The legal representative of the South African Human Rights Commission (SAHRC), Advocate Tembeka Ngcukaitobi has told the Supreme Court of Appeal (SCA) the remarks that the former South African High Commissioner to Uganda, Jon Qwelane made were systematically hurtful.
The SCA in Bloemfontein is hearing Qwelane’s appeal against the South Gauteng High Court ruling which found him guilty of hate speech in 2017 following a column he had written in a Sunday newspaper in 2008 against gay people.
The High Court judge ruled that he was guilty of hate speech and was inciting propaganda hate against homosexuals and the transgender community.
Ngcukaitobi says it was clear that the intention of Qwelane’s article was to incite propaganda.
‘You must remember that speech itself can be very hurtful without producing physical harm. Speech can induce fear, speech can on its own induce immense psychological distress; often as Justice Navsa pointed out the distress can be as a result of natural disagreement between people but the problem is whether distress is as a consequence of an immutable characteristic,” says Ngcukaitobi.
Legal representative for Qwelane, Advocate Mark Oppenheimer has submitted that the article was in no way promoting violence against the lesbian, gay, bisexual, transgender and intersex (LGBTI) community. He argued that the article was just an expression of desire.
Oppenheimer opened his argument saying that the ruling made by the High Court in Johannesburg against Qwelane was unconstitutional. He argued that the Equality Act infringes on the right of Freedom of speech.
The case was brought by the SAHRC after it said that it received many complaints against Qwelane’s 2008 column. The column, titled “Call me names, but gay is not okay” was published in his capacity as a journalist.
In this column, Qwelane expressed his opinion about homosexuals and he highly praised former Zimbabwe President Robert Mugabe’s unapologetic stance against gays and lesbians. In the article, Qwelane said that he would totally refuse to withdraw or apologise for his views. In 2017 Jon Qwelane was ordered to make an unconditional apology to the LGBT community.
Qwelane is appealing the high court judgement and its order.