JON QWELANE’S attorney, Andrew Boerner, is confident they will successfully challenge the constitutionality of the Equality Act, after the Equality Court found Qwelane guilty of hate speech in 2009 for comments about gay and lesbian people.
Qwelane, a former ambassador, wrote a column for Sunday Sun in 2008, comparing homosexuality with bestiality.
Qwelane wrote that he hoped politicians can 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?”
The South African Human Rights Commission (SAHRC) took the matter to court, asking for Qwelane to pay R100 000 to an LGBTI organisation and issue an unconditional apology.
But Qwelane is challenging the Equality Act’s constitutionality because he feels it is vague when it defines hate speech as “hurtful”.
Boerner is bullish about their chances when their hearing sits in the South Gauteng High Court in Johannesburg in March.
“We are definitely still confident in our case, but we are in the hands of the court.
"Confidence comes from looking at the constitution and assessing what it says about hate speech, and I think we are correct in our assumption about what we presume hate speech to be.”
Boerner was speaking to the Cape Times's sister paper, The Star, after the Constitutional Court yesterday dismissed the Psychological Society of South Africa’s objection to the high court’s decision to grant Qwelane’s application for postponement in his constitutional challenge because of health problems.
However, the apex court was scathing of the high court’s decision not to allow the PsySSA, a friend of the court, and the SAHRC to lodge affidavits opposing the hearing’s postponement; saying this “resulted in the procedural injustice of the parties”.
PsySSA attorney Kerry Williams was satisfied with the ruling despite having dismissed its application, arguing that the court’s affirmation of their rights to lodge opposing affidavits was a “vindication”.
Professor Juan Nel, who serves as an executive of PsySSA’s sexuality and gender division, said they decided to join the SAHRC case as a friend of the court because “failure to actively condemn harmful insults sends a strong social message that it is in fact acceptable to dehumanise gays and lesbians and to liken them to animals, as Qwelane did in his article”.
In PsySSA’s view, there was a negative psychological impact on LGBTI people and society when the LGBTI community was defamed and next year the court should consider the extent of the harm caused by homophobic hate speech, Nel added.
“PsySSA will lead evidence and make legal submissions regarding the impact of homophobic hate speech on members of the LGBTI community, as well as society at large.”