Jon Qwelane Constitutional Court case postponed

The Constitutional Court hearing on the Jon Qwelane hate speech case that was set for Thursday did not go ahead as planned due to the coronavirus lockdown.

Lawyers for Human Rights confirmed on Twitter that the hearing was postponed and that “we and our clients… are awaiting instructions on a new hearing date, along with other parties.”

According to media lawyer Dario Milo from Webber Wentzel, the reason was that “the applicant and respondents could not agree on whether to have a virtual hearing or have the court decide on papers.”

The court postponed the matter “to when there can be a physical hearing after the parties were asked what their preference was.”

The Constitutional Court is considering the now decade-long case after the Supreme Court of Appeal overturned Qwelane’s 2017 Johannesburg High Court hate speech conviction in November last year.

The Court of Appeal found that the section of the Equality Act under which he was found guilty is unconstitutional – a ruling which must now be confirmed or rejected by the Constitutional Court. Once it does so, that will be the final word in the saga.

Qwelane’s lawyers argue that unless speech specifically calls for violence or harm against a group it should not be classed as hate speech and that simply causing hurt or offence is not enough.

“While the article is strongly worded, evinces a strident position on homosexuality and is (or ought arguably to be) offensive to a broad range of society it nonetheless does not advocate hatred against homosexuals,” they claim in court papers.

In his now-infamous 2008 article, the disgraced former journalist suggested that homosexuality was similar to bestiality, said he supported Robert Mugabe’s homophobia and urged politicians to remove the sexual orientation equality clause from the Constitution.

Qwelane was taken to the Equality Court by the SA Human Rights Commission (SAHRC) which has led to the marathon legal battle.