Johannesburg -South African High Commissioner to Uganda Jon Qwelane has described parts of the Promotion of Equality and Prevention of Unfair Discrimination Act as “constitutionally abhorrent”.
Qwelane makes the claim in papers filed at the Johannesburg High Court, where he has hauled in Justice Minister Jeff Radebe, the Human Rights Commission (HRC), the Freedom of Expression Institute and the Psychological Society of South Africa in his challenge to the constitutionality of certain provisions of the Equality Act.
In a July 2008 Sunday Sun column titled “Call me names, but gay is NOT okay...”, the veteran journalist questioned what “these people have against the natural order of things”.
He declared: “And by the way, please tell the HRC that I totally refuse to withdraw or apologise for my views” – neither would he write to the commission explaining his thoughts, he said.
The HRC is opposing Qwelane’s constitutional challenge. Spokesman Isaac Mangena said the purpose of the act was “to realise the principles enshrined in our constitution” – a central principal being that of equality.
“There is nothing abhorrent about the Equality Act’s provisions.”
Qwelane says in court papers: “Legal certainty, especially in a scenario where criminal action may follow, is sacrosanct in a constitutional democracy, with the result that the vagueness cannot be permitted to be left unattended since it has the potential of having a chilling effect on legitimate freedom of expression.”
The impugned provisions did not pass constitutional muster and must be invalidated due to their inconsistency, he said.
Qwelane is challenging the constitutionality of sections 10(1), read with sections one and 12, and section 11 of the Equality Act, saying they are framed in a manner that is broader than the narrow ambit of speech that the constitution seeks to exclude from its protection. Section 10(1) bars anyone from publishing, propagating, advocating or communicating words based on one or more of the prohibited grounds that could reasonably be construed to demonstrate a clear intention to be hurtful, harmful or to incite harm and promote or propagate hatred.
The act’s section 12 prevents the dissemination or broadcasting of any information with a clear intention to unfairly discriminate against any person.
Bona fide artistic creativity, academic and scientific inquiry, fair and accurate reporting in the public interest or publication of any information, advertisement or notice in accordance with section 16 of the constitution is not precluded by this section.
But Qwelane insists his column was not hate speech because it did not fall within the ambit of excluded speech, which includes advocacy of hatred based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm and incitement of imminent violence among others.
The Bill of Rights protects the right to freedom of expression, which includes freedom of the press and other media, artistic creativity and academic freedom and freedom of scientific research.
International relations spokesman Clayson Monyela told The Sunday Independent Qwelane’s case was a personal matter that predated his appointment as high commissioner and had nothing to do with the department.
Qwelane was found guilty of hate speech in May 2011 and ordered to apologise unconditionally to the gay and lesbian community, and pay R100 000 to the HRC.
In September that year, he successfully applied for the hate speech finding to be rescinded.
In March 2010, then ANC Youth League leader Julius Malema was ordered to pay R50 000 to the People Opposed to Women Abuse after he was found to have infringed on the rights of women to have their dignity respected and protected.
The Sunday Independent