Not okay: Protests outside Media24’s offices
Freddy Mathekga holds veteran journalist Jon Qwelane in high esteem, describing him as “a prominent writer; a noble man”.
Mathekga also told the Mail & Guardian of his struggle to “understand the dynamic of wider society” — homosexuality in particular.
Describing himself as an “ordinary” person, a social justice activist with a fairly ordinary history of struggling to overcome his homophobic feelings, he claims he would have been influenced by the anti-gay statements made by the former Sunday Sun columnist.
“You know, there are so many frustrations being young and living in the townships — exclusion from university, not being employed, all those things.
“So you end up following whatever light you see; whatever light you think you see at the end of the tunnel. Even if that ‘light’ is a newspaper article,” says the 25-year-old from Thembisa.
In his Sunday Sun column titled “Call me names, but gay is NOT okay,” Qwelane said in 2008: “Homosexuals and their backers will call me names, printable and not, for stating as I have always done my serious reservations about their ‘lifestyle and sexual preferences,’ but quite frankly I don’t give a damn: wrong is wrong!”
A central issue for Qwelane in the hate speech case against him in the high court in Johannesburg was that there needed to be a link between homophobic statements and the harm they can cause.
Although Mathekga has never read Qwelane’s column, he says: “If you’re struggling to come to terms with something and you come across a prominent writer in a prominent paper saying something like this, you would give up; give up trying to understand the dynamics of the wider society. Because if such a big-name person doesn’t really understand homosexuality or the need for social cohesion, then why should you, as this ordinary person, try understanding it? You’ll just think: ‘Oh, I’m not alone’ and just carry on with your homophobic ways and thinking.”
The court case has been years in the making. In April 2011, the Equality Court found Qwelane guilty of hate speech, ordered him to pay R100 000 to the South African Human Rights Commission and to write an unconditional apology to the lesbian, gay, bisexual, transgender and intersex (LGBTI) community.
The judgment was reversed on September 1 2011 on procedural grounds, because Qwelane had not been able to attend the hearing. He had at the time been serving as South Africa’s ambassador to Uganda, a country known for its oppressive anti-homosexuality laws.
In September 2014, the case went back to the Equality Court, sitting in the high court, and Qwelane instituted his own application to have Sections 10 (1) and 11 of the Promotion of Equality and Prevention of Unfair Discrimination Act declared inconsistent with the Constitution, saying it infringed his right to freedom of expression. The two cases were consolidated.
The high court case was heard over the past two weeks after being postponed last year because of Qwelane’s ill health — and despite having informed his counsel that he had been admitted to hospital on the Saturday prior to the commencement date.
The case was brought against Qwelane by the commission after it had received an “unprecedented” 350 complaints in response to the article. In excess of 1 000 complaints had also been lodged with the press ombudsman.
Mathekga says: “If I had read that article at that stage, it would have discouraged me from trying to understand how the world functions. Before I became a social justice activist, I was a staunch Christian and everything was pretty much inside this one box. When I left school, it was a matter of: ‘This is how society functions, so how will I engage with it without losing myself?’ ”
Forced to be part of this wider society by entering the work environment, Mathekga found a solution to his burning question.
“I worked with lesbian and gay people and found myself stuck in a situation where I had to ask myself: ‘Do I look at this person’s sexual orientation or their work ethic?’ My initial perception of gender and sexual orientation changed with time because of this. It became, like: ‘If a person has a good personality, why not be their friend?’ ”
His journey to this point, however, was not without its hiccups.
“I made some mistakes,” he concedes. “I had a girlfriend and, after we broke up, she came out as lesbian. We were working together at the time. One day, at work, I went to the whiteboard and wrote her name and added ‘… is playing for the wrong team’. I outed her and she was very hurt by that. Very hurt.”
The power of the written word to hurt was illustrated in the high court testimony of a lesbian woman, referred to only as NM.
“Qwelane’s newspaper article deeply hurt and angered me. It reminded me of all the hurtful and derogatory names people have called me just before I was assaulted or attacked,” she told the court.
“My view is that Qwelane’s problem is that he has not been exposed to people of different sexual orientations, because if he had been, he would know that we are people just like him,” she said.
Kholwani Abdul Simelane, a 25-year-old KwaThema resident, told the M&G: “It was only when I made friends with gay people that I started understanding them. If I did not make friends with people who are gay or lesbian, I would have agreed with that article.”
A practising Muslim, Simelane adds: “Kholwani as a person is not homophobic. But Abdul? That’s something different. It’s difficult, because religion has this idea of pushing gay and lesbian people away, but doesn’t provide any concrete reasons for it.
“I went to Muslim school and I’ll never forget how one of our teachers told us that ‘some people are worse than animals’. He was talking about gay people. That’s when I had my ‘wake-up moment’ and saw that sometimes religion can be too judgmental.
“But, as a kid growing up in the townships, seeing gay and lesbians was a weird thing.
“Growing up in a township, it’s seen as totally wrong. But that’s because of not knowing.”
Qwelane’s only witness during the high court hearings was Sunday Sun deputy editor Ben Viljoen.
Viljoen told the court that the paper had a readership of 2.5-million people, 99% of which were black people living in townships, informal settlements and in the suburbs, a target group Viljoen described as being particularly homophobic.
But homophobia’s reach is not limited to these areas or the paper’s target market.
Miriam van der Merwe* grew up in Pretoria’s suburbs. Eschewing the Dutch Reformed Church, in which she was raised, Van der Merwe joined “a charismatic and very dogmatic church” in her 20s.
“Around that time, my brother came out as gay,” she says. “This is horrible to think about, but shortly after he came out, he asked if he and his partner at the time could stay over at my house. I initially said yes, but then realised that that would mean him and his partner sleeping together in my guest room. I immediately called him up to say no.
“That caused him a lot of hurt; it caused extreme damage to our relationship. It was a very, very difficult time for him and our family. My parents accepted him, but I was fierce. For me, it was a case of: ‘If God’s word tells me something, I must abide by it.’ ”
As though offering up an apology for her previously held views, Van der Merwe adds: “At the time I was looking for external authorities to guide me. The written word — the Bible — gave me answers.”
Although she is aware of Qwelane’s controversial column, Van der Merwe has not read it in its entirety.
She adds: “The thing is, the charismatic way in which people write, whether in the Bible, a newspaper article, or in a letter, draws people in on an emotional level. It speaks to your heart.
“And when someone addresses your emotions, it is much easier for you to see that as the truth. And that is truth with capital T.”
*Not her real name
Act’s hate speech provision ‘limits freedom of expression’
In September 2014, Jon Qwelane — accused of hate speech — instituted a high court application to have sections 10 (1) and 11 of the Promotion of Equality and Prevention of Unfair Discrimination Act declared unconstitutional, saying they infringed on his right to freedom of expression.
Section 10 (1) reads: “No person may publish, propagate, advocate or communicate words based on one or more of the prohibited grounds, against any person, that could reasonably be construed to demonstrate a clear intention to be hurtful; be harmful or to incite harm; promote or propagate hatred.” Section 11 of the Act states that “no person may subject any person to harassment”.
Justice Minister Michael Masutha and the South African Human Rights Commission were cited as respondents and the Freedom of Expression Institute and the Psychological Society of South Africa later joined as friends of the court.
During his closing arguments this week, Qwelane’s advocate, Musatondwa Musandiwa, said the hate speech provisions of the Equality Act are unconstitutional as they were “overly broad” and therefore infringed on the right to freedom of expression.
“All rights are equally important, including the right to freedom of expression. Considering the history of this country, infringing on the right to freedom of expression would be infringing on the right to dignity,” Musandiwa said.
He was backed by the Freedom of Expression Institute, which said it did not “dispute the objects of the Act” but both sections limited the right to freedom of expression “to a degree that was neither reasonable nor justifiable” as they “did not give sufficient regard to the need to balance competing rights” and were “overly broad”.
The Human Rights Commission contested this, saying: “The Act must be interpreted in order to give effect to the Constitution, the provisions of which include the promotion of equality through legislative and other measures designed to protect or advance persons disadvantaged by past and present unfair discrimination.”
The Psychological Society said Qwelane’s challenge should be dismissed because “there is no merit in it. The sections pursue a critical constitutional objective and they are neither overbroad nor vague.”
The society said the right to freedom of expression, though broadly framed, did not extend to: propaganda for war, incitement to imminent violence and advocacy of hatred based on race, ethnicity, gender or religion and that constitutes incitement to imminent harm.
Kerry Williams, the society’s attorney, said Qwelane’s right to freedom of expression was “justifiably limited”.
“The Equality Act implements the broader equality project set out in the Constitution, which guarantees equality for all South Africans – including lesbian, gay, bisexual, transgender and intersex people.” — Carl Collison
Carl Collison is the Other Foundation’s Rainbow Fellow at the Mail & Guardian
