Hope that Qwelane judgement will pave way for Hate Crimes Bill

Minister of Justice and Correctional Services, Ronald Lamola has welcomed the Jon Qwelane hate speech judgment handed down by the Constitutional Court.

On Friday, the court found in a unanimous ruling that Qwelane’s 2008 article, Call me names, but gay is NOT okay, was indeed hate speech.

The landmark decision, which follows a court battle spanning more than a decade, also set down a constitutionally legal definition of hate speech as: “Words that are based on one or more of the prohibited grounds, against any person, that could reasonably be construed to demonstrate a clear intention to be harmful or to incite harm and to promote or propagate hatred.”

“We welcome the judgment as it brings certainty and clarity as to what constitutes hate speech,” said Minister Lamola in a statement.

“Judgments such as these provide legal certainty and develop our constitutional jurisprudence on issues such as freedom of expression and issues of equality. This can only serve to deepen constitutionalism in our society,” he continued.

Lamola added that, “With this certainty, other pending draft legislation, such as the Prevention and Combating of Hate Crimes and Hate Speech Bill [also known as the Hate Crimes Bill], which is currently before Parliament, may be proceeded with.”

The Hate Crimes Bill has been in limbo since it was introduced in Parliament in 2018 because lawmakers have been waiting for the Constitutional Court to rule on the constitutionality of hate speech as defined in the Equality Act.

The delay has infuriated LGBTIQ+ activists who have been demanding that the legislation be passed following a horrific spike in murders of LGBTIQ+ people in South Africa this year.

Once passed, the bill will create the category of hate crimes, a move that is expected to improve the documenting, reporting and prosecution of these kinds of crimes.

At least 17 LGBTIQ+ individuals have been brutally killed across the country since February.

• Bonang Gaelae, 29, whose throat was slashed in Sebokeng on 12 February.
• Nonhlanhla Kunene, 37, whose body was found half naked in Edendale, Pietermaritzburg on 5 March.
• Sphamandla Khoza, 34, who was beaten, stabbed and had his throat slit on 29 March in Kwamashu, Durban.
• Nathaniel ‘Spokgoane’ Mbele, who was stabbed in the chest in Tshirela, Vanderbijlpark on 2 April.
• Khulekani Gomazi, 27, who was beaten to death on 3 April in Mpophomeni in KwaZulu-Natal after being accused of sexual assault.
• Andile ‘Lulu’ Nthuthela, 41, whose mutilated and burned body was found on 10 April in KwaNobuhle, Kariega.
• Lonwabo Jack, a young LGBTIQ+ individual who had just celebrated his 22nd birthday on 17 April. His lifeless body was found on a pavement the next day in Nyanga, Cape Town.
• Lucky Kleinboy Motshabi, 30, whose body was found in a field in the town of Dennilton, Limpopo on 24 April. He was naked with stab wounds on his body.
• Phelokazi Mqathana, 24, who was stabbed to death on the weekend of 1 May in Khayelitsha, Cape Town. It was reported that a man stabbed her after she rejected his advances.
• Lindokuhle Mapu, 23, who was stabbed to death in Mfuleni, outside of Cape Town, on 9 May.
• Aubrey Boshoga, 48, whose body was dumped outside his house in Johannesburg on 29 May.
• Masixole Level, 28, whose body was found on a street in Kwazakhele, in the Eastern Cape, on 6 June.
• Anele Bhengu, 28, whose stabbed and mutilated body was discovered in KwaMakhutha, KZN, on 13 June.
• Lulama Mvandaba, who died days after being beaten outside a shebeen in Khayelitsha in the Western Cape in June.
• Motse Moeketsi, 36, whose body was discovered in Freedom Park in Gauteng after he was reported missing on 18 June.
• Sheila Lebelo, a 33-year-old lesbian-identifying woman, who was murdered in Atteridgeville, outside of Pretoria, in June.
• Thapelo Sehata, 23, who died in hospital on 28 July after being severely assaulted and dumped along the side of the road in Senwabarwana, Limpopo.

In addition, gay man Sam Mbatha is still missing after a male body was discovered in his burnt-out car in Klipgat in the North West province on 17 June. The remains have yet to be identified through DNA testing.

Supporters are urged to sign the online petition demanding action against LGBTIQ+ hate and violence in South Africa.