No justification or defence for Jon Qwelane’s ‘hate speech’‚ Human Rights Commission tells court

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This was among the submissions made by the South African Human Rights Commission when it made closing arguments in Qwelane’s hate speech matter on Tuesday at the High Court in Johannesburg.

In the Sunday Sun column column titled‚ “Call me names‚ but Gay is NOT okay‚” Qwelane suggested 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 and called for their arrests.

Advocate Tembeka Ngcukaitobi‚ for the commission‚ said Qwelane had called homosexuality a lifestyle in the column‚ which it is not.

“This is not a question of lifestyle. This is a question of the embodiment of one’s humanity. [Calling it a lifestyle] is a negation of one’s personality since it presupposes‚ without any basis or justification‚ that homosexuality is a choice.”

Ngcukaitobi also stressed that a reference to the possibility of men marrying animals is “extremely distressing”.

“It speaks to bestiality‚ and it goes to the heart of degradation and it might serve the court well to consider victimisation start with perceptions and it leads to prejudice.”

Qwelane’s legal team suggested that the intention behind the column was to spark debate and that despite its offensive nature‚ the column does not amount to hate speech.

Referring to the 2011 judgment in the hate speech matter between Afriforum and Julius Malema‚ Ngcukaitobi said the court had found that‚ “the intention of the person who utters the words is irrelevant”.

“If the words constitute hate speech they cannot be justified on the basis of an entitlement to communicate them. Justification is not a defence‚ as it does not change the character of the words as hate speech.”

In the column Qwelane wrote: “I do pray that some day a bunch of politicians with their heads affixed firmly to their necks will muster the balls to rewrite the constitution of this country‚ to excise those sections which give license to men ‘marrying’ other men‚ and ditto women”.

Ngcukaitobi said this passage used masculine language and that it is so-called acts of masculinity which are used to victimise members of the lesbian‚ gay‚ bisexual‚ transgender and intersex (LGBTI) community.

“[The passage] causes particular harm in the psychological makeup of a [LGBTI] person reading the article because it denies them their ability to function in society.”

Witnesses testified in the hearing that members of the LGBTI community are assaulted‚ raped and murdered because of their sexual orientation.

The commission’s case is that the column constitutes hate speech because any reasonable reader would come to the conclusion that it demonstrates a clear intention to be hurtful‚ harmful or incite harm or promote or propagate hatred.

The commission wants the court to order Qwelane to apologise and pay a R100 000 penalty.

TMG Digital

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