John Qwelane
LETTER - In the wake of the storm unleashed in the aftermath of the SCA (Supreme Court of Appeal) John Qwelane judgment, it shows how ignorance laced with a sense of righteous indignation unleashes the irrational.

We must permit our courts to go about their duties without fear or favour and with impartiality.

Thank you for allowing me an opportunity to unpack for the benefit of your perplexed readers, the judgment of the SCA pertaining to whether or not the utterance of Qwelane, a former South African ambassador to Uganda, constituted hate speech.

What did the SCA say? In a nutshell after presenting cogent reasoning, it ruled that the section in terms whereof Qwelane was found guilty of fomenting hate speech was unconstitutional and therefore he was not guilty.

That provision, section 10(1) of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (Pepuda) was too broad in the sense that it proscribed any speech criticising sexual orientation etc.

It infringed Qwelane’s right to free speech guaranteed in section 16 of the Bill of Rights in the Constitution.

Having read and studied the 46-page judgment in Qwelane v South African Human Rights Commission and Another - (2019) Zasca 167 (November29, 2019) easily accessible from http://www.saflii.org.za I understand and wish to share with readers the rationale underpinning this decision.

Firstly, I agree that hate speech is an affront to humanity.

I will take it further. As Laurell K Hamilton wrote, “Hatred makes us all ugly” (Burnt Offerings, page 89).

Two critical issues challenged the court. The first is related to the contagion of hatred which, it declared, was “the antithesis of our constititional order”.

Juxtaposed against that is the second issue which, in George Orwell’s words, is “the right to tell people what they don’t want to hear”.

Hate speech travels far beyond mere offensiveness and in our constitutional law is regulated by Pepuda.

I find it imperative to urge every discerning reader to study the crystallised facts that informed the judgment before anyone can make a constructive and fair comment.

The alleged offence occurred in 2008 when Qwelane penned an article captioned “Call me names - but gay is not okay” wherein he candidly commented about the alternative sexual lifestyle of gays and lesbians which was seen as gay bashing hash-tagging the propagation of hate against them.

Fast forward to the present. Qwelane was found guilty and fined under section 10 of Pepuda, a decision confirmed by the High Court (HC). Expert testimony corroborated the finding against Qwelane. The HC refused to hold section 10 of Pepuda as unconstitutional. In a 46-page judgment the SCA undertook a detailed analysis of section 10(1) of Pepuda and found that, in limiting freedom of expression, it went beyond the provisions of section 16(2) (c)of the Bill of Rights.

It undertook an objective test, something of a deficit, these days, in the response of laypersons, and found that while what was stated was hurtful, it did not constitute hate speech. It concluded that section 10(1) of Pepuda was too broad when it imposed liability for any expression.

There’s a principle enunciated in a 2012 Canadian case of Lund v Boisson, (2012) Abca 300, that language used might be offensive and hurtful to others but does not necessarily qualify as hurtful or contemptuous speech.

Hurtfulness as a concept, in everyday conversation in South Africa, is absurdly broad and if used broadly it can curtail free speech. The court held that section 10 was unconstitutional and that in the circumstances Qwelane was not guilty of hate speech.

I must implore people to study this judgment through their own lens of understanding and conclude whether five learned judges got it wrong.

The Mercury