Jon Qwelane will not make an unconditional apology to the LGBTI community in two newspapers or pay R100,000 to the South African Human Rights Commission (SAHRC) for awareness and education about LGBTI rights. Instead his legal team will be applying for rescission of the Equality Court’s homophobic hate speech judgement.
Qwelane is South Africa’s ambassador to Uganda and was found guilty of hate speech for his 20 July 2008 article "Call me names, but gay is NOT okay…" which equated same sex relationships with bestiality.
First, Qwelane’s legal team plan to use his role as a public servant to defend his willful default of the Equality Court.
Andrew Boerner, of Jurgens Bekker Attorneys, said in a statement that the application will state that Qwelane was not in willful default of the Equality Court, as he was in Kampala on public service on the date of the hearing.
He may however experience a problem in this regard because Qwelane did not present himself at the Johannesburg based court recently when the matter was set down for a directions hearing as a result of which the commission argued for default judgment to be granted against him for an unconditional apology and a symbolic compensation.
This will mean that Qwelane’s lawyers will have to explain why their client failed to respond to a notice in terms of Section 6(2)a of the Act which is required to be personally served by Section 7(1) and at least notify the court of his impending absence.
Second, Qwelane’s legal team plan to argue that while the article was controversial, it was not an incitement to violence. The South African Constitution limits speech that advocates hatred and that constitutes incitement to cause harm.
The Equality Court found that a cartoon in his column amounted to hate speech, and that both his article and the cartoon propagated hatred and harm and he was ordered to make an unconditional apology to the gay and lesbian community, and pay R100,000 to the SA Human Rights Commission.
Press ombudsman Joe Thloloe received more than 1000 complaints, and the SAHRC more than 300. In his ruling on the article, Thloloe said it "did not advocate hatred, but merely stated his views on homosexuality and was not calling for harming of gays and lesbians".
This appears to be the line being adopted by Qwelane’s legal team.
Boerner said that Qwelane was entitled to freedom of expression, a right for all South Africans "protected and enshrined in the Constitution".
Qwelane’s legal team may have a hard sell on this second point because the Promotion of Equality and Prevention of Discrimination Act expands on the definition of hate speech in the South African Constitution: "[N]o person may publish, propagate, advocate or communicate words based on one or more of the prohibited grounds, against any person, that could reasonably be construed to demonstrate a clear intention to be hurtful; be harmful or to incite harm; or promote or propagate hatred.”
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