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by Adv. Nadene Badenhorst, Legal Counsel of Freedom of Religion South Africa

Columnist Jon Qwelane has applied to the Johannesburg High Court (sitting as Equality Court) for leave to appeal against Judge Moshidi’s judgment on 18 August 2017.

The judgment declared Qwelane’s statements (in the article that appeared in the Sunday Sun under the heading “Call me names, but gay is not okay”) as “hate speech” against homosexuals.  It also dismissed his constitutional challenge against the “hate speech” provisions in the Equality Act.  The Court further ordered that Qwelane must tender an unconditional (negotiated) written apology to the LGBT community.

It is not yet clear when the application for leave to appeal will be heard.  At this hearing, the Court will determine whether there are reasonable prospects that another court could come to a different conclusion.  If leave to appeal (to the Supreme Court of Appeal, alternatively a full bench of the Johannesburg High Court) is granted by Judge Moshidi, Qwelane will have a short time to file his actual appeal.

IMPORTANCE OF THE JUDGMENT, AND APPEAL:

The Qwelane judgment has dire implications and sets a very dangerous precedent for freedom of speech.  This includes the ability of all persons to freely and without fear of punishment, express their moral, philosophical or religious beliefs, thoughts and opinions on issues that are potentially controversial, such as human sexuality, gender, etc.

While many would agree that what Qwelane has said is (potentially deeply) offensive, that in itself does not make it “hate speech”. This has already been confirmed in the case of De Reuck v Director of Public Prosecutions, 2004 where the Constitutional Court found that freedom of expression includes not only information or ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also those that “offend, shock or disturb”.

“Hate speech” is narrowly defined in s 16(2) of the Constitution as “the advocacy of hatred … that constitutes incitement to violence”. Our Courts have interpreted this provision as implying that both elements need to be present before speech will qualify as “hate speech” and to date they have been careful to maintain a narrow interpretation of “hate speech”.

The Qwelane judgment puts the cat amongst the pigeons because it stretches the definition of “hate speech” (in terms of the Equality Act) to speech that is potentially hurtful and harmful.  Apart from the chilling effect on freedom of speech, it blurs the boundary between free speech and “hate speech” and makes it impossible for the ordinary person to know whether their speech is protected or not.

It is therefore most important that, in the interests of justice, this lack of legal certainty be resolved by a higher court.  This importance is further heightened in light of various Bills that are currently pending before Parliament – including the Hate Crimes and Hate Speech Bill; the Film and Publications Bill; and the Cybercrimes and Cybersecurity Bill.  All these Bills contain their own definitions of “hate speech” and “malicious communications” and these definitions should ideally, in the interest of legal certainty, be aligned with one another.

THE ACTUAL JUDGMENT (for those who are interested in the legal technical details):

  1. Did Qwelane’s statements amount to “hate speech”?

Dealing with this question first, the Court found that Qwelane’s statements did in fact amount to “hate speech” in terms of s 10(1) of the Promotion of Equality and Protection against Unfair Discrimination Act, 2000 (“PEPUDA” or “the Equality Act”), and more specifically, were hurtful and harmful and had the potential of inciting harm towards the LGBT community.

In coming to this conclusion, the Court relied heavily on the oral evidence of various witnesses called by the South African Human Rights Commission (SAHRC) who was the complainant in the matter, and the Psychological Society of South Africa who was a “Friend of the Court”. All of them testified that, in their opinion, Qwelane’s comments were deeply hurtful and harmful for the LGBT community, and had the potential to inflict emotional and psychological harm. In particular, evidence was led by:

  • A SAHRC employee who regularly deals with complaints against the LGBT community, and who testified regarding the nature of the complaints generally However and significantly, the complaints all pre-dated Qwelane’s article.
  • The Executive Director of People Opposing Women Abuse (POWA), who testified regarding some of the specific complaints of violence and ill-treatment against LGBT people reported to POWA. Again, significantly, she conceded that POWA did not receive specific complaints of acts of violence because of Qwelane’s article.
  • A member of the LGBT community who testified of her own personal experiences of homophobia. Again however, she “conceded readily that the incidents perpetrated on her cannot be directly linked to Qwelane’s offending statements. However, she added that the offending statements were exacerbating the current situation where people like her are being harassed”.
  • A research professor involved in LGBT activism, who is himself a gay person. He testified extensively about his own “ill-treatment and discrimination” as a result of being gay, and also about the “kinds of psychological impact” that Qwelane’s statements had on the LGBT community. In particular, he took exception therewith that Qwelane’s statements “assumed a sexual identity which is not a choice, and treated it as if it were a type of lifestyle, which is susceptible to change or beaten out of a person or victim”.

While Qwelane himself did not testify, the (then) Deputy Editor of the Sunday Sun gave evidence that the offending statements appeared in the conversation column pages of the newspaper, which is intended to encourage conversation and debate;  and that Qwelane had no part to play in the creation of the cartoon which depicted a priest “marrying” a man and a goat. (The witness did concede however that the offending statements “ought never to have been published in the first place” and had the “potential of further harming” LGBT people.)

Importantly, in addition to the oral evidence, the Court also considered the language of s 10(1) of the Equality Act, and found that the “hate speech” prohibition in that section was broader in scope than the “hate speech” prohibition in s 16(2) of the Constitution, in that s 10(1):

  • prohibits speech that might not necessarily constitute “advocacy of hatred”; and
  • does not require incitement to cause harm, or actual harm resulting from the offending statements, to be proved. It is sufficient that the speech has the potential to cause harm.

Qwelane’s application for leave to appeal takes issue with various findings made by the Court. So, for example, it is alleged that the Court erred in finding that:

  • Qwelane equated human beings to bestiality or animals, and suggested that LGBT members are other or unnatural. (However, Qwelane never said that homosexuals are like animals).
  • Qwelane’s statements were not produced in order to encourage a debate on homosexuality when evidence was led confirming that the article stimulated debate;
  • It is irrelevant that none of the witnesses directly linked Qwelane’s statements to attacks, discrimination and ill-treatment suffered by them personally;
  • Proof of actual harm is not required, and that “potential to cause harm” is sufficient;
  • The public interest that people be free to speak their minds openly and robustly, and in turn, to receive information, views and ideas, is irrelevant; and
  • Qwelane’s statements amounted to “hate speech” in terms of the Equality Act.
  1. Are the “hate speech” provisions in the Equality Act unconstitutional?

Having found that Qwelane’s statements is in fact “hate speech” in terms of the Equality Act, the next question was whether the “hate speech” provisions in the Equality Act are unconstitutional for being over-broad (i.e. broader than the “hate speech” provisions in s 16(2) of the Constitution) and vague. This constitutional challenge was dismissed by the Court.

On the vagueness challenge, the Court found that all that was required, was “reasonable certainty … not perfect lucidity”. According to the Court, s 10(1) of the Equality Act makes it clear that the section imposes an objective test to determine whether the offending statements reflect the requisite intention. Furthermore, “hurtful” and “harmful” “are capable of easy and intelligible meaning. Hurt connotes hurt to feelings and harmful relates to physical harm of whatever nature”.

On the overbreadth challenge, the Court found that while the language of the “hate speech” provision in the Equality Act is indeed broader in scope than s 16(2) of the Constitution, it is saved by the general limitations clause (s 36 of the Constitution) which allows for reasonable and justifiable limitations on human rights, including the right to freedom of expression.

On this issue too, Qwelane’s application for leave to appeal takes issue with various findings made by the Court, including:

  • The finding that there is no impermissible vagueness in s 10(1) of the Equality Act;
  • Not finding that s 10(1) of the Equality Act is clearly broader than s 16(2) of the Constitution;
  • Its application of s 36 of the Constitution; and
  • Its interpretation and application of certain case law, in the particular instance.

FOR SA will advise with regard to developments in this matter. To read more about the facts of the Qwelane case, see an earlier article at http://forsa.org.za/free-to-say-gay-is-not-ok/

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