Controversial former diplomat and ‘gay is not OK’ columnist Jon Qwelane scored a victory in the SCA last week when the court dismissed a finding that he was guilty of hate speech and ordered Parliament to rewrite the ‘vague’ and ‘overbroad’ law meant to protect against discrimination.

In the column, Qwelane lauded former Zimbabwean President Robert Mugabe's ‘unflinching and unapologetic stance’ on homosexuality. In essence, notes a Sunday Times report, the court ruled that while the intentions of the law are noble, it oversteps the mark in curbing free speech.

The court held that an opinion like Qwelane's may be hurtful without being hate speech, and thus he is protected by his right to express a view.

Qwelane described the ruling as ‘the greatest thing to happen to free speech in the country's history’, but gender activists said they were disappointed.

Qwelane, a former high commissioner to Uganda, was criticised after he wrote a newspaper column in 2008 in which he urged politicians to rewrite the Constitution to outlaw same-sex marriages, suggesting that acceptance of gay marriage will ultimately lead to demands to ‘marry an animal’.

MPs now have 18 months to rework provisions of the Promotion of Equality and Prevention of Unfair Discrimination Act (Pepuda).

‘It is clear that the legislature wanted to regulate hate speech as broadly as possible. Unfortunately, it did not do so with the necessary precision and within constitutional bounds,’ the court found.

The hate speech provisions of the Act were declared invalid.

While the provisions of hate speech laws are reconsidered, the court rejigged sections of the law to ensure vulnerable groups are protected in the interim, notes the Sunday Times. A key pillar of the court's ruling is that the test for hate speech needs to be objective, and that incitement to cause harm needs to be proved.

The ruling cannot be retrospectively applied, so those who have already fallen foul of hate speech laws are without recourse.

The ruling has been referred to the Constitutional Court for confirmation. The SCA found the hate speech provisions were badly worded, overly broad and used a subjective test, thus clashing with the right to freedom of expression.

The relevant section of the Act states: ‘No one may publish, propagate, advocate or communicate words based on one or more of the prohibited grounds, against any person, that could reasonably be construed to demonstrate a clear intention to be hurtful; be harmful or to incite harm; promote or propagate hatred.’

Full Sunday Times report (subscription needed)

Qwelane v SAHRC & Others

The SCA judgment highlighted three ways in which Pepuda illegitimately over-broadened the definition of hate speech, according to Rapport. They are:

* Inclusion of the concept of ‘hurtfulness’, now struck down.

* Causing a disjunctive interpretation of the requirements for hate speech. If a comment was hurtful, or caused harm, or incited violence, it qualified as hate speech. The correct position is a conjunctive reading, the SCA held, meaning the comment should cause harm and should incite violence to fall within the definition.

* While the Constitution recognises race, ethinicity, gender, sexual orientation and religion as grounds for hate speech, Pepuda expanded that to include pregnancy, convictions, language, colour, culture and even ‘anything’ that infringes on human dignity or perpetuates ‘systemic disadvantage’.

The judgment may have a profound effect on pending high-profile hate speech cases, says Rapport. Chief among them is the Human Rights Commission’s pending bid in the Equality Court to declare the use of the word ‘hotnot’ – as was allegedly used by Springbok lock Eben Etzebeth – to be hate speech.

The HRC argues that the word ‘hotnot’ is the same as the K-word and therefore automatically is hate speech. The K-word has been held to be hate speech even when used between two black people.

In another case, some BLF leaders are accused of hate speech for ‘welcoming’ the death of white pupils in the Hoërskool Driehook bridge collapse tragedy. The BLF leaders argue in that case that their comments cannot be hate speech merely because they offended or hurt some people.

Another pending appeal is the declaration by the Equality Court that the unnecessary display of the old South African flag is hate speech as it is offensive and deeply hurtful to the majority of the population.

Rupert Candy, an attorney at the Nelson Mandela Foundation which is driving the flag case, said the SCA judgment has no effect until it is confirmed. He will advise the foundation to intervene in the matter when it heads to the Constitutional Court ‘as hate speech laws are necessary in SA to protect vulnerable groups such as black lesbians in townships’.

AfriForum’s Kallie Kriel, who is appealing the flag case, welcomed the judgment as a huge victory for freedom of speech.

‘The judgment means that legislation can no longer be abused to curb freedom of speech, because then we are in a ridiculous spiral. In such a spiral, anybody can decide what is hate speech and what is not.’