/ 1 September 2011

Qwelane wins the battle but not the war

Qwelane Wins The Battle But Not The War

Ambassador to Uganda and former columnist Jon Qwelane has won his case to have the Equality Court hate speech judgment against him set aside, but this does not mean he is off the hook.

The judgment that found him guilty for his 2008 Sunday Sun column titled, “Call me names, but gay is NOT ok” was rescinded on a legal technicality.

This means the South African Human Rights Commission (SAHRC) will have to re-apply to the Equality Court to have the matter heard. The commission was also ordered to pay Qwelane’s costs in the matter.

In his column, Qwelane praised Zimbabwe President Robert Mugabe for his “unflinching and unapologetic stance over homosexuals”, and said that he prayed that someday men and women would have “the balls to rewrite the Constitution” to get rid of the sections that allow gay marriage. In reference to a line about bestiality, his column was accompanied by a cartoon of a man marrying a goat.

The SAHRC’s spokesperson Vincent Moaga told the Mail and Guardian the commission had “noted the ruling” and would read the judgment in full to consider whether to take the matter back to the Equality Court.

Legal explanations
Qwelane was not in court when the matter was heard in May this year as he was on sick leave. He had also not used lawyers to defend himself.

In May the court ruled that as there was only one version presented to them, the argument of the SAHRC would be accepted.

In his application to have the judgment set aside, Qwelane’s lawyer George Kairinos had argued that the default judgment had been done at a directions hearing, and this was not allowed.

A directions hearing is used to iron out procedural matters before the case is heard. Kairinos argued that, because he was not in court, Qwelane had not thought the matter would be heard.

On Thursday, the judgment found that Qwelane had given “a reasonable explanation” for his absence from the directions hearing.

The SAHRC was found to have been incorrect.

‘Very pleased’
But the judgment made it clear that “the court expressed no views on the merits or demerits of either the commission’s complaint or Jon Qwelane’s views about gay people”.

This matter “would receive proper attention during the Equality Court hearing”, according to the judgment.

The SAHRC had charged Qwelane with hate speech for his column under the Promotion of Equality and Prevention of Unfair Discrimination Act.

Qwelane was fined R100 000 and ordered to make an apology in the Sunday Sun after the guilty verdict. The newspaper has previously apologised but Qwelane has not.

The lawyer present for Qwelane on Thursday, Andrew Boerner, told the M&G if the matter was re-heard at the Equality Court, Qwelane would be appear court.

He said he was “very pleased” at the findings.