Court rules on one of South Africa’s most publicised hate speech matters

On Friday, 18 August 2017, the High Court of South Africa, Gauteng Local Division ruled in favour of the South African Human Rights Commission (SAHRC), in the matter of South African Human Rights Commission & 3 Others v Jon Qwelane, and declared that comments made by former newspaper editor Jonathan Qwelane (Qwelane) amounted to hate speech under the provisions of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000,  read with section 9(4) of the Constitution of the Republic of South Africa, 1996 (Constitution).

Perusha Pillay-Shaik, partner at pan-African law firm Bowmans, says: “It has taken many years to bring this matter to a close. However, the timing of the ruling is enormously significant considering the recent spate of incidents of victimisation against members of the Lesbian, Gay, Bisexual, Transgender, Intersex and Gender Non-Conforming (LGBTI GNC) community and the controversial publications of hateful racist comments made on social media”.

Bowmans has represented the SAHRC, on a pro bono basis, in its long-running legal action against Qwelane, whose controversial article, which is the crux of the litigation, was published in a popular newspaper in July 2008.

Pillay-Shaik explains, “The case arose in 2008 when the SAHRC received over 350 complaints about the content of the article from members of the public. The complainants and other aggrieved members of society have waited a long time to see Mr Qwelane held accountable for his actions.

“Members of the LGBTI GNC community are subjected to homophobic hate crimes on an ongoing basis and the judgment will impact all South Africans who have been subjected to hateful sexist and racist speech and discriminatory behaviour.

“It has been a privilege for us to stand with the SAHRC, whose action is helping to shape our constitutional jurisprudence in relation to hate speech and freedom of expression. As proactive supporters of human rights through our pro bono programme, it is important to Bowmans to promote social justice and take a stand against unfair discrimination.”