This was among the submissions made by the South African Human Rights Commission when it made closing arguments in the matter on Tuesday at the High Court in Johannesburg.
Qwelane has not attended the hearing‚ dealing with homophobic views he expressed in a 2008 newspaper column‚ since its commencement last week‚ after he collapsed in a shopping mall and was hospitalised.
In 2008 the Sunday Sun column titled‚ “Call me names‚ but Gay is NOT okay‚” suggested that the Constitution’s acceptance of gay marriage would lead to “some idiot being demands to marry an animal”.
Qwelane also endorsed the views of Zimbabwe President Robet Mugabe – who has compared gay and lesbian people to dogs and pigs.
Advocate Tembeka Ngcukaitobi‚ for the commission‚ said Qwelane’s absence showed contempt for the commission as well as the court.
“He has not produced evidence to excuse him [from proceedings]. He did not even bother to get a medical certificate.
“We are not only dealing with a delinquent but someone who has no respect for the institutions of the Constitution.
“None of his so-called defences in relation to this case can be accepted. Since he elected not to testify and answer questions about the views he expressed it is irrelevant at this stage‚” Ngcukaitobi said.
The commission wants the court to find Qwelane’s comments amounted to hate speech and order him to apologise and pay a R100 000 penalty.
Ngcukaitobi argued that testimony by three witnesses called by the commission showed that there is a direct causal link between hate speech and hate crimes.
“It is the case of the Commission that the article constitutes hate speech because any reasonable person reading the words would come to the conclusion that they demonstrate a clear intention to be hurtful‚ harmful or incite harm or promote or propagate hatred.
“We submit that the article is in and of itself harmful. It is harmful to the indignity and causes deep psychological and emotional harm to the target group.”
The lesbian‚ gay‚ bisexual‚ transgender and intersex (LGBTI) community is particularly vulnerable in South Africa‚ which despite reforms of the past‚ remains a homophobic society‚ Ngcukaitobi said.
“Gays and lesbians are subject to acts of violence against them on account of their sexual orientation. Those violent acts are not spontaneous. They begin by hate speech and escalate into actual physical violence.”
In not showing up to engage the court and the commission on his comments‚ Qwelane’s conduct was contemptuous and deserving of a costs order‚ Ngcukaitobi said.
Qwelane’s advocate Musatondwa Musandiwa said Qwelane was genuinely too ill to come to court and should not be viewed as being in contempt of court.
– TMG Digital