The Supreme Court of Appeal (SCA) judgment in the Jon Qwelane case removes the concept of “hurt” from South Africa’s hate speech laws. It affirms freedom of expression.

Espousing and fostering hatred is the antithesis of South Africa’s Constitutional order, but freedom of expression is vital to - and indeed the lifeblood of - a democratic society. So begins a 46-page judgment penned by Supreme Court of Appeal Judge Mahomed Navsa (with four judges concurring) which has got tongues wagging.

Before them was an appeal by columnist and former Ugandan ambassador Jon Qwelane who ten years ago penned an offensive column in which he sided with former Zimababwean President Robert Mugabe’s anti-gay stance, calling for a revision of laws which allow same-sex marriages because “at this rate, how soon before some idiot demands to marry an animal”.

The SA Human Rights Commission took action against him, saying he was advocating hatred against gay people, relying on section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA).

The matters were consolidated and heard by Judge Seun Moshidi who, after hearing evidence from the Commission, the Freedom of Expression Institute and the Psychological Society of South Africa, ruled against Qwelena, finding that his column was “hurtful, harmful, incited harm and propagated hate and amounted to hate speech”. Judge Moshidi ordered Qwelane to publish a prominent apology.

Aggrieved, Qwelane persisted with his attack on PEPUDA in the SCA — an appeal Judge Navsa described as “bringing into focus the tension between hate speech and freedom of expression”. The Constitution, it was argued, guarantees the rights of freedom of expression except if it is propaganda for war, incitement of imminent violence or “advocacy of hatred based on race, ethnicity, gender or religion and that constitutes incitement to cause harm”.