‘How hurtful’ was Qwelane’s column really, asks judges

Constitutional Court Justice Stevan Majiedt has weighed in on veteran journalist Jon Qwelane’s controversial 2008 column, ‘Call me names but gay is not okay’ – saying it added “fuel to the fire”.

“Evidence showed there was a conflagration already and what this did was add fuel to the fire,” Majiedt said on Tuesday morning during an exchange with Qwelane’s counsel, advocate Mark Oppenheimer.

The Supreme Court of Appeal (SCA) last November overturned a high court judgment which had previously found Qwelane guilty of hate speech and thrown out a challenge he launched to section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA), under which Qwelane was originally charged.

The appellate court found the section in question was vague and overbroad, giving Parliament 18 months to remedy the defects and ordering that in the interim PEPUDA read: “No person may advocate hatred that is based on race, ethnicity, gender, religion or sexual orientation that constitutes incitement to cause harm.”

The SCA’s judgment is now before the Constitutional Court for confirmation.

Majiedt’s comments on Tuesday came on the back of a question from Justice Leona Theron around whether or not Qwelane could still be held liable in terms of the SCA’s reading.

“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. In any case, he said, Qwelane would not be liable even if he were subject to the reading in.

“The court found there was no evidence laid before the court that the article called on anyone to harm anyone in the gay community and therefore there was no incitement to harm,” he said.

Majiedt said he had “a problem with that finding”.

“There was extensive evidence led by victims of this kind of abuse against the LGBTQI+ community,” Majiedt said. “There were practical examples given by victims. Can you isolate that evidence from the article?”

Oppenheimer argued the evidence in question only illustrated that the community required the additional protection provided by the reading in.

But Acting Justice Margie Victor also pointed to the cartoon of a person marrying a goat that had accompanied Qwelane’s column, as a potential consequence of his column.

“How hurtful is that?” she asked.

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