South Africa: Op-Ed: Jon Qwelane’s hate speech – why words and context matter

Melanie Judge is an adviser to PsySSA and an adjunct associate professor in the Law Faculty at the University of Cape Town. Her book, Blackwashing Homophobia: Violence and the Politics of Sexuality, Gender and Race, will be released in September.

Last Friday, the South Gauteng High Court delivered a long-awaited judgment in the hate speech case of journalist and political figure Jon Qwelane. In his judgment, Judge Dimpheletse Moshidi found that the article Call me names, but gay is NOT okay, written by Qwelane and published in the Sunday Sun in 2008, amounts to hate speech as contemplated in s10(1) of the Equality Act (the Act). Justice Moshidi stated that “the offending statements are hurtful and harmful and have the potential of inciting harm towards the LGBTI community, and plainly propagate hatred towards them”.

The court also found that Qwelane’s defence, which challenged the constitutionality of the Act, failed and was dismissed with costs. These outcomes hold significance beyond the specifics of the case, and should be read against local and global contexts where racist, sexist and homophobic hate speech is regaining political voice and traction. But let’s first turn to the context in which Qwelane’s article appeared.

At the time when Qwelane wrote his hate speech, significant research came out, such as a South African Human Rights Commission (SAHRC) report as well as representative studies about the discrimination and violence faced by LGBTI people. Also, against the backdrop of the achievement of marriage equality just two years prior, 2008 was a time of heightened public visibility of LGBTI lived realities, in particular that of black lesbians, in light of numerous high-profile homophobic murders. In this context, Qwelane’s article was met with a vociferous and vocal reaction, as seen in the unprecedented number of complaints to the SAHRC, as well as complaints to the Press Ombud, and protest action outside the offices of Nasionale Pers (owners of the Sunday Sun).

In sum, Qwelane’s article expressed support for Robert Mugabe’s notorious views on homosexuals (Mugabe is on record for referring to gay people as “pigs” and “dogs”); likened same-sex marriage to bestiality; justified homophobia by asserting that “wrong is wrong!”; claimed that being gay is unnatural, and argued that gay and lesbian equality rights should be removed from the Constitution. In a tone antithetical to stimulating debate (a key argument in Qwelane’s defence), he also wrote, “Please tell the Human Rights Commission that I totally refuse to withdraw or apologise for my views”.

The provocation and offence of his words led the SAHRC to approach the Equality Court, seeking an apology and damages from Qwelane.  Fast-forward to last week’s judgment. In declaring that Qwelane’s utterances constitute hate speech, the court ordered that he pay the full costs of the proceedings including the postponement and senior counsel. He is also to tender an unconditional apology to the LGBTI community, the content of which is to be agreed to by the parties. 

With regards to the constitutional challenge, the court rejected Qwelane’s contention that the Act’s hate speech provisions are vague and too broad. Rather, it affirmed that the provisions be read in recognition of the harmful and hurtful effects of hate speech. In approaching hate speech in its proper context, the court placed a reasonable and justifiable limit on Qwelane’s right to freedom of expression.

The Qwelanes of the world might try to claim their entitlement to bigotry based on the right to freedom of expression (entrenched in s16 of the Constitution). However, seeking that protection – critical to an open society – is also subject to limitations. These limits, in which historical conditions of systemic oppression are crucial, are also related to the wider pursuit of a democracy based on principles of human dignity and equality. They are also critical in a global context in which the rise of the right is accompanied by its active co-option of the language of rights, in particular freedom of speech.

Under the pretext of freedom of expression, anti-Semitic and racist speech abounds – think recent events in Charlottesville in the US and the rhetoric of white supremacy. Yet free speech premised on the denial of the freedoms of others (such as Qwelane’s call for the rights of gay people to be stripped, and for us not to be regarded as fully human) cannot be a legitimate legal claim. 

Supremacies based on whiteness, maleness and/or straightness are frequently underwritten by discourses of dehumanisation. In considering the hurt and harm of the speech, Justice Moshidi contended, “It can never be acceptable, in the context and content of equality legislation and our democratic society, to equate human beings to bestiality or animals, and suggest to them that they are ‘other’ or ‘unnatural’”.

Whether against black people, women, queers, or a combination of these identities, the denigration of the equal worth of a stigmatised “other” lends legitimation to assertions of superiority. In seeking to dismantle the structures of inequality that produce and maintain hierarchies of power and privilege, words – and the contexts in which they are uttered – do matter. In times of Trump and Zuma, and the ethno-chauvinisms their regimes feed off, this matter(ing) of words is all the more pressing.

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