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ConCourt finds that protection of LGBT+ rights was intrinsic to the constitutional project

In a legal saga that began in 2008 with a column by Jon Qwelane and continued past his death, the Constitutional Court on Friday held that ensuring equality and protection of lesbian, gay, bisexual and transgender (LGBT+) people was part of South Africa’s constitutional project and his words had constituted hate speech. 

In an unanimous judgment, the court held that it would not be possible to protect the rights of LGBT+ people without prohibiting hate speech based on sexual orientation.

“Less restrictive means of achieving this purpose have not been suggested, and are in fact inconceivable,” it said in the ruling penned by Justice Steven Majiedt. 

There was a clear intent on the part of Qwelane to instigate hatred towards LGBT+ people among his audience, that he should not evade liability and that his death last year had the unfortunate effect that the equality court’s order that he tendered a personal apology could no longer be realised.

“Mr Qwelane was advocating hatred, as the article plainly constitutes detestation and vilification of homosexuals on the grounds of sexual orientation.”

The case, which made its way from the equality court to the constitutional court, saw the bench grapple with the tension between the right to freedom of expression and the right to be protected from hate speech.

Qwalene had taken an adverse high court order on appeal, resulting in the supreme court of appeal finding that the section 10(1) of the Equality Act — which prohibits the publishing of hurtful statements that cause harm or spread hate — was overbroad in that it “extends far beyond the limitations on freedom of expression provided for in the Constitution and in many respects is unclear”.

The constitutional court took the case law of Islamic Unity as a lodestar as to how section 16 of the Constitution ought to be interpreted. 

Section 16(1) entrenches the right to freedom of expression and demarcates the scope of the right. Section 16(2) then defines what does not form part of the scope of the right in section 16(1) and is expressly excluded from constitutional protection.

In consequence, regulation of expression that falls within section 16(2) would not be a limitation of the right to free speech. But where the scope is extended further, it encroaches on the terrain of protected expression and the justification criteria in section 36(1) comes into play.

“All of the section 36 factors therefore point towards justifiability, and so the inclusion of the prohibited ground of ‘sexual orientation’ in section 10(1) of the Equality Act is a justified limitation of section 16(1).

Majiedt held that the appeal court erred in finding that paragraphs (a)-(c) of section 10(1) must be read disjunctively, as this would unjustifiably limit section 16 of the Constitution. 

Turning to consider whether the words “hurtful”, “harmful” and “to incite harm” were vague, he found that the term “hurtful’ is indeed vague, but the rest are not.

Further, the inclusion of both the term “hurtful” in section 10(1) of the Equality Act, and the prohibited ground of “sexual orientation” in section 1, constitute limitations of section 16(1) of the Constitution. 

Applying the test in section 36 of the Constitution, the court held that the limitation occasioned by “hurtful” cannot be justified, and is therefore unconstitutional. 

This can be cured by excising the terms from the Act, but the court suspended its declaration of invalidity for 24 months to give parliament time to remedy the defect. In this time, the court said, section 10 should be read to refer exclusively to speech that is harmful and incites hatred.

“The test whether the article amounts to hate speech is objective,” the court said. 

“And the declaratory order will not only ameliorate the severe harm caused to the LGBT+ community, but will also convey a strong message of deterrence in respect of hate speech directed against members of that community. That harm is ongoing.”

Qwelane’s column continued to contribute to an environment of intolerance that may further normalise discrimination and violence against LGBT+ people. 

“Without unequivocal disapprobation from this court, the contents of the article will continue to haunt those who were — and are — the targets of its hatred.”

It stressed that the constitutional commitment to equality “lies at the heart of our new constitutional order and is crucial to our transformation” and permeates and defines the ethos on which the Constitution is premised.

“Our jurisprudence is resolute that the type of equality underpinning our constitutional framework is not mere formal equality, but in order to give meaning to the right to dignity, also substantive equality.”

Qwelane’s opinion piece in the Sunday Sun carried the headline, “Call me names, but gay is NOT okay” and sought to assert his right to “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!”

It sparked more than 350 complaints to the  South African Human Rights Commission (SAHRC) and another 1 000 or so to the press ombudsman.
In 2017, the SAHRC, represented by advocate Tembeka Ngcukaitobi, took on Qwelane in the Johannesburg high court and won. The core of the SAHRC’s case was that the article constitutes hate speech as defined in the Equality Act.  Qwelane, who remained unrepentant, then approached the appellate court.

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