Jon Qwelane back in court

The Johannesburg High Court must decide whether a hate speech case and a constitutional challenge to the Equality Act are so closely linked that it can hear the cases as one.

The South African Human Rights Commission (SAHRC) has asked the court to join its Equality Court case against former South African High Commissioner to Uganda Jon Qwelane with his constitutional challenge of provisions of the Equality Act.

The court heard arguments on Thursday.

The SAHRC first instituted a hate speech case against Qwelane in 2009 following his Sunday Sun column on July 20, 2008, headlined “Call me names, but gay is NOT okay…”

The commission argued that the column amounted to hate speech and wanted Qwelane to apologise to the gay and lesbian community.

 In 2011, the Equality Court ordered Qwelane to apologise to the gay and lesbian community and pay R100 000 to the commission. He refused, saying the column was not hate speech.

Qwelane succeeded in having the judgment rescinded but the commission instituted new proceedings against him, seeking the same relief again.

Qwelane has in the meantime brought a case challenging certain provisions of the Equality Act and wants the Equality Court case to be halted pending the outcome.

He brought his challenge against Minister of Justice Michael Masutha and the Freedom of Expression Institute and Psychological Society of South Africa have joined the proceedings as friends of the court.

Arguing on behalf of the SAHRC, Advocate Thembeka Ngcukaitobi said it was in the interest of all the parties that the commission's Equality Court case and Qwelane’s constitutional challenge be decided “concurrently”.

“The most expeditious way of dealing with the matter is a referral to a single judge to adjudicate on both matters,” he said.

Advocate Hamilton Maenetje SC for Masutha said consolidating the cases would save costs.

Advocate Kathryn Serafino-Dooley, for Qwelane, said the cases should be dealt with separately.

“If we are correct on the constitutional challenge, the Equality Court proceedings fall away,” she said.

She also said that the high court did not have jurisdiction to hear the Equality Court matter.

Judgment in the SAHRC's application is expected next Friday.