Johannesburg – The ball is now in the court of the Constitutional Court to put to rest the more-than-a-decade-old legal battle between former journalist and ambassador Jon Qwelane and civil groups accusing him of hate speech.
Sparked by a 2008 Sunday Sun column headlined “Call me names, but gay is not okay”, the legal stand-off over whether Qwelane committed hate speech against the lesbian, gay, bisexual, and transgender (LGBT) community entered the apex court on Tuesday.
Qwelane was up against the SA Human Rights Commission (SAHRC) and several civil society organisations that wanted him found guilty of hate speech.
The former writer has put up a fight since he was first taken to the Equality Court in 2008, and said he exercised his freedom of speech in the article.
His counsel, Mark Oppenheimer, did not deviate from the freedom of speech argument at the Constitutional Court on Tuesday.
Oppenheimer maintained that at no point did Qwelane call for harm against the gay community in his article.
The column might well have been offensive to many, but it did not incite anyone to harm gay people, Oppenheimer said.
“At no point in time does the article ever call for any harm to be perpetrated against gay people,” he said.
“What Mr Qwelane does is express a concern about gay marriages. Now, you must remember that gay marriage had been made legal in 2006.
“Really, there is a call for legal reform in that basis, but there is no call for any action to be taken against the gay community.
“Qwelane specifically denies that he was calling for any harm to be perpetrated against the gay community. Really what he was expressing is a firmly held moral belief,” the lawyer said.
Justice Steven Majiedt pressed Oppenheimer on whether his client’s column did not add to the atmosphere of hatred against gay and lesbian people.
Many have been killed for their sexual orientation and subjected to “corrective” rape.
Oppenheimer denied that the violence against the gay population could be blamed on Qwelane.
“The evidence shows that a lot of those awful things that the community suffered pre-date the article,” he said.
Tembeka Ngcukaitobi, counsel for the SAHRC, said lower courts hearing the Qwelane case heard evidence of how hurtful statements added to the violence gay people faced in communities.
During a previous hearing, victims described Qwelane’s column as the type of hurtful speech that often led to their abuse, said Ngcukaitobi. Their evidence stood unopposed because Qwelane did not show up to dispute it, he said.
“One could conclude that these utterances (by Qwelane) fuelled the fires. They added to a climate that was already hostile,” Ngcukaitobi said.
“But the other problem is that Qwelane … never gave evidence that what he was trying to do was to ignite a debate, never gave evidence that said actually I regret my actions, nothing.
“He did not come to the trial at all. Initially, he said he was sick. Later on he just didn’t show up, without a reason.
“So, you have evidence by witnesses who are experiencing deep psychological distress as a consequence of his utterances and you have no countervailing evidence from his part.
“The evidence was uncontested, the evidence against Qwelane as to the impact of the article was uncontested.”
Judgment was reserved.