Presenting closing arguments in the High Court in Johannesburg on Tuesday‚ Qwelane’s advocate Musatondwa Musandiwa said that the South African Human Rights Commission had not made a strong enough case against his client.
“They have not demonstrated to this court there was a clear intention to be harmful or [commit] harm or a clear intention to propagate hatred.”
When asked by judge Dimpheletse Moshidi what penalty Qwelane should get if the court finds his comments are hate speech‚ Musandiwa said:
“I do not think Mr Qwelane would be against making an apology but we would need proper instructions from him regarding that.”
The commission wants the court to order Qwelane to apologise for the column and pay a R100,000 penalty.
Qwelane claims his 2008 Sunday Sun column titled‚ “Call me names‚ but Gay is NOT okay‚” is protected by his right to freedom of expression and that it does not amount to hate speech.
In the column he suggests that the Constitution’s acceptance of gay marriage would lead to “some idiot being demands to marry an animal”. He also endorsed the views of Zimbabwe President Robert Mugabe – who has compared gay and lesbian people to dogs and pigs.
Musandiwa argued that the commission’s witnesses had failed to prove that members of the lesbian‚ gay‚ bisexual‚ transgender and intersex (LGBTI) community had been harassed directly because of the column.
He also argued that section 10 of the Equality Act‚ which deals with hate speech‚ “casts the net far too wide”.
“Anything that is offensive and be construed as hurtful. It undermines freedom of expression and doesn’t merely limit it.”
Qwelane‚ who has not attended proceedings because he is in hospital‚ said in his column he would not engage with the commission and has not apologised for his comments.
But Musandiwa said Qwelane may have changed his mind.
“[The commission] should have approached Mr Qwelane and asked him if he still stands by his comments. People say things in the heat of the moment and later‚ given an opportunity to retract‚ they would retract.”
The commission had shown it was inconsistent in the way it applied his policies because it dropped its case against Media24‚ the publisher of the column‚ after it apologised‚ but pursued the matter against Qwelane‚ Musandiwa said.
It is Qwelane’s submission that he is covered by Media24’s apology as he was writing in his capacity as one of its columnists.
– TMG Digital