The Gauteng High Court (Johannesburg) case in which Jon Qwelane is seeking to have sections of the Promotion of Equality and Prevention of Unfair Discrimination Act (Pepuda) that govern hate speech and harassment ruled inconsistent with the Constitution, has been postponed, notes a Mail & Guardian report. Qwelane’s legal representatives sought postponement of the trial, due to begin yesterday, due to Qwelane’s poor health.

Andrew Boerner, representing Qwelane, said: ‘The postponement was requested, and granted, on account of my client’s serious medical conditions: poor breathing and a poor heart condition. We provided a full report from his doctor on his health and feel satisfied that the court came to the right decision.’ The hearings were to follow on from the 2009 proceedings brought against Qwelane by the SA Human Rights Commission (SAHRC) after he published an unapologetically homophobic opinion piece in the Sunday Sun.

Commenting on the postponement, Webber Wentzel’s Kerry Williams, Psychological Society of SA's (PsySSA’s) legal representative, said: ‘Our client is deeply disappointed by the granting of the postponement – in particular because the judge did not give our client the opportunity to bring evidence before the court to oppose the postponement. The fact that, after eight years, Qwelane has not been held accountable for his hate speech in a court of law is a travesty of justice.’ No date has, as yet, been set for the matter to be brought back to the court.

Full Mail & Guardian report

The court ruled a request for an independent examination of Qwelane’s medical status to be a violation of his rights. Tembeka Ngcukaitobi, for the SAHRC, argued that the commission had requested Qwelane to be examined by an independent doctor and he refused. Judge J Moshidi said the request for an independent examination was insensitive and violated Qwelane’s rights to privacy, notes a report on the IoL site. He added that a request for Qwelane to be examined by another doctor was refused because the request was made by a ‘friend of the court’.

‘I’m not dealing with a criminal matter and won’t subject a person to be examined by an independent doctor,’ Moshidi said. The SAHRC said when making a decision, the judge had to apply what was in the interest of the public and justice. ‘If he is really sick he shouldn’t oppose being seen by an independent doctor,’ Ngcukaitobi said. Christiaan Bester, for Qwelane, produced an affidavit in support of their application for a postponement.

The affidavit included a report from Qwelane’s medical specialist who listed various medical conditions, including chronic airway disease and diabetes – described by the doctor as ‘very difficult to control’. The report said that he had been admitted to hospital repeatedly. Kate Hofmeyr, for the PsySSA, argued that there was no evidence that Qwelane would get better anytime soon and the best thing to do would be to deal with the trial swiftly. ‘If the trial is postponed then he will never be called to account for the hate speech,’ she said. The PsySSA and the SAHRC notified the judge that they would possibly make an application for leave to appeal after having time to review his decision.

Full report on the IoL site