In a lengthy sitting of the Constitutional Court on Tuesday, advocate Kate Hofmeyr reminded the justices what kicked off a 12-year legal battle when former columnist, radio host and ambassador Jon Qwelane wrote an opinion piece in the Sunday Sun calling on politicians to reverse the legalisation of gay marriage.

“He told them that homosexuality was responsible for the rapid degeneration of values and traditions in society. He scoffed that you regularly see men kissing other men in public, walking holding hands,” said Hofmeyr, an evidence leader at the Zondo Commission who was in the Constitutional Court representing the Psychological Society of South Africa.

“With those words, he took an intimate moment shared between people in love and debased it. He dehumanised the community. He likened homosexuality to bestiality and he asked rhetorically when ‘some idiot’ would demand to marry an animal.”

Qwelane wants the Constitutional Court to declare section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act (Pepud), which prohibits hate speech against certain groups of people, unconstitutional.

The South African Human Rights Commission (SAHRC) received an unprecedented number of complaints about Qwelane’s 2008 column, titled “Call me names, but gay is NOT okay”, and in 2017 the equality court and Johannesburg High Court ruled that his comments amounted to hate speech and ordered him to apologise.

The Supreme Court of Appeal, however, agreed with Qwelane that the Pepud Act limits freedom of expression beyond the provision in the Constitution, which states that speech can be limited in regards to propaganda for war, incitement of imminent violence and “advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm”.

Representing Qwelane, advocate Mark Oppenheimer argued that the hate speech law was vague, stifled the freedom of speech necessary in a functioning democracy and that Qwelane had not incited harm.

“Sometimes people say things that are unkind. They express strongly held beliefs, and sections of the population will be angry with that and they will feel threatened by that and feel offended by that, but that is what we allow in a democracy. We allow this idea that people must be free to speak and they are going to offend each other on the way,” said Oppenheimer.

“The best remedy for hateful speech is more speech,” he argued.

Oppenheimer claimed that if the hate speech laws were allowed to stand, vast amounts of public commentary and texts such as the Bible would be prohibited for expressing moral beliefs.

The purpose behind section 10 is to remove discriminating, degrading, debasing speech from social discourse and to know that there are statutory consequences for engaging in that form of speech.

Advocate Gilbert Marcus, representing Media Monitoring Africa, made a point of labelling Qwelane’s column “vile”, but criticised the hate speech law, saying the Constitution protects speech that offends, shocks or disturbs, and those rights extend beyond the virtuous.

“They extend also to the worst among us. Were it otherwise we would still have a death penalty,” said Marcus.

“It is because the Constitution gives individuals the freedom to think and speak for themselves and not suppress their views that it recognises their autonomy and human dignity,” he continued.

Advocate Tembeka Ngcukaitobi, representing the SAHRC, defended the law, saying it wasn’t vague if the act was read as a whole, and it was necessary to address South Africa’s structural inequalities.

“The purpose behind section 10 is to remove discriminating, degrading, debasing speech from social discourse and to know that there are statutory consequences for engaging in that form of speech,” he said.

“We are not dealing with, with the greatest of respect, a sledgehammer that has been employed to smash a fly. We are dealing with civil penalties. This is not the criminalisation of speech.”

Representing Justice Minister Ronald Lamola, advocate Kameshni Pillay agreed.

“It is precisely the entrenchment and emboldenment of unfair discrimination in the form of racism, of homophobia, of misogyny, of xenophobia and the harm that it causes that has resulted in the state drawing a line in the sand,” she said.

The South African Holocaust and Genocide Foundation’s advocate Wim Trengrove said the Constitution specifically limits freedom of expression that demeans people for who they are, as opposed to the choices they make. 

He criticised the idea that because vulnerable groups also have freedom of speech, hate speech laws should be overturned.

“I understand the theoretical underpinning of it, but are you saying that in South Africa the lesbian who gets correctively raped every now and then, who’s too afraid to go to the shops by day, should be left exposed to that violence of words and conduct on the basis that that is what’s required to speak for herself?” asked Trengrove.

He continued: “To try to defend freedom of expression on the basis that those vulnerable people should not be pampered but should be allowed to speak up for themselves is entirely unrealistic and out of keeping with the choices made by our Constitution itself.”

Oppenheimer argued that dignity is tied to individuals being able to express themselves, and freedom of expression acts as a pressure valve to limit violence. But those arguing against Qwelane said the columnist had added fuel to the fire of violent rhetoric against the LGBQTI community.

“Mr Qwelane, Justices, knew exactly what he was doing when he wrote his article. He knew he was engaging in hate-mongering,” said Hofmeyr, who demanded an apology from Qwelane.

Judgment was reserved. DM