations that represent vulnerable groups are of the opinion that we need hate speech laws in this country, and need the protection currently legislated,” he told TimesLive.

The SCA has not yet granted AfriForum leave to appeal, with the lobby group given until the end of January to submit arguments in support of its application for leave to appeal.

In December last year, the SCA overturned a ruling finding veteran journalist, former radio personality and one-time ambassador to Uganda Jon Qwelane guilty of hate speech for his 2008 column.

The ruling changes South Africa’s hate speech laws, finding the current definition unconstitutional and ordering parliament to rewrite the laws to make them less “vague” within 18 months.

READ MORE: Equality Court rules ‘gratuitous display’ of the old SA flag constitutes hate speech

Qwelane wrote that he hoped politicians could have “the balls to rewrite the constitution” regarding the legalisation of same-sex marriages because, “at this rate, how soon before some idiot demands to ‘marry’ an animal, and argues that his constitution ‘allows’ it?”

He was found guilty of hate speech in the Equality Court in May, 2011. He was ordered to apologise and pay the SA Human Rights Commission R100,000.

The commission reportedly received 350 complaints in relation to the article – the highest amount it had ever received at that point.

The ruling had as much to do with the cartoon accompanying the column – of a man marrying a goat – as with the written contents.

(Compiled by Daniel Friedman)

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