It is important for the Constitutional Court to give a proper interpretation of the law arising from the case of former diplomat Jon Qwelane's opinion on same-sex marriage, a legal expert is quoted as saying in a News24 report. 

Phephelaphi Dube was reacting to the SCA judgment overturning a High Court ruling that found Qwelane guilty of hate speech. The SCA ordered Parliament to rewrite the ‘vague’ and ‘overbroad’ law meant to protect against discrimination.

The SCA declared section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act to be inconsistent with the provisions of section 16 of the Constitution, and therefore unconstitutional and invalid. It gave Parliament 18 months from 29 November 2019 to remedy the defect.

The former ambassador to Uganda was found guilty of hate speech in the Gauteng High Court (Johannesburg) in 2017 following a column – Call me names, but gay is not okay – in which Qwelane expressed his opinion on same-sex relationships.

Speaking on behalf of the SA Human Rights Commission (SAHRC), Professor Bongani Majola said the commission had ‘mixed feelings’ about the judgment. He said the SAHRC had struggled with the application of section 10 of the Act, adding ‘it is not the easiest (section to apply)’.

‘It is a difficult section to apply. That was also made even more difficult by the different High Courts. We are not happy there was a dismissal, but we are much happier because it offers an opportunity for the clarification of the law. The judge has set it aside, and he has formulated a brief and much more understandable version. Hopefully, one that we will be able to work with until Parliament passes a replacement section,’ Majola said.

The importance of the case going to the Constitutional Court is stressed by independent legal analyst Dube in the News24 report.

He said: ‘It would be important for this case to go all the way to the Constitutional Court because at the moment, there really isn't clarity on boundaries of freedom of expression. The courts rightly point out that the Act goes a step further than what the Constitution provides in a sense that it adds an element of hurtfulness that the Constitution doesn't have. So, at the same time, the Constitution does say we can limit these rights, but any limitation needs to be reasonable in an open and democratic society.’

Dube said it was important for the apex court to come in and give a proper interpretation of the true limits of section 16 of the Constitution.

Full News24 report