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Upholding important democratic principles doesn’t always make for defending the most savoury of characters. So, while Tuesday’s Equality Court ruling against Jon Qwelane is certainly a victory for gay rights, what it means for freedom of expression is less certain. By THERESA MALLINSON. “And by the way, please tell the Human Rights Commission that I totally refuse to withdraw or apologise for my views. I will write no letters to the commission either, explaining my thoughts…” So wrote Jon Qwelane in his now-infamous column, “Call me names, but gay is NOT okay…”, published in the Sunday Sun in 2008. Tuesday’s ruling by the Equality Court means Qwelane is going to have to eat his words – and cough up some money as well – R100,000 to be precise. Understandably, the column provoked an outcry on publication, with press ombudsman Joe Thloloe receiving more than a thousand complaints. Among other statements, in the column Qwelane declared his support for Zimbabwean President Robert Mugabe regarding his “unflinching and unapologetic stance over homosexuals” and, referring to the Civil Union Bill, asked: “How soon before some idiot demands to ‘marry’ an animal, and argues that this Constitution ‘allows’ it?” Hateful certainly, and deserving of condemnation in the strongest terms. But is it hate speech? Section 16 of our Constitution provides that everyone has the right to freedom of expression, including “freedom of the press and other media”. However, among other caveats, this right does not extend to “advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm”. What people crying “hate speech” often seem to forget is this last clause: incitement to cause harm. But there is also another law that addresses hate speech, the Promotion of Equality and Prevention of Discrimination Act, which states: “[N]o 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; or promote or propagate hatred.” And, although “a clear intention to be hurtful” may be broader than “incitement to cause harm”, such intention still needs to be proven. In his ruling on the matter back in 2008, press ombudsman Joe Thloloe found that the Sunday Sun had breached the South African Press Code on three counts. These were: Publishing denigratory references to people’s sexual orientation in the column by Qwelane; Implying that homosexuals are a lower breed than heterosexuals; and In the cartoon accompanying the column, which was also disparaging of homosexuals. Thloloe did not find that the column constituted hate speech: “In this column Qwelane does not advocate hatred, but merely states his views on homosexuality and is not calling for the harming of gays and lesbians. It is robust language, but not hate speech, as pointed out by Gender Equality Commissioner Yvette Abrahams in a letter published in Sunday Sun, ‘Qwelane stops just short of what would be considered hate speech under the law’.” The Equality Court sees it differently. On Tuesday it found in favour of the complainant, the South African Human Rights Council. “The article and cartoon propagates hatred and harm against homosexuals. Homosexuals as represented by the complainant have suffered emotional pain and suffering as a result of the action of the respondent,” read the ruling. Qwelane was ordered to pay R100,000 in damages, and make an unconditional apology to the LGBT community. Pierre de Vos, constitutional law expert at UCT, said he’s in two minds about the ruling. “I obviously think that what Qwelane said was completely offensive and disgusting, but I am a bit nervous about the use of hate speech in general to limit freedom of expression, so I would argue that the Equality Act should be as restrictive as possible to limit the effect it would have on freedom of expression. “I’m not so sure that it should have been found to be hate speech,” De Vos said. “The test is whether it could reasonably be construed as to have the intention to be hateful, or was he merely expressing deeply obnoxious views that he truly believes in? As somebody who is on the side of free speech, it’s probable I wouldn’t have found that it was hate speech.” De Vos notes that the Equality Act itself may fall foul of the Constitution. He said it was plausible that Qwelane’s column was found to be hate speech, “given how the Equality Act is currently phrased”. However, he added: “I also believe the Equality Act might be unconstitutional. The freedom of expression section of the Constitution defines hate speech as speech that is not protected as such, that constitutes incitement to cause harm, and the Equality Act says [hate speech is] any speech that can reasonably be construed as being hurtful to a group, so it’s much broader. It clearly is a limit on free speech, and the question is, is it justifiable or not?” Notwithstanding his legal background, De Vos feels such issues are best dealt with outside of court. “My view is that in an open and undemocratic society the best way to deal with disgusting and obnoxious speech is to confront it and argue against it and to confront the person who makes personal statements,” he said. “The law is not really the best way to deal with it. Even in the Julius Malema case, I argued that it wasn’t in their best interests to take him to court.” The Malema case De Vos is referring to isn’t the “Kill the boer” case, which is currently awaiting judgment by the Equality Court, but Malema’s previous run-in with this court, where he was fined R50,000 for the comments he made relating to President Jacob Zuma’s rape case: “When a woman didn’t enjoy it, she leaves early in the morning. Those who had a nice time will wait until the sun comes out, request breakfast and taxi money. In the morning that lady requested breakfast and taxi money. You don’t ask for taxi money from somebody who raped you.” As De Vos writes in his blog, Constitutionally Speaking: “Given the modest educational achievements of the respondent, his sexist world view and the context in which the words were uttered (at an election rally where Julius was defending Jacob Zuma) it is far from clear that his words could reasonably be construed to demonstrate a clear intention to cause harm to women in general. “Even if the words could be so construed, the magistrate erred by failing to make a finding on this crucial point. She thus never made a finding on whether, objectively determined, Julius could be reasonably suspected of having the intention to harm women in general. By failing to focus on the intention of the respondent, the magistrate did not apply the test for hate speech correctly.” Regarding the Qwelane finding, the magistrate in question accepted the arguments put forward by the complainant, one of them being: “It is evident from the wording of the article that the intention of the second respondent was to communicate words that would be construed to demonstrate the intention to be hurtful, harmful, and which would propagate hatred…” As Qwelane did not present a defence, the matter of his intentions was not examined in depth, and the argument of the complainant was uncontested. HRC spokesman, Vincent Moaga, said the commission had laid the case after receiving several complaints. The HRC waited until the press ombudsman had made his ruling before it launched its own case. “After our assessment of the complaint, we found that there was indeed a prima facie case of human rights violations,” Moaga said. “We met with various stakeholders who had lodged complaints; we thought it might be best to take it to the Equality Court, which we did.” Asked about the ruling, Moaga said: “We are quite pleased that the court concurred with us on all the issues we placed before it. For us this is one of the major victories on our part to continue to fight and eradicate inequality.” Speaking about freedom of expression, he said: “We are always of the view that people have a right to freedom of expression, but then that there are limitations within that right, and some of those limitations are well set out in the Equality Act.” The ruling is obviously a huge boost for South Africa’s LGBT community. Cobus Fourie, a board member of The South African Gay and Lesbian Alliance Against Defamation – a group formed directly in response to Qwelane’s column – said the ruling was: “Definitely a move in the right direction, meaning that it sends out a clear message that one cannot trample on human rights or the rights of minorities in this country”. In terms of the R100,000 in damages, Fourie said: “We welcome the monetary compensation and I think it should go towards hate-crimes prevention.” Moaga said the HRC had yet to decide how the money would be distributed. Speaking in her personal capacity, Phumi Mtetwa, the former director of the Gay and Lesbian Equality Project, said: “I think the ruling comes at a very important time when this country is discussing freedom of speech, but I think every activist, every human rights activist, should be welcoming the ruling of the Equality Court.” Like Fourie, she also highlighted the importance of the ruling’s message. “I think it sends a very stern message in a context in which hate crimes and corrective rape take place. Within 30 days during April and May, four lesbians were raped and killed, so we hope this judgment will send a message to the religious fundamentalists and politicians who are silent on the issues about hate crimes and corrective rape.” Mtetwa’s mention of politicians was no accident. Qwelane’s opinions on homosexuality take on an added dimension considering he is South Africa’s ambassador to Uganda, a country with draconian anti-homosexuality laws, and which is currently looking at even harsher penalties for homosexuals. Qwelane’s initial appointment to this post was met with outrage in certain quarters, and now the issue is back on the agenda. Department of international relations and cooperation spokesman Clayton Monyela said on Tuesday: “This incident happened before Qwelane was appointed as ambassador by the President. He wrote the article in his personal capacity. So it’s in his personal capacity he must deal with this.” However, Monyela has subsequently announced the department will study the ruling before deciding whether disciplinary action will be taken. For Mtetwa, this isn’t good enough. “I think that Dirco cannot just say Jon Qwelane’s thing was personal and was said before he was appointed ambassador. I think the appointment of ambassadors must be based on track record, and the fact that they’re distancing themselves and saying that it’s a personal thing is not acceptable. We are calling on the department and the presidency to recall Qwelane.” She has a point. Ambassadors are, or rather should be, chosen based on their record, moral standing and their ability to present the best of South Africa. In cases where the country of their posting has laws at loggerheads with our own Constitution, their commitment to representing South Africa’s position is critical. Our gay rights legislation, including the Civil Union Bill, is the front-runner on the continent. We need to appoint ambassadors who are willing to promote this stance. Not speak out against it, either prior to or during their time in office. Airing one’s opinion at a dinner party among friends is one thing, but writing in your personal capacity on a public platform, as Qwelane did, is quite another. As such, why President Jacob Zuma chose to appoint him as ambassador to Uganda is inexplicable. To return to the judgment of the Equality Court: It remains to be seen how an apology, and even R100,000, will remedy the hurt Qwelane caused. We are outraged and appalled at his despicable statements, but it has to be asked: Is bigotry a crime? While Qwelane’s words call for robust condemnation, this doesn’t necessarily mean we should be legislating against them. Baldly put: A victory for LGBT and human rights activists that is at the expense of freedom of expression is a pretty hollow victory. And the chilling effect this episode could have on freedom of expression further down the line is extremely worrying. DM Photo: John Qwelane testifies before the Truth and Reconciliation Commission’s special hearing on media at the South African Brocasting Corparation (SABC) in Johannesburg September 17. He accused mainstream English newspapers of colluding with the apartheid state between 1960 and 1994.

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