SA ambassador to Uganda Jon Qwelane will challenge certain provisions of the Equality Act in the South Gauteng High Court in September.
"We will launch our constitutional challenge on September 27," his lawyer Andrew Boerner said on Wednesday.
The South African Human Rights Commission (SAHRC) is expected to file a response within 20 days of this date.
The matter could be heard within the next three months.
Boerner said his client 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.
He was speaking after a directions hearing in the South Gauteng High Court to go through all the procedural matters regarding an SAHRC hate speech case against Qwelane.
"It [the hearing] was also held to obtain a way forward, which for us would be the constitutional challenge," Boerner said.
In April 2011, Qwelane was found guilty of hate speech but was not present at the default judgment due to his job abroad.
The Johannesburg Magistrate's Court withdrew the judgment on September 1 2011.
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.
While working as a journalist in 2008, Qwelane wrote a column published by the Sunday Sun in which he expressed his opinion about homosexuals.
The column was headlined "Call me names, but gay is NOT okay".
Press ombudsman Joe Thloloe found that in publishing the column, the Sunday Sun had contravened the press code on three counts by: publishing denigratory references to people’s sexual orientation; implying that gay people are a lower breed than heterosexuals; and publishing an accompanying cartoon disparaging of homosexuals.
He ordered Qwelane to publish an appropriate apology to the lesbian, gay, bisexual and transgender (LGBT) community through the Sunday Sun and to be provided by his office. Qwelane had to pay R100 000 to the commission.
The money was to be used to promote gay rights.
The high court heard an application on Wednesday by the Psychological Society of South Africa to join proceedings as amicus curiae. The application was unopposed and an order was granted.
Gay community reaction
The Jo’burg Gay Pride Festival’s board of 2011 said Qwelane and the Sunday Sun's "half-hearted" apology was "inadequate". It announced that it intended to appeal against the findings of Thloloe.
"The ‘apology’ finally published by the Sunday Sun was not in the spirit of reconciliation, as it did not apologise for disparaging LGBT people, but merely for ‘upsetting some people’ and contravening the press code," the festival’s board wrote in a letter to press appeals panel chairperson Judge Ralph Zulman.
It submitted that comment such as Qwelane’s could incite violence against lesbian, gay, bisexual and transgender South Africans.
When the Mail & Guardian approached the ANC in June 2011 about Qwelane’s suitability for an ambassadorship following his widely slated column, the party said there was no "scientific proof" that Qwelane was homophobic.
The department of international relations and co-operation deemed the hate speech ruling a "personal matter".
"Qwelane did the article in his personal capacity before his appointment [as ambassador]. The ruling today is a personal matter he will have to deal with," said spokesperson Clayson Monyela.
"We have taken notes of the pronouncement and decision of the court. We respect the decision. The South African Constitution is very clear on the rights of gays and lesbians ... we will defend their rights in this country," he said.
The Democratic Alliance requested that Qwelane be recalled from his position after a spate of attacks on homosexuals in Uganda.
Cartoonist Zapiro offered his take in on the hate-speech convict Jon Qwelane in the Mail & Guardian in June 2011.
The central figure of the Zapiro’s cartoon is Qwelane, depicted as the ambassador to Uganda. He has the body of a man hanging in a noose dangling from his teeth. – Additional reporting by Sapa