Arguing Qwelane’s case in the High Court in Johannesburg on Wednesday‚ advocate Musatondwa Musandiwa said that sections 10 and 11 of the Equality Act prohibits free speech because they are broad and vague.
Qwelane‚ who is accused of propagating hatred in a 2008 Sunday Sun column titled‚ “Call me names‚ but Gay is NOT okay‚” was not in court due to ill health. His views expressed in the column‚ which include an endorsement of Zimbabwe president Robert Mugabe’s comments on homosexuals‚ are the subject of a another court application.
In heads of argument‚ Qwelane claims that section 10‚ “is so vague that it offends the rule of law‚” and‚ “that it is an overbroad prohibition that impermissibly limits section 16 of the Constitution”.
The Act states that‚ “no person may publish‚ propagate‚ advocate or communicate words based on one or more of the prohibited grounds‚ against any person‚ that could reasonably be construed to demonstrate a clear intention to – a) be hurtful; b) be harmful or to incite harm; c) promote or propagate hatred”.
According to Qwelane the wording of the Act is “clearly broader” than what is provided for in the Constitution and‚ therefore‚ limits freedom of expression.
“The threshold for prohibition … is also impermissibly lowered because it only requires the words that ‘could reasonably be construed to demonstrate a clear intention’ instead of something that‚ in fact‚ ‘constitutes incitement to cause harm’.
“The use of the conditional word ‘could’ implies that the ‘construction’ that demonstrates a clear intention need only be within the realm of reasonable possibility. The Constitution‚ however‚ requires actual constitution of incitement to cause harm.”
Qwelane argued that freedom of expression is protected in the Constitution and‚ “although not automatically trumping any other rights in the Bill of Rights‚ is foundational to and‚ indeed‚ ‘constructive of the dignity and autonomy of human beings’.”
He also challenged section 11‚ which states that “No person may subject any other person to harassment‚” saying the Act limits freedom of expression in its definition of harassment.
Qwelane said his opponent‚ the South African Human Rights Commission‚ interpreted the Act to prohibit “unwanted conduct which is persistent or serious and demeans‚ humiliates or creates a hostile or intimidating environment or is calculated to induce submission by actual or threatened adverse consequences and which is related to inter alia sexual orientation”.
This unreasonably limits the right to freedom of expression as it fails to comply with the section 36 Constitution‚ he argued.
Qwelane said that the language used in section 11 is also so vague that journalists could struggle to decipher what is permitted and end up censoring their views for fear of legal consequences.
“Simply put‚ it will not be worth the trouble and expense to express controversial views that many consider to emanate from the periphery of contemporary public discourse.
“The end result is that our constitutional democracy will be saddled with journalistic views that are unashamedly politically correct and so mundane that they are incapable of producing critical debate and stimulating the kinds of self-inspection so vital to the democratic process.”
Responding to these claims of broadness and vagueness‚ the South African Human Rights Commission said that other provisions in legislation‚ including the Constitution‚ assist in clarifying free speech limitations.
Counsel for the Minister of Justice and Correctional Services also opposed Qwelane’s application‚ asking it be dismissed.
The hearing continues.
– TMG Digital