5 September 2016
By Taliesin Cormach - QL SA
In South Africa after eight years in court the hate speech case against Jon Qwelane has reached a seeming stalemate once again.
Eight years ago the ex South African envoy to Uganda wrote a newspaper column containing his homophobic views on homosexuality which bordered on and in parts was demed hate speech by South Africa's LGBT citizens.
Over the weekend, Qwelane's lawyer Andrew Boerner reiterated that his client continued to take the matter "extremely seriously" despite the indefinite postponement now granted in his favour.
Last Monday, Qwelane's team were successful in having the matter postponed in the High Court in Johannesburg on the basis of a serious health condition.
"He does have respiratory and heart problems," said Boerner on Sunday, adding that a medical report and affidavit by Qwelane's pulmonologist was submitted to the court.
Yet, the psychological society of SA (PsySSA) - which is appointed a friend of the court in the case – said that it was "shocked and dismayed" at the indefinite postponement granted.
A two-week period for the case had been set to begin on August 29 before Qwelane applied for the postponement on the eve of proceedings.
PsySSA said in a statement that neither it, nor the SA Human Rights Commission - which serves as the first applicant - had been granted the right to submit answers affidavits to the postponement application.
"This amounts to the court having effectively granted a permanent stay of the trial without having considered all the relevant facts as to whether Qwelane is indeed unfit to appear in court, and, if so, whether there are other means through which his testimony might be given," Kerry Williams, partner at Webber Wentzel and PsySSA’s attorney said in a statement.
In 2008, in his capacity as a journalist, Qwelane wrote a column published in the Sunday Sun in which he expressed his opinion about homosexuals. The column was headlined "Call me names, but gay is not okay”.
In the column - which was accompanied by a cartoon of a man marrying a goat - Qwelane lauded Zimbabwean President Robert Mugabe’s "unflinching and unapologetic stance" over homosexuality.
He also said that he would "totally refuse to withdraw or apologise" for his views in which he also condemned gay marriage. Qwelane said in the column that he believed that when it came to homosexuals’ "lifestyle and sexual preferences...wrong is wrong!"
Qwelane, who subsequently served as Ugandan Ambassador, was originally found guilty in April 2011 by the Johannesburg Equality Court of hate speech in connection with the article, but was not present at the default judgment because of his job abroad.
The judgment was withdrawn on 1 September 2011.
Qwelane's counsel argued at the time that the default judgment was not allowed, and that a direction hearing needed to be convened before such a judgment could be handed down.
In August 2013, the court heard that Qwelane would bring a challenge to the constitutionality of certain provisions of equality legislation.
At the time, Qwelane wanted to challenge sections 10 and 11 of the Promotion of Equality and Prevention of Unfair Discrimination Act. Section 10 deals with hate speech and section 11 with harassment.
Boerner said at the time that while Qwelane's "particular expression of his views may have been unpopular, controversial and even shocking… it neither advocated hatred nor constituted incitement to cause harm. His expression is therefore protected by our Constitution".
On Sunday, PsySSA said that "it is travesty of justice that this matter has not yet been concluded".
It said that if Qwelane was of "such poor health that he is found to be unfit to stand trial" he should then give the relief sought by the SAHRC which was to "publicly apologise unreservedly for the harm his article caused to the LGBT community" as well as pay R100 000 in damages to an LGBT organisation.
PsySSA said it was preparing an application for leave to appeal against the postponement - a move that Boerner, of course, deemed "illogical".