Qwelane did not call for harm against gay people, ConCourt hears
Updated | By Gaopalelwe Phalaetsile
The Constitutional Court has heard that veteran journalist John Qwelane was not calling for harm against the gay and lesbian community when he wrote his infamous article in 2008.
Qwelane penned an article in the Sunday Sun in which he called for gay marriage to be abolished.
On Tuesday, the country’s apex court heard arguments from the legal teams representing Qwelane and the South African Human Rights Commission on the constitutionality of Section 10 of the Equality Act.
The act was used by both the Equality Court and the High Court to declare Qwelane's article as hate speech.
Qwelane’s legal representative Advocate Mark Oppenheimer wants the court to uphold a 2017 ruling by the Supreme Court of Appeal.
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The ruling declared Section 10 unconstitutional on the basis that it is inconsistent with Section 16 of the Constitution, which protects freedom of speech and the press.
"At no point in time does the article ever call for any harm to be perpetrated against gay people,” said Oppenheimer.
“What Mr Qwelane does is express a concern about gay marriage after it was legalised in 2006 after a finding by this court. There is a call for legal reform on that basis. Mr Qwelane denies calling for any harm against gay people.”
Oppenheimer argued that freedom of speech allows for persuasion and ultimately could see people change their minds on a range of topics.
The South African Human Rights Commission, which found Qwelane's article to have constituted hate speech, challenged Oppenheimer’s argument.
"We are not dealing with abstract notions of speech, we are dealing with people's experiences in areas that are most vulnerable, in townships and villages. We are dealing with speech that transitions from words to actions," said Advocate Thembeka Ngcukaitobi.
He said the Supreme Court of Appeal assumed that Section 10 of the Equality Act can be measured with Section 16 of the Constitution.
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