Quote of the week

As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.

Khampepe J
Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector Including Organs of State and Others (CCT 52/21) [2021] ZACC 28 (17 September 2021)
3 June 2011

My heart says hate speech but my head is not sure

Sometimes a case comes along that pulls one sharply in diametrically opposed directions: one’s heart in one direction and one’s head in another. Such a case is that of South Africa’s ambassador to Uganda, Jon Qwelane. Ambassador Qwelane – a former newspaper columnist and well known homophobe and bigot – this week was found guilty by an Equality Court of hate speech for writing a newspaper column in which he denigrated gay men and lesbians.

In the column – published in 2008 – Qwelane complained that “you regularly see men kissing other men in public, walking holding hands and shamefully flaunting what are misleadingly termed their ‘lifestyle’ and ’sexual preferences.’” The constitution also came under fire when he wrote that he prayed that politicians would some day have “the balls” to rewrite the constitution “to excise those sections which give license to men ‘marrying’ other men, and ditto women… Otherwise at this rate, how soon before some idiot demands to ‘marry’ an animal, and that this constitution ‘allows’ it?”

As I wrote at the time:

This is hateful stuff. Ignorant stuff. The kind of thing written by a man who is not very secure about his own sexuality. To equate homosexuality with bestiality is the kind of primary school argument used by bullies to denigrate gay men and lesbians and is not worthy of anyone with an IQ of more than 60. We all know most people who like to have sex with animals are heterosexual. (I will rather not talk about the strange morality in South Africa which abhors bestiality while seeing nothing wrong with killing and eating animals!)

David Bullard was fired from the Sunday Times for writing a far less offensive column – albeit on race and not sexual orientation. Qwelane is right, of course: wrong is wrong and being a hateful bigot is always wrong.

It was also wrong of the newspaper to publish this drivel. Maybe illegal too, but that is not the point. Even a tabloid like the Sunday Sun should show a modicum of responsibility and should not propagate hatred of gay men and lesbians. Just last month a Banyana Banyana player was murdered because she was a lesbian. This kind of column gives implicit legitimacy to such crimes and Qwelane and those in charge of the newspaper should be ashamed of themselves. They have blood on their hands – or soon will – because others will be killed in the name of this kind of hatred.

But should Qwelane have been found guilty of hate speech. I have often argued that the provisions on hate speech in the Equality Act are too broadly phrased and that section 10 of that Act which prohibits hate speech may well be unconstitutional. I have also argued consistently that when one determines whether a person can reasonably be construed as having had the intention to be hurtful to others based on their race, sex, or sexual orientation, context is everything.

Part of the context in South Africa is that of a deeply ingrained hatred of gay men and lesbians. 

A few weeks ago Noxolo Nogwaza, a 24-year-old member of an Ekurhuleni gay rights group, was stoned to death in KwaThema outside Johannesburg, apparently because she was a lesbian. She has joined a long list of lesbians – including Banyana Banyana star Eudy Simelane and Cape Town activist Zoliswa Nkonyana – who have been brutally murdered in South Africa, merely because they dared to live openly and proudly as gay men or lesbians.

It can be argued that the kinds of statements made by Qwelane in his column – widely read by those who buy tabloid newspapers – might have encouraged the criminal bigots out there to go out and rape and murder lesbians, or at least might have confirmed their prejudices and might have comforted them by affirming their views about women in general and about lesbians in particular.

And yet…. and yet….

Is the hate speech route the best route to deal with these beliefs – which are, after all, widely shared? Would it not do more good if our government actually fired Qwelane (as it should have done long ago) and if it embarked on a massive education campaign in schools and elsewhere to teach the population how to respect the human dignity of us gay men and lesbians? By making it unlawful for anyone to utter such hateful statements, are we not driving these beliefs underground – instead of addressing them head on and eventually eradicating them?

As was the case with Julius Malema, I would probably not have brought a hate speech claim against Qwelane. Although I feel jubilant that Qwelane’s hateful bigotry has been declared hate speech (my heart talking), I remain unconvinced that the hate speech route will really address the very real and urgent problems relating to sexism and homophobia in our society (my head talking). Can one hold both of these impulses in one’s hands and remain consistent?

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