On Tuesday, the apex court heard arguments on the constitutionality of section 10 of the Equality Act, which prohibits the publishing of hurtful statements that cause harm or spread hate.
In 2008, Qwelane, the applicant in the case, penned an opinion piece for the Sunday Sun with the headline: “Call me names, but gay is NOT okay.”
Qwelane wrote — among other offensive statements — “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!”
The article was accompanied by a cartoon of a man marrying a goat, with the caption, “When human rights meet animal rights.” Qwelane did not have any say in the cartoon’s publication.
On Tuesday, Qwelane’s counsel argued that the article itself could not be seen as inciting violence.
The South African Human Rights Commission (SAHRC), however, contended that words which target vulnerable groups assault their dignity, culminating in social, emotional and sometimes physical harm.
Qwelane’s article triggered a deluge of complaints to the SAHRC and the press ombudsman.
In 2017, the SAHRC, represented by Tembeka Ngcukaitobi SC, took on Qwelane in the Johannesburg high court and won. The core of the SAHRC’s case was that the article constituted hate speech as defined in the Equality Act. The high court heard expert evidence on the effect of hate speech on the LGTBI community.
Qwelane was ordered by the court to issue a written apology to the LGBTI community, printed in a national newspaper, within 30 days. Instead, he sought to have section 10 of the Act declared unconstitutional because he said it infringed on the right to freedom of speech.
In 2019, the Supreme Court of Appeal agreed that section 10 should be struck down.
In his ruling, Judge Mohamed Navsa said the section “extends far beyond the limitations on freedom of expression provided for in the Constitution and in many respects is unclear”.
He deemed the section’s use of the word “hurtful” particularly vague, adding that all definitions of the word “are concerned with a person’s subjective emotions … in response to the actions of a third party. This does not equate with causing harm or incitement to harm.”
The judgment also stated: “No evidence was presented to show a link between the article and any subsequent physical or verbal attacks on members of the LGBTI community.”
On Tuesday, advocate Mark Oppenheimer, for Qwelane, repeated this point, adding that though the article might have been offensive, it did not cause any direct harm to members of the community.
But Justice Stevan Majiedt said he had a problem with this element of the appellate court’s finding.
“Now, can you isolate that evidence from the article when you know that the evidence shows that people of the LBGTI+ community were not only verbally abused but also physically — they were raped and murdered in fact,” Majiedt said.
“Can you isolate that from the article to say ‘well they didn’t follow the article. Hence that evidence is irrelevant?’ Surely that is the wrong way of approaching that kind of evidence.”
He later added that the evidence was not to show that Qwelane’s article ignited the fire of hate against the LGBTI community, but added fuel to it.
Oppenheimer argued, however, that the article did not call for any harm to be perpetrated against the LGBTI community. Instead, Qwelane only sought to “express concern about gay marriage”, Oppenheimer said.
Acting Justice Margie Victor asked if Qwelane’s article did not have a damaging consequence and questioned how the accompanying cartoon came about. “It is an almost instantaneous consequence, is it not?”
Oppenheimer responded: “The question is what the cartoon does.”
“The cartoon, I think many people will find offensive. But, in and of itself it would be protected speech. The cartoon doesn’t call for any harm to be perpetrated against any group whatsoever.”
Oppenheimer later argued that there are passages in the Bible calling for violence against homosexuals that are generally tolerated and that South Africans accept this and allow it to be published.
Victor questioned how passages in the Bible could be used as a threshold of people’s tolerance for hate speech. “How is that consistent with the ethos of our Constitution? There are some citizens who do not ascribe to the old or the new testament. What about them? We are a constitutional democracy.”
Ngcukaitobi argued that assaults on people’s dignity through words could transition to physical violence. Corrective rape begins with labelling, he said. “In other words, it begins with hurtful statements.”
He added: “We are not dealing with abstract notions of speech. We are dealing with people’s experiences in areas that are most vulnerable — in the townships, in the villages. And we are dealing with speech that transitions from words into action.”
Advocate Kate Hofmeyr, who represented the Psychological Society of South Africa, drove home this point, saying that the question before the Constitutional Court “is not an academic question”. “It is a question that will have an impact on whether the LGBTI community will finally, after 12 years, gets an apology from Mr Qwelane for his hate.”
Hofmeyr said that, contrary to Oppenheimer’s argument, Qwelane’s article had a profound impact on the LGBTI community, which at the time it was written faced unprecedented levels of violence.
“Mr Qwelane … knew exactly what he was doing when he wrote his article,” she concluded.
“He knew that he was engaging in hate-mongering. He was clear about it … Justices we submit that it is now time for this court to order Mr Qwelane to give an unconditional apology for the hatred communicated in his words that has no place in our constitutional scheme.”
Judgment was reserved.