Divisions

The Constitutional Court today found the Jon Qwelane article published in 2008 in the Sunday Sun entitled “Call me Names but Gay is Not Okay”, amounts to hate speech.

In an unanimous decision and a judgement that was handed down by Justice Majiedt, the offending article by Qwelene was declared to be harmful and to incite harm and promote hatred as contemplated by sections 10.1(b) and (c) of the Equality Act.

The Constitutional Court thus upheld the High Court order against Qwelane (see below) 

In the words of Melanie Judge, queer activist and executive member of the Psychological Society of South Africa (PsySSA): “As the hate speech provision stands – with minor amendments – that is, indeed, a victory for all those at the receiving end of hate speech.”

That Qwelane’s article was found to be egregious and an attack on the dignity and equality of LGBT+ communities, accords with the evidence led by the Psychological Society of South Africa (PsySSA). We were the only consistent amicus present from the outset at the High Court, the Supreme Court of Appeal and the Constitutional Court and the only expert witness at all and throughout, and to speak on effects of the speech on the marginalised group.

PsySSA, with Webber Wentzel acting for us, pro bono, indeed, was there right from the beginning in 2011, following an outcry from LGBT+ communities.

In court, PsySSA positioned the hate speech complaint in context and analysed the statements in conjunction with the impact on LGBTI+ communities, underscoring the psychosocial effects of hate speech.

Further detail on the evidence we led:

In heads of argument submitted to the ConCourt, PsySSA stated that: “Words matter. Speech has consequences for the speaker, for the audience and for society at large. This article was, indeed, deeply offensive to LGBT+ communities and it caused them harm and trauma. This much was evident from the testimony of witnesses who gave evidence before the Equality Court. The article reflected a poisonous disrespect for their dignity as human beings, likening them to animals and their intimate relationships to bestiality. These are statements that undermine the dignity of every member of LGBT+ communities. They create fertile ground for hate crimes against LGBT+ individuals. They are also statements that thwart the constitutional project of developing a caring, respectful and tolerant society.”

Further detail on the amendments ordered:

Section 10.1(a) (thus speech that is hurtful) as contained in the Equality Act, was found to be too vague and subjective (and thus unconstitutional). The court provided certain ‘reading in’ provisions to cure section 10(1)a in the interim until amended by Parliament within 24 months. Going forward, Section 10.1 of the Equality Act will thus only include speech that causes harm, not hurt, together with incitement of violence. Part of the costs were awarded to Qwelane because he successfully brought a constitutional challenge.