Jon Qwelane hate speech case to be heard in March

14 December 2016 - 13:32 By Katharine Child
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The Constitutional Court has dismissed an objection by the Psychological Society of South Africa's objection to the postponement of the hate speech hearing against former ambassador Jon Qwelane. In 2008 Qwelane wrote a Sunday World column: "Call me names but Gay is not OK"‚ in which he suggested the Constitution's acceptance of gay marriage would lead to "some idiot being allowed to marry an animal".

Qwelane was due to appear in the Johannesburg High Court in August‚ but his legal representatives said he was in ill health‚ and asked the court for a postponement on the day the trial was due to begin. The High Court granted an indefinite postponement.

Qwelane's medical records show he has suffered from heart problems‚ has difficulty breathing‚ lung disease‚ and a permanent need for oxygen and that his illness is progressive. The Psychological Society (Psy SA)‚ a friend of the court‚ argued to the Constitutional Court that the postponement meant Qwelane would never be brought to justice.

Psy SA were also unhappy that in the months leading up to the trial‚ not a word of Qwelane's ill health was mentioned by his lawyers.

The Constitutional Court found that while the postponement was procedurally unfair‚ as Psy SA and the SA Human Rights Commission were not allowed a chance to object‚ it could not overturn the high court's indefinite postponement.

This is because there is now a date set for the case to be heard in March 2017‚ in the Johannesburg High Court.

Justice Judge Edwin Cameron ruled: "The court on balance must decide if it is in the interests of justice to grant leave to appeal [a lower court's ruling].

"The matter has now been set down for a hearing. There are specified dates. These appear to be in March 2017. The result is that the indefinite postponement to which Psy SA was objecting to is no longer indefinite. It is [therefore] not in the interests in justice to intervene in the case."

Qwelane's lawyer Andrew Boerner‚ from Jurgens Bekker Attorneys‚ said Qwelane was very sick. He checked on his client's condition monthly.

Speaking outside court‚ Boerner said he would keep the court notified of his client's ill health.

He could not say if he believed Qwelane would be well enough to appear in court in March.

He said the delays in the matter were as a result of SA Human Rights Commission taking so long to combine two separate matters into one legal case.

In 2009 the SA Human Rights Commission lodged a complaint in the Equality Court against Qwelane's homophobic comments. Qwelane is appealing the court ruling‚ which ordered him to pay R100‚000 and apologise to the lesbian and gay community.

In 2013 Qwelane also filed a new case that questioned the constitutionality of the Equality Act‚ which defines hate speech as "hurtful" - which he claimed was a broad and vague definition.

After years of legal wrangling‚ the two cases were to be heard as one in August.

They will now be heard in March.

Psy SA has accused Qwelane of using "every trick in the book" to avoid having to account for his views. Boerner said had the two legal cases not been combined into one‚ Qwelane would have been ready to appear in the high court to challenge the hate speech verdict in November 2014.

- TMG Digital/The Times

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