Qwelane ruling cornerstone of hate speech appeal
Publish date: 20 January 2020
Issue Number: 856
Diary: IBA Legalbrief Africa
A hate speech ruling that went in favour of former columnist Jon Qwelane is at the centre of Afrikaner rights group AfriForum's 1928 SA flag appeal case. A Times Select report notes that last August, gratuitous displays of the old flag were declared hate speech by the Equality Court in Johannesburg following submissions by the Nelson Mandela Foundation. Judge President Phineas Mojapelo said the flag sent a visual message ‘of the belief in, or support of, racism’. AfriForum then approached the SCA. Meanwhile, in November, the appeal court cleared Qwelane of hate speech in a column in 2008 that compared homosexuals to animals and lauded then-Zimbabwean President Robert Mugabe’s ‘unapologetic stance’ against homosexuality. The case was based on the Promotion of Equality and Prevention of Unfair Discrimination Act, which says ‘no person may publish, propagate or communicate words … (that are) hurtful, to incite harm, promote or propagate hatred’. The judges said the Act was ‘vague’ and ‘overbroad’, and required amendment to make it clear that to be classified as hate speech, words must incite violence. The Constitutional Court has yet to confirm the Qwelane ruling, but AfriForum’s lawyer, Willie Spies, said it would be a key factor in the flag case – if the appeal court agreed to hear it. ‘AfriForum agrees that waving the flag is hurtful and offensive, but it can’t constitute hate speech because there is no call to action,’ Spies said. Rupert Candy, who represents the Nelson Mandela Foundation, said if the appeal court heard the flag matter before the Constitutional Court ruled on the Qwelane case, the foundation would argue that there was no relationship between the two. AfriForum has until the end of January to submit further arguments in support of its application for leave to appeal.