SCA's ruling won't alter past court decisions
The SCA overturned the South Gauteng High Court ruling over a column Qwelane penned in 2017 titled, “Call me names, but gay is not okay”.
Following a massive public outcry, Qwelane was found guilty of hate speech in 2017, after publishing the column he had written in 2008.
In the piece, Qwelane had gone on to praise former Zimbabwean president Robert Mugabe on his sentiments on homosexuality. He included personal comments on the lesbian, gay, bisexual, transexual (LGBT) community.
The high court ruled that Qwelane had violated section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act (Pepuda).
In April last year, Qwelane was granted leave to appeal.
He launched an application in the high court seeking to have certain sections of Pepuda declared unconstitutional.
The SCA ruled the current definition of hate speech was unconstitutional and that a comment can only be deemed hate speech if it can be proven that the sentiments in the speech caused harm.
The appeal was upheld with costs.
However, the ruling regarding the unconstitutionality still needs to be confirmed by the Constitutional Court before it can be amended.
Freedom of Expression Institute spokesperson Samkelo Mokhine said they welcomed the ruling. The FXI had previously argued that the act had inconsistencies.
“However, the decision was not retrospective and won’t have any bearing on past cases. It will only set a precedent for future cases.”
Lawson Naidoo of the Council for the Advancement of the SA Constitution said the court ruled that the provisions of the Promotion of Equality and Prevention of Unfair Discrimination Act (“Equality Act”) were unconstitutional in that they are too vague and broad, and inconsistent with the constitutional right to freedom of expression.
“The Concourt may affirm, amend or disagree with the SCA judgment. If confirmed, it will become effective from that date," he said.