THE hate speech court case against columnist Jon Qwelane, eight years in the making, was indefinitely postponed by the High Court in Johannesburg on Monday, due to Qwelane’s ill health, raising questions about whether the case would ever be heard.
The case was expected to be precedent-setting — the first high-profile hate speech case involving alleged homophobic speech. Reports had been filed in court with evidence of the damaging effect this kind of speech had on an already vulnerable group, in particular black, lesbian women.
The court was also to hear Qwelane’s challenge to the constitutionality of the Equality Act, a subject that has long been debated.
In 2008, in his popular Sunday Sun column, Qwelane hailed Zimbabwean President Robert Mugabe for his "unflinching and unapologetic stance" on homosexuality. He also said the Constitution needed to be amended to remove sections that allowed men to get married to one another.
The South African Human Rights Commission took him to the Equality Court, saying the statements amounted to hate speech. Qwelane then challenged the act, and the two cases were consolidated to be heard as one.
The case set down for two weeks, but on the day it was due to begin, Qwelane’s counsel, Christiaan Bester, applied for an indefinite postponement, saying Qwelane was suffering from a number of ailments, including cardiac failure and insulin-dependent diabetes.
Whatever one thought of Qwelane and his column, he had a right to participate in the hearing and to be heard, said Bester. He said Qwelane’s specialist found he was not fit to attend court and the stress of it would put him at risk of a coma, and even death.
"No court case, no legal case, is more important than someone’s life," said Bester.
But counsel for the South African Human Rights Commission, Tembeka Ngcukaitobi, said the postponement application was, in effect, an application for a permanent stay of the case, as Qwelane’s doctor had said that his prognosis was not good. There was no evidence that he would get better or recover sufficiently to participate.
If anything, the prognosis made it "more urgent that Mr Qwelane’s evidence be procured," said Ngcukaitobi.
Counsel for friend of the court the Psychological Society of SA, Kate Hofmeyr, argued that the important question was not whether Qwelane was fit to come to court, but whether he was of sound enough mind to take the oath and give testimony. Special measures — such as hearing his evidence at home — were permissible under the rules of court, she said.
She said the Equality Court served a special purpose in society. The human rights commission was acting in the public interest — to secure an apology for the victims of Qwelane’s hate speech and to hold him to account for the "deep and damaging effect".
"His victims have been waiting for eight years for these proceedings," she said.
Judge Dimpheletse Moshidi said it was a "difficult decision", but Qwelane’s application was made in good faith and was not a delaying tactic. He said the spirit of ubuntu also moved him to grant the postponement.
Immediately after the judge’s order, the Psychological Association applied to appeal against it but were directed to lodge its appeal "in the ordinary course".
Judge Moshidi said a full-bench appeal was likely only to be heard next year.