Jon Qwelane is South Africa's ambassador to Uganda. FILE PIC: LORI WASELCHUK

Johannesburg - South Africa's ambassador to Uganda Jon Qwelane has filed a constitutional challenge in the High Court in Johannesburg to certain provisions of the equality legislation.

His lawyer Andrew Boerner said in a statement the application was filed on September 27.

“The respondents have five days from receipt of the application to deliver a notice to oppose and a further 15 to deliver their answering affidavits,” he said.

Boerner said Qwelane would challenge sections 10 and 11 of the Promotion of Equality and Prevention of Unfair Discrimination Act. Section 10 deals with hate speech and section 11 with harassment.

In April 2011, Qwelane was found guilty of hate speech, but was not present at the default judgment because of his job abroad.

On September 1, 2011, the Johannesburg Magistrate's Court withdrew the judgment.

Qwelane's counsel argued at the time that the default judgment was not allowed, and that a direction hearing needed to be convened before such a judgment could be handed down.

At the hearing on August 28, this year, the court heard that Qwelane would bring a challenge.

While still working as a journalist in 2008, Qwelane wrote a column, which was published in the Sunday Sun, in which he expressed his opinion about homosexuals. The column was headlined “Call me names, but gay is not okay”.

Boerner said section 10 of the act was “guilty of over-breadth and vagueness” and posed a constraint to freedom of expression.

He said the Constitution placed the following limitations on the freedom of expression: propaganda for war, incitement of imminent violence and advocacy of hatred based on race, ethnicity, gender, or religion and that constitutes incitement to cause harm.

“As a columnist, Jon Qwelane's opinion and views were in the public domain and therefore open to public comment and scrutiny,” Boerner said.

“His particular expression of his views may have been unpopular, controversial and even shocking, but it neither advocated hatred nor constituted incitement to cause harm. His expression is therefore protected by our Constitution.”

He said Qwelane had been labelled a homophobe and a bigot by the press and in social media.

“What people fail to understand is that the very same offensive views that they express about Jon, and the right with which they have to express their views, is the same right which Jon expressed in writing the article,” he said.

“This is the same right which he is now fighting to protect.”